Rowe v. Foster's Daily Democrat CV-94-623-SD 08/24/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Mari-Beth McGuinn Rowe

v. Civil No. 94-623-SD

Foster's Daily Democrat

O R D E R

In this civil action, plaintiff Mari-Beth McGuinn Rowe

alleges defendant Foster's Daily Democrat violated Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et sea., when it

terminated her employment on June 22, 1990. In conjunction with

said federal claim, plaintiff presents allegations under New

Hampshire common law for (1) wrongful discharge; (2) intentional

and negligent infliction of severe emotional distress, and (3)

enhanced compensatory damages. Plaintiff further alleges

defendant's conduct violated New Hampshire Revised Statutes

Annotated (RSA) 354-A.

Presently before the court are defendant's motion for

partial summary judgment as to plaintiff's state-law claims and

defendant's motion to strike jury demand, to which plaintiff

objects accordingly. Background

On or about September 12, 1987, Rowe began her employment

with Foster's Daily Democrat as an account representative selling

classified advertisements. Complaint 55 10-11. At the time of

her termination on June 22, 1990, Rowe held the position of

Account Representative for Retail Sales. Id. 5 ll.1

Rowe prepared a written charge of discrimination on

August 24, 1990, which was filed with the New Hampshire

Commission for Human Rights (NHCHR) and the Egual Employment

Opportunity Commission (EEOC) on September 10, 1990. See Charge

(attached as Exhibit A to Plaintiff's Objection). Said charge

was grounded on allegations of sexual harassment in the

workplace. On October 5, 1990, plaintiff amended her original

charge to include a claim for sex discrimination, see Amended

Charge (attached as Exhibit A to Objection), which was filed with

the NHCHR on October 10, 1990.

At the time plaintiff filed her charges with the NHCHR,

budgetary constraints had resulted in a "large backlog of cases"

with "each investigator carr[ying] a very large load." Septem­

ber 14, 1990, letter from NHCHR (attached as Exhibit B to

1Although irrelevant to resolution of the motions sub judice, the court notes the dispute among the parties regarding whether this semantic change constitutes a "promotion". See Complaint 5 11; Answer 5 11.

2 Objection). In concrete terms, Rowe was informed "it [the

backlog] means that there is usually a very long wait for the

case to be picked up for investigation." Id. This advice proved

prescient, as Rowe subseguently received letters dated March 5,

1991 (attached as Exhibit B to Objection), and January 20, 1992

(attached as Exhibit C to Objection), indicating that the

"backlog" was "slowly but surely" being reduced. No

communication from the NHCHR ever informed Rowe that she could

have reguested a "right-to-sue" letter from the EEOC 180 days

after filing her charge or that the statute of limitations for

her state-law based, nondiscrimination claims may continue to run

despite the pendency of the NHCHR's administrative review.

Finally, on June 1, 1994, Rowe was informed that a pre­

determination conference regarding her charges was scheduled for

June 22, 1994, four years to the day from her termination. See

Letter of June 1, 1994 (attached as Exhibit D to Objection).

Subseguent to said conference, with her charges still

outstanding, Rowe, who until this time was proceeding without

counsel, obtained an attorney. Upon reguest, a right to sue

letter was issued on October 7, 1994. Two months later,

plaintiff filed suit in this federal court.

Discussion

3 1. Summary Judgment Standard

Summary judgment shall be ordered when "there is no genuine

issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law." Rule 56(c), Fed. R.

Civ. P. Since the purpose of summary judgment is issue finding,

not issue determination, the court's function at this stage "'is

not [] to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for

trial.'" Stone & Michaud Ins., Inc. v. Bank Five for Savings,

(D.N.H. 1992) (guoting Anderson v.

Liberty Lobby, Inc.,

(1986)).

Although "motions for summary judgment must be decided on

the record as it stands, not on litigants' visions of what the

facts might some day reveal," Maldonado-Denis v. Castillo-

Rodriguez,

(1st Cir. 1994), the entire record

will be scrutinized in the light most favorable to the nonmovant,

with all reasonable inferences indulged in that party's favor.

Smith v. Stratus Computer, Inc.,

(1st Cir. 1994),

cert, denied, ___ U.S. ___ , 115 S. C t . 1958 (1995); see also

Woods v. Friction Materials, Inc.,

(1st Cir.

1994);

.

"In general . . . a party seeking summary judgment [is

reguired to] make a preliminary showing that no genuine issue of

4 material fact exists. Once the movant has made this showing, the

nonmovant must contradict the showing by pointing to specific

facts demonstrating that there is, indeed, a trialworthy issue."

National Amusements, Inc. v. Dedham,

(1st Cir.

1995) (citing Celotex Corp. v. Catrett,

(1986)), cert, denied, ___ U.S. , 115 S. C t . 2247 (1995).

A "genuine" issue is one that properly can be resolved only by a finder of fact because it may reasonably be resolved in favor of either party. Maldonado-Denis,

. In other words, a genuine issue exists "if there is 'sufficient evidence supporting the claimed factual dispute' to reguire a choice between 'the parties' differing versions of the truth at trial.'"

(guoting Garside [v. Osco Drug, Inc.,1 895 F.2d [46,] 48 [1st Cir. 1990)]. A "material" issue is one that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc.,

(1986).

Libertad v. Welch,

(1st Cir. 1995).

Although summary judgment is inappropriate when a

trialworthy issue is raised, "[t ]rialworthiness necessitates

'more than simply show[ing] that there is some metaphysical doubt

as to the material facts.'" National Amusements, supra,

(guoting Matsushida Elec. Indus. Co. v. Zenith Radio

Corp.,

(1986)) (alteration in National

Amusements). Thus, "' [t]he evidence illustrating the factual

controversy cannot be conjectural or problematic; it must have

substance in the sense that it limns differing versions of the truth which a factfinder must resolve . . . .'"

(quoting

Mack v. Great Atl. & Pac. Tea Co.,

(1st Cir.

1989)). Accordingly, "purely conclusory allegations . . . rank

speculation . . . [or] improbable inferences" may be properly

discredited by the court,

(citing Medina-Munoz v. R.J.

Reynolds Tobacco Co.,

(1st Cir. 1990)), and "'are

insufficient to raise a genuine issue of material fact,'" Horta

v. Sullivan,

(1st Cir. 1993) (quoting August v.

Offices Unlimited, Inc.,

(1st Cir. 1992)).

2. Defendant's Motion for Partial Summary Judgment (document 4)

Plaintiff's complaint purportedly sets forth five distinct

grounds for redress, all of which, with the exception of her

Title VII claim, find their basis in New Hampshire state law.

a. RSA 354-A

"RSA 354-A creates an administrative scheme to handle

complaints of discrimination in employment, in places of public

accommodation, and in housing accommodations. This scheme is

administered by the New Hampshire Commission for Human Rights."

Doukas v. Metropolitan Life Ins. Co.,

(D.N.H. 1995). As such, RSA 354-A, as a matter of law, only

serves as a vehicle, rather than an independent avenue, for

6 bringing an otherwise uncognizable claim of discrimination in New

Hampshire state court. See RSA 354-A:21 ("Any person claiming to

be aggrieved by an unlawful discriminatory practice may make,

sign, and file with the commission a verified complaint in

writing . . . .") (emphasis added); RSA 354-:22 (providing

mechanism for judicial review subseguent to NHCHR prior

determination).

This court has previously ruled that

the plain language of RSA 354-A leads the court to conclude that the statute does not create a private right of action for individuals aggrieved by unlawful discriminatory practices. Instead, under RSA 354-A, such individuals are limited to seeking relief through the administrative process created by the statute and to obtaining judicial review of the results thereof in state court.

Tsetseranos v. Tech Prototype, Inc., F. Supp. , , Civ.

No. 93-676-SD,

(D.N.H. Apr. 10, 1995). No

intervening argument or rule of law has been advanced or

uncovered which would call said finding into doubt.2

2The court notes, in fact, that a recent order out of the Sullivan County (New Hampshire) Superior Court enhances this court's understanding. See Hathaway v. The Butcher Block, Inc., No. 94-C-015, slip op. at 1-2 (Sullivan Cty. Super. C t . June 1, 1994) ("Although RSA chapter 354-A empowers the State Commission for Human Rights to eliminate and prevent employment discrimination, it does not provide a private cause of action based upon its violation.") (attached to Defendant's Motion for Partial Summary Judgment).

7 Accordingly, plaintiff's claim under RSA 354-A (Count V) must be

and herewith is dismissed with prejudice.

_____ b. Statute of Limitations

Although both parties agree that plaintiff's common-law

claims are subject to the three-year statute of limitations set

out in RSA 508:4, I,3 whether this court should toll the running

of said limitations statute is the matter in dispute.

Defendant asserts that Rowe's state-law claims "are all

based on acts which allegedly occurred on or before [June 22,

1990]" and are thus foreclosed by RSA 508:4, I. Defendant's

Memorandum of Law at 4. Plaintiff, however, argues that barring

her state-law claims under the circumstances presented herein

3Said statute provides.

Except as otherwise provided by law, all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of, except that when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.

RSA 508:4, I (Supp. 19 94) would work an "inequitable result." Moreover, "the interest[s]

of judicial economy, convenience and fairness" would be best

served by tolling the limitations period and allowing plaintiff

to bring her "state and federal claims . . . in a single action."

Plaintiff's Memorandum of Law at 2, 5.4

Whether it would be appropriate to toll the limitations

period requires the court to consider both the nature of the

causes of action for which tolling is sought as well as New

Hampshire's specific tolling rules. See generally Johnson v.

Railway Express Agency, Inc.,

(1975).

(1) Separate and Independent Claims

The Supreme Court has noted that "[f]ederal courts have

typically extended equitable relief only sparingly." Irwin v.

Pep't of Veterans Affairs,

(1990). Indeed, the

Court acknowledged that it has historically allowed equitable

tolling only "in situations where the claimant has actively

pursued [her] judicial remedies by filing a defective pleading

during the statutory period, or where the complainant has been

induced or tricked by [her] adversary's misconduct into allowing

4Although sound principles of law generally encourage, and indeed often require, a "one action" approach to litigation, it is sufficient to note that this goal could have been attained by means other than tolling the limitations period. See infra note 6 (discussing Title VII procedural prerequisites). the filing deadline to pass."

(footnotes omitted).

Similarly, "when Congress intended to establish a remedy separate

and independent from other remedies that might also be available,

a state rule which does not allow a plaintiff to litigate such

alternative claims in succession, without risk of a time bar, is

not 'inconsistent'" with an established federal scheme of relief.

Board of Regents v. Tomanio,

(1980); see also

("'[T]he legislative history of

Title VII manifests a congressional intent to allow an individual

to pursue independently his rights under both Title VII and other

applicable state and federal statutes.'" (guoting Alexander v.

Gardner-Denver Co.,

(1974)) (alteration in

Johnson) .

Acknowledging the weight of this federal precedent,

plaintiff argues that her "claim of sexual harassment and

retaliatory termination bears distinct similarity to, and to a

large extent, arises out of, a common law theory of wrongful

termination." Plaintiff's Memorandum of Law at 4. Furthermore,

"evidence used to prove her claim of a Title VII violation

overlaps the evidence necessary to prove that she was wrongfully

terminated."

Thus, the argument continues, plaintiff's

federal and state law remedies are not "separate, distinct, and

independent" as contemplated by

10 Whether, and to what extent, the evidence necessary to

support plaintiff's Title VII claim overlaps with the evidence

required for her state-law claims is inapposite to the

determination of whether said forms of relief are "separate,

distinct, and independent." See Reese v. Emeryville Fire Dep't,

(N.D. Cal. 1990) (acknowledging Supreme

Court dicta "that all causes of action under the Civil Rights

Acts 'exist independent of any other legal or administrative

relief that may be available as a matter of federal or state

law'" (quoting Burnett v. Grattan,

(1984)). Of

more particular relevance is the nature of permissible recovery

and whether any prerequisites exist for filing suit. See

.

In contradistinction to plaintiff's Title VII claims, the

claims of wrongful termination and emotional distress allow for

both money damages and the ability to bring suit directly without

a preliminary determination by an administrative body.

Accordingly, the court finds and rules that plaintiff's Title VII

claim is an avenue of relief that is "separate, distinct, and

independent" from her state-law claims.

(2) Principles of Equitable Tolling

It is settled law that "[a]n administrative proceeding does

11 not toll the limitations period unless the proceeding is a

mandatory prerequisite to filing suit." Mitsubishi Elecs. Am.,

Inc. v. United States,

(Fed. Cir. 1994)

(citations omitted); see also Brighton Village Assocs. v. United

States, 31 Cl. C t . 324, 332 (Cl. C t . 1994) ("the pursuit of an

elective remedy does not obviate the need to commence suit").

Just last year, the New Hampshire Supreme Court adopted these

general principles as the law in New Hampshire. See New

Hampshire Div. of Human Servs. v. Allard,

,

(1994) ("the limitations period is not tolled during

a pending administrative proceeding unless that proceeding is a

prerequisite to pursuit of the civil action").

Plaintiff's complaint alleges claims under state law for

wrongful termination, intentional and negligent infliction of

severe emotional distress, and enhanced compensatory damages, as

well as a claim of discrimination initiated pursuant to RSA 354-

A.5 Although "a [RSA 354-A] complainant is not entitled to

forego the administrative process and proceed directly to state

court,"

, this restriction is

solely limited to complaints of discrimination or harassment, not

5In part 2.a. of this order, the court dismissed plaintiff's RSA 354-A claim, and thus only the wrongful termination, emotional distress, and enhanced compensatory damages claims will be considered in the equitable tolling calculus.

12 all claims that may arise from an employee's termination, accord

RSA 354-A:21 ("Any person claiming to be aggrieved by an unlawful

discriminatory practice may make, sign and file with the

commission a verified complaint in writing . . . .") (emphasis

added) ; J e f f r e y L. H i r s c h a n d C a r o l A n n C o n b o y , L a b o r a n d E m p l o y m e n t in N e w

Hampshire § 4-8 (a) , at 171 (1992) ("employees who believe they are

victims of illegal discrimination may file complaints against

employers with the New Hampshire Commission for Human Rights

. . . .") (emphasis added).

It is precisely because of this distinction between those

claims that must be initiated through the administrative process

--Title VII claims and RSA 354-A-assisted actions for

discrimination--and those that may be brought properly in state

court in the first instance--such as wrongful termination and

emotional distress--that plaintiff's argument cannot defeat

defendant's motion. See, e.g., Linville v. Hawaii,

(D. Haw. 1994) (plaintiff's state-law claims for

negligent and intentional infliction of emotional distress as

well as violation of Hawaii's law prohibiting discriminatory

employment practices ruled "separate, distinct and independent

from her Title VII claims . . . [and thus] the grievance . . .

filed with the EEOC did not toll the statute of limitations for

these claims"); EEOC v. Domino's Pizza, Inc.,

,

13 657 (D. Md. 1994) (state-law claims, including intentional

infliction of emotional distress, not subject to equitable

tolling since plaintiff "was free to pursue each of her common

law claims in a court of law independent of the EEOC

proceedings"). Accordingly, the court finds and rules that

equitable tolling is not required under the facts as alleged

herein and thus declines plaintiff's invitation to apply same.

(3) The Doctrine of "Primary Jurisdiction"

Plaintiff's final argument in avoidance of the limitations

bar asks the court to apply this jurisdiction's doctrine of

"primary jurisdiction", wherein "'a court will refrain from

exercising its concurrent jurisdiction to decide a question until

it has first been decided by a specialized agency that also has

jurisdiction to decide it.'"

,

(quoting Wisniewski v. Gemmill,

,

(1983)). Under the present circumstances, however,

this argument too is unavailing.

As an initial matter, the NHCHR's authority is

circumscribed, inhering the "power to eliminate and prevent

discrimination in employment," RSA 354-A:1, by "receiv[ing],

investigat[ing] and pass[ing] upon complaints alleging violations

of [RSA 354-A]," RSA 354-A:5. Thus, any investigation by the

14 NHCHR would be limited to the allegations of discrimination only,

leaving unresolved plaintiff's allegations of wrongful

termination, emotional distress, and enhanced compensatory

damages.

Perhaps more importantly, however, is the reality that

whatever determinations do get made by the NHCHR, in the first

instance, or the superior court, upon subseguent RSA 354-A:22

judicial review, are divested of any effect once plaintiff seeks

a remedy in federal court. Accord

___ F.

Supp. at ___ ,

;

; RSA 354-A:22, V ("If the claimant brings an action in

federal court arising out of the same claims of discrimination

which formed the basis of an order or decision of the commission,

such order or decision shall be vacated and any appeal therefrom

pending in any state court shall be dismissed.").

The court finds and rules that plaintiff's state-law claims

are prescribed by the expiration of the applicable three-year

limitations statute, as said state-law relief represents an

avenue of recovery that is "separate, distinct and independent"

from that available through Title VII. Since relief for the

Title VII violations on the one hand and the state common-law

violations, viz., the wrongful dischage, emotional distress, and

enhanced compensatory damages claims, on the other is available

15 through discrete remedial vehicles, to which the principles of

equitable tolling are inapplicable, defendant's motion for

partial summary judgment as to plaintiff's state-law claims

(Counts II-IV) must be and herewith is granted.6

3. Defendant's Motion to Strike (document 5)

Defendant now moves to strike plaintiff's jury demand,

arguing that plaintiff's Title VII cause of action predates the

enactment of the Civil Rights Act of 1991 and thus is not

6In making the rulings herein, the court is sensitive to the fact that plaintiff was not represented by counsel during the four years between her termination and the NHCHR predetermination conference. Indeed, it is largely due to this circumstance that plaintiff's Title VII claim retains its vitality. E.g., Hukkanen v. International Union of Operating Enq'rs,

, 286 (8th Cir. 1993) (Although " [p]laintiffs have some obligation to monitor the progress of their charges with the EEOC and do not have an absolute right to wait until the EEOC proceedings conclude," the fact that plaintiff "did not know she could request a right-to-sue letter, and obtained one soon after she retained her attorney and was informed of this option" amounted to excusable delay) (citations omitted).

However, what remains is that through the exercise of reasonable diligence, plaintiff could have avoided the four-plus- year delay and retained all of her supplemental state-law claims which have been barred today by the expiration of the limitations period. Once 180 days had passed from the filing of her charge with the EEOC, plaintiff would have been entitled to a right-to- sue letter. See

(a)(1) (1994). Since her initial filing of the charge was timely, receipt of the right-to- sue letter would have completed all of the prerequisites to filing suit in federal court and thus plaintiff's litigation would not have been burdened with the infirmities highlighted by today's rulings.

16 entitled to the new damage and jury provisions contained therein.

Defendant's Memorandum of Law at 1-2. Plaintiff's main argument

in objection to the reguested relief is that her "right to a jury

trial exists independent of" the Title VII claim due to the other

"common law causes of action which entitle her to a jury trial."

Plaintiff's Objection at 55 2-3.7

In Landgraf v. USI Film Prods., ___ U.S. , 114 S. C t .

1483 (1994), the Supreme Court considered and rejected the

argument that the 1991 amendments to the Civil Rights Act of

1964, which expanded prior law by making a jury trial and

punitive damages available to a Title VII plaintiff, were

intended to be applied retroactively.

at , 114 S. C t . at

1505-08. Specifically, the Court found "the jury trial option

must stand or fall with the attached damages provisions."

at

, 114 S. C t . at 1505. Since the court further "found no clear

evidence of congressional intent that § 102 [the new section on

damages and jury trial] of the Civil Rights Act of 1991 should

apply to cases arising before its enactment," id. at , 114 S.

C t . at 1508, all Title VII actions seeking eguitable relief that

arose prior to the November 2, 1991, effective date of the Act

7As the court has herein granted defendant's motion for partial summary judgment as to said "common law causes of action," supra at 15-16, the once formidable strength of plaintiff's argument is significantly and drastically diminished.

17 were to be tried to the court without a jury.

Plaintiff correctly asserts "[w]hen a case presents claims

for legal as well as equitable relief, a demand for a jury will

not be stricken." Plaintiff's Objection 5 3 (citing Curtis v.

Loether,

(1974)); cf. Olin v. Prudential Ins. Co.,

, 7 (1st Cir. 1986) ("where Title VII claims are mixed

with other, legal claims, plaintiff is entitled to a jury trial

on the other claims . . . ."), overruled in part on other

grounds, Gallagher v. Wilton Enters., Inc.,

, 122-24

& n.3 (1st Cir. 1992). However, in light of this court's prior

ruling on plaintiff's state-law claims, see supra part 2, the

only claim that remains viable is plaintiff's Title VII claim and

its attendant equitable remedies.

Well-established law in this federal circuit seems to compel

the ruling that there is no Seventh Amendment right to trial by

jury when the sole basis for relief is Title VII. See, e.g.,

Olin, supra, 798 F.2d at 7 ("Title VII, being essentially

equitable in nature, does not carry with it the right to trial by

jury"); Braverman v. Penobscot Shoe Co.,

(D. Me. 1994) (Title VII "remedies are equitable, and have not

historically required trial by jury"); Noriello v. Department of

Mental Health, Retardation, and Hosps.,

(D.R.I. 1991) ("the overwhelming precedent of the First Circuit

18 requires this court to follow the well established standard that

Title VII claims are to be tried without ajury").

With due recognition of the precedent cited above, the court

is further required to consider the two-part test delineated by

the Supreme Court in Chauffeurs, Teamsters, and Helpers, Local

No. 391 v. Terry,

(1990), when evaluating the right

to a jury trial in an essentially equitable action.8 See Ramos

v. Roche Prods., Inc.,

(1st Cir.), cert, denied

sub nom., Rossv v. Roche Prods., Inc.,

(1991) .

As part of her prayer for relief, plaintiff asks the court

to, inter alia.

Direct Defendant, Foster's Daily Democrat, to place the Plaintiff in the position she would have occupied, but for its discriminatory treatment of her, and make her whole for all earnings she would have received but for Defendant's, Foster's Daily Democrat, discriminatory treatment, including, but not limited to, wages, pension and other lost benefits . . . .

8In order to distinguish between legal and equitable rights.

First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature. The second inquiry is the more important in our analysis. Grantinanciera, S.A. v. Nordberq,

(1989).

Terry, supra,

(emphasis added).

19 Complaint 5 D. Although the remedy of back pay may constitute a

legal right, where monetary relief in the form of "damages are,

in fact, a form of restitution and are '"incidental to or

intertwined with injunctive relief,"'"

(guoting Terry,

(guoting Tull v. United

States,

(1987))), then such a remedy is deemed

eguitable.

Under the instant circumstances, the court finds and rules

that "the rights reguested are primarily eguitable-injunctive in

nature, reguiring . . . reinstatement, including backpay. Hence,

a jury trial does not seem to be reguired under Terry." Id.; see

also 5 J a m e s W m . M o o r e , M o o r e 's F e d e r a l P r a c t i c e 5 38.27, at 38-235

(1995) ("Where back pay is sought in an action under Title VII of

the Civil Rights Act to redress discrimination in employment,

there is no right to a jury trial, since the remedy is eguitable

in nature.") (footnote omitted). Accord McElrov v. Gaffney,

,

(1987) ("It is well recognized

that the right [to a jury trial under part I, article 20 of the

New Hampshire Constitution] has no application in special,

statutory, or summary proceedings unknown to the common law . . .

or to purely eguitable proceedings.") (citations omitted); 5

R ichard V. W i e b u s c h , N e w H a m p s h i r e P r a c t i c e : C ivil P ra ct ice an d P ro c e d u r e §

2045(a), at 496 (1984) ("A party has no constitutional right to

20 the trial [by jury] of equitable issues.") (footnote omitted).

Since plaintiff's remaining prayer for relief only entitles

her to equitable remedies, and further since none of plaintiff's

remedies at law remain viable which would otherwise allow for a

jury trial on those issues, the court hereby further finds and

rules that plaintiff's Title VII claim must be tried to the bench

without a jury. See

("The First

Circuit still adheres to its long-held rule precluding jury

trials for equitable remedies under Title VII."). Accordingly,

defendant's motion to strike jury demand must be and herewith is

granted.

Conclusion

For the reasons set forth herein, the court grants

defendant's motion for partial summary judgment as to the state-

law claims (document 4) and defendant's motion to strike jury

demand (document 5). Only plaintiff's Title VII claim remains

viable, and said claim will go forward for trial to the bench

rather than to a jury.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

, 1995 cc: Gemma M. Dreher, Esq. Robert E. Kirby, Esq.

21