Hoopes v. Equifax, Inc., 78-3195
| Decision Date | 28 November 1979 |
| Docket Number | No. 78-3195,78-3195 |
| Citation | 611 F.2d 134 |
| Parties | 22 Fair Empl.Prac.Cas. 957, 23 Empl. Prac. Dec. P 30,919 John E. HOOPES, Plaintiff-Appellant, v. EQUIFAX, INC., d/b/a Retail Credit Company, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert E. Cesner, Jr., Tudor, Cloud & Cesner, Scott R. Mote, Columbus, Ohio, for plaintiff-appellant.
Edward F. Whipps, George, Greek, King, McMahon & McConnaughy, Columbus, Ohio, for defendant-appellee.
Before WEICK and KEITH, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
The district court granted the defendant-employer's oral motion for summary judgment and dismissed all except one count of appellant's complaint. The ruling granting the motion followed a conference between the parties on the day of trial, after the jury had been impaneled but before any testimony had been taken. The principal question presented on this appeal is whether the district court committed reversible error in granting summary judgment without giving the ten days notice required by Fed.R.Civ.P. 56.
We affirm.
Appellant worked as an employee of defendant for more than 19 years, making credit investigations and reports. Throughout this time he was a heavy smoker. In August 1974 he was hospitalized with emphysema. He rejected the recommendation of his superiors that he avail himself of a long term disability retirement.
Thereafter appellant's employment relationship deteriorated markedly. He was placed on probation for failing to meet his production quota, and, when his production did not improve, was discharged in 1975. He sued for $250,000 in compensatory damages and $750,000 in punitive damages.
The one count not disposed of in the district court's summary judgment was to the effect that plaintiff suffered personal injury because of his employer's intentional infliction of emotional distress. At the close of appellant's case, the district court directed a verdict for the employer on this count. Appellant did not appeal from the directed verdict.
Only two of the dismissed counts of the complaint are before the court on this appeal: (1) that appellant is qualified as a handicapped individual under the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and is entitled to challenge his dismissal because he was a third party beneficiary under a contract between his employer and the United States Government; and (2) that appellant is entitled to recover compensatory and punitive damages because the quota system maintained by defendant is against public policy.
In a comprehensive memorandum opinion, District Judge Joseph P. Kinneary set forth his reasons for granting summary judgment. We agree with the district court that no issues of material fact are involved in either of the two foregoing counts.
Even if appellant is a handicapped person under the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 793, that statute provides for an administrative remedy through the Department of Labor and does not authorize a private cause of action in the courts. Anderson v. Erie Lackawanna Railway Co., 468 F.Supp. 934 (N.D.Ohio 1979).
As for the contention that the quota system of appellant's employer is against public policy, it is undisputed that the only contract between the parties was an oral agreement that appellant would perform certain duties and receive specified compensation. The district court correctly held that the contract had no provision as to duration and was terminable at the will of either party.
The district court further found that the employer had...
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