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TOLIVER v. COMMUNITY ACTION COMMN. TO HELP THE ECO

July 22, 1985

TOMMIE L. TOLIVER, Plaintiff, against COMMUNITY ACTION COMMISSION TO HELP THE ECONOMY, INC., CACHE, Defendant


The opinion of the court was delivered by: SPRIZZO

OPINION AND ORDER

SPRIZZO, D.J:

 Plaintiff Tommie L. Toliver brings an action against defendant Community Action Commission to Help the Economy ("CACHE"), a New York, not-for-profit corporation, alleging discrimination on the grounds of race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1982). In short, plaintiff contends that he was denied a promotion to Executive Director and terminated from his position as Deputy Director of CACHE because he is a black male.

 BACKGROUND

 In May of 1979, plaintiff was employed by CACHE as Deputy Director under a written contract for one year. In August of 1979, the post of Executive Director at CACHE became vacant. From August 23, 1979 until January 2, 1980, plaintiff functioned as Acting Executive Director of CACHE; during that time he applied for the position on a permanent basis. See Pre-Trial Order at (P) 5. However, on January 2, 1980 the Board of Directors of CACHE ("Board") named Gladys Walker, a black female employee at CACHE, as Executive Director. See id. Plaintiff continued in his position as Deputy Director until May 15, 1980, when the Board decided not to renew his employment contract.

 In August of 1980, plaintiff filed complaints with the New York State Human Rights Commission and the Equal Employment Opportunity Commission ("EEOC") alleging discrimination on the basis of his sex and race in the denial of promotion and discharge by CACHE. On May 29, 1981, the EEOC found no reasonable cause to believe plaintiff's claims of discrimination were true, and issued a Notice of Right to Sue letter. See Exhibit A to answer. On August 10, 1981, plaintiff filed the instant action under Title VII in the United States District Court, Southern District of New York.

 Since plaintiff was proceeding pro se in a Title VII case, and in forma pauperis pursuant to 28 U.S.C. § 1915(a) (1982), there was no clear statutory authority for the prepayment of discovery costs. See, e.g., Ebenhart v. Power, 309 F. Supp. 660, 661 (S.D.N.Y 1969) (mem.) ("Grave doubts exist as to whether Section 1915 authorizes this Court to order the appropriation of Government funds in civil suits to aid private litigants in conducting pre-trial discovery.") Fortunately, defendant was cooperative in producing for plaintiff's questioning a large number of witnesses, most of whom were members of the defendant Board, and whose depositions were preserved by means of magnetic tape. *fn1" In addition, plaintiff sought the production of various witnesses at trial at public expense.

 Because of the lack of statutory authority for the payment of such witness costs by the United States, see, e.g., Haymes V. Smith, 73 F.R.D. 572, 574 (W.D.N.Y. 1976) ("The generally recognized rule is that a court may not authorize the commitment of federal funds to underwrite the necessary expenditures of an indigent civil litigant's action."); Clark v. Hendrix, 397 F. Supp. 966, 975 (N.D.Ga. 1975); see also 53 Comp. Gen. 638, 643-45 (1974), the Court reviewed testimony of all of the deposed witnesses, which was preserved on magnetic tape. Nevertheless, notwithstanding the questionable statutory authority to pay witness costs, a significant number of witnesses sought by plaintiff were produced and testified at trial. *fn2"

 The trial consumed three days. After an extensive record had been made, the Court permitted the filing of post-trial briefs. Plaintiff requested that a transcript of the trial be furnished at public expense, but the Court was constrained to deny that application, in an Order dated March 20, 1984, because of the absence of any statutory authority to provide a transcript to plaintiff prior to an appeal of the case. See, e.g., Romero Barcelo v. Brown, 655 F.2d 458, 462 (1st Cir. 1981); McClure v. Salvation Army, 51 F.R.D. 215, 216 (N.D.Ga. 1971); see also 28 U.S.C. § 753(f) (1982). *fn3" The defendant did not avail itself of the opportunity to file a post-trial brief, but plaintiff did in fact file such a brief on November 30, 1984.

 FINDINGS OF FACT AND CONCLUSIONS OF LAW

 Following the bench trial conducted on January 31, February 2, and July 18 of 1984, the Court makes the following findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52.

 Upon reviewing the brief filed by plaintiff, all of the evidence heard at trial, and the depositions which the Court examined prior to trial, the Court concludes that plaintiff has failed to establish a prima facie case of racial or gender discrimination in violation of Title VII. See, e.g., Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). However, even assuming arguendo that the plaintiff did establish a prima facie case, the totality of the evidence was more than sufficient to establish that plaintiff's discharge and lack of promotion were not motivated by any discriminatory considerations with respect to his race or gender. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983). *fn4"

 At the outset, it should be noted that the defendant Board was comprised of eleven members, six of whom were black and three of whom were black males. The record clearly supports the inference that there were numerous disputes between the plaintiff and the Board, most of which were, quite simply, personality clashes between plaintiff and members of the Board.

 While it is possible that in some instances plaintiff's position may have been arguably valid, it is not the function of the Court in a Title VII suit to resolve the merits of every dispute between a plaintiff and his employer. See Garrett v. Saluda Shirt Co. 526 F. Supp. 1, 4 (D.S.C. 1979). Suffice it to say that on the evidence elicited at trial, the Court is persuaded that the ...


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