Sundersingh Bala v. Commonwealth of Virginia Dept
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:12-cv-00748-HEH. Copies to all parties and the district court/agency. [999609143]. [14-1362]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1362
SUNDERSINGH BALA,
Plaintiff − Appellant,
v.
COMMONWEALTH
RECREATION,
OF
VIRGINIA
DEPARTMENT
OF
CONSERVATION
AND
Defendant − Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:12-cv-00748-HEH)
Argued:
May 13, 2015
Decided:
June 25, 2015
Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit
Judges.
Affirmed by unpublished opinion.
Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler joined. Judge Floyd wrote
a dissenting opinion.
ARGUED: Scott Gregory Crowley, Sr., CROWLEY & CROWLEY, Glen
Allen, Virginia, for Appellant. Gregory Clayton Fleming, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
ON BRIEF: Mark R. Herring, Attorney General of
Virginia, Rhodes B. Ritenour, Deputy Attorney General, Ronald N.
Regnery, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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WILKINSON, Circuit Judge:
Sundersingh Bala brought a Title VII claim for retaliatory
discharge
against
the
Commonwealth
of
Virginia
Department
of
Conservation and Recreation (“DCR”). The district court granted
summary judgment to the DCR because Bala released this claim in
a
July
7,
court’s
2011,
holding
Settlement
that
the
Agreement.
Settlement
We
affirm
Agreement
the
trial
included
the
retaliatory discharge claim. Having obtained the benefit of his
bargain, Bala cannot now seek a remedy from the courts after
knowingly and voluntarily relinquishing the underlying claim.
I.
Bala is a naturalized United States citizen of East Indian
origin who joined the DCR’s accounting department in 1985. Since
that time, he has filed numerous employee grievances with the
Department
of
Employee
Dispute
Resolution
(“EDR”)
alleging,
among other things, that the DCR refused to promote him for
discriminatory
reasons.
Most
recently,
he
filed
two
related
grievances: one in May 2009, alleging that the DCR failed to
select him for the DCR’s Accounts Payable Supervisor position
owing to discrimination against his age and national origin; and
another
in
October
2009,
alleging
termination
(effective
December
Department
of
Resource
policies,
Human
discriminated
against
3
31,
that
his
2009)
Management
him
because
September
violated
(“DHRM”)
of
his
2009
internal
layoff
age
and
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national
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origin,
and
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retaliated
against
his
prior
protected
allegations of discrimination. J.A. 370.
Bala’s termination was part of a series of layoffs pursuant
to an overall budget reduction for state agencies. Bala did not
volunteer
for
early
retirement
and
was
not
suggested
for
termination by his supervisors, but was nevertheless included on
a
list
of
employees
under
consideration
for
termination
and
eventually selected to be laid off. He alleged in his grievance,
and later in his complaint, that he was selected for involuntary
termination
in
retaliation
for
his
numerous
complaints
of
discrimination in grievances and court proceedings.
Employees of Virginia’s state agencies who have employment
complaints file grievances with the EDR as part of a statutorily
created
dispute
resolution
process.
The
grievances
are
first
reviewed by management in a three-step internal review process.
Employees
grievances
who
are
after
dissatisfied
this
with
process
may
the
resolution
request
a
of
hearing
their
with
a
neutral arbiter. The hearing officer’s decision is appealable to
Virginia
state
circuit
court
if
the
employee
believes
the
decision is contrary to law. Va. Code Ann. § 2.2-3006.
The initial three-step review of Bala’s May and October
2009
grievances,
consolidated
at
his
request,
J.A.
290-293,
found that DCR had not discriminated, retaliated, or failed to
follow the DHRM policy governing layoffs. Displeased with this
4
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result,
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Bala
requested
and
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was
granted
a
hearing.
The
administrative review of his grievances on February 1, 2011,
found that the DCR had violated the DHRM’s policies (without
reversing the other findings), and the hearing officer directed
DCR to reinstate Bala to his former position. J.A. 372-374.
Meanwhile, Bala had already resumed work with the DCR as an
hourly
employee
starting
in
February
2010,
and
had
been
receiving early retirement benefits since his termination. Both
his hourly wages and the early retirement benefits would have
been offset against any back pay he was due upon reinstatement.
So
instead
of
pursuing
reinstatement,
Bala
and
the
DCR
“concluded that it would be in their best interests to resolve
this situation by agreement,” and they consequently negotiated a
settlement agreement on July 7, 2011. J.A. 46.
Under the terms of the agreement, the agency agreed to not
seek
revocation
of
Bala’s
enhanced
retirement
and
related
benefits, and to maintain his hourly position for at least three
years as long as his job performance was satisfactory. J.A. 47.
In return, Bala agreed to “waive any rights accorded to him
pursuant to the hearing officer’s decision of February 1, 2011,
including his reinstatement to his former salaried position.”
Id. The agreement applied to “the grievance dated October, 2009
and/or
case
#
9295
Hearing
officer
final
decision
issued
on
February 1, 2011.” Id. The parties declared that each had an
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opportunity
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to
seek
counsel,
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and
that
the
terms
had
been
carefully read, fully understood, and agreed to voluntarily. Id.
On October 23, 2012, however, Bala initiated this civil
action alleging violations of Title VII of the Civil Rights Act
of
1964,
as
amended,
42
U.S.C.
§ 2000e-2
and
-3,
for
discrimination and retaliation based on his race and national
origin. The complaint contained a count of discrimination and a
count
of
retaliation
interview
Bala
involuntarily
district
for
against
a
grants
terminating
court
counts. Bala
granted
v.
him
a
the
DCR
both
manager
position
in
layoffs
the
12(b)(6)
Commonwealth
for
of
motion
Va.
to
Dep’t
refusing
in
in
2011
and
2009.
The
dismiss
of
to
on
all
Conservation
&
Recreation, No. 3:12CV748, 2013 WL 53744, at *1-2 (E.D. Va. Jan.
3,
2013).
On
discrimination
appeal,
claim
for
we
upheld
Bala’s
the
layoff,
dismissal
but
of
reversed
the
on
the
other three counts for “consider[ing] DCR’s proffered legitimate
nondiscriminatory
within
the
reasons
context
of
at
a
a
procedurally
Rule
12(b)(6)
improper
motion.”
time,
Bala
v.
Commonwealth of Va. Dep’t of Conservation & Recreation, 532 F.
App’x 332, 335 (4th Cir. 2013).
On remand, Bala amended his complaint to allege only the
retaliatory
discharge
retaliation
for
his
claim.
He
numerous
claimed
grievances
his
and
layoff
court
was
in
filings
“complaining of race, national origin and age discrimination” -6
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in particular his May 2009 grievance for failing to interview
him for an Accounts Payable Supervisor position. J.A. 11-2, 16.
After oral argument and supplemental briefing on the Settlement
Agreement, the district court granted DCR’s motion for summary
judgment on the grounds that the Settlement Agreement precluded
Bala from bringing the claim. Bala v. Commonwealth of Va. Dep’t
of Conservation & Recreation, No. 3:12CV748, 2014 WL 1281235, at
*1, *5 (E.D. Va. Mar. 27, 2014). We now affirm the judgment.
II.
Title
VII
of
the
Civil
Rights
Act
of
1964
protects
employees from harms caused by an employer’s discriminatory or
retaliatory actions. While litigation of such claims remains the
ultimate option, the statute itself selected “[c]ooperation and
voluntary compliance” as the “preferred means” for eliminating
unlawful
discrimination.
Alexander
v.
Gardner-Denver
Co.,
415
U.S. 36, 44 (1974).
To
that
Opportunity
end,
Congress
Commission
created
(“EEOC”)
as
a
the
Equal
mechanism
Employment
“to
settle
disputes through conference, conciliation, and persuasion before
the
aggrieved
party
was
permitted
to
file
a
lawsuit.”
Id.
Consistent with that purpose, the EEOC maintains a preference
for “voluntary and expeditious resolution of disputes” between
employers
Allowing
and
for
employees
Waivers
through
Under
the
7
settlement.
ADEA,
50
Admin.
Fed.
Exemption
Reg.
40,870,
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40,870-40,871 (proposed Oct. 7, 1985) (comparing ADEA and Title
VII
claims).
therefore,
Waiver
is
of
Title
authorized,
VII
claims
provided
through
the
settlement,
waiver
is
knowing,
voluntary, and part of a bargain that resolves the underlying
employment discrimination dispute. See Alexander, 415 U.S. at 52
& n.15; Keith v. Aldridge, 900 F.2d 736, 741 (4th Cir. 1990).
We
must
Settlement
claim.
therefore
Agreement
“Settlement
determine
effected
agreements
a
whether
waiver
operate
Bala
of
on
and
the
DCR’s
Bala’s
retaliation
contract
principles,
and thus the preclusive effect of a settlement agreement ‘should
be measured by the intent of the parties.’” Ohio Valley Envtl.
Coal. v. Aracoma Coal Co., 556 F.3d 177, 211 (4th Cir. 2009);
see
also
First
Sec.
Fed.
Sav.
Bank,
Inc.
v.
McQuilken,
480
S.E.2d 485, 487 (Va. 1997). Where the parties’ intent is clear
from
the
unambiguous
terms
of
the
contract,
construed
as
a
whole, we need not and cannot resort to extrinsic evidence of
intent. See Goodman v. Resolution Trust Corp., 7 F.3d 1123, 1126
(4th Cir. 1993); W.D. Nelson & Co. v. Taylor Heights Dev. Corp.,
150 S.E.2d 142, 145 (Va. 1966).
The Settlement Agreement stated plainly that “the parties
have
concluded
that
it
would
be
in
their
best
interests
to
resolve this situation by agreement.” J.A. 46. The “situation”
referenced in that provision is described immediately before it
-- Bala was laid off, filed the October 2009 grievance, and
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pursued administrative review until he was awarded reinstatement
by
a
hearing
officer.
Id.
Furthermore,
the
Agreement
stated
clearly that it applied to the October 2009 grievance and/or the
hearing officer’s final decision on February 1, 2011. J.A. 47.
These documents, therefore, were incorporated by reference as if
included in the contract itself. See W.D. Nelson & Co., 150
S.E.2d at 146 (“Writings referred to in a contract are construed
as
a
part
of
the
contract
for
the
purpose
and
extent
indicated.”). Finally, Bala explicitly waived any rights related
to or flowing from that February 1, 2011, decision, specifically
including the right to reinstatement to his former position.
J.A. 47.
There
can
be
no
doubt
that
this
Settlement
Agreement
addressed and resolved the matter now alleged in Bala’s Title
VII
retaliation
claim.
By
its
plain
language,
the
Agreement
covered “the grievance dated October, 2009 and/or case # 9295
Hearing officer final decision issued on February 1, 2011.” J.A.
47. The October 2009 grievance alleged misapplication of the
agency’s
layoff
policies,
discrimination,
and
retaliation
for
prior charges and grievances, resulting in Bala’s termination.
J.A. 370. That the hearing officer only reversed the claim of
violating
agency
policy
does
not
magically
remove
the
other
claims from the proceedings. The agency’s alleged retaliation,
in
the
form
of
laying
him
off,
9
is
the
crux
of
Bala’s
only
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remaining claim in his Title VII complaint. See J.A. 16-17. The
complaint
clearly
describes
the
same
“situation”
that
both
parties thought best to resolve by agreement. By so agreeing,
Bala waived the right to resurrect his retaliation claim and
reinstatement remedy in later litigation.
Bala cannot obtain through litigation what he voluntarily
relinquished in the Settlement Agreement for good consideration.
The
relief
sought
in
the
grievance
was
reinstatement
to
his
former position, with back pay and benefits. J.A. 370. He was
granted this relief in the administrative review, and chose to
negotiate away that specific remedy in order to retain his early
retirement benefits and secure his hourly job for the next three
years.
J.A.
action
the
46-47.
same
Now
remedy
he
seeks
that
he
to
obtain
voluntarily
through
forfeited
judicial
in
the
Settlement Agreement. J.A. 17. He could have expressly reserved
the right to bring the retaliation claim at a later time, but
declined to do so. See Keith, 900 F.2d at 741. Bala negotiated
his terms and obtained the benefit of his bargain. He cannot now
claim what he earlier relinquished.
We thus hold that the Title VII claim for retaliation was
unambiguously
included
in
Bala’s
July
7,
2011,
Settlement
Agreement with the DCR, and that therefore he is precluded from
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bringing that claim now in order to achieve a second bite at the
apple.
AFFIRMED
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FLOYD, Circuit Judge, dissenting:
This appeal presents a straightforward question regarding
the scope of the parties’ release.
In the governing agreement,
Bala agreed “to waive any rights accorded to him pursuant to the
hearing officer’s decision of February 1, 2011.”
J.A. 47.
is
Bala
undisputed
that
the
only
“right”
awarded
to
in
It
the
February 2011 decision was reinstatement to his former position
at the DCR.
And the hearing officer granted Bala this right
only because the DCR failed to follow its own internal layoff
policies; the officer did not address Bala’s additional claims
under Title VII.
Yet, the majority concludes that the release also precludes
Bala from pursuing his Title VII retaliation claim in federal
court.
Bala
This result would be correct if the release stated that
agreed
to
waive
“any
employment” with the DCR.
and
all
claims
related
to
his
But that is not what the Agreement--
drafted by the DCR--says.
By holding otherwise, the majority
transforms the narrow, specific release at issue into a general
release broadly precluding all claims brought in the October
2009 grievance.
The parties were certainly free to negotiate
and agree to such a release.
of
the
Agreement
suggests
But nothing in the plain language
they
Accordingly, I respectfully dissent.
12
actually
did
so
here.
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I.
It is well-settled that an employee may release a cause of
action under Title VII if the employee’s consent to settlement
is “voluntary and knowing.”
Alexander v. Gardner–Denver Co.,
415 U.S. 36, 52 n.15 (1974).
assessment
of
voluntariness
But circuits diverge on what an
and
knowledge
entails:
some
look
solely to principles of contract interpretation, while others
evaluate
the
totality
purported release.
of
the
circumstances
surrounding
a
See Pierce v. Atchison, Topeka & Santa Fe
Ry. Co., 65 F.3d 562, 570 (7th Cir. 1995) (collecting cases).
Under
either
approach,
however,
waiver’s language is significant.
the
clarity
of
a
purported
Compare O’Shea v. Commercial
Credit Corp., 930 F.2d 358, 362 (4th Cir. 1991) (considering
this
split
analyze
and
waivers
determining
of
ADEA
that
the
claims
“better
under
approach
ordinary
is
to
contract
principles”), superseded by statute, 29 U.S.C. § 626(f), with
Beadle v. City of Tampa, 42 F.3d 633, 635 (11th Cir. 1995)
(listing
factors
relevant
in
assessing
the
totality
of
circumstances, including “the clarity of the agreement”).
the
And
although the Fourth Circuit lacks binding precedent on which
approach governs releases of Title VII claims, see Randolph v.
Caruso Homes, Inc., No. RWT–13–2069, 2014 WL 4661985, at *4 n.6
(D. Md. Sept. 16, 2014), we need not decide that issue, as the
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Agreement’s
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plain
language
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compels
one
result
under
either
approach.
Here,
the
plain
language
of
the
Agreement
unambiguously
demonstrates that the parties agreed only to a limited release
that did not include Bala’s Title VII claim.
derive
the
parties’
intent
from
the
Although we must
instrument
viewed
as
a
whole, Atalla v. Abdul–Baki, 976 F.2d 189, 193 (4th Cir. 1992),
Section 4 of the Agreement is the only section that defines the
scope of the release.
That section limits Bala’s release to
“any rights accorded to [Bala] pursuant to the hearing officer’s
decision of February 1, 2011, including his reinstatement to his
former salaried position.” *
J.A. 47.
Significantly, the only
right accorded to Bala pursuant to the February 1 decision was
*
This language stands in stark contrast to the broad
language typically used in general releases of Title VII claims.
See, e.g., Smith v. Amedisys Inc., 298 F.3d 434, 441-42 (5th
Cir. 2002) (finding Title VII claims clearly waived by an
employee’s agreement “to release [the employer] of any and all
employment related claims”); Stroman v. W. Coast Grocery Co.,
884 F.2d 458, 460-61 (9th Cir. 1989) (finding clear waiver of
Title VII claims based on a provision stating that the
agreement’s “terms represent a full and final settlement of any
and all claims arising out of [the employee’s] employment with
[his employer]”; Pilon v. Univ. of Minn., 710 F.2d 466, 467-68
(8th Cir. 1983) (finding clear waiver of a Title VII claim in a
provision in which a graduate student released the university
“from any and all manner of action . . . which [the plaintiff]
ever had”); Anderson v. Garbage Disposal Serv., No. 3:00CV294MU, 2000 WL 33912330, at *1 (W.D.N.C. Dec. 18, 2000) (finding
clear waiver of a Title VII claim in a provision in which the
plaintiff “released and forever discharged [the employer] of and
from any and all actions related to Plaintiff’s employment”
(brackets omitted)).
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the “specific remedy,” Maj. Op. at 10, of reinstatement to his
former (or a similar) position.
And that right was based only
on his having proved his claim that the DCR “did not comply with
the terms and conditions of the Commonwealth of Virginia Layoff
Policy
believe
and
Procedure
the
release
Number
1.30.”
clearly
applies
J.A.
only
373-74.
to
Thus,
Bala’s
right
I
to
reinstatement for the violation of administrative policy, and I
would reverse the district court’s grant of summary judgment.
II.
Rather
than
conduct
a
straightforward
analysis,
the
majority contorts the Agreement and errs in four main respects.
First,
the
majority
erroneously
declares
that
“Bala
explicitly waived any rights related to or flowing from” the
hearing officer’s February 1 decision.
that
Bala
waived
his
limited
right
Maj. Op. at 9.
to
I agree
reinstatement--flowing
from or “accorded” by that decision--but I cannot find where the
Agreement
explicitly
says
“related to” the decision.
that
he
also
waived
any
rights
If such language existed, perhaps we
could interpret the waiver provision to capture the Title VII
claims as “related” (albeit distantly) to the final decision.
See Related Definition, Merriam–Webster Dictionary, www.merriamwebster.com/dictionary/related (defining “related” as “connected
by reason of an established or discoverable relation”).
15
But in
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actuality, such language is wholly absent, and the majority errs
by reading it into the Agreement.
Second, the majority relies on Section 5 of the Agreement,
which the majority says incorporates by reference Bala’s October
2009 grievance and the February 1 decision.
majority,
merely
incorporating
these
According to the
documents
by
reference
somehow expands the scope of the release to include all claims
at issue in the October 2009 grievance.
I disagree.
Unlike
Section 4, Section 5 does not define the scope of the waiver.
Indeed, it says nothing about waiver at all.
that
the
Agreement
only
applies
to
the
Rather, it states
grievance
and
the
resulting final decision; not that the “waiver” itself applies
to all claims raised in the grievance or adjudicated prior to
the February 1 decision.
majority
simply
conflates
In reading Section 5 as it does, the
Section
5
with
the
actual
waiver
language in Section 4.
Third,
the
majority
relies
on
the
Agreement’s
recitals,
which describe the procedural posture of Bala’s grievance and
state
that
situation.”
the
Agreement’s
J.A. 46.
purpose
was
to
“resolve
this
The majority concludes that the amorphous
reference to a “situation” must mean all of Bala’s claims, and
thus expands the limited release into a general waiver.
I do not believe this is correct.
Again,
As an initial matter, I do
not read “situation” to unambiguously refer to all of Bala’s
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claims, as the majority does.
Rather, it may just as easily
refer to Bala’s right to reinstatement based on the favorable
February 1 decision.
Thus, at best for the DCR’s case, the
recitals create an ambiguity about the scope of Bala’s release.
But even if there is an ambiguity, based on the inclusion of a
vague general expression of intent, “no rational court could say
that a general expression of intent trumps the specific terms
that it introduces.”
Contract
Bank/Nat’l
rules
of
Drafting
v.
Kenneth A. Adams, A Manual of Style for
32
Best,
(3d
223
construction,
ed.
Va.
if
2013);
112,
the
115
see
also
(1982)
prefatory
or
United
(“Under
recital
Va.
settled
language
conflicts with the obligatory provisions of the contract, then
the
obligatory
recitals
provisions
somehow
suffice
must
to
prevail.”).
create
an
And
even
ambiguity
if
in
the
the
Agreement, we should construe it (at least for the purposes of
the DCR’s summary-judgment motion) against the drafter, the DCR.
Sys. Research & Applications Corp. v. Rohde & Schwarz Fed. Sys.,
Inc., 840 F. Supp. 2d 935, 945 (E.D. Va. 2012) (citing Martin &
Martin, Inc. v. Bradley Enters., Inc., 256 Va. 288, 291 (1998)).
Finally,
validating
such
vagueness
as
sufficient
to
constitute waiver poses a real threat to employees’ ability to
pursue their rights under Title VII.
Essentially, the majority
equates the mere existence of a waiver provision to a full,
exhaustive release of an employee’s right to bring any pending
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claims.
I
am
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If the Agreement at issue suffices for such a release,
hard
inadequate.
pressed
to
imagine
what
the
majority
would
find
Indeed, as the majority opinion hypothesizes, the
burden is now on employees to insist on language reserving any
such rights, Maj. Op. at 10, even where an agreement does not
reference Title VII claims and even where a waiver provision is
otherwise narrow.
In placing such a burden on employees, the
majority simply disregards the basic tenet that “[w]aivers of
federal remedial rights . . . are not lightly to be inferred.”
Torrez v. Pub. Serv. Co. of N.M., Inc., 908 F.2d 687, 689 (10th
Cir. 1990) (per curiam) (citing Watkins v. Scott Paper Co., 530
F.2d 1159, 1172 (5th Cir. 1976)); see also Pierce v. Atchison
Topeka & Santa Fe Ry. Co., 110 F.3d 431, 438 (7th Cir. 1997);
Lyght v. Ford Motor Co., 643 F.2d 435, 441 (6th Cir. 1981).
For these reasons, I respectfully dissent.
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