Julie Hutt v. Solvay Pharmaceuticals, Incorp, et al
Filing
Filed opinion of the court by Judge Tinder. AFFIRMED. Joel M. Flaum, Circuit Judge; Frank H. Easterbrook, Circuit Judge and John Daniel Tinder, Circuit Judge. [6588111-1] [6588111] [13-1481]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1481
JULIA HUTT,
Plaintiff‐Appellant,
v.
ABBVIE PRODUCTS LLC,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:10cv204 JVB — Joseph S. Van Bokkelen, Judge.
____________________
ARGUED DECEMBER 4, 2013 — DECIDED JULY 7, 2014
____________________
Before FLAUM, EASTERBROOK, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Plaintiff‐Appellant Julia Hutt ap‐
peals the district court’s grant of summary judgment for De‐
fendant‐Appellee Solvay Pharmaceuticals1 on her Age Dis‐
1 Solvay Pharmaceuticals, Inc. and its successor in interest, Abbott Prod‐
ucts, Inc., are now known as AbbVie Products, LLC. Throughout this
opinion we refer to the Defendant‐Appellee as Solvay Pharmaceuticals,
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crimination in Employment Act (“ADEA”) retaliation and
discrimination claims, and her state law claim asserting a
violation of the Indiana Wage Payment Statute. We affirm
the judgment of the district court.
I
Hutt joined Solvay Pharmaceuticals as a sales representa‐
tive in January 2001. She worked until 2007 with a supervi‐
sor who had recruited her to Solvay from a different compa‐
ny. Despite earning satisfactory ratings in most categories,
the supervisor repeatedly informed Hutt that she needed to
improve her punctuality and consistency in submitting in‐
ternal reports. For example, her 2004 performance evalua‐
tion notes that Hutt’s “lack of organization and administra‐
tion problems are becoming the major focus of [her] perfor‐
mance.” When her first supervisor retired, Brian Lozen was
appointed the new Indianapolis sales district manager by
Jeff Westfall, himself a newly‐appointed regional manager.
Hutt’s lawsuit concerns three years of work under Lozen
and Westfall—from 2008 to 2011—so we detail the course of
her employment over those years. Because we are reviewing
the grant of summary judgment against Hutt, we construe
the facts in the light most favorable to her. See Andrews v.
CBOSCS West, Inc., 743 F.3d 230, 232 (7th Cir. 2014).
A. HR Call and Informal Warning
One of Lozen’s first acts as the district manager was to
ask for his employees’ dates of birth. It appears that from the
early days of Lozen’s tenure, he and Hutt had friction. When
the name of the predecessor company and the entity that employed Hutt,
for consistency with the district court’s opinion.
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several types of new software for internal accounting of ex‐
pense reports and time off were introduced, Hutt requested
training assistance for the software, but did not receive a re‐
sponse from Lozen. She did not complete those reports. On
March 19, 2008—three months into Lozen’s tenure—John,
the Plaintiff‐Appellant’s husband, called Solvay’s human re‐
sources department to voice his concerns about the Plaintiff‐
Appellant’s stress and depression. He stated that part of the
problem was the way that Lozen and Westfall treated her.
Two days after John’s HR call, Lozen phoned Hutt at her
home and spoke at some length—38 minutes—to strongly
express his displeasure with her complaint to HR. A week
after the call to HR, Lozen and Westfall placed Hutt on an
Informal Warning Status and issued a Performance Im‐
provement Plan (“PIP”). The PIP required Hutt to finish her
uncompleted administrative tasks within the next five days,
by March 31, when the company’s national sales meeting
was scheduled to start. Lozen approved a computer trainer
to help Hutt with the new software the same day Hutt was
placed on warning status. Hutt completed some, but not all,
of her incomplete tasks by the time the national sales meet‐
ing began.
B. 2008 National Sales Meeting and Formal Warn‐
ing
By all accounts, the 2008 national sales meeting was
eventful. At least twice, Lozen forcibly grabbed Hutt’s arm
to stop her from leaving a room. Hutt also states that five or
seven drunken male employees harassed and groped her,
including one man who touched her face and leg, and
burned her skirt with his cigarette, though she did not report
this incident. Solvay counters that Hutt behaved inappropri‐
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ately at the national sales meeting. At some point, Hutt
locked a colleague out on a hotel patio as a practical joke.
Two sales representatives informed Lozen that Hutt had
stated that Lozen and Westfall had engaged in a homosexual
relationship, that Hutt planned to get Lozen fired and sue
Solvay to make money, and that she was soliciting collabora‐
tion from her colleagues to assist in her efforts. Unrelated to
the national meeting, several other employees complained to
Westfall and Lozen about Hutt’s unprofessional and inap‐
propriate behavior. Lozen received emails in which a sister
company’s sales representatives alleged Hutt was providing
too many samples to doctors, arriving late to lunches or can‐
celling appointments, scheduling appointments with physi‐
cians under the names of the other company’s sales repre‐
sentatives, and making unprofessional statements to cus‐
tomers.
On April 28, 2008, Westfall and Lozen placed Hutt on a
Formal Record of Warning and another PIP. They stated that
Hutt had still not complied with all of the requirements of
the March PIP because several reports were still uncomplet‐
ed, and that this highlighted her administrative deficiencies.
They also cited her unprofessional conduct, her disruptive
behavior at the Orlando conference, and her inappropriate
behavior towards the sister company’s employees as reasons
for her formal warning. The PIP required Hutt to submit her
expenses and out‐of‐territory time on a set schedule. Sales
representatives on formal or final written warning are ineli‐
gible for bonus compensation, according to Solvay’s incen‐
tive compensation general handbook.
Hutt took a medical leave one week after being placed on
formal warning; she was on leave for seven weeks, through
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July 28. In response, Solvay extended the expiration date of
Hutt’s warning to September 18, 2008, to ensure she served
the full term of her formal warning.
C. Final Warning and Discipline of Craig King
When Hutt returned from leave, further trouble ensued:
Solvay claims that Hutt cancelled numerous “field contacts,”
during which she was to be evaluated for her sales perfor‐
mance. Hutt claims that her cancellations were for medical
reasons, and that Lozen also cancelled on her. Ultimately,
Hutt was placed on Final Warning Status in October, sched‐
uled to last until December 19, 2008, for failing to comply
with the requirements of the April PIP. The Final Warning
required Hutt to complete a series of field contacts with
Lozen, Westfall, and another district manager.
Craig King, a fifty‐eight year old Solvay employee, was
also placed on formal warning in June, about a month after
Hutt had been placed on formal warning. He was the only
other representative, out of the ten representatives in Indi‐
anapolis, to be placed on warning status. On the day Hutt
was placed on final warning, King was also placed on final
warning. The written final warnings were substantially simi‐
lar, with portions of King’s warning cut and pasted into
Hutt’s final warning. And both King and Hutt received
overall ratings of “Does Not Meet Expectations” in every
category for their 2008 performance evaluations.
In February 2009, Hutt filed a complaint with the EEOC
alleging age discrimination and retaliation. In March, both
King’s and Hutt’s ratings were revised to “Partially Meets
Expectations” as the result of an instruction from HR to cor‐
rect an administrative error in the ratings calculation. At a
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May 2009 sales meeting, Westfall angrily confronted Hutt
about her February EEOC charges and demanded that she
and her attorney fly to Atlanta to discuss the charges with
him. In June 2009, King was terminated from Solvay, but
Hutt’s employment continued.
In April 2010, Hutt was informed that she was retroac‐
tively being removed from final warning, effective as of De‐
cember 11, 2009. By that time, she had been under a warning
status for seven consecutive quarters, and had thus been in‐
eligible for incentive pay and bonuses for those months.
D. Alleged Favoritism towards Mike Netterville
Hutt also alleges that beginning in 2010, Lozen began to
show favoritism towards Mike Netterville, another sales rep‐
resentative in Hutt’s sales territory. He was provided with
an email list of new physician prospects that was not pro‐
vided to Hutt; he ended 2010 with a lower sales rank in the
region than Hutt, but received public recognition and a bo‐
nus that Hutt did not, in part because Hutt’s performance
evaluation by Westfall stated that her performance was un‐
acceptable. In 2011, the company began ranking Hutt and
Netterville as if they were one sales unit, even though other
sales representatives were ranked individually. The duo
ended the year 2011 ranked third in the region for sales, and
Netterville again earned recognition and compensation as a
top sales representative, but Hutt did not. Again, the reason
she did not earn the recognition is linked to her poor per‐
formance review: Lozen claims he was unable to rate Hutt’s
overall performance because she cancelled on numerous
field contacts with management during 2011. Hutt states that
she participated in one field contact with Doug Zoeller, and
that she was forced to cancel other field contacts for health
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reasons, the death of her mother, and because Lozen refused
to provide her with samples.
E. District Court Litigation
The district court granted Solvay’s motion for summary
judgment on the grounds that Hutt failed to identify a simi‐
larly‐situated comparator for the purposes of establishing a
prima facie case of discrimination and retaliation, and be‐
cause she was ineligible for bonus payments while on warn‐
ing status, leaving her with no cause of action under the In‐
diana Wage Payment Statute, which provides a cause of ac‐
tion to employees who earned wages that were subsequently
withheld by the employer. Hutt timely appealed.
II
We review the district court’s grant of summary judg‐
ment de novo, construing all facts and reasonable inferences
in the light most favorable to Hutt. See Wilson v. Cook Cnty.,
742 F.3d 775, 779 (7th Cir. 2014). We first turn to Hutt’s alle‐
gation that the district court erred in granting summary
judgment on Hutt’s age discrimination claim. “A plaintiff
may prove employment discrimination under the ADEA,
Title VII, and § 1981[ ] using either the direct method or indi‐
rect method.” Andrews, 743 F.3d at 234 (modification in orig‐
inal). While it is debatable whether the two methods are
sharply distinguishable, see Bass v. Joliet Pub. Sch. Dist. No.
86, 746 F.3d 835, 840 (7th Cir. 2014), under the direct method,
“the plaintiff must present either direct or circumstantial ev‐
idence of discrimination in her opposition to summary
judgment.” Id. at 841. Whether direct or circumstantial, the
“evidence [must] permit the trier of fact to find that unlaw‐
ful discrimination caused the adverse job action.” Id. “Direct
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evidence requires an admission of discriminatory intent, i.e.
‘smoking gun’ evidence.” Alexander v. Casino Queen, Inc., 739
F.3d 972, 979 (7th Cir. 2014) (internal quotation marks and
citations omitted). “Circumstantial evidence,” by contrast,
“typically includes (1) suspicious timing, ambiguous oral or
written statements, or behavior toward or comments di‐
rected at other employees in the protected group; (2) evi‐
dence, whether or not rigorously statistical, that similarly‐
situated employees outside the protected class received sys‐
tematically better treatment; and (3) evidence that the em‐
ployee was qualified for the job in question but was passed
over in favor of a person outside the protected class and the
employerʹs reason is a pretext for discrimination.” Id. “A
party may combine these various types of evidence to pre‐
sent a convincing mosaic of circumstantial evidence from
which a factfinder can make a reasonable inference of dis‐
criminatory intent.” Teruggi v. CIT Grp./Capital Fin., Inc., 709
F.3d 654, 660 (7th Cir. 2013) (internal quotation marks omit‐
ted).
The district court correctly concluded that Hutt’s ADEA
discrimination claim fails under the direct method, as she
lacks both direct and circumstantial evidence. She does not
provide any “smoking gun” evidence wherein Westfall or
Lozen, or any other Solvay employee, admits to discrimina‐
tion against Hutt on the basis of her age. Nor does she point
to circumstantial evidence from which a rational juror could
infer that Solvay was discriminating against Hutt based on
her age. “To be convincing, [Plaintiff’s] evidence must point
directly to a discriminatory reason for the employer’s action
… and be directly related to the employment decision.” Id.
(citation and internal quotation marks omitted). But there is
no evidence in the record that Lozen or Westfall, or any Sol‐
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vay employee, made any comments relating to, or even ref‐
erencing, Hutt’s age. The evidence she invokes for her age
discrimination claim—Lozen’s request that the employees
submit their birth dates, the duration and frequency of the
warnings against her, Lozen’s and Westfall’s hostile behav‐
ior towards her, and Solvay’s warnings against Craig King—
does not “point to discriminatory intent, either individually
or collectively.” Id. Rather, her assembled evidence amounts
to “an amorphous litany of complaints about a myriad of
workplace decisions,” which cannot suffice for the purpose
of establishing an age discrimination case under the direct
method. Id. (citations and internal quotation marks omitted).
Hutt focuses her briefing on Solvay’s treatment of Hutt
and Craig, so it deserves mention why this is not circum‐
stantial evidence that can be used to make a case for age dis‐
crimination under the direct method. Simply, there are no
facts about Solvay’s treatment of Hutt or Craig to suggest
that the company’s employment actions had anything to do
with their ages. Hutt wants us to extrapolate that, because
Hutt and Craig were respectively 54 and 59 at the time of the
employment actions—the two oldest sales representatives to
be placed on warning status, and also the two sales repre‐
sentatives to be placed on the longest terms of warning sta‐
tus—Solvay must have acted with age‐based discriminatory
intent. But the circumstantial evidence in this case does not
point directly to a discriminatory reason for the employer’s
actions. No evidence is presented in support of the conten‐
tion that the younger employees on warning status, or in‐
deed other younger Solvay employees in general, are simi‐
larly‐situated comparators, “directly comparable” to Hutt
“in all material respects,” and with “other possible explana‐
tory variables” eliminated, whose differential treatment
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from Hutt would allow an inference of age‐based discrimi‐
nation. See Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 675
(7th Cir. 2012); Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir.
2012) (“[T]he proposed comparator must be similar enough
to permit a reasonable juror to infer, in light of all the cir‐
cumstances, that an impermissible animus motivated the
employer’s decision.”). Instead, the theory that Hutt and
Craig were singled out for worse treatment based on their
age is only asserted with “reliance on speculation.” Good, 673
F.3d at 676. “[O]ne might guess or speculate that perhaps
[Hutt’s age] might have made a difference in the decision,
but guesswork and speculation are not enough to avoid
summary judgment.” Id. at 675. For this reason, her claim
fails under the direct method.
We need not analyze the record under the indirect meth‐
od, because Hutt’s briefs do not raise the indirect method,
and so this argument has been waived. See Jones v. City of
Elkhart, Ind., 737 F.3d 1107, 1113 (7th Cir. 2013). Nonetheless,
we note that she could not succeed under the indirect meth‐
od, either. Under the indirect method of proof, which uses
the test first set out in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), the plaintiff must establish a prima facie case
of discrimination, showing that (1) she was a member of a
protected class; (2) she was performing her job satisfactorily;
(3) she suffered an adverse employment action; and (4) the
employer treated similarly‐situated employees outside of the
protected class (in this case, younger employees) more fa‐
vorably. Bass, 746 F.3d at 841. Here, prongs 1 and 3 are not
contested: it is clear that Hutt, aged 54 at the time of the
summary judgment, was part of the protected age class, and
that she suffered adverse employment actions in being
placed on formal and final warnings, and denied recognition
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and compensation for her sales performance. But as we stat‐
ed in our analysis of the direct method, Hutt has not shown
that similarly‐situated younger employees were treated
more favorably, and her failure to prove this prong is suffi‐
cient for our affirmance of the district court’s grant of sum‐
mary judgment. See Chaib v. Indiana, 744 F.3d 974, 984 (7th
Cir. 2014) (“[W]ithout similarly situated comparators, no in‐
ference of discrimination arises and [Plaintiff’s] disparate
treatment claims fail under the indirect method.”).
III
Hutt’s retaliation claim does not fare any better. A retali‐
ation claim under the ADEA may be established by either
the direct or indirect method. Smith v. Lafayette Bank & Trust
Co., 674 F.3d 655, 657 (7th Cir. 2012). “Under the direct
method of proof, a plaintiff must show: (1) she engaged in
statutorily protected activity; (2) she suffered an adverse
employment action; and (3) there is a causal connection be‐
tween the two.” Id. Hutt claims that her protected activity
was the filing of the EEOC charge in February 2009, and she
is correct that the filing of an EEOC complaint is a protected
activity. See id. at 658. (The district court is correct that this is
the only protected activity in the record; John Hutt’s phone
call in March 2008 never mentioned Hutt’s age, or any other
attribute that would give the Plaintiff‐Appellant member‐
ship in a protected class.)
However, the main defect in Hutt’s retaliation claim is
that she can assert no causal connection between the filing of
the EEOC charge and Solvay’s adverse employment actions.
See Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 481 (7th
Cir. 2010) (“To survive summary judgment on her retaliation
claim, [plaintiff] must present sufficient direct or circumstan‐
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tial evidence for the trier of fact to infer there was a causal
link between the protected activity and [the adverse job ac‐
tion].”). Hutt had already been on formal warning for ap‐
proximately ten months by the time her EEOC charge was
filed on February 9, 2009. While Hutt claims that the dura‐
tion of her warning status was extended as the result of her
EEOC complaint, this claim relies on conjecture and tem‐
poral proximity rather than evidence. “[S]uspicious timing
alone is rarely sufficient to create a triable issue … . [I]t is
clear that mere temporal proximity is not enough to estab‐
lish a genuine issue of material fact.” Tomanovich v. City of
Indianapolis, 457 F.3d 656, 665 (7th Cir. 2006) (citation and in‐
ternal quotation marks omitted). See also Mobley v. Allstate
Ins. Co., 531 F.3d 539, 549 (7th Cir. 2008) (noting that while
there may be an exception to the general rule that
“[e]vidence of temporal proximity … is insufficient to estab‐
lish a causal connection for a claim of retaliation,” such an
exception “would be limited to matters occurring within
days, or at most, weeks of each other”). Hutt’s allegation that
she was angrily confronted by Westfall three months after
filing her EEOC charge is more troubling, but again, she
gives no evidence, direct or circumstantial, that links West‐
fall’s confrontation to any adverse employment action taken
by Solvay. For this reason, accounts of Lozen grabbing her
without her consent also fail to suffice for the purpose of a
retaliation claim. Her chosen legal theory—retaliation—calls
for evidence of adverse employment actions linked to a pro‐
tected activity, not just evidence of problematic hostility.
Hutt could also have proceeded under the indirect meth‐
od of proof for her retaliation claim. If proceeding under the
indirect method, the plaintiff must show “(1) she engaged in
statutorily protected activity; (2) she met the employer’s le‐
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gitimate expectations; (3) she suffered an adverse employ‐
ment action; and (4) she was treated less favorably than simi‐
larly situated employees who did not engage in statutorily
protected activity.” Smith, 674 F.3d at 657–58. However, be‐
cause Hutt chose to proceed exclusively under the direct
method framework for the retaliation claim in her appellate
briefs, any argument under the indirect method is waived.
Even if the indirect method were considered, her argument
would likely fail as the result of her failure to introduce into
the record a similarly‐situated comparator who had not filed
an EEOC charge and who was treated more favorably than
Hutt. See Tomanovich, 457 F.3d at 667 (requiring a comparator
who “is similarly situated [to the plaintiff] with respect to
performance, qualifications and conduct, … and had en‐
gaged in similar conduct without such differentiating or mit‐
igating circumstances as would distinguish their conduct or
the employerʹs treatment of them”).
For these reasons, the district court correctly granted
summary judgment on Hutt’s retaliation claim.
IV
Lastly, we turn to the Indiana Wage Payment Act claim.
The statute provides:
(a) Every person, firm, corporation, limited li‐
ability company, or association, their trus‐
tees, lessees, or receivers appointed by any
court, doing business in Indiana, shall pay
each employee at least semi‐monthly or bi‐
weekly, if requested, the amount due the
employee.
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(b) Payment shall be made for all wages earned
to a date not more than ten (10) business
days prior to the date of the payment.
Ind. Code. § 22‐2‐5‐1.
Hutt asserts that incentive pay and bonuses constitute
“wages” under the statute, and argues that she was deprived
of earned wages in violation of the statute when Solvay
placed her on formal and final warning status in bad faith—
bad faith that may be established even if her retaliation and
discrimination claims fail. She contends that summary
judgment was not proper on this question because there ex‐
ists a genuine question of material fact as to whether Solvay
acted in bad faith in placing Hutt on warning status. Solvay
contends that it is beyond dispute that Hutt was ineligible
for bonuses while on formal and final warning status, and
that her placement on warning status did not involve any
bad faith conduct on the part of Solvay or its employees.
A preliminary question is whether Hutt’s bad faith con‐
duct argument was waived below. It appears Hutt at least
briefly mentioned this concept before the district court: her
brief in response to Solvay’s summary judgment motion
stated that “[a] genuine issue of material fact also exists as to
whether Solvay’s imposition of a Formal Warning was im‐
posed on Mrs. Hutt in bad faith to coerce her resignation or
in retaliation for protected activities. Mrs. Hutt’s claim under
the Wage Payment Statute for earned compensation is valid
under the law, independent of her age discrimination and
retaliation claims.” Pl.’s Resp. Defs.’ Joint Mot. Summ. J. at
32 (N.D. Ind. Jul. 23, 2012), ECF No. 78. However, Solvay ar‐
gues that because Hutt did not elaborate on her allegations
of miscellaneous “bad faith” conduct by Solvay before the
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district court—that is, bad faith conduct separate from Sol‐
vay’s alleged acts of retaliation and age discrimination—we
should consider this argument waived. See Frey Corp. v. City
of Peoria, Ill., 735 F.3d 505, 509 (7th Cir. 2013) (“A party
waive[s] the ability to make a specific argument for the first
time on appeal when the party fail[s] to present that specific
argument to the district court, even though the issue may
have been before the district court in more general terms.”)
(modifications in original) (citations and internal quotation
marks omitted).
Solvay’s point on waiver is compelling. Having scoured
Hutt’s opposition brief before the district court, we cannot
discern a substantive allegation of bad faith that is inde‐
pendent of her age discrimination and retaliation claims. In
supporting her contention that Solvay acted in bad faith,
Hutt argued that “Defendants’ actions outlined above were
taken due to her age and in retaliation for complaints to Sol‐
vay made” by John and Julia Hutt. In closing the section, she
again asserted that Solvay’s actions in placing Hutt on warn‐
ing status “was a mere pretext for its intent to separate Mrs.
Hutt from her job based on her age or in retaliation for her
participation in protected activities.” She did not specify or
develop another theory of how Solvay acted in bad faith.
Because the Plaintiff‐Appellant failed to develop her bad
faith argument below, she cannot now raise this argument
for the first time on appeal. As we have found that the dis‐
trict court’s summary judgment on the retaliation and dis‐
crimination claims were proper, Plaintiff‐Appellant’s Indi‐
ana Wage Payment Act claim also fails, because she is able to
present no other theory of how Solvay’s disciplinary actions
against her constituted a “bad faith” withholding of her
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wages. Accordingly, we affirm the district court’s grant of
summary judgment.
V
For the foregoing reasons, we AFFIRM the district court’s
judgment.
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