Cartinelle v. Department of Homeland Security et al
Filing
120
ORDER. Defendants Motion for Summary Judgment is hereby GRANTED as to Plaintiff John Noble and Plaintiff Nobles claims are DISMISSED WITH PREJUDICE. All current Court settings related to Plaintiff Noble are hereby VACATED. The Clerk shall forthwith enter Final Judgment in favor of Defendant By Judge William J. Martinez on 7/1/2011. (sah, ) Modified on 7/1/2011 to correct the name of the plaintiff in which the Order refers to (sah, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 08-cv-2223-WJM-BNB
INGRID M. CARTINELLE, and
JOHN F. NOBLE,
Plaintiffs,
v.
JANET NAPOLITANO, Secretary, Department of Homeland Security,
Defendant.
ORDER ADOPTING AND AFFIRMING APRIL 6, 2011 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE AND GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT ON PLAINTIFF NOBLE’S TITLE VII CLAIMS
This matter is before the Court on the April 6, 2011 Recommendation by U.S.
Magistrate Judge Boyd N. Boland that Defendant’s Motion for Summary Judgment
(ECF No. 64) be granted. (ECF No. 107.) Jurisdiction is proper pursuant to 28 U.S.C. §
1331. For the reasons stated below, the Magistrate Judge’s Recommendation is
AFFIRMED and Defendant’s Motion for Summary Judgment is GRANTED as to Plaintiff
John Noble’s claims for hostile work environment based on race and retaliation for filing
charges of discrimination.
I. LEGAL STANDARD
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine
de novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” Fed. R. Civ. P. 72(b)(3). In conducting its review, “[t]he district court judge
may accept, reject, or modify the recommendation; receive further evidence; or return
the matter to the magistrate judge with instructions.” Id.
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal
Service, 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. The
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. Quaker State Mini-Lube, Inc. v. Fireman’s Fund Ins. Co., 52 F.3d 1522, 1527
(10th Cir. 1995); Houston v. Nat’l General Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
The analysis to be applied on a motion for summary judgment differs depending
on whether the moving party is also the party with the burden of proof at trial. Where,
as here, the non-movant bears the burden of proof at trial, the non-movant must point to
specific evidence establishing a genuine issue of material fact with regard to each
challenged element. In re Ribozyme Pharmaceuticals, Inc. Securities Litigation, 209 F.
2
Supp. 2d 1106, 1111 (D. Colo. 2002); Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir.
2002).
II. ANALYSIS
Plaintiff John Noble is an African-American man who worked for Defendant
Department of Homeland Security (“DHS”) at Denver International Airport. Plaintiff
alleges he was subjected to a hostile work environment based on race in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and
retaliated against for filing charges with the U.S. Equal Employment Opportunity
Commission (“EEOC”) related to his discrimination.1 (Am. Compl. (ECF No. 21) ¶ 16.)
After completion of discovery, Defendant moved for summary judgment on Plaintiff’s
claims. Defendant argued that Plaintiff had failed to exhaust certain claims and that, as
to the claims that were exhausted, Plaintiff had failed to establish a factual dispute as to
whether he was entitled to relief. (ECF No. 64.) Magistrate Judge Boland entered a
Recommendation finding that certain claims were not exhausted and recommending
that summary judgment be granted in favor of Defendant. (ECF No. 107.) The Court
will examine each of these issues in turn below.
A.
Exhaustion
The Magistrate Judge found that the incidents described in paragraphs 16(d),
16(e), 16(g), 16(i), 16(j), and 16(k) of the Amended Complaint were not properly
1
Plaintiff’s Amended Complaint appears to allege that he was retaliated against for
taking medical leave but does not purport to be filed under the Family Medical Leave Act. (See
ECF No. 21 ¶¶ 16-17.) As discussed below, the Magistrate Judge found that Plaintiff had not
properly exhausted any claims related to his medical condition. (ECF No. 107 at 24.) Plaintiff
does not object to the Magistrate Judge’s finding. Accordingly, the Court will not consider
Plaintiff’s retaliation claim related to his use of medical leave in this Order.
3
exhausted because these incidents did not fall within the scope of any of the four
charges of discrimination Plaintiff Noble filed with the EEOC. (ECF No. 107 at 24-25.)
Plaintiff has not objected to this finding.
“In the absence of timely objection, the district court may review a magistrate . . .
[judge’s] report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d
1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating
that “[i]t does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings”)). The Court has reviewed the Magistrate
Judge’s analysis with respect to Plaintiff’s exhaustion and agrees with his conclusions.
Accordingly, the Court finds that Plaintiff failed to properly exhaust the allegations
contained in paragraphs 16(d), 16(e), 16(g), 16(i), 16(j), and 16(k) of the Amended
Complaint and will not consider these events in determining whether summary judgment
in appropriate on Plaintiff’s claims.
The Magistrate Judge also found that Plaintiff had failed to exhaust his allegation
that he was subjected to disparate treatment after an incident in which a chair was
thrown. Because it was not exhausted, the Magistrate Judge refused to consider any
evidence related to the chair event. (ECF No. 107 at 36 n.16.) Plaintiff objects to the
Magistrate Judge’s refusal to consider this evidence. (ECF No. 108 at 6.) Because
Plaintiff has specifically objected to this ruling, the Court will review whether this
allegation was exhausted de novo.
Before filing suit under Title VII, a plaintiff must exhaust his administrative
remedies with either the EEOC or the appropriate state employment practices agency.
4
See Shikles v. Sprint/United Management Co., 426 F.3d 1304, 1317 (10th Cir. 2005).
In addition to those claims specifically put before the EEOC, the Court is permitted to
exercise jurisdiction over claims falling within “the scope of the administrative
investigation that can reasonably be expected to follow the charge of discrimination
submitted to the EEOC.” Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007)
(quotation marks and citation omitted).
The Magistrate Judge found that Plaintiff had not included the allegation of
discriminatory behavior relating to the chair incident in his EEOC charges of
discrimination. (ECF No. 107 at 36 n.16.) Though Plaintiff objects to the Magistrate
Judge’s failure to consider this evidence, he does not argue that this incident was
presented to the EEOC or otherwise properly exhausted. (ECF No. 108 at 6.) Rather,
Plaintiff ignores the finding that this incident was not exhausted and argues that the
affidavits describing this incident show that Plaintiff was subjected to disparate
treatment. (Id. at 6-7.)
“A plaintiff’s claim in federal court is generally limited by the scope of the
administrative investigation that can reasonably be expected to follow the charge of
discrimination submitted to the EEOC.” MacKenzie v. City & Cty. of Denver, 414 F.3d
1266, 1274 (10th Cir. 2005). An EEOC charge must “contain the facts concerning the
discriminatory and retaliatory actions underlying each claim; this follows from the rule
that each discrete incident of alleged discrimination or retaliation constitutes its own
unlawful employment practice for which administrative remedies must be exhausted.”
Jones, 502 F.3d at 1186. “[B]ecause failure to exhaust administrative remedies is a bar
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to subject matter jurisdiction, the burden is on the plaintiff as the party seeking federal
jurisdiction to show, by competent evidence, that she did exhaust.” McBride v. CITGO
Petroleum Corp., 281 F.3d 1099, 1106 (10th Cir. 2002).
The Court has reviewed Plaintiff’s four EEOC charges and finds that Plaintiff
failed to include allegations related to the chair incident in any of them. The chair
incident is also not generally within the scope of the investigation into Plaintiff’s other
claims. Plaintiff bears the burden of establishing exhaustion and fails to include any
evidence showing that his administrative remedies with respect to the chair incident had
been exhausted. Accordingly, the Magistrate Judge did not err in refusing to consider
any evidence related to the chair incident and the Court will likewise refuse to consider
this evidence in its analysis.
B.
Racial Discrimination and Retaliation
After noting that Plaintiff’s Amended Complaint does not clearly set forth the
bases for his claims, the Magistrate Judge found that Plaintiff had properly exhausted
his claims for hostile work environment based on race and retaliation for prior EEOC
charges. (ECF No. 107 at 26.) Plaintiff does not object to this characterization of his
claims. Accordingly, the Court will analyze whether Plaintiff has established a genuine
factual dispute as to his claims for hostile work environment based on race and
retaliation for EEOC activity.
1.
Retaliation
The Magistrate Judge found that Plaintiff failed to show a material factual dispute
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as to whether he was retaliated against for filing discrimination charges with the EEOC.
(ECF No. 107 at 32-37.) Plaintiff’s Objection does not mention his retaliation claim or
argue that the Magistrate Judge’s finding was erroneous with respect to the retaliation
claim. (ECF No. 108.) Plaintiff’s Objection focuses only on his claim of hostile work
environment based on race.
The Court has reviewed the Magistrate Judge’s reasoning and analysis with
regard to Plaintiff’s claim of retaliation, and finds that it is supported by the record and
not erroneous. See Summers, 927 F.2d at 1167 (where no objection is filed, a court
may review magistrate judge’s report under any standard). As such, the Magistrate
Judge’s Recommendation is ADOPTED to the extent that it recommends granting
Defendant’s Motion for Summary Judgment on Plaintiff’s retaliation claim.
2.
Hostile Work Environment
The Magistrate Judge found that Plaintiff had failed to cite any evidence showing
that his disparate treatment and/or hostile work environment was because of his race.
(ECF No. 107 at 39.) Plaintiff did object to this determination so the Court will review it
de novo. (ECF No. 108.)
Title VII forbids employment discrimination on the basis of race. 42 U.S.C. §
2000e-2(a)(1). “Title VII affords employees the right to work in an environment free
from discriminatory intimidation, ridicule, and insult.” Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 65 (1986). To survive summary judgment on a racially hostile work
environment claim, a plaintiff must show a rational jury could find from the totality of the
circumstances: (1) “that the workplace is permeated with discriminatory intimidation,
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ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment,” Stinnett v. Safeway,
Inc., 337 F.3d 1213, 1219 (10th Cir. 2003), and (2) that the hostility or harassment is
based upon the plaintiff’s race, Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994).
“Title VII is not a code of workplace conduct, nor was it ‘designed to bring about a
magical transformation in the social mores of American workers.’ ” Chavez v. New
Mexico, 397 F.3d 826, 833 (10th Cir. 2005) (quoting Gross v. Burggraf Constr. Co., 53
F.3d 1531, 1543 (10th Cir. 1995)). The plaintiff must come forward with evidence from
which a rational jury could find that he “was the object of harassment because of” his
race. Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998).
Thus, a hostile work environment claim requires proof of not only severe or pervasive
harassment but proof as well that the harassment is based on the plaintiff’s race.
Before turning to the merits of Plaintiff’s claim, the Court must first address the
evidence provided by Plaintiff in opposition to the Motion for Summary Judgment. “[O]n
a motion for summary judgment, ‘it is the responding party’s burden to ensure that the
factual dispute is portrayed with particularity, without depending on the trial court to
conduct its own search of the record.” Cross v. The Home Depot, 390 F.3d 1283, 1290
(10th Cir. 2004). The Court is “not obligated to comb the record in order to make
[Plaintiff’s] arguments for [him].” Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190,
1199 (10th Cir. 2000).
Local Rule 7.1(D) provides that “[e]very citation in a motion, response or reply
shall include the specific page or statutory subsection to which reference is made.”
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D.C.COLO.LCivR 7.1(D). In addition, the undersigned’s Revised Practice Standards
clearly state:
General references to cases, pleadings, depositions, or
documents are insufficient if the document is over one page
in length. The parties shall provide specific references in the
form of precise citations, page number or paragraph number
to identify those portions of the cases, pleadings,
depositions, or documents relevant to the argument
presented. Failure to follow these citation requirements will
result in the striking of the offending documents and/or such
other sanction this court deems appropriate under the
circumstances.
WJM Revised Practice Standards II.F.2.
Both Plaintiff’s Opposition to the Motion for Summary Judgment and his
Objection violate these rules. Rather than specifically citing evidence in the record,
including page and/or paragraph numbers, Plaintiff refers generally to affidavits and
investigative reports. For example, in Plaintiff’s Opposition to the Motion for Summary
Judgment, he argued that facts “set out in the affidavits” supported his claims of racial
discrimination. (ECF No. 69 at 23.) Plaintiff’s Objection states: “The Affidavit of Kristen
Slayton, as well as the other affidavits and the Report of Investigations attached to the
Plaintiffs’ Response to the Summary Judgment Motion demonstrate that there is a
dispute of material fact regarding the hostile work environment and the racial
discrimination that Plaintiff Noble alleges, which should be allowed to go to trial.” (ECF
No. 108 at 5.)
In his Recommendation, the Magistrate Judge stated: “To the extent Mr. Noble
cites to specific evidence in support of specific factual statements, I will consider the
evidence. However, I will not read all of the affidavits and all of the investigation reports
9
in search of facts to support Mr. Noble’s claims.” (ECF No. 107 at 28.) The Magistrate
Judge also generally observed: “Many of the plaintiffs’2 facts are stated without any
citation to supporting evidence; with citations that do not support the factual statements;
or with citations to multi-page documents but not to the specific page number(s) of the
documents.” (Id. at 2.)
Even after these very specific admonishments were included by the Magistrate
Judge in his Recommendation Order, Plaintiff’s Objection thereto inexplicably continued
this pattern, and is itself bereft of proper and adequate citations to the evidence in the
record. The portion of the Objection devoted to Plaintiff Noble’s claims includes only
four record cites. (Objection (ECF No. 108) pp. 3-8.) Plaintiff’s Objection often refers to
evidence—sometimes even going so far as to quote from that evidence—without citing
to the record. (See id. at 4-7.)
Plaintiff objects to the Magistrate Judge’s refusal to consider all of his evidence.
(ECF No. 108 at 8-9.) Plaintiff submitted 476 pages of evidence, including forty-seven
exhibits that are not labeled and for which no table of contents is provided, in support of
his Opposition to the Motion for Summary Judgment. (ECF No. 69.) The Magistrate
Judge had no obligation to sift through the forty-seven exhibits to locate an affidavit
referred to by Plaintiff only by the name of the affiant and then read through the
affidavit—some of which are over ten pages long—to find the quoted portion. The
2
The Magistrate Judge’s Recommendation analyzed both Plaintiff Ingrid Cartinelle’s
and Plaintiff John Noble’s claims. (ECF No. 107.) The Court has held that separate trials of the
two Plaintiffs claims were appropriate because they do not arise out of the same transaction or
occurrence or series of transactions or occurrences. (ECF No. 101.) Accordingly, the Court will
analyze the Plaintiffs’ claims separately and enter a separate order as to each Plaintiff.
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Magistrate Judge’s refusal to parse all of the affidavits to find the facts relevant to
Plaintiff’s racial discrimination claims was not in error. Because the Court also has no
obligation to comb the record for facts favorable to the Plaintiff, the Court will likewise
consider only the evidence specifically cited by Plaintiff in his Opposition to the Motion
for Summary Judgment or in his Objection to the Magistrate Judge’s Recommendation.
The Magistrate Judge found that Plaintiff had failed to cite any evidence showing
that his mistreatment at work was based on his race. (ECF No. 107 at 36-39.) In his
Objection, Plaintiff argues that he submitted evidence showing that Al Myers, a
“Manager”, referred to Plaintiff as “the smart nigger that they could not control”, and that
Myers “wanted [Plaintiff] out of his airport.”3 (ECF No. 108 at 4.) Myers also allegedly
instructed employees to keep a notebook of Plaintiff’s activities so that he could build a
case for firing Plaintiff. (Id.)
The evidence of Myers’s statements was entered into the record as part of
Plaintiff’s deposition. In his deposition, Plaintiff testified that Joseph Kautzman told him
that Al Myers made these comments at a meeting Kautzman attended. (ECF No. 63-2
at 17.) To the extent they are offered for the truth of the matter asserted, Kautzman’s
statement to Plaintiff about what Myers said is hearsay See Fed. R. Evid. 801(c)
(defining hearsay as “a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”).
3
Plaintiff cited to this evidence as “page 31 of John Noble’s Deposition, Ex 9 to
Plaintiff’s Response.” (ECF No. 108 at 4.) This citation is not accurate. Although not required
to do so, the Court located Plaintiff’s deposition at ECF No. 69-2 and read through it to find the
relevant portion, which appears at p. 17 (as assigned through the Court’s electronic filing
system) or p. 52 (according to the transcript’s pagination).
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Plaintiff cites this evidence as showing that Myers believed he was a trouble employee
and was out to get rid of him because of his race. Therefore, Plaintiff is offering Myers’s
statements for the truth of the matter asserted, and those statements are classic
hearsay.
The Court cannot consider hearsay evidence in ruling on a motion for summary
judgment. See Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555 (10th Cir. 1995). As the
Tenth Circuit has held: “Hearsay testimony that would be inadmissible at trial cannot be
used to defeat a motion for summary judgment because a third party’s description of a
witness’ supposed testimony is ‘not suitable grist for the summary judgment mill.’”
Adams v. American Guarantee and Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir.
2000) (quoting Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th
Cir. 1998)). Because Plaintiff only cites to his deposition as evidence of Myers’s
statements and, as presented, such evidence is hearsay, the Court cannot consider
Myers’s statements in resolving the instant motion.
Plaintiff also argues that Kristen Slayton’s affidavit establishes that Plaintiff was
discriminated against based on his race.4 (ECF No. 108-at 4.) However, Ms. Slayton’s
affidavit is also rife with hearsay. Ms. Slayton recounts a comment made to her by Mr.
Blea in which Blea said that he believed Plaintiff was being treated differently based on
Plaintiff’s race. (ECF No. 69-34 at 2.) Again, Plaintiff offers these statement for the
4
Plaintiff cites Ms. Slayton’s affidavit as “Exhibit F-1, pp. 1,3,4.”. (ECF No. 108 at 4.)
On the Court’s docket, there is no “Exhibit F-1.” Though it was not obligated to do so, the Court
has looked through all of the exhibits filed by Plaintiff and has located Ms. Slayton’s affidavit at
ECF No. 69-34.
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truth of the matter asserted so Slayton’s statements regarding Blea’s comments are
also hearsay.5
Plaintiff argues that the comments made by Blea are not hearsay because, if the
case is allowed to proceed to trial, Slayton will be called as a witness and Blea will be
called as an adverse witness. However, if Slayton were called as a witness for Plaintiff
at trial, she would not be permitted to testify about statements made to her by others
who had not been shown to be sufficiently aligned with Defendant such that their
statements could be admissible as non-hearsay under FRE 801(d)(2). Such statements
would be hearsay if recounted at trial, just as they are hearsay when presented via
affidavit. If Blea himself took the stand, his statements about his beliefs would not be
hearsay. But Plaintiff was free to depose Blea or obtain other testimonial evidence from
Blea during discovery and to present that evidence in opposition to the Motion for
Summary Judgment. Plaintiff apparently chose not to do so and, as a result, there is no
competent evidence in the record before the Court regarding Blea’s opinion as to
whether Plaintiff was discriminated against based on his race. That Plaintiff could
present potentially admissible evidence at trial does not change his burden on summary
judgment. Because the only evidence in the record of Blea’s statement is hearsay, the
Court cannot consider it in ruling on the instant motion.
Plaintiff argues that the Magistrate Judge erred in generally considering
5
Plaintiff fails to provide any evidence with regard to the position held by Blea with
Defendant at the time this statement was made. Accordingly, he has failed to show that Blea’s
statements can be attributed to Defendant as an admission of a party-opponent under Federal
Rule of Evidence 801(d)(2), and thus admissible as non-hearsay under that rule.
13
statements presented by Defendant and Defendant’s witnesses while rejecting
statements and affidavits offered by Plaintiff. (ECF No. 108 at 8-9.) Had the Magistrate
Judge engaged in weighing the evidence to arrive at his Recommendation, it would
have been error. See Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986) (stating that
“at the summary judgment stage the judge's function is not himself to weigh the
evidence”); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000) (a court “may not make credibility determinations or weigh the evidence” in
resolving a motion for summary judgment).
However, the Magistrate Judge did not weigh the evidence that was properly
before him. Defendant presented its evidence in a concise manner with appropriate
record citations. Defendant does not rely on hearsay or other inadmissible evidence.
Because much of Plaintiff’s evidence is either not properly cited to or is inadmissible,
the Magistrate Judge rightly did not consider it. As stated previously, the failure to
consider all 476 pages of Plaintiff’s evidence is not error. Having reviewed the
Recommendation and Plaintiff’s Objection thereto, the Court finds that the Magistrate
Judge properly considered all of the admissible evidence before him and did not engage
in any weighing of that evidence.
The Court has reviewed de novo the arguments put forth by counsel in the
briefing on the Motion for Summary Judgment as well as the evidence properly cited by
the parties in support of their arguments. The Court agrees with the Magistrate Judge’s
conclusion that Plaintiff has failed to meet his burden of showing, by competent
evidence properly cited to the Court for its consideration, that any harassment or
14
disparate treatment he suffered was based on his race. Accordingly, summary
judgment in favor of Defendant is appropriate on Plaintiff’s hostile work environment
claim.
IV. CONCLUSION
For the reasons stated above, the Magistrate Judge’s April 6, 2011
Recommendation is AFFIRMED. Defendant’s Motion for Summary Judgment is hereby
GRANTED as to Plaintiff John Noble and Plaintiff Noble’s claims are DISMISSED WITH
PREJUDICE. All current Court settings related to Plaintiff Noble are hereby VACATED.
The Clerk shall forthwith enter Final Judgment in favor of Defendant.
Dated this 1st day of July, 2011.
BY THE COURT:
William J. Martínez
United States District Judge
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