DeFazio v. Starwood Hotels & Resorts Worldwide, Inc.
Filing
55
ORDER granting 31 Defendants Motion for Summary Judgment; The Clerk shall enter judgment in favor of Defendant on all claims; and Defendant shall have its costs, by Judge William J. Martinez on 4/17/2013.(ervsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-03357-WJM-KLM
GUY DEFAZIO,
Plaintiff,
v.
STARWOOD HOTELS & RESORTS WORLDWIDE, INC., a Maryland corporation
Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Guy DeFazio (“Plaintiff”) bring this action against his former employer,
Starwood Hotels & Resorts Worldwide, Inc. (“Defendant”), alleging that he was
terminated in breach of his implied employment contract and in violation of public
policy. (ECF No. 1.) Before the Court is Defendant’s Motion for Summary Judgment
(“Motion”). (ECF No. 30.) For the reasons set forth below, the Motion is granted.
I. LEGAL STANDARD
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. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
II. FACTUAL BACKGROUND
The relevant facts, taken in the light most favorable to the Plaintiff, are as
follows.
On November 22, 2008, Plaintiff Guy DeFazio began working for Defendant as a
general maintenance engineer at its location in Steamboat Springs, Colorado. (Pl.’s
Aff. (ECF No. 33-1) ¶ 1.) Pat Lichenstein was the Director of Engineering and Plaintiff’s
direct supervisor. (Pl.’s Dep. (ECF No. 30-2) at 27.) Shortly after Plaintiff was hired, he
was given a copy of Defendant’s Code of Business Conduct (“Code”) and signed an
certification stating that he received and was responsible for familiarizing himself with
the Code’s contents. (Id. at 23; ECF No. 30-5 at 7.) Plaintiff was also given
Defendant’s Associate Handbook (“Handbook”) and signed an acknowledgment stating
that he was responsible for familiarizing himself with the Handbook’s contents. (Pl.’s
Dep. at 19-20; ECF No. 30-4 at 54.)
In 2008, the hotel began a $20 million renovation project that included a new
HVAC system in the guest rooms. (Id. ¶ 3.) In early 2009, Plaintiff was assigned to be
2
the primary engineer on the HVAC portion of this project. (Id.) The controls portion of
the HVAC renovation was subcontracted to Commercial Systems Integrators (“CSI”).
(Pl.’s Dep. at 44.)
As a result of the hotel’s renovations, the building was sealed tighter, which in
turn led to moisture build-up in the guest rooms. (Lichenstein Dep. (ECF No. 30-6) p.
28.) As guest rooms did not have a way to remove the excess moisture, mold grew in
some guest rooms. (Pl.’s Aff. ¶ 3; Pl.’s Dep. at 51.) Employees were encouraged to
report mold when it was located. (Pl.’s Dep. at 132.) The affected room was then
taken out of service until the room was dried and the mold was cleaned up. (Id. at 59;
Lichenstein Dep. at 43.) The hotel was able to remain open through the 2008-09 ski
season by implementing temporary remediation measures, including large water
extractors and large fans. (Pl’s Aff. ¶ 6.)
In July 2009, Plaintiff was informed that CSI has been chosen to address the
moisture build-up issues causing the mold. (Id. ¶ 8.) CSI installed humidity stats in all
guest rooms which caused the humidity to condense on cold water pipes and be
removed from the room. (Lichenstein Dep. at 30, 50.) Plaintiff disagreed with the
remediation plan because tests had shown that it would not remove enough moisture to
cure the mold problem. (Pl.’s Aff. ¶¶ 9-10.) At that time, Plaintiff did not voice his
concerns with the remediation plan or complain about the choice of CSI to do the work.
(Id. ¶¶ 13-14.)
In September 2009, Plaintiff prepared a job description for himself, which
included management of projects, compilation of information for bids, and training and
supervising staff. (Pl.’s Dep. at 85-87.) Plaintiff also prepared an engineering
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improvement proposal and asked his supervisor to forward it to a group of Defendant’s
executives that were coming to evaluate issues in each department of the hotel. (Pl.’s
Aff. ¶ 13.) Mr. Lichenstein responded in an angry and condescending manner and told
Plaintiff that his proposal would not be given to the executives and that he was
spending too much time monitoring CSI’s failures. (Id. ¶ 14; Pl.’s Dep. at 100-01.)
After raising this issue, Plaintiff felt his supervisor became more resistant to his
concerns and engaged in “acts of retaliation”. (Pl.’s Aff. ¶ 15.)
On November 15, 2009, CSI had difficulties accessing a system because
Plaintiff was working on the same system. (Pl.’s Dep. at 92-93.) CSI threatened to bill
Defendant for its time lost as a result of this incident. (Id. at 93-94.) Plaintiff was not
disciplined but Lichenstein instructed him to apologize to CSI and he did. (Id.) Plaintiff
viewed Defendant’s response to the situation, including the instruction that he
apologize, as “extremely inappropriate.” (Id.)
On November 21, 2009, Plaintiff took his concerns to Carl Sokia, Defendant’s
Director of Human Resources at the hotel. (Pl.’s Aff. ¶ 16; ECF No. 30-7.) Plaintiff told
Mr. Sokia about his frustration with the quality of work being performed by CSI as well
as his dissatisfaction with how his supervisors were handling the situation. (ECF No.
30-7.) Mr. Sokia informed Plaintiff that he shared Plaintiff’s frustrations and that he
would look into the allegations and proceed according to Defendant’s policies. (Id. ¶
17.)
In December 2009, Plaintiff exchanged e-mails with his supervisor about
maintaining safety logs and the time Plaintiff was spending as a member of the Safety
Committee. (Pl.’s Dep. at 103-05; ECF No. 30-5 at 14-17.) Plaintiff forwarded this e4
mail exchange to Sokia because he thought Mr. Lichenstein was “attempting to find
some kind of fault on my part with this particular issue, the loss of the safety log book.”
(Pl.’s Dep. at 104-05.) Plaintiff told Sokia that he believed Lichenstein was retaliating
against him for putting together the engineering improvement proposal, which
suggested fixes to long-standing problems. (Id. at 105; ECF No. 30-5 at 18.) Plaintiff
was not disciplined as a result of the lost log book or his discussion of the matter with
Sokia. (Pl.’s Dep. at 105.)
On December 31, 2009, Lichenstein informed Plaintiff that he would be assigned
to work the night shift so that he could learn the duties of night shift employees. (Id. at
109.) Lichenstein also told Plaintiff that, as a result of a change in direction, Plaintiff
would no longer have duties for the time-share portion of the property. (Id. at 110-113.)
Lichenstein indicated that he would support Plaintiff’s application for engineer positions
at other properties and that he would tailor projects to assist Plaintiff with developing the
skills necessary to strengthen his applications. (Id.)
After this conversation with Lichenstein, Plaintiff asked to meet with Sokia to
discuss the changes to his work environment. (ECF No. 30-5 at 20.) Sokia understood
that Plaintiff was unhappy with the expectation that he perform general maintenance
engineer duties like changing light bulbs and painting. (Sokia Dep. (ECF No. 30-1) at
34-35.) Plaintiff again believed the change of duties was retaliation for his criticism of
CSI and the suggestions contained in his proposal. (Pl.’s Aff. ¶ 28.)
On January 1, 2010, part of the system installed by the subcontractor failed
overnight and dozens of guest rooms went without heat. (Id. ¶ 18.) This failure was not
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reported, Plaintiff believes, “to protect the fragile status of the subcontractor [CSI].” (Id.)
On January 4, 2010, Plaintiff reported the failure, as well as his general concerns about
the CSI’s work, to Defendant’s Director of Operations at the hotel, who passed it along
to Mr. Sokia. (Id. ¶ 19; ECF No. 30-5 at 21-22.)
Also on January 4, 2010, Plaintiff e-mailed Howard Wong, Director of
Construction for Starwood’s time-share property, about problems he had observed in
the time-share property. (Id. ¶ 21; ECF No. 30-5 at 24-25.) Plaintiff attached pictures
of freezing and reported complaints of louder than normal sounds coming from the
systems. (ECF No. 30-5 at 24.) Plaintiff did not include Mr. Lichenstein on his e-mail to
Wong. (Id.) Mr. Lichenstein believed that Plaintiff’s communications with Wong were
inappropriate because of their tone, because Plaintiff reported inaccurate information,
and because these communications exceeded Plaintiff’s job duties. (Lichenstein Dep.
at 70-75.)
On January 7, 2010, Plaintiff was called into a meeting with Mr. Lichenstein and
Mr. Sokia about the January 4 e-mail exchange with Mr. Wong. (Pl.’s Aff. ¶ 21.)
Plaintiff was admonished that he should not communicate with “outside parties on
behalf of the hotel”.1 (Id. ¶ 22.) This was a change of practices because Mr.
Lichenstein had specifically directed Plaintiff, at least six months before, to have these
communications directly with a number of Starwood executives, including Mr. Wong.
(Id. ¶ 29.) Plaintiff was reminded of the procedures for reporting complaints contained
1
From the record, it appears the time-share property is a separate entity from the hotel,
owned by a subsidiary of Defendant. Thus, the Director of Construction for the time-share
property was not in Plaintiff’s chain of command. (See Lichenstein Dep. at 70-71.)
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in the Code and the Handbook, which require complaints to be brought to his
supervisors. (ECF No. 30-5 at 35.) Plaintiff was warned that he would be subject to
further disciplinary action, up to and including termination, if he did not improve his
“overall attitude, conduct or demeanor”. (Id.)
On January 14, 2010, Plaintiff e-mailed Mr. Lichenstein a list of what Plaintiff
considered to be his accomplishments and responsibilities over the past year. (Pl.’s
Dep. at 138-39.) Plaintiff sent this e-mail because he had concerns about the
discussions that occurred during the January 7, 2010 meeting with Mr. Sokia and Mr.
Lichenstein. (Id.)
On January 19, 2010, Plaintiff wrote to Mr. Sokia about the directive he was
given not to communicate with anyone outside of the department about his concerns.
(Id. ¶ 25.) Plaintiff expressed his belief that this directive violated several provision of
Defendant’s personnel policies, and that the directive was retaliation for Plaintiff’s
complaints about the subcontractor’s work. (Id.) Plaintiff’s e-mail specifically cited
Defendant’s policies prohibiting retaliation. (Id. ¶ 32.)
Lichenstein believed that Plaintiff should be terminated because, beginning in
the last quarter of 2009, Plaintiff spent too much time using a computer and not enough
time performing the duties of a general maintenance engineer. (Lichenstein Dep. at
111, 117-19.) On January 21, 2010, Mr. Sokia met with Plaintiff. (Pl.’s Dep. at 165-66.)
Plaintiff informed Mr. Sokia that he was generally happy working for Defendant, with the
exception of a few people. (Id. at 166-67.) Mr. Sokia understood that Plaintiff was
unhappy with the management in the engineering department. (Sokia Dep. at 57-58.)
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Mr. Sokia informed Plaintiff that he was terminated because of his displeasure with
management. (Pl.’s Aff. ¶ 26.)
III. ANALYSIS
Absent an express contract providing otherwise, Colorado law presumes that an
employment relationship is terminable at will by either party without liability. Cont’l Air
Lines, Inc. v. Keenan, 731 P.2d 708 (Colo. 1987). Common law exceptions to this
presumption include the two issues in this case: public policy and implied contract or
promissory estoppel. Crawford Rehab. Servs., Inc. v. Weissman, 938 P.2d 540 (Colo.
1997). An employee hired without an express contract, such as Plaintiff, has the
burden of pleading and proving one of these exceptions to at will employment. Pickell
v. Ariz. Components Co., 931 P.2d 1184 (Colo. 1997).
In this case, Plaintiff brings claims under both of the common law exceptions and
alleges that he was terminated in breach of his implied employment contract as well as
in violation of public policy.2 (ECF No. 1.) Defendant moves for summary judgment on
both of Plaintiff’s claims. (ECF No. 30.) The Court will address each in turn below.
A.
Promissory Estoppel
Plaintiff brings a claim of promissory estoppel related to Defendant’s alleged
retaliation against Plaintiff for complying with certain provisions of Defendant’s
employment policies. (Compl. ¶¶ 88-92.)
As Plaintiff bears the burden of proving this common law exception to at will
2
Plaintiff also brought a claim for express breach of contract. (ECF No. 1 at 10-11.)
However, in his opposition to the Motion for Summary Judgment, Plaintiff “voluntarily dismisses”
this claim. (ECF No. 33 at 10 n.1.) The Court will therefore enter judgment in favor of
Defendant on Plaintiff’s express breach of contract claim.
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employment, Plaintiff must show a genuine dispute of fact as to each of the elements of
his promissory estoppel claim. Thus, Plaintiff must show: (1) Defendant made a
promise to Plaintiff; (2) Defendant reasonably should have expected that the promise
would induce action or forbearance by Plaintiff; (3) Plaintiff reasonably relied on the
promise to his detriment; and (4) the promise must be enforced to prevent injustice.
Cherokee Metro. Dist. v. Simpson, 148 P.3d 142, 151 (Colo. 2006). Defendant
challenges the first three elements of this claim.
With respect to the first element, Defendant contends that Plaintiff cannot show
that it made a “promise” to the Plaintiff because the employment policies relied upon by
Plaintiff were subject to a disclaimer that they did not create a contract and could be
unilaterally altered by Defendant at any time. (ECF No. 30 at 22-23.) Colorado courts
have held that, to create an enforceable promise, a statement must: (1) “either disclose
a promissory intent or be one that the employee could reasonably conclude constituted
a commitment by the employer”; and (2) be sufficiently definite to allow a court to
understand the nature of the obligation undertaken. Soderlun v. Pub. Serv. Co. of
Colo., 944 P.2d 616, 620 (Colo. App. 1997) (emphasis in original).
Plaintiff first claims that whether he was an at-will employee is “ambiguous”
because Defendant promised to terminate him only for a “lawful reason”, and “[i]f it
were truly an at-will contract, any termination would be considered lawful and,
consequently, there would be no reason to make the above lawful-reason promise.”
(ECF No. 33 at 12.) However, Plaintiff’s argument ignores the paragraph that
immediately follows the “lawful reason statement.” In the next paragraph, the
Handbook states:
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Employment at Sheraton is at-will, meaning that you or
Sheraton may terminate your employment with or without
cause or notice. The at-will nature of employment at
Sheraton can be changed only by a written letter signed by
you and Sheraton’s General Counsel. This handbook is not
a contract for employment for any term and employment at
Sheraton is for no specific duration. Sheraton reserves the
right to modify or eliminate any or all its policies and benefits
in the handbook.
(ECF No. 30-4 at 51.) Viewing the “Termination of Employment” policy as a whole, the
Court finds that there is no ambiguity as to whether Plaintiff was an at-will employee.
Defendant’s clear expression of the at-will nature of Plaintiff’s employment is not blurred
by the statement that it may terminate Plaintiff for “any other lawful reason.” (Id.)
Defendant’s statement that it will only terminate an employee for a “lawful
reason” is essentially just a commitment not to violate the law. It is not a statement that
employees will only be terminated for good cause or according to any progressive
disciplinary policy. Compare Evenson v. Colo. Farm Bureau Mut. Ins. Co., 879 P.2d
402, 409 (Colo. App. 1993) (noting that an employer can create an implied employment
contract where employee handbook contained mandatory termination procedures and
requires “just cause” for termination). Despite Plaintiff’s arguments to the contrary, the
Court finds that Defendant’s statement that employees may be terminated for “any
lawful reason” does not create an ambiguity as to Plaintiff’s status as an at-will
employee.
Plaintiff also contends that he relied on Defendant’s non-retaliation policy, which
stated: “It is our policy not to discriminate or retaliate against any associate who reports
any violation of our policies, provides evidence or who otherwise participates in an
investigation in good faith.” (ECF No. 30-5 at 5.) Plaintiff contends that he relied on
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this promise in reporting his concerns about the mold and that he was terminated
contrary to this policy. (ECF No. 33 at 16-17.)
While Plaintiff correctly recites a portion of the Code of Business Conduct,
Plaintiff again ignores the paragraph that immediately follows the non-retaliation
provision. The next paragraph in the Code states:
Neither the Code nor our policies are intended, and do not in
any way, constitute an employment contract or an assurance
of continued employment. We do not create any contractual
rights by issuing the Code or other policies and do not
guarantee employment for any specific duration. Further,
neither the Code nor our policies are intended to confer on
an associate any rights that they are not entitled to under
applicable local law.
We may amend, modify or waive any provisions of the Code
or our policies in our sole discretion.
(Id.) Colorado courts have held that, when a handbook contains a “clear and
conspicuous” disclaimer like that set forth above, the employer has not expressed
promissory intent. See George v. Ute Water Conservancy Dist., 950 P.2d 1195, 1198
(Colo. App. 1997).
The record shows that Plaintiff signed the Code and certified that he was aware
that he was responsible for reading and familiarizing himself with the Code. (ECF No.
30-5 at 7.) Because Defendant unilaterally reserved the right to change its policies at
any time, and such reservation was clearly conveyed to Plaintiff in the paragraph that
immediately followed the non-retaliation provision, Plaintiff has failed to show a dispute
of fact as to whether Defendant’s Code was an enforceable promise.
The Handbook and Code’s disclaimer also doom Plaintiff’s claim under the
second prong of the promissory estoppel test—whether Defendant reasonably should
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have expected that the promise would induce action or forbearance by the Plaintiff.
The plain language of the disclaimer shows that Defendant did not intend to be bound
by its policies and did not reasonably understand that an employee would rely on its
policies. See Geras v. Int’l Bus. Machs. Corp., 638 F.3d 1311, 1316 (10th Cir. 2011)
(clear disclaimer in incentive plan shows that employer did not intend to be bound by its
policies). Thus, the Court further finds that Plaintiff has failed to show a material
dispute of fact as to the second element of his collateral estoppel claim.
Because Plaintiff has failed to meet his burden with respect to an essential
element of his promissory estoppel claim, Defendant’s Motion for Summary Judgment
is granted as to this claim.
B.
Wrongful Discharge in Violation of Public Policy
Plaintiff also brings a claim for wrongful discharge in violation of public policy.
(Compl. at 12-13.) The elements of this claim are: (1) the employer directed the
employee to perform an illegal act or prohibited the employee from performing a public
duty or exercising an important job-related right or privilege; (2) the action directed by
the employer (or prevented by the employer) would violate a specific statute, regulation
or professional code relating to the public health, safety, or welfare, or would
“undermine a clearly expressed public policy relating to the employee’s basic
responsibility as a citizen or the employee’s rights or privileges as a worker”; (3) the
employee was terminated as a result of refusing to perform the act or carrying through
with the prohibited behavior; and (4) the employer was aware, or should have been
aware, that the employee’s refusal to comply with the order was based on the
employee’s reasonable belief that the action ordered by the employer was illegal,
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contrary to clearly expressed statutory policy, or violative of the employee’s legal rights
or privileges as a worker. Jaynes v. Centura Health Corp., 148 P.3d 241, 243 (Colo.
App. 2006) (citing Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo. 1992)).
In support of its Motion, Defendant argues that Plaintiff has failed to show that
any specific statute, regulation or professional code establishes a public policy that
Plaintiff was trying to protect. (ECF No. 30 at 24-28.) Defendant discusses each of the
three statutes in Plaintiff’s Complaint that allegedly formed the basis for his claim. (Id.)
Defendant contends that Plaintiff cannot base his claim on the Occupational Health and
Safety Act (“OSHA” because it contains its own anti-retaliation provision. (Id. at 25.)
Defendant then argues that Plaintiff did not engage in behavior protected by the
Worker’s Compensation Act (“WCA”) or the Colorado Consumer Protection Act
(“CCPA”), so these statutes cannot sustain Plaintiff’s wrongful discharge claim. (Id. at
26-27.)
Plaintiff’s response utterly fails to meet his summary judgment burden. It is wellestablished that a party cannot rely on factual recitations in the pleadings to meet his
burden on summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)(“[A] party opposing a properly supported motion for summary judgment may not
rest upon the mere allegations or denials of his pleading, but must set forth specific
facts showing that there is a genuine issue for trial.”) (internal quotation omitted). The
facts supporting Plaintiff’s claim must be identified by reference to affidavits, deposition
transcripts, or specific exhibits. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th
Cir. 1998). The section of Plaintiff’s brief addressing his wrongful discharge in violation
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of public policy claim contains one cite to the record, and that is to the Complaint. (ECF
No. 33 at 17.) This effort falls woefully short of meeting Plaintiff’s summary judgment
burden.
Plaintiff also fails to discuss any of the four elements of his wrongful discharge
claim. Most significantly, Colorado law requires that the employee identify the source of
the public policy and prove that “the action directed by the employer would violate a
specific statute relating to the public health, safety, or welfare, or would undermine a
clearly expressed public policy relating to the employee’s rights as a worker.” Rocky
Mountain Hosp. & Medical Serv. v. Mariani, 916 P.2d at 524 (citing Lorenz, 823 P.2d at
109). In his Response, Plaintiff fails to specifically identify any source of public policy
that was implicated in this case. He retreats from his reliance on OSHA, WCA, and
CCPA and instead argues that his claim is “premised on Colorado’s public policy of
protecting whistleblowers, who protect the public health”. (ECF No. 33 at 17.) There is
certainly support for the contention that Colorado permits a claim for wrongful discharge
related to whistleblowing. See Kearl v. Portage Envtl., Inc., 205 P.3d 496, 499 (Colo.
App. 2008). However, the employee still must establish that the act he was reporting
was clearly in the public interest. Id. Here, Plaintiff fails to identify any clearlyexpressed public policy that was implicated by his actions.
Accordingly, the Court finds that Plaintiff has failed to meet his burden of
showing a triable issue of fact as to his claim for wrongful discharge in violation of public
policy. Defendant’s Motion for Summary Judgment is granted as to this claim.
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IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.
Defendant’s Motion for Summary Judgment (ECF Nos. 30 & 31) is GRANTED;
2.
The Clerk shall enter judgment in favor of Defendant on all claims; and
3.
Defendant shall have its costs.
Dated this 17th day of April, 2013.
BY THE COURT:
William J. Martínez
United States District Judge
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