McCallister v. Potter
Filing
36
ORDER granting 28 Defendant's Motion for Summary Judgment. The Clerk is directed to enter judgment in favor of Defendant and against Plaintiff and to close this case. Signed by Judge Virginia M. Hernandez Covington on 11/15/2012. (MEB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOSEPH R. MCCALLISTER,
Plaintiff,
Case No. 8:10-cv-2444-T-33MAP
v.
JOHN E. POTTER,
Postmaster General
U.S. Postal Service,
Defendant.
_______________________________/
ORDER
This
matter
comes
before
the
Court
pursuant
to
Defendant’s Motion for Summary Judgment (Doc. # 28), filed on
September 14, 2012.
Plaintiff filed a response in opposition
to the Motion (Doc. # 31) on October 17, 2012.
After due
consideration and for the reasons that follow, Defendant’s
Motion for Summary Judgment is granted.
I.
Factual Background
The following undisputed, stipulated facts are taken from
the parties’ Joint Pretrial Statement. (Doc. # 34 at 4-11).
Joseph McCallister worked as a letter carrier for the
United States Postal Service from August 12, 2000, until his
removal
in
August
2008.
Carroll
Gleaton,
Jr.
served
as
McCallister’s immediate supervisor from at least 2006 through
the date of McCallister’s removal.
Michael McCullough served
as the Postmaster of the Ruskin, Florida Post Office where
McCallister was employed, and Gleaton reported to McCullough.
Beginning in 2006, McCallister began to take unscheduled
sick leave, including unscheduled sick leave on February 10,
23, and 24 (8 hrs. each). On March 2, 2006, Gleaton conducted
an official discussion with McCallister about maintaining
regular attendance. On March 27, 2006, McCallister was absent
from scheduled overtime (8 hrs.) and had unscheduled sick
leave on March 28, 2006 (8 hrs.) and April 7, 2006 (7.16
hrs.).
Gleaton
conducted
an
investigative
interview
of
McCallister’s attendance on April 8, 2006, and McCallister was
advised that he needed to be regular in attendance. On April
17, 2006, McCallister again had unscheduled sick leave (8
hrs.).
issued
Subsequently, on April 18, 2006, McCallister was
a
attendance
Letter
and
of
Warning
absence
for
from
continued
overtime
unsatisfactory
resulting
from
McCallister’s unscheduled absences in February, March, and
April of 2006.
McCallister was advised in the letter that
“Postal employees are required to be in regular attendance and
report to work as scheduled.” (Doc. # 34 at 6).
Following the Letter of Warning, McCallister was absent
with unscheduled sick leave on June 28, 2006 (8 hrs.), June
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30, 2006 (5.31 hrs.), and August 2, 2006 (8 hrs.).
On August
9, 2006, Gleaton conducted another investigative interview of
McCallister regarding his unscheduled absences.
McCallister
acknowledged the prior Letter of Warning he had received and
was
advised
that
he
could
receive
further
discipline,
including termination, if his attendance problems persisted.
McCallister was again absent with unscheduled sick leave on
August 30, 2006 (8 hrs.).
Gleaton conducted a third investigative interview with
McCallister on September 20, 2006, regarding McCallister’s
attendance.
McCallister
acknowledged
the
prior
official
discussions, two prior investigative interviews, and Letter of
Warning
he
McCallister
attendance
had
previously
indicated
issue
was
that
received
he
getting
for
the
same
realized
how
serious
and
acknowledged
issue.
that
the
he
understood that termination was a possibility if the problem
persisted.
On October 2, 2006, McCallister was issued a Notice of
Seven Day No Time-Off Suspension for continued unsatisfactory
attendance for the unscheduled absences in April, June, and
August of 2006.
McCallister subsequently filed a grievance
from this seven day suspension, and on October 26, 2006, the
suspension was reduced to another Letter of Warning.
-3-
McCallister had unscheduled sick leave on January 4, 19,
and 22, 2007 (8 hrs. each).
On January 25, 2007, Gleaton
conducted another investigative interview with McCallister
regarding his attendance, and McCallister again acknowledged
that
the
previous
official
discussions,
investigative
interviews, Letter of Warning and seven day suspension (which
was reduced to another Letter of Warning) all resulted from
his unscheduled absences. McCallister again indicated that he
realized the seriousness of the issues and acknowledged that
he could be terminated if the problem continued.
McCallister
was issued another Notice of Seven Day No Time-Off Suspension
on January 31, 2007, for continued unsatisfactory attendance
due to the unscheduled absences in January of 2007.
McCallister did not work from February 11, 2007, through
April 30, 2007, and had unscheduled sick leave on July 27,
2007 (8 hrs.) and August 16, 2007 (8 hrs.).
McCallister had
an unexcused tardiness of 1.32 hours on August 22, 2007,
unscheduled sick leave on September 8, 2007 (8 hrs.), and was
absent from scheduled overtime on September 10, 2007 (8 hrs.).
Once again, on September 12, 2007, Gleaton conducted an
investigative
interview
with
McCallister
regarding
his
attendance during which McCallister indicated that he realized
how serious the issue was.
At the meeting, Gleaton asked
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McCallister, “Joe, you realize you are on track to lose your
job, do you realize this?” to which McCallister responded
“Yes.”
Id.
at
8.
Gleaton
continued,
“A
fourteen
day
suspension is next then termination,” to which McCallister
responded,
“Right,
right.”
Id.
On
September
25,
2007,
McCallister was issued a Notice of Fourteen Day No Time-Off
Suspension for his continued unsatisfactory attendance and
tardiness for the unscheduled absences in July, August, and
September of 2007.
In addition to McCallister’s attendance issues, Gleaton
conducted
investigative
interviews
with
McCallister
on
September 13, 2007, September 22, 2007, and October 3, 2007,
regarding
McCallister’s
delivering mail.
unsatisfactory
performance
in
McCallister was issued a Letter of Warning
for unsatisfactory performance in delivering mail on September
25, 2007.
On October 22, 2007, McCallister was issued a Notice of
Removal,
effective
performance,
disposition.
December
improper
7,
2007,
conduct,
McCallister
was
and
then
for
unsatisfactory
incomplete
placed
on
mail
emergency
suspension from October 2007 through February 15, 2008.
On
February 15, 2008, after an arbitration hearing, McCallister’s
Notice of Removal was reduced to a fourteen day suspension.
-5-
McCallister then had unscheduled sick leave on May 7,
2008 (8 hrs.), and an unscheduled absence from scheduled
overtime on May 19, 2008.
another
investigative
On May 21, 2008, Gleaton conducted
interview
regarding
McCallister’s
attendance, and McCallister again acknowledged the previous
disciplinary measures he had experienced and indicated that he
realized how serious the issue was.
On May 27, 2008, McCallister filed an EEOC Complaint
based upon the initial removal action issued on October 22,
2007.
The EEOC Complaint alleged that McCallister had been
discriminated against based on his race.1
On July 1, 2, and 3, 2008, McCallister had unscheduled
sick leave (24 hrs.).
Following the scheduled July 4, 2008,
holiday, McCallister had unscheduled sick leave on July 5,
2008 (8 hrs.).
McCallister then had scheduled annual leave
1
Although it is not included as an undisputed fact in
the parties’ joint pretrial statement, McCallister’s EEOC
Complaint states that he is African-American. (Doc. # 28-1 at
62). The EEOC’s Final Agency Decision, entered on February
27, 2009, found that McCallister had not established a prima
facie cause of action, but even assuming he could establish a
prima facie case, the evidence showed that “rather than race,
progressive discipline was the motivation for what happened to
[McCallister]” such that McCallister could not establish the
Postal Service’s action were pretext for discrimination. (Doc.
# 28-3 at 7, 13-16). Accordingly, the EEOC closed
McCallister’s complaint with a finding of no discrimination.
Id. at 16.
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from July 6 - 13, 2008, unscheduled sick leave on July 14 15, 2008 (16 hrs.), a scheduled day off on July 16, 2008,
unscheduled sick leave from July 17 - 19, 2008 (24 hrs.), and
a scheduled day off on July 20, 2008.
McCallister did not
work for twenty-two consecutive days during this period.
On July 23, 2008, Gleaton launched another investigative
interview regarding McCallister’s attendance.
McCallister
stated that he was “not feeling well” on July 1, 2, 3, and 5,
2008, but did not go to the doctor.
McCallister had no
documentation from a doctor for those days.
At the time of
the
did
investigative
interview,
McCallister
not
have
acceptable documentation for his July 14 - 20, 2008, absences.
When asked why he had unscheduled sick leave following a week
of scheduled annual leave, McCallister replied that he “needed
time to recuperate.” McCallister eventually submitted medical
documentation dated July 18, 2008, for his July 14 - 20, 2008,
absences, although the documentation provided no diagnosis or
prognosis.
Following the investigative interview, McCallister had a
scheduled day off on July 24, 2008, then unscheduled sick
leave on July 25 and 26, 2008 (16 hrs.), and again on July 31,
2008 (8 hrs.).
On August 1, 2008, McCallister was issued a
Notice of Removal, effective September 20, 2008, for continued
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unsatisfactory attendance for the unscheduled absences in May
and July of 2008.
The Notice of Removal referred to the 88
hours of unscheduled sick leave taken by McCallister in the
three month period prior to the issuance of the Notice of
Removal, which did not include the additional 24 hours of
unscheduled sick leave taken on July 25, 26, and 31, 2008.
The Notice of Removal stated that McCallister’s actions were
inconsistent with Section 665.41 of the Employee and Labor
Relations Manual, titled “Requirement of Regular Attendance,”
which provides that “Employees are required to be in regular
attendance. Failure to be in regular attendance may result in
disciplinary
Service.”
action,
including
(Doc. # 34 at 11).
removal
from
the
Postal
McCallister then took 21 days
of unscheduled leave after the Notice of Removal was issued on
August 1, 2008, and before September 20, 2008.
On October 7, 2008, McCallister filed a second EEOC
Complaint, alleging that he was terminated from the Postal
Service on August 1, 2008, in retaliation for filing the prior
EEOC Complaint on October 22, 2007. (Doc. # 28-3 at 5, 25).
The EEOC issued its Final Agency Decision on April 1, 2009,
finding that although McCallister could likely establish a
prima facie retaliation claim, he failed to establish that the
Postal Service’s legitimate, non-discriminatory reasons for
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its
actions
were
pretext
for
retaliation.
Id.
at
31.
Specifically, the EEOC found that McCallister “failed to show
by a preponderance of the evidence that he was discriminated
against or that any of the agency’s actions were motivated by
discriminatory
class.” Id.
animus
towards
[McCallister’s]
protected
Accordingly, the EEOC closed the complaint with
a finding of no discrimination.
Id.
On November 1, 2010, McCallister filed his complaint in
this Court, alleging retaliation in violation of Title VII of
the Civil
Rights Act of 1964. (Doc. # 1).
The Postal
Service’s summary judgment motion is now before the Court.
II.
Legal Standard
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment.
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
-9-
(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)).
A fact is material if
it may affect the outcome of the suit under the governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).
The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).
“When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers to interrogatories, and admissions on file,’ designate
specific facts showing that there is a genuine issue for
trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 59394 (11th Cir. 1995)(citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to be
true and all reasonable inferences must be drawn in the nonmoving party’s favor.
Shotz v. City of Plantation, Fla., 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
-10-
issue of material fact, the court should not grant summary
judgment.
Samples ex rel. Samples v. City of Atlanta, 846
F.2d 1328, 1330 (11th Cir. 1988)(citing Augusta Iron & Steel
Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
However, if the non-movant’s response consists of nothing
“more than a repetition of his conclusional allegations,”
summary judgment is not only proper, but required.
Morris v.
Ross, 663 F.2d 1032, 1034 (11th Cir. 1981), cert. denied, 456
U.S. 1010 (1982).
III. Analysis
To
establish
a
prima
facie
case
of
retaliation,
McCallister must show that: (1) there was a statutorily
protected activity; (2) an adverse employment action occurred;
and (3) there was a causal link between the protected activity
and the adverse employment action.
Dixon v. Hallmark Cos.,
627 F.3d 849, 856 (11th Cir. 2010).
A plaintiff claiming retaliation can prove his case
through
direct
or
circumstantial
evidence,
and
if
the
plaintiff relies on circumstantial evidence, the Court applies
the familiar McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), burden-shifting analysis.
Under this analysis, if a
plaintiff successfully establishes a prima facie case of
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retaliation, the burden shifts to the employer to provide a
legitimate, non-retaliatory reason for the adverse employment
action.
Whitby v. Sec’y for Dep’t of Homeland Sec., No. 11-
10861, 2012 WL 2504919, *2 (11th Cir. Jun. 28, 2012).
The
burden then shifts back to the plaintiff to prove by a
preponderance of the evidence that the reason the employer
provides is a mere pretext for the prohibited retaliation. Id.
Here, McCallister has not provided any direct evidence of
retaliation; thus, the McDonnell Douglas analysis applies.
However, for the purposes of its summary judgment motion, the
Postal Service assumes that McCallister can establish his
prima facie case of retaliation and proceeds directly to
meeting
its
burden
of
demonstrating
a
legitimate,
non-
retaliatory reason for its decision to terminate McCallister.
Thus, the Court will also assume, without deciding, that
McCallister has satisfied the prima facie elements of his
claim.
A.
Legitimate, Non-Retaliatory Reason
To rebut the presumption created by McCallister’s prima
facie case, the Postal Service must provide a “legitimate,
non-retaliatory reason for the challenged employment action.”
Morgan v. Orange Cnty., Fla., 477 F. App’x 625, 628 (11th Cir.
2012).
However, “[t]his is a burden of production, not
-12-
persuasion.”
Standard v. A.B.E.L. Servs., Inc., 161 F.3d
1318, 1331 (11th Cir. 1998). “[Defendant] must merely produce
evidence that could allow a rational fact finder to conclude”
its actions were not motivated by retaliatory animus. Id.
The
Postal
Service
contends
that
its
decision
to
terminate McCallister’s employment was based on McCallister’s
failure to maintain regular attendance. (Doc. # 28 at 17).
The Postal Service asserts that McCallister’s “history of
irregular and unsatisfactory attendance is significant and
after his attendance did not improve over a 2 1/2 year period
of counseling and progressive discipline, the [Postal Service]
justifiably removed him from service.” Id.
“Not being physically able to come to work when physical
attendance is a requirement of one’s job is a legitimate
reason for an employer to take an adverse employment action
against an employee.” Anderson v. JP Morgan Chase & Co., 418
F. App’x 881, 884 (11th Cir. 2011).
See Gilchrist v. Bolger,
733 F.2d 1551, 1553 (11th Cir. 1984)(concluding that the
employer’s explanation that it did not promote plaintiff
because of her poor attendance record was a legitimate,
nondiscriminatory reason).
Given the significant factual
history regarding McCallister’s absences and disciplinary
record detailed above, the Court finds that the Postal Service
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has met its burden of providing a legitimate, non-retaliatory
reason for its decision to terminate McCallister’s employment.
B.
Pretext for Retaliation
Under McDonnell Douglas, upon establishing a legitimate,
non-retaliatory
reason
for
its
employment
action,
the
presumption of retaliation is eliminated and the plaintiff
“has the opportunity to come forward with evidence, including
the previously produced evidence establishing the prima facie
case, sufficient to permit a reasonable factfinder to conclude
that the reasons given by the employer were not the real
reasons for the adverse employment decision.” Chapman v. AI
Transport, 229 F.3d 1012, 1024 (11th Cir. 2000)(citations
omitted).
“A legitimate, [non-retaliatory] reason proffered
by the employer is not a pretext for prohibited conduct unless
it is shown that the reason was false and that the real reason
was impermissible retaliation.”
Worley v. City of Lilburn,
408 F. App’x 248, 251 (11th Cir. 2011).
“Provided that the
proffered reason is one that might motivate a reasonable
employer, an employee must meet that reason head on and rebut
it, and the employee cannot succeed by simply quarreling with
the wisdom of that reason.”
Chapman, 229 F.3d at 1030.
McCallister has not produced any evidence to rebut the
Postal Service’s legitimate, non-retaliatory reason for firing
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him.
McCallister does not deny that he was repeatedly absent
from scheduled work, that he received numerous disciplinary
measures due to his poor attendance both before and after he
filed his first EEOC Complaint, that the Postal Service’s
employee manual expressly states that regular attendance is
required, that he was informed on numerous occasions of this
regular attendance requirement, and that he was warned several
times that termination was possible if his attendance did not
improve.
Instead, in his one-page response to the Postal Service’s
summary
judgment
motion,
McCallister
states
that
“[t]he
documentary evidence indicates [the existence of] more than 5
comparators with similar attendance issues which were not
subject to discipline other than the most insignificant kind.”
(Doc.
#
31).
However,
this
bare-bones
contention
is
insufficient to rebut the Postal Service’s legitimate, nonretaliatory reason in numerous ways.
First, McCallister does
not provide or cite to any evidence in the record to support
his contention and has not identified who these purported
comparators are or how their circumstances may compare to
McCallister’s.
“[b]are
and
inadequate
The Eleventh Circuit has made clear that
self-serving
to
carry
the
allegations”
plaintiff’s
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such
as
burden
this
on
“are
summary
judgment.” Shuler v. Bd. of Trs. of Univ. of Al., No. 1111264, 2012 WL 2533524, *3 (11th Cir. Jul. 3, 2012)(citations
omitted).
Next, even assuming that the comparators are the same as
those analyzed by the EEOC during its investigation of both of
McCallister’s
complaints,
the
Court
notes
that
the
EEOC
determined that the purported comparators were not similarlysituated employees, and thus, could not support a claim of
discrimination.
(Doc. # 28-3).
McCallister has provided no
reason for the Court to conclude that its analysis of the
issue
as
to
those
comparators
would
be
any
different.
Finally, McCallister does not show how the mere existence of
purported comparators, without more, establishes that the
Postal Service’s reason for McCallister’s termination in this
case was false and that retaliation was the real reason for
his termination.
Accordingly, this assertion is insufficient
to establish pretext on the part of the Postal Service.
In his response, McCallister offers other conclusory
statements which likewise fail to rebut the Postal Service’s
legitimate,
non-retaliatory
reason
for
terminating
McCallister’s employment. Specifically, McCallister argues
that “the documentary evidence indicates that [he] followed
all the rules and requirements of absence reportage,” that “no
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fraudulent use of sick leave was implied or expressed,” and
that “the state agency for unemployment benefits [found] that
[his] removal from the Service was not for just cause.” (Doc.
#
31).
However,
even
if
these
statements
were
true,
McCallister does not explain how these statements necessarily
establish
that
the
Postal
Service’s
action
was
in
fact
motivated by retaliatory intentions based on McCallister’s
filing of an EEOC complaint.
For example, even if McCallister had followed the rules
and requirements regarding reporting his absences, this does
not rebut the Postal Service’s contention that McCallister was
fired
because
of
the
sheer
quantity
of
the
unscheduled
absences. Similarly, the fact that the Postal Service has not
claimed that McCallister’s use of sick leave was fraudulent
does not establish that its proffered reason for terminating
McCallister was false.
Although the Postal Service does not
concede that all of McCallister’s absences were for actual
illnesses, its reason for terminating McCallister was not
based on the legitimacy of the excuses McCallister provided
for his absences, but again, on the volume of absences and on
McCallister’s
continual
unsatisfactory
performance
in
improving his attendance record.
Finally, McCallister’s contention that “the state agency
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for unemployment benefits [found] that [his] removal from the
Service was not for just cause” (Doc. # 31) is insufficient to
rebut
the
Postal
Service’s
proffered
legitimate,
discriminatory reason for terminating McCallister.
nonAgain,
McCallister does not provide any evidentiary basis for this
assertion;
thus,
it
is
nothing
more
than
a
conclusory
statement that does not meet the Postal Service’s proffered
legitimate, non-retaliatory reason “head on and rebut it.”
Chapman, 229 F.3d at 1030.
Furthermore, even if the state
agency for unemployment benefits had found that McCallister’s
removal was not for just cause, this does not mean that the
actual cause for McCallister’s removal was retaliation for
filing an EEOC Complaint.
To survive summary judgment, McCallister must create a
genuine issue of material fact both as to whether the Postal
Service’s proffered reason for his termination is false and as
to
whether
retaliation
termination.
provided
only
was
the
real
reason
for
his
He has done neither. Instead, McCallister has
conclusory
allegations
of
pretext
without
supplying any specific evidence that would “allow a factfinder
to disbelieve [the Postal Service’s] proffered explanation for
its actions.”
Combs v. Plantation Patterns, 106 F.3d 1519,
1532 (11th Cir. 1997).
Although the Court is aware that
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McCallister is proceeding in this action pro se, “a pro se
litigant does not escape the essential burden under summary
judgment standards of establishing that there is a genuine
issue as to a fact material to his case in order to avert
summary judgment.”
Shuler, 2012 WL 2533524 at *3 (quoting
Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990)).
Again, bare and self-serving allegations, which are all that
McCallister has offered in opposition to the Postal Service’s
motion, are inadequate to carry the plaintiff’s burden on
summary judgment. Id.
Furthermore, McCallister’s response
consists of nothing more than a repetition of the conclusional
allegations in his complaint, in which case “summary judgment
is not only proper, but required.”
Morris, 663 F.2d at 1034.
Accordingly, for the reasons articulated herein, the
Court finds that McCallister has not established any genuine
dispute of material fact which would preclude summary judgment
and finds that the Postal Service is entitled to summary
judgment as a matter of law.
The Postal Service’s motion for
summary judgment is granted accordingly.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)
Defendant’s Motion for Summary Judgment (Doc. # 28) is
GRANTED.
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(2)
The Clerk is directed to enter judgment in favor of
Defendant and against Plaintiff and to close this case.
DONE and ORDERED in Chambers in Tampa, Florida, this 15th
day of November, 2012.
Copies:
All Counsel and Parties of Record
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