DuChateau v. Camp, Dresser & McKee, Inc.
Filing
55
ORDER granting in part and denying in part 40 Motion in Limine. Please see Order for details. Signed by Magistrate Judge Robin S. Rosenbaum on 12/19/2011. (RSR)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 10-60712-CIV-ROSENBAUM
(Consent Case)
JEANNINE V. DUCHATEAU,
Plaintiff,
v.
CAMP DRESSER & MCKEE, INC.,
Defendant.
/
ORDER
This matter comes before the Court upon Defendant Camp Dresser & McKee, Inc.’s Motion
in Limine [D.E. 40]. The Court has reviewed Defendant’s Motion, all filings in support thereof and
in opposition thereto, and the record in this matter. After careful consideration, the Court now grants
in part and denies in part Defendant’s Motion for the reasons set forth below.
I. Background
In its current status, this matter involves a claim that Defendant Camp Dresser & McKee, Inc.
(“CDM”), retaliated against Plaintiff Jeanine V. DuChateau for exercising her rights under the
Family and Medical Leave Act (“FMLA”), see 29 U.S.C. §§ 2601–2654. More specifically,
DuChateau argues that CDM retaliated against her for taking FMLA leave when it removed her as
a manager of a project called Go Green.
CDM seeks through the pending Motion in Limine to exclude from evidence CDM employee
Steve Brewer’s remarks from August 2008 in which he allegedly commented that DuChateau had
been “irresponsible” in becoming pregnant when she was supposed to be managing the Go Green
contract and that he had done “such a hard job to sell her to” the client, and “now she can’t manage
this contract like she agreed to.” See D.E. 19 at 2, ¶ 8; D.E. 26-2 at 1, ¶ 8.
The Court has previously summarized the parties’ factual allegations in this matter in ruling
on CDM’s Motion for Summary Judgment. See D.E. 41. Because CDM’s Motion in Limine
depends in part on the relevancy of the evidence that CDM seeks to exclude, however, the Court
repeats here, in pertinent part, the statement of allegations set forth in its prior Order to consider in
context the relevancy, if any, of the Brewer statements to the FMLA retaliation claim.
CDM provides consulting, engineering, construction, and operation services for public and
private clients in the United States and around the world. See D.E. 19 at 1, ¶ 1. As pertinent here,
these services include developing renewable-energy management solutions. See id. at 1, ¶ 2.
Plaintiff Jeannine V. DuChateau started working for CDM in 2007. See id. at 2, ¶ 3. DuChateau
worked as a project lead in CDM’s Management Consulting Division, first in Tampa and later in
West Palm Beach. See id.
In early 2008, DuChateau and other CDM employees began working on “Go Green,” a
proposed environmental project for long-time CDM client Lockheed Martin (“Lockheed”). See id.
at 2, ¶ 5. Go Green involved plans for Lockheed to improve conservation of resources, engage in
recycling efforts, and conduct other environmental activities at its domestic facilities. See id.
Throughout 2008, DuChateau was being considered for a project-management role in Go Green, in
which she would manage the overall project from CDM’s side. See id. at 2, ¶ 6.
In August 2008, Plaintiff announced her intention to take maternity leave beginning in
January 2009, the approximate time that Go Green would be implemented if everything went as
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planned. See id. at 2, ¶ 7. When DuChateau made this announcement, Go Green was still in the
initial planning stages. See id.
Later that month, DuChateau overheard Steve Brewer, who managed CDM’s client
relationship with Lockheed, tell another CDM employee on a conference call that DuChateau was
“irresponsible” for getting pregnant when she was supposed to be managing the Go Green contract.
See D.E. 19 at 2, ¶¶ 8-9; D.E. 26-2 at 1, ¶¶ 8-9. Brewer further remarked that he had done “such a
hard job to sell her to” Lockheed and “now she can’t manage this contract like she agreed to.”
See D.E. 19 at 2, ¶ 8; D.E. 26-2 at 1, ¶ 8.
DuChateau promptly called another of her supervisors, Phil Chernin, to complain about
Brewer’s comments. See D.E. 19 at 3, ¶ 10; D.E. 26-2 at 2, ¶ 10. She also spoke with Brewer, who
did not apologize for the remarks but asked DuChateau to remain on the Go Green project. See D.E.
19 at 3, ¶ 10; D.E. 26-2 at 2, ¶ 10. Thereafter, Brewer made no comments that DuChateau found
inappropriate. See D.E. 19 at 3, ¶ 11; D.E. 26-2 at 2, ¶ 11. He did, however, frequently ignore emails from DuChateau and sometimes failed to attend scheduled meetings with her. See D.E. 26-2
at 2, ¶ 11. Further, although Brewer told DuChateau that she was to serve as Go Green’s project
manager, he did not give her access to electronic project-management tools and entered his own
name into the system as project manager. See id.
Because of DuChateau’s planned maternity leave, CDM had to re-evaluate its proposed
management team for Go Green. See D.E. 19 at 3, ¶ 12. In September 2008, CDM hired Nancy
Wheatley into its Program Management Group. See id. at 3, ¶ 13. Wheatley, a graduate of
Massachusetts Institute of Technology, had many years of experience working on health,
environmental, and safety projects in the public and private sectors. See id. CDM placed Wheatley
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into the role of project manager for Lockheed’s remediation program, which included supervision
of the Go Green project. See id. at 3, ¶ 14; D.E. 26-2 at 2, ¶ 14. Wheatley described the
management structure of Go Green as “not particularly well formed” when she arrived. See D.E. 19
at 3-4, ¶ 14; D.E. 26-2 at 2, ¶ 14.
Upon Wheatley’s arrival, it was determined that DuChateau would serve as deputy program
manager for Go Green and that Tom Pedersen, a veteran CDM employee with environmental
expertise, would assist with strategy development for the project. See D.E. 19 at 4, ¶ 15; D.E. 26-2
at 2, ¶ 15. DuChateau’s role as deputy program manager was a project assignment and did not affect
her compensation, benefits, or terms of employment. See D.E. 19 at 4, ¶ 16. Another employee in
CDM’s Management Consulting Division, Andrew Brady, was assigned to work with DuChateau
on Go Green. See id. at 4, ¶ 17. Brady was being considered to serve as interim deputy program
manager while DuChateau was on maternity leave. See id.
Throughout the fall of 2008, Wheatley, DuChateau, Pedersen, and Brady worked with
Lockheed on developing Go Green. See D.E. 19 at 4, ¶ 18; D.E. 26-2 at 3, ¶ 18. Wheatley and
DuChateau often disagreed on work-related issues. See id. Wheatley was concerned about
DuChateau’s ability to serve in a team-management role for Go Green and repeatedly criticized
DuChateau for her incompetence. See id. According to Wheatley, Lockheed’s Go Green manager,
Kevin Pearson, expressed the view that DuChateau lacked “big picture perspective” and thus was
not the right person to be “managing the Go Green work” for CDM. See D.E. 19 at 4, ¶ 19.
DuChateau, however, believes that she was not incompetent and that CDM brought in Wheatley (as
well as Pedersen) to force DuChateau off the project because of her pregnancy. See D.E. 26-2 at 3,
¶¶ 18, 20. DuChateau testified that before Wheatley joined CDM, DuChateau had worked with
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Lockheed on other matters and that no one had ever expressed concerns about her work product.
See D.E. 26-2 at 2, ¶ 14; id. at 3, ¶ 19. DuChateau also noted in her deposition that Pearson was the
Lockheed manager “who named [DuChateau] as the person he wanted on the project.” D.E. 21-1
at 87.
On the morning of December 22, 2008, Plante informed DuChateau that she had been
removed from the Go Green project. See D.E. 19 at 5, ¶ 24; D.E. 26-2 at 3, ¶¶ 24-25. Although
DuChateau contends that Wheatley was the person who removed her from the project, Wheatley
denies that she (or anyone else) had made a decision about DuChateau’s future role in the project.
See D.E. 19 at 5, ¶ 24; id. at 6, ¶ 28; D.E. 26-2 at 3, ¶ 24. Plante told DuChateau that she should
resign from the project and that other work would be found for her. See D.E. 26-2 at 4, ¶ 28.1
Shortly after DuChateau’s discussion with Plante, several CDM employees, including
Brewer, Wheatley, and DuChateau, held a conference call regarding Go Green. See D.E. 19 at 5,
¶ 22. On this call, Brewer announced that Pedersen would serve as interim deputy program manager
for Go Green while DuChateau was on maternity leave. See id. During the call, DuChateau
interrupted Brewer and asked if she would be allowed to return to the project after her leave. See id.
at 5, ¶ 23. DuChateau claims that Brewer did not respond to her question. See D.E. 26-1, ¶ 4.
Wheatley found DuChateau’s behavior on the call to be unprofessional. See D.E. 19 at 5, ¶ 23.
The next day, DuChateau had a scheduled phone conversation with Wheatley to discuss Go
Green and DuChateau’s role in the project. See D.E. 19 at 6, ¶ 27; D.E. 26-2 at 4, ¶ 27. Wheatley
described the call as “unpleasant” and recalled DuChateau as being very upset and “ranting.”
1
Although he was DuChateau’s supervisor, Plante did not work on Lockheed projects and
lacked the authority to remove DuChateau from Go Green. See D.E. 19 at 5, ¶ 25; D.E. 26-2 at 3,
¶ 25.
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See D.E. 19 at 6, ¶ 27. According to Wheatley, DuChateau stated that she would never work on
Lockheed projects again. See id. at 6, ¶ 28. Wheatley therefore considered DuChateau to have
resigned from the Go Green project. See id. For her part, DuChateau denies that she ever voluntarily
removed herself from the project. See D.E. 26-2 at 4, ¶ 28. She recounts that during their
conversation, Wheatley raised numerous issues about DuChateau’s performance and repeatedly
asked whether she was going to resign from Go Green. See D.E. 21-1 at 138-39. DuChateau
responded that she already knew that Wheatley had removed her from the project. See id. at 139.
In a December 29, 2008, e-mail to Plante, DuChateau stated that she no longer wished to
work on the Go Green project. See D.E. 19 at 6, ¶ 29; D.E. 26-2 at 4, ¶ 29. DuChateau notes,
however, that she wrote this e-mail after Plante had informed her that she had already been removed
from the project and had instructed her to resign from it. See D.E. 26-2 at 4, ¶ 29.
In early January 2009, DuChateau started her maternity leave. See D.E. 19 at 6, ¶ 29. At the
same time, CDM’s Management Consulting Division began experiencing a significant decrease in
its workload. See id. at 6, ¶ 30. As a result, CDM implemented layoffs, furloughs, and hour
reductions for employees in that division. See id. Among those laid off was Brady, who had worked
with DuChateau on Go Green and had been considered to serve as interim deputy program manager
in her absence. See id. at 6, ¶ 31. Nevertheless, Pedersen, who did serve as interim deputy program
manager before later being named as the permanent deputy program manager, was not laid off.
See D.E. 21-3 at 20, 22, 24. In addition, CDM’s role in the Go Green project was substantially
reduced because new management at Lockheed decided to have their own personnel perform much
of the work. See D.E. 19 at 7, ¶ 32. Lockheed’s original $1.6 million budget for CDM’s work on
the project was reduced to less than “several hundred thousand dollars.” See id. at 7, ¶ 33.
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When her maternity leave ended in April 2009, DuChateau returned to work in the same
position in CDM’s Management Consulting Division. See id. at 7, ¶ 34. She maintained a normal
workload, and her duties, pay, and benefits were unchanged. See id. at 7, ¶ 36. Pedersen, who was
now serving as deputy program manager for Go Green, asked DuChateau if she was interested in
working on what remained of that project. See id. at 7, ¶ 34. Although Pedersen claims that
DuChateau declined this offer, DuChateau denies that she refused to work on the project. See id.
at 7, ¶ 35; D.E. 26-2 at 4, ¶ 35. To the contrary, DuChateau testified that she agreed to help with any
Lockheed work that was available but that no such work materialized. See D.E. 21-1 at 119-20, 133,
210; D.E. 26-2 at 3, ¶ 19.
In June 2009, as a result of the overall slowdown in work in her division, DuChateau’s
weekly hours were reduced from 40 to 32, and later from 32 to 24. See D.E. 19 at 7-8, ¶¶ 36, 37;
D.E. 26-2 at 4, ¶ 30. Soon thereafter, DuChateau received a job offer from one of CDM’s
competitors, for which she had previously worked before joining CDM. See D.E. 19 at 8, ¶¶ 38, 39.
After receiving this offer, DuChateau contacted Plante and asked if CDM was conducting voluntary
layoffs of employees. See id. at 8, ¶ 40. DuChateau and Plante discussed her situation, and they
mutually agreed that she would be laid off so that she could receive a severance payment. See id.
at 8, ¶ 41. DuChateau was subsequently laid off and received a severance payment that she
considered to be “very fair.” See id. at 8, ¶ 42. One week later, DuChateau began working in her
new job. Although her initial annual salary was about $10,000 less than what she made at CDM, the
difference is now about $5,000. See id. at 8, ¶ 43; D.E. 26-2 at 5, ¶ 43.
Returning to the Motion in Limine currently before the Court, CDM seeks to exclude any
evidence of Brewer’s August 2008 remarks, suggesting that such evidence is not relevant to the issue
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before the Court because, according to CDM, Brewer was not a “decisionmaker” who determined
that DuChateau should be removed from the Go Green project and because Brewer’s comments were
nothing more than “stray remarks.” See D.E. 40 at 1-2. Moreover, even if the evidence had some
relevancy, CDM asserts in the alternative, any value would be outweighed by the unduly prejudicial
effect of the evidence. Consequently, CDM concludes, evidence of Brewer’s remarks should be
excluded from trial. CDM also seeks to preclude as irrelevant the introduction of evidence of
DuChateau’s alleged emotional suffering after leaving CDM’s employment.
In response, DuChateau concedes that evidence relating to her post-CDM-separation
emotional suffering is not relevant and does not object to CDM’s Motion in Limine in this regard.
This Court agrees and therefore grants the Motion in Limine as it regards evidence of post-CDMseparation emotional suffering.
With respect to Brewer’s statements, DuChateau contests CDM’s characterization of
Brewer’s role on the Go Green project, contending that Brewer had the “primary supervisory
responsibility” on the project and that both DuChateau and Wheatley reported to him. See D.E. 50-1
at 2. DuChateau further notes that Brewer conducted the conference call on December 22, 2008, in
which Plaintiff asked whether she would be permitted to return to the Go Green project after her
maternity leave, and, according to DuChateau, Brewer did not respond to the question. Based on
these allegations, DuChateau urges, the evidence is relevant, and its probative value is not unfairly
outweighed by its prejudicial effect.
II. Discussion
Rule 402, Fed. R. Evid., renders inadmissible evidence that is not relevant. See Fed. R. Evid.
402. Rule 401, Fed. R. Evid., in turn, defines “relevant evidence” as “evidence having any tendency
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to make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Here, CDM suggests two reasons
why the Brewer statements do not satisfy the definition of relevancy: (1) Brewer allegedly was not
the decisionmaker who removed DuChateau from the Go Green project, and his comments were not
associated with the decision to remove DuChateau, and (2) the statements constituted nothing more
than irrelevant “stray remarks.”
With regard to the first reason that CDM asserts, the Court concludes that Brewer’s role, if
any, in the decision-making process, and the place, if any, of Brewer’s statements in the decision to
remove DuChateau as a Go Green manager present factual questions. On the one hand, CDM asserts
that DuChateau removed herself as a project manager when she resigned the position. But
DuChateau denies that she voluntarily resigned, claiming instead that Wheatley had decided to
remove her from Go Green, and Plante told her that she should resign from the project. DuChateau
further argues that it was Brewer who told DuChateau originally that she was to serve as Go Green’s
project manager, but he did not give her access to electronic project-management tools and entered
his own name into the system as project manager. Moreover, DuChateau suggests, Brewer continued
to act in a supervisory capacity on the Go Green project (above Wheatley),2 and during the December
22, 2008, conference call, which involved Brewer, Wheatley, and DuChateau, Brewer was the one
who announced that Pedersen would serve as interim deputy program manager for Go Green while
DuChateau was on maternity leave. When DuChateau interrupted Brewer and asked if she would
2
In its Reply, CDM cites to DuChateau’s deposition transcript for the proposition that Brewer
“had no supervisory authority over her.” See D.E. 52 at 2-3. Duchateau’s complete answer to the
question regarding whether Brewer had supervisory authority over her, however, is as follows: “Not
that I believe. Just maybe within the project he’d have input to my supervisor because they inputted
with him in my review.” See D.E. 21-1 at 60:22-61:1.
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be allowed to return to the project after her leave, DuChateau claims, Brewer did not respond to her
question.
As previously determined in this Court’s Order on CDM’s Motion for Summary Judgment,
DuChateau has entered into the record of this case evidence of the facts as she alleges them above.
Because a material question of fact is presented by the evidence that DuChateau raises, it is not the
function of this Court to determine whether a jury will believe the evidence of these allegations that
DuChateau may present at trial. But, if a jury does credit DuChateau’s evidence and agrees with her
version of the facts, it could fairly conclude that although Brewer originally discussed with
DuChateau the Go Green project-manager position, after learning of her pregnancy and her intent
to take leave, Brewer expressed his disappointment with DuChateau’s decision, identified himself
as the Go Green project manager, and subsequently participated in the decision to remove
DuChateau as a project manager for Go Green. Thus, CDM’s first proposed basis for finding the
Brewer statements irrelevant must fail.
As for CDM’s second reason — that Brewer’s statements were nothing more than irrelevant
“stray remarks,” the Court considers CDM’s characterization of Brewer’s comments. While, as the
Court noted in its Summary Judgment Order, Brewer’s statements do not fall into the category of
such “blatant” comments that they constitute direct evidence of discrimination, see D.E. 41 at 17 n.5
(citing Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)), they are not so
insignificant or unrelated as to be written off as mere “stray remarks.” Indeed, unlike statements in
other cases found to constitute “stray remarks” because they either do not regard the plaintiff or do
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not occur in the nucleus of facts pertaining to the challenged employment decision,3 Brewer’s
comments relate both to DuChateau and to Brewer’s perception of how DuChateau’s pregnancy and
her related maternity leave would affect her job performance. And, as discussed above, DuChateau
has presented evidence that, if believed by a jury, could establish that Brewer was involved in the
decision to remove DuChateau from Go Green.
The Eleventh Circuit has held that allegedly discriminatory comments that may not be blatant
enough to serve as direct evidence of discrimination may, nonetheless, constitute relevant
circumstantial evidence when “read in conjunction with the entire record” and “considered together
with” the other evidence in the case. See Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291-92
(11th Cir. 1998); Scott, 295 F.3d at 1229-30 (11th Cir. 2002) (citing Ross, 146 F.3d at 1291-92, and
Rojas, 285 F.3d at 1343 (11th Cir. 2002)); see also, e.g., Burke v. Lab. Corp. of Am., 2009 WL
3157633, *2 (M.D. Fla. Sept. 25, 2009). Here, as set forth in the Summary Judgment Order, see
D.E. 41 at 23-24, DuChateau relies on circumstantial evidence of pretext in addition to Brewer’s
comments: DuChateau disputes Wheatley’s claim that she was incompetent, asserting that this was
merely an excuse for CDM to force DuChateau off the Go Green project because of her pregnancy.
In support of this position, DuChateau has offered sufficient evidence to allow a reasonable jury to
discredit CDM’s allegations of poor performance if that jury chose to believe the evidence that
DuChateau proffers.
First, DuChateau testified that before Wheatley joined CDM, DuChateau had worked with
Lockheed on other matters and no one had ever expressed concerns about her work product. Second,
3
See, e.g., Scott v. Suncoast Beverage Sales, Ltd., PMBA, Inc., 295 F.3d 1223, 1229-30 (11th
Cir. 2002); Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002).
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DuChateau testified that Pearson, who Wheatley claims disapproved of DuChateau’s management
role in Go Green, was the Lockheed manager “who named [DuChateau] as the person he wanted on
the project.” D.E. 21-1 at 87. Third, DuChateau offered specific examples of incidents in which
Wheatley allegedly trumped up criticism of DuChateau. For example, DuChateau testified that
Wheatley criticized her for failing to make certain revisions to a document when, in fact, DuChateau
had revised the document as Wheatley had directed. See D.E. 21-1 at 111-12. According to
DuChateau’s deposition, Wheatley’s comments made clear that she had never even looked at the
revised document. See id. To the extent that a jury believes DuChateau’s evidence in this regard,
this evidence suffices to render Brewer’s comments relevant to the question of whether CDM took
away DuChateau’s project assignment because she chose to exercise her FMLA rights.
The Court therefore turns to CDM’s alternative proposed basis for excluding the Brewer
evidence: Rule 403. Under Rule 403, a court may exclude relevant evidence if “its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Fed. R. Evid. 403. The Eleventh Circuit has emphasized repeatedly that courts should
use Rule 403 to exclude evidence only “very sparingly.” See, e.g., Wilson v. Attaway, 757 F.2d
1227, 1242 (11th Cir. 1985); Luka v. City of Orlando, 382 F. App’x 840, 841 (11th Cir. 2010);
Tambourine Comercio Internacional v. Solowsky, 312 F. App’x 263, 287 (11th Cir. 2009).
Moreover, in determining whether evidence should be excluded under Rule 403, courts must “look
at the evidence in a light most favorable to its admission, maximizing its probative value and
minimizing its prejudicial impact.” Luka, 382 F. App’x at 841 (quoting United States v. Brown, 441
F.3d 1330, 1362 (11th Cir. 2006)) (quotation marks omitted); see also Tambourine Comercio
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Internacional, 312 F. App’x at 287 (quoting United States v. Elkins, 885 F.2d 775, 784 (11th Cir.
1989)). Indeed, analysis under Rule 403 requires that “[t]he balance . . . be struck in favor of
admissibility.” Tambourine Comercio Internacional, 312 F. App’x at 287 (quoting United States
v. Tinoco, 304 F.2d 1088, 1120 (11th Cir. 2002) (citation & quotation marks omitted)). Nonetheless,
district courts enjoy “wide discretion” in determining whether to exclude evidence under Rule 403.
Wilson, 757 F.2d at 1242 (citations omitted).
When viewed in the light most favorable to admission, the Brewer statements should not be
excluded under Rule 403, especially considering the Eleventh Circuit’s cautionary direction that Rule
403 be used only “very sparingly” to exclude otherwise admissible evidence. Brewer’s remarks
relate to DuChateau, not another employee, and they regard the specific pregnancy that served as the
basis for DuChateau’s FMLA leave for which she alleges CDM retaliated against her. And, it was
Brewer who announced the interim Go Green project manager and allegedly declined to respond to
DuChateau’s question regarding whether she would be able to return to the position upon completion
of her FMLA leave. If DuChateau’s version of the evidence is accepted, therefore, Brewer
participated in CDM’s decision to remove DuChateau as a project manager on Go Green. Under
these circumstances, any prejudicial effect of Brewer’s comments is outweighed by their probative
value. Accordingly, Defendant’s Motion in Limine to exclude Brewer’s statements must be denied.
III. Conclusion
For the foregoing reasons, Defendant Camp Dresser & McKee, Inc.’s Motion in Limine [D.E.
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40] is GRANTED IN PART and DENIED IN PART, consistent with the terms of this Order.
DONE AND ORDERED this 19th day of December 2011.
ROBIN S. ROSENBAUM
UNITED STATES MAGISTRATE JUDGE
cc:
Counsel of Record
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