Tulloch v. Regions Bank
Filing
52
ORDER granting 27 Motion for Summary Judgment; denying as moot 29 Motion in Limine. Closing Case. Signed by Judge Robin L. Rosenberg on 8/17/2018. See attached document for full details. (bkd)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 9:17-CV-81024-ROSENBERG/REINHART
SHARON TULLOCH,
Plaintiff,
v.
REGIONS BANK,
Defendant.
_______________________/
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant’s joint Motion for Summary Judgment [DE
29]. The motion has been fully briefed.1 For the reasons set forth below, the Motion is granted.
This is a case involving fraud. More specifically, this is a case where an employee at a
bank was induced to transfer money out of a customer’s account and then, after the fraud was
discovered, the employee was fired. Subsequent to being fired, the employee filed this suit,
alleging that her termination was for discriminatory reasons and was not due to the aforementioned
fraud.
I.
UNDISPUTED MATERIAL FACTS2
Plaintiff is a black female who previously worked for the Defendant, Regions Bank. DE 28
at 1. Plaintiff’s job responsibilities included communications with customers regarding their
transactions, including customer requests for cashier’s checks. Id. Plaintiff could receive requests
for cashier’s checks, and could authorize that checks be issued, but she could not prepare the actual
1 Because counsel for the Defendant has informed the Court of a potential trial conflict between this case and another
case, the Court has endeavored to render its decision expeditiously.
2 These facts are supported with proper citations to record evidence in Defendant’s Statement of Undisputed Material
Facts and were deemed admitted by the Court at docket entry 51.
checks. Id. Instead, Plaintiff had to request that a bank teller prepare cashier’s checks. Id.
Because Plaintiff’s job required her to develop personal relationships with customers, it was
important that Plaintiff avoid fraud when undertaking transactions by ensuring that she was
dealing with the actual customer, and not an imposter. Id.
In April of 2016, Plaintiff received a copy of Region’s Fraud-Prevention Policy. Id. at 2.
That Policy stated that when a customer sent an e-mail requesting a transaction, the customer
should be present in the branch to authenticate the identity of the customer prior to effecting the
transaction. Id. The Policy also stated that the failure to follow the Policy could result in
disciplinary action. Id. At no time has Regions ever permitted employees to receive an e-mail
direction from a customer to issue a cashier’s check and issue such check by mail without having
authenticated the identity of the customer in person or, at a minimum, telephonically. Id.
On May 6, 2016, Plaintiff received an e-mail request for a $10,000 wire transfer. DE 28-2
at 97. The identity of the requestor has been redacted in the court file, so the Court refers to the
requestor as the “Imposter Customer.” Plaintiff responded to the Imposter Customer by telling
him that a wire transfer would require him to be physically present in the bank. Id. The Imposter
Customer then responded as follows:
Sharon,
Thanks for your response, I understand is [sic] a wire transfer but right now I am
out of the town [sic] and i [sic] need to make the transfer as a matter of urgency.
Could you please advice [sic] and let me know what help you can render for me to
complete the transfer in time. [sic]
Awaiting your urgent response.
2
Id. at 96. Plaintiff responded to the e-mail by indicating that she could send a cashier’s check
overnight, but that she would need an address to do so. Id. Upon receipt of this e-mail, the
Imposter Customer immediately provided contact details to receive the cashier’s check:
Thanks for the help Sharon, here is the contact details to receive the cashier check.
Please let me know as soon as you done [sic] and when is the cashier check going to
be ready to cash out. [sic]
Id. at 95. Before Plaintiff sent the cashier’s check, however, she realized that the Imposter
Customer had requested more funds than the relevant bank account contained. Id. She inquired,
then, whether she should take money from a line of credit to cover the balance requested. Id. The
Imposter Customer responded:
Alright please kindly go ahead and take the money from the loan. let [sic] me know when
you [sic] done.
Id. at 94. Plaintiff authorized the cashier’s check and sent the check via overnight FedEx. Id. The
next day, the Imposter Customer again e-mailed Plaintiff. The Imposter Customer requested a
second cashier’s check:
Sharon,
How are you doing and hope my email fine [sic] you well?
I would like to let you know that the receiver of that check will not be able to
receive the cashier check due to some issues on the bank account and i [sic] will
like to [sic] give you the new contact details to re issued [sic] the check and cancel
that one.
Please advice [sic] and get back to me in time.
Id. at 93. Plaintiff responded by informing the Imposter Customer that she could not stop payment
or cancel the cashier’s check. Id. The Imposter Customer then requested a second check again:
Sharon,
3
Thanks for your urgent response, I will let him to inform [sic] the bank to return the
cashier check back [sic] and meanwhile can you make arrangement to issue a new
one again for me now so that i [sic] can give you the details in your reply back. [sic]
Awaiting your urgent response.
Id. at 92. Plaintiff reminded the Imposter Customer that the bank account was now empty, so the
bank would only be able to advance him an additional $8,000 on credit because, at that amount, the
customer’s credit line would be exhausted. Id.; DE 28 at 5. The Imposter Customer was
unconcerned about the additional extension of credit, and inquired whether Plaintiff had sent the
second check. DE 28-2 at 91. Plaintiff sent the second check. Id. at 90-91. Later, Plaintiff sent a
third cashier’s check, drawing from an additional bank account, to yet another address at the
Imposter Customer’s request. DE 28 at 3. Plaintiff did not meet with or speak with the customer
of record before authorizing any of the three cashier’s checks at issue, nor did Plaintiff attempt to
verify the Imposter’s identity. Id.
After Plaintiff sent the third cashier’s check, Regions learned from the actual customer that
the customer had never requested any cashier’s checks. Id. at 5-6. Two of the three cashier’s
checks had been successfully cashed, resulting in a net loss to Regions of $12,000. Id. Plaintiff’s
branch manager has never been notified of any employee, other than Plaintiff, who has received an
e-mail direction from a customer to issue a cashier’s check, and who has issued such check by mail
without having authenticated the identity of the customer in person or telephonically, causing a
financial loss to Regions. Id. at 8.
The customer affected by the foregoing transactions signed an affidavit stating that he had
not authorized the cashier’s checks on June 1, 2016. DE 28-2 at 62. Five days later, on June 6,
2016, Plaintiff took FMLA leave. Id. Plaintiff’s FMLA leave was for “generalized anxiety
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disorder.” DE 1-1 at 5. While Plaintiff was on FMLA leave, she filed a complaint alleging racial
discrimination. Id. at 66. Plaintiff returned from her FMLA leave on August 30, 2016. DE 28 at
9. Upon returning, Plaintiff submitted a physician’s note stating that she needed to take a
fifteen-minute “stress-free break” every hour. Id. Regions allowed Plaintiff to take these breaks.
Id. On October 29, 2012, Regions terminated Plaintiff based upon her triple violation of the
Regions Fraud-Prevention Policy and the corresponding financial loss that her violations caused to
Regions. Id. at 1, 8. Thereafter, Plaintiff filed this suit, alleging that she was fired on the basis of
her race and disability. Plaintiff’s counts are as follows: Race Discrimination under the Florida
Civil Rights Act (Count I), Color Discrimination under the Florida Civil Rights Act (Count II),
Disability Discrimination under the Florida Civil Rights Act (Count III), Family and Medical
Leave Act Interference (Count IV), and Family and Medical Leave Act Retaliation (Count V).
II.
SUMMARY JUDGMENT 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.” Fed. R. Civ. P.
56(a). The existence of a factual dispute is not by itself sufficient grounds to defeat a motion for
summary judgment; rather, “the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is genuine if “a
reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of
Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Anderson, 477 U.S.
at 247-48). A fact is material if “it would affect the outcome of the suit under the governing law.”
Id. (citing Anderson, 477 U.S. at 247-48).
In deciding a summary judgment motion, the Court views the facts in the light most
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favorable to the non-moving party and draws all reasonable inferences in that party’s favor.
See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The Court does not weigh conflicting
evidence. See Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007). Thus, upon
discovering a genuine dispute of material fact, the Court must deny summary judgment. See id.
The moving party bears the initial burden of showing the absence of a genuine dispute of
material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once the moving
party satisfies this burden, “the nonmoving party ‘must do more than simply show that there is
some metaphysical doubt as to the material facts.’” Ray v. Equifax Info. Servs., LLC, 327 F. App’x
819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986)). Instead, “[t]he non-moving party must make a sufficient showing on each
essential element of the case for which he has the burden of proof.” Id. (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). Accordingly, the non-moving party must produce evidence,
going beyond the pleadings, to show that a reasonable jury could find in favor of that party. See
Shiver, 549 F.3d at 1343.
III.
ANALYSIS
Regions argues that it is entitled to summary judgment as to each of Plaintiff’s counts. The
Court addresses each count (and Regions’ corresponding arguments) in turn.
A. PLAINTIFF’S FAILURE-TO-PROMOTE CLAIMS ARE TIME-BARRED
(COUNT I, COUNT II, AND COUNT III)
Plaintiff’s operative complaint contains references to Regions’ decision not to promote her
in years past. Regions argues that Plaintiff’s failure-to-promote claims are time-barred. “As a
prerequisite to bringing a civil action based upon an alleged violation of the FCRA, the claimant is
required to file a complaint with the [Florida Commission on Human Relations] within 365 days of
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the alleged violation.” Woodham v. Blue Cross & Blue Shield of Fla., 829 So. 2d 891, 894 (Fla.
2002). Plaintiff testified that she bases her failure-to-promote claims on (1) Regions’ decisions in
2013 and 2014, respectively, to promote non-black employees to the position of assistant manager
and (2) Regions’ decision in 2013 to promote another employee instead of Plaintiff because
Plaintiff is disabled.
DE 28 at 9.
Plaintiff’s charge of discrimination first raising these
failure-to-promote claims, however, is dated November 22, 2016, and is stamped as “received” by
an administrative agency on December 27, 2016. Thus, Plaintiff filed her charge at least two years
after the alleged 2014 violation and three years after the alleged 2013 violation. In response to
Regions’ argument on this issue, Plaintiff concedes that she is not asserting a failure-to-promote
discrimination claim. DE 39 at 12. Because Plaintiff neglected to file a charge on her claims
within the statutorily-mandated time frame and because of Plaintiff’s concession to the same,
Plaintiff’s failure-to-promote claims are time-barred. Thus, to the extent Plaintiff’s Count I, Count
II, or Count III are premised upon a failure-to-promote theory, summary judgment is granted in
Regions’ favor.
B. PLAINTIFF’S RACIAL DISCRIMINATION CLAIMS FAIL AS A MATTER OF
LAW (COUNT I AND COUNT II)
Regions argues that Plaintiff’s racial discrimination claims fail as a matter of law. For
Plaintiff’s racial FCRA claims (Count I and Count II) to succeed, Plaintiff must demonstrate that
(1) she belongs to a protected class; (2) she was qualified for her position; (3) she suffered an
adverse employment action; and (4) she was treated less favorably than a similarly-situated
individual outside of her protected class. Edmond v. Univ. of Miami, 441 F. App’x 721, 724 (11th
Cir. 2011). With respect to the fourth element, Plaintiff has no evidence of a similarly-situated
individual who was treated differently—Plaintiff has no comparator. See Maynard v. Bd. of
7
Regents, 342 F.3d 1281, 1289 (11th Cir. 2003) (holding that in order to establish a prima facie case
of discrimination, the employee must show he was treated less favorably than a similarly-situated
individual outside of his protected class). To be proper, a comparator must be “nearly identical to
the plaintiff to prevent courts from second-guessing a reasonable decision by the employer.”
Wilson v. B/E Aero, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). In determining whether a
comparator is similarly-situated, courts inquire “whether the employees are involved in or accused
of the same or similar conduct and are disciplined in different ways.” Burke-Fowler v. Orange
Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006). “Material differences in ‘ranks and responsibilities’
may render any comparison impossible without confusing apples with oranges.” Horn v. USPS,
Inc., 433 F. App’x 788, 793 (11th Cir. 2011). Plaintiff has admitted that she authorized the
issuance of three cashier’s checks to an imposter, that she did so without any verification of
identity, and that her actions violated Regions’ policies. Plaintiff has no similarly-situated
employee who engaged in the same activity and was treated differently.
Although Plaintiff attempts to argue that her manager was disciplined more leniently than
her for the transactions in this case, Plaintiff admits that her manager is a different “rank” than
Plaintiff (a material difference), has different responsibilities than Plaintiff (another material
difference), was working as a teller during the time period at issue (another material difference),
and ultimately was responsible for a different sort of failing than Plaintiff—he failed to properly
supervise Plaintiff’s actions in this case—which is yet another material difference. DE 28.
Plaintiff also attempts to argue that other employees sent cashier’s checks without consequence in
the past, but Plaintiff admits that she does not know whether those employees verified customer
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identities. Id. at 7-8. Plaintiff has no comparator. For this reason alone, Plaintiff’s racial
discrimination claims (Count I and Count II) fail as a matter of law.
Plaintiff also argues that she has evidence that shows a “convincing mosaic” of racial
discrimination. Putting aside for the moment the particulars of Plaintiff’s evidence, the Court is
unable to locate—and Plaintiff has not provided—any case in which a Florida court has adopted a
“convincing mosaic” standard under the FCRA. See, e.g., Johnson v. Great Expressions Dental
Ctrs. Of Fla., P.A., 132 So. 3d 1174, 1178 (Fla. Dist. Ct. App. 2014) (stating that “[w]e also note
that no Florida court has adopted or even mentioned the ‘convincing mosaic’ standard”). For this
reason, Plaintiff’s racial discrimination claims (Count I and Count II) fail as a matter of law.
Even if this Court were to consider whether Plaintiff has evidence that shows a
“convincing mosaic” of racial discrimination, Plaintiff’s evidence is insufficient. First, Plaintiff
cites to her positive performance reviews. On the evidence of this case, such reviews are not
evidence of pretext. Regardless of Plaintiff’s past performance, Plaintiff has admitted that she
drained a customer’s bank account, drew upon a customer’s line of credit, and transmitted funds
without any verification of identity, all because of e-mails riddled with grammatical errors. “An
employer who fires an employee under the mistaken but honest impression that the employee
violated a work rule is not liable for discriminatory conduct.” Damon v. Fleming Supermarkets of
Fla., Inc., 196 F.3d 1354, 1363 n.3 (11th Cir. 1999). Regions could have believed that Plaintiff’s
termination was honestly permissible because of Plaintiff’s actions.
Second, Plaintiff cites to comments by Regions’ employees that “this bank only fires white
people and black people,” that “all black girls have attitude,” and that Plaintiff drove a Mercedes.3
DE 39 at 8. These remarks are not sufficient for Plaintiff’s prima facie case, because they are
3 The Court is unable to discern how a remark about a Mercedes may be interpreted as a racially-charged statement.
9
unrelated to the decisional process at issue. See Steger v. GE Co., 318 F.3d 1066, 1079 (11th Cir.
2003); Ritchie v. Indus. Steel, Inc., 426 F. App’x 867, 874 (11th Cir. 2011) (holding that general
references to a plaintiff’s age by decision maker did not create a genuine issue of fact as to whether
age was the real reason for his termination, as plaintiff failed to link those statements to the
decision to terminate his employment); see also Mells v. Shinseki, No. 13-CV-3214, 2015 WL
4716212, at *6 (M.D. Fla. Aug. 7, 2015) (stating that decision maker’s “remarks are probative only
if they illustrate the decision-maker’s state of mind at the time that he made the challenged
employment decision”).
Even if Plaintiff did have sufficient evidence for a prima facie case, Regions has met its
burden to articulate a legitimate, non-discriminatory reason for Plaintiff’s termination. “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 v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000). Plaintiff
attempts to satisfy her burden by arguing she has shown “weaknesses and implausibilities” such
that a reasonable juror could find Regions’ basis for termination was unbelievable. Plaintiff’s
argument on this point, which spans pages nine through twelve of her Response, contains no
citations to the record. For this reason alone, the Court rejects Plaintiff’s argument. Even so, the
Court has endeavored to review Plaintiff’s proffered additional facts on summary judgment, but
many of Plaintiff’s citations do not support her propositions. By way of example, Plaintiff’s
additional facts contend that Plaintiff’s manager “approved” the transactions at issue. DE 40 at 3.
But Plaintiff’s citation does not directly support that proposition. Plaintiff cites to a manager’s
deposition, but the manager merely attested that his (limited) approval was based upon his reliance
10
on Plaintiff’s own interactions with the customer. See id. at 152-54. Similarly, Plaintiff contends
that Regions admitted that Plaintiff would not have been fired if there had been no loss to the bank.
Putting aside whether this is a relevant argument (since an employer may discipline an employee
for losses it incurs due to an employee’s actions), Plaintiff’s citation does not fully support her
proposition. In the relevant deposition, the Regions’ representative states that Plaintiff would not
have been terminated if the e-mails had actually come from the true customer. Id. at 103. The
Court fails to see how this statement evinces a weakness in Regions’ basis for termination, such
that Plaintiff’s failure to produce a comparator may be overlooked or that Regions’ basis for
termination could not be believed. The foregoing are just some examples of many of Plaintiff’s
citations to record evidence that do not support her propositions. Without belaboring the point, the
Court adopts and incorporates Regions’ argument in its Reply as to this issue as Regions has
carefully and adequately described why Plaintiff’s citations are not persuasive. See DE 46, 50.
In summary, Plaintiff has no evidence to meet Regions’ basis for termination head-on and
rebut it. The Court concludes that the record strongly supports Regions’ non-discriminatory basis
for termination. For all of the foregoing reasons, Regions is entitled to summary judgment as to
Count I and Count II.
C. PLAINTIFF CANNOT ESTABLISH THAT REGIONS FAILED TO
ACCOMMODATE HER OR TERMINATED HER BECAUSE OF A DISABILITY
(COUNT III)
Plaintiff’s Count III alleges that Regions did not accommodate Plaintiff’s disability. DE
13 at 8. For Plaintiff to establish a prima facie case, she must prove (1) she is disabled, (2) she is a
qualified individual, and (3) she was discriminated against by Regions’ failure to provide a
reasonable accommodation. McKane v. UBS Fin. Servs. Inc., 363 F. App’x 679, 681 (11th Cir.
11
2010) (citing Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001)). With respect
to the third element, Plaintiff has admitted that she only made one request for
accommodation—fifteen minute stress-free breaks every hour—and that Regions accommodated
that request. DE 28 at 9. Summary judgment is entered in Regions’ favor as to Plaintiff’s Failure
to Accommodate count, Count III.4
D. PLAINTIFF CANNOT ESTABLISH THAT REGIONS INTERFERED WITH HER
FMLA LEAVE (COUNT IV)
Plaintiff’s Count IV is a claim for FMLA interference. For Plaintiff to state a claim for
FMLA interference, Plaintiff must establish that she was entitled to a benefit under the FMLA and
that Regions denied her that benefit. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286,
1293 (11th Cir. 2006). Here, Plaintiff has admitted that she received all of the substantive rights to
which she was entitled under the FMLA. Plaintiff requested FMLA leave, and she was granted
that leave. DE 28 at 8-9. Plaintiff took the maximum possible amount of leave. Id. Upon
returning from her leave, Plaintiff was restored to the same position she had previously held. Id. at
9. Plaintiff requested an accommodation, and she was granted that accommodation. Id. Because
the record shows that Plaintiff received every FMLA benefit to which she was entitled, summary
judgment must be entered in Regions’ favor as to Plaintiff’s Count IV. E.g., Giles v. Daytona State
Coll., Inc., 542 F. App’x 869, 874-75 (11th Cir. 2013) (upholding district court’s granting of
summary judgment to the employer on an FMLA interference claim where the record confirmed
that the plaintiff used all of her available FMLA leave, and thus, there was no evidence that she
was denied an FMLA benefit to which she was entitled); see also Arora v. Dental Health Group,
4 Summary judgment is entered in Regions’ favor on Count III for other reasons discussed below. Stated generally,
Plaintiff has no evidence to link her adverse employment action to her disability other than temporal proximity which
is insufficient on the facts of this case as a matter of law.
12
P.A., 898 F. Supp. 2d 1307, 1310 (S.D. Fla. 2012) (granting summary judgment to an employer
because the FMLA interference claim was, in reality, an FMLA retaliation claim).
E. PLAINTIFF CANNOT ESTABLISH THAT HER FMLA RETALIATION CLAIM
IS CAUSUALLY CONNECTED TO HER TERMINATION (COUNT V)
Regions argues that Plaintiff has no evidence of causation to connect her termination to her
FMLA leave. In response, Plaintiff argues that there is a close temporal proximity between the end
of her FMLA leave (August 31st) and the date of her termination (October 4th). Plaintiff’s
position, however, ignores Eleventh Circuit precedent such as Drago v. Jenn, 453 F.3d 1301, 1308
(2006). In Drago, an employer provided record evidence that it was contemplating demoting an
employee. Id. In response, the employee took FMLA leave. Id. When the employee returned
from his FMLA leave, he was demoted. Id. The employee filed suit, arguing that the close
temporal proximity between his FMLA leave and his demotion showed causation. Id.
The
Eleventh Circuit held as follows: “[I]n a retaliation case, when an employer contemplates an
adverse employment action before an employee engages in protected activity, temporal proximity
between the protected activity and the subsequent adverse employment action does not suffice to
show causation.” Id.
Here, Plaintiff admits that she knew Regions was preparing to terminate her before she
took FMLA leave. DE 28. A fellow employee told Plaintiff “they are going to fire you.” Id. at 8.
Plaintiff began to exchange text messages with others for the purpose of finding a new job. Id.
Plaintiff’s FMLA leave was taken mere days after she learned that she had been sending cashier’s
checks to an imposter, and Plaintiff knew that Regions was investigating the same. For these
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reasons, Plaintiff’s reliance upon temporal proximity fails, and Regions is entitled to summary
judgment as to Plaintiff Count V.5
IV.
CONCLUSION
It is therefore ORDERED AND ADJUDGED that Regions’ Motion for Summary
Judgment [DE 29] is GRANTED and the Clerk of the Court shall CLOSE THIS CASE. All
other pending motions are DENIED AS MOOT. Regions shall submit a proposed final judgment
in Microsoft Word format to Rosenberg@flsd.uscourts.gov within two days of the date of
rendition of this Order.
DONE and ORDERED in Chambers, West Palm Beach, Florida, this 17th day of August,
2018.
________________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to Counsel of Record
5 The Court is unable to discern from Plaintiff’s Response any other evidentiary ground upon which she relies to
establish her FMLA retaliation claim. Although it is possible that Plaintiff attempted to develop an argument on this
point pertaining to circumstantial evidence of discrimination, Plaintiff’s discussion and citations on this point were
limited to evidence of racial discrimination, not disability discrimination. See DE 39 at 6-16.
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