Kirincich v. Illinois State Police
Filing
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MEMORANDUM Opinion and Order. Signed by the Honorable Matthew F. Kennelly on 7/22/2016.(lcw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JESSICA KIRINCICH,
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Plaintiff,
vs.
ILLINOIS STATE POLICE,
Defendant.
Case No. 15 C 2131
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Jessica Kirincich, a former state trooper, has sued the Illinois State Police
alleging disability discrimination. In particular, Kirincich alleges that ISP violated her
rights under the Americans with Disabilities Act by failing to offer her a reasonable
accommodation that would have allowed her to continue her job as a state trooper. ISP
has moved for summary judgment, pointing to its multiple offers of alternative positions
and arguing that no reasonable jury could find that it failed to comply with the ADA. The
Court grants summary judgment in favor of ISP for the reasons set out below.
Background
Because ISP has moved for summary judgment motion, the Court views the
evidence and draws all reasonable inferences in the light most favorable to Kirincich,
the nonmoving party. See Spivey v. Adaptive Mktg. LLC, 622 F.3d 816, 822 (7th Cir.
2010).
Kirincich has suffered from Type 1 diabetes since she was a child. In August
2011, the Illinois State Police hired Kirincich. It was aware of Kirincich's diabetes before
hiring her. At the time of her hiring, Kirincich's diabetes appeared to be well controlled.
For thirteen years, an endocrinologist named Dr. Yohay has treated her, using a
program that aims to maintain her blood sugar levels and reduce the risk of diabetic
complications. In the time after ISP hired her, however, Kirincich experienced at least
two hypoglycemic episodes in which her blood sugar got so low that she lost
consciousness.
In late 2012 or early 2013, ISP assigned Kirincich to the night shift, her secondplace shift request, requiring her to be on patrol from 10 p.m. to 8 a.m. the following
day. As a part of her duties, Kirincich had to drive a squad car, investigate crimes, and
intervene in ongoing criminal activity. Kirincich was also required to appear in court
following the end of her shift if necessary, thereby extending her shift on an
unpredictable basis. She was also required to be on call for statewide emergencies or
other off-shift requirements.
In February 28, 2013, Kirincich suffered a hypoglycemic episode while on patrol
as a state trooper. This caused her to lose consciousness and drive erratically for
several miles. She ran a red light, drove over the dotted center line, and collided with
several other vehicles at a high rate of speed. Ultimately, her vehicle stopped as a
result of the collisions, and firefighters cut the roof off of her squad car to extricate her.
She was taken to the hospital by ambulance. Kirincich has little memory of the
hypoglycemic episode, but she does not dispute that it happened.
After Kirincich's hypoglycemic episode, ISP placed her on restricted status in
order to evaluate her ability to continue working as a state trooper. A medical review
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board considered Kirincich's case history, a history and background of the on-duty
hypoglycemic episode (and an off-duty hypoglycemic episode from December 2012),
the dashcam video from the collision, and Kirincich's own testimony. Ultimately, ISP's
medical review board referred her to an endocrinologist, Dr. Valika, for an independent
medical evaluation. Dr. Valika noted that Kirincich's blood sugar level should be closely
monitored and controlled, but he recommended that her treating physician Dr. Yohay
would have more insight on her ability to work based on the chronic nature of diabetes
and the physician's long relationship with her.
After conducting additional meetings to review Dr. Valika's notes and other
information related to Kirincich's disability and accident, ISP determined that Kirincich
could no longer perform the essential functions of her position. ISP began the process
of finding an accommodation by sending Kirincich a letter stating that she was unable to
perform the essential functions of a sworn officer and could no longer continue in her
positions as a trooper. The letter identified her options moving forward, including
applying for a reassignment to a civilian position.
Following a meeting on November 5, 2013, Kirincich, as directed, submitted an
application for reassignment to a civilian position. In the application, however, she
requested not a civilian position as such but rather an accommodation of "patrol change
to a day shift," explaining that the "night shift causes [her] blood sugar levels to become
unstable and lead to complications for [her] diabetes." Kirincich further noted that Dr.
Yohay had "advised [her] that working exclusively on a day shift would alleviate the
possibility that [her] blood sugar levels w[ould] become unbalanced and (sic) [her] to
fully perform her duties without complications." Def.'s Ex. H, at Ex. 8.
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On December 2, 2013, Kirincich's counsel submitted to ISP a letter from Dr.
Yohay confirming the doctor's recommendation: "It is my opinion, as her treating
physician, with knowledge of her duties, responsibilities, and conduct required of her as
an Illinois State Trooper, that an assignment to a day shift would allow her to fully,
completely, and safely perform all of her . . . patrol duties." Def.'s Ex. H, at Ex. 9. Dr.
Yohay testified that she knew Kirincich was a state trooper and that she carried a
badge. Dr. Yohay also testified that she assumed Kirincich regularly drove a vehicle for
long periods of time. She did not testify that she knew the duties of state troopers
beyond those just cited or that she had received any or information on the essential
functions of state troopers.
ISP responded to Kirincich's correspondence by informing her that her request
for a patrol change to a day shift conflicted with her request for a reassignment to a nonsworn, civilian position. The parties continued to correspond for over a year. As the
process continued, Kirincich worked full time in a restricted duty status.
On October 3, 2014, ISP invited Kirincich to interview for a Guard II position at
the James R. Thompson building in Chicago. On December 4, 2014, ISP invited her to
interview for the position of truck weight stop inspector. Kirincich attended both
interviews and was eventually offered both positions. She accepted the truck weight
stop inspector position but took issue with the required transfer documentation. In
particular, she took issue with the fact that the form framed her transfer as a
"resignation" from her trooper position. She manually redacted the word resignation
and replaced it with "end," noting that she "is not resigning" and that she felt ISP was
not accommodating her under the ADA. Def.'s Ex. H, at Ex. 21.
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ISP considered Kirincich's return of the form as a resignation from her trooper
position and acceptance of the truck weight stop inspector position. It scheduled her to
report to that position on February 1, 2015. In the meantime, ISP notified Kirincich of an
additional open position for which she could interview. This position—a Criminal
Intelligence Analyst—offered a salary considerably higher than that of the truck weight
stop position or her state trooper position. Kirincich interviewed for that position, and on
February 9, 2015, ISP offered the position to her. When ISP notified Kirincich that she
had been offered this position, it noted that this was her third offer of an alternative
accommodation and stated that if she declined the open offers, she would be
terminating the reasonable accommodation process. Despite this warning, Kirincich did
not report for duty on any of the positions she had been offered. She then filed this
lawsuit.
Discussion
Summary judgment is proper if the moving party shows that there is no genuine
dispute of material fact and that the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists when "the evidence is
such that a reasonable jury could return a verdict for the non-moving party." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In ruling on a motion for summary
judgment, the Court views the facts in the light most favorable to the non-movant and
draws all reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 37880 (2007).
The Americans with Disabilities Act prohibits discrimination against a qualified
individual with a disability. See 42 U.S.C. § 12112(a). Further, it requires employers to
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provide reasonable accommodations to qualified individuals to the extent that this does
not impose an undue hardship on the employer. Id. § 12112(5)(A). Only a disability
that substantially limits an individual's ability to engage in one or more major life
activities is covered. Id. § 12102(1). The parties do not dispute that Kirincich's diabetes
was a qualifying disability.
Although Kirincich's complaint and brief do not specify in so many words what
type of ADA claims she asserts, her arguments indicate that she is asserting a failureto-accommodate claim. See Pl.'s Resp. at 13 ("Plaintiff need not provide any such
evidence of discrimination where defendant has violated the ADA by refusing a
reasonable accommodation request. All that plaintiff needs to demonstrate . . . is the
employer's failure to make reasonable accommodations for the known limitations of the
disabled employee").
A.
Qualified individual
A plaintiff asserting a failure-to-accommodate claim must show: 1) she is a
qualified individual with a disability; 2) her employer was aware of her disability; 3) her
employer failed to reasonably accommodate her disability. Curtis v. Costco Wholesale
Corp., 807 F.3d 215, 224 (7th Cir. 2015). ISP does not dispute that Kirincich has a
disability of which ISP was aware. It contends, however, that Kirincich was not a
"qualified individual" under the ADA and that in any event it reasonably accommodated
her disability.
ISP maintains that Kirincich was not a qualified individual because she could not
perform the essential functions of her position either with or without an accommodation.
In particular, it points to the hypoglycemic episode she suffered while on the job and her
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subsequent medical release to work exclusively on the day shift—an arrangement that
ISP says is inconsistent with the duties of a state trooper. Kirincich argues that she
could have performed the essential functions of her job with an accommodation. She
argues that an exclusive day-shift assignment would have eliminated the risk that she
might experience another hypoglycemic episode and endanger herself or others.
1.
Essential functions of a state trooper
An individual is qualified under the ADA if she is able to perform the essential
functions of her position with or without a reasonable accommodation. 42 U.S.C. §
12111(8). An individual is not qualified if she "presents a direct threat to h[er] own
health and safety or that of others." Darnell v. Thermafiber, Inc., 417 F.3d 657, 660 (7th
Cir. 2005). A determination that an employee poses a direct threat must be premised
upon a reasonable medical judgment that relies on the most current medical knowledge
and/or the best available objective evidence and upon an expressly individualized
assessment of the individual's present ability to safely perform the essential functions of
the job. Id.
ISP maintains that Kirincich was not a qualified individual because her doctor
released her to work only if she could work exclusively on the day shift—a restriction
that ISP contends conflicts with the nature of the position of state trooper. Kirincich
contends that working at night was not an essential function of the position and that she
would have been able to perform the essential functions if she was permitted to work
only on a day shift.
ISP contends that one of the essential functions of a state trooper is being
available twenty-four hours a day, seven days a week for emergency call-ups in the
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case of arrests, state emergencies, or civil disturbances. See Def.'s Ex. B, 61:16-63:19.
Kirincich does not dispute the twenty-four-hour availability requirement—though she
does take issue with some of the categories of work for which a trooper might be called
in. See Pl.'s Resp. to Def.'s Stat. of Facts ¶25 ("Disputed in part. The cited testimony
does not establish that Plaintiff was needed for prison riots, manhunts or civil unrest").
By failing to contest anything other than those details, Kirincich effectively admits that a
trooper must be available at all times as an essential function of the job.
2.
Ability to perform essential functions
The Court next considers whether a reasonable jury could find that Kirincich was
capable of performing the essential functions of the job of state trooper with or without
an accommodation, a point on which Kirincich bears the burden of persuasion. See,
e.g., Bay v. Cassens Transport Co., 212 F.3d 969, 973 (7th Cir. 2000). No reasonable
jury could find that Kirincich could perform as a state trooper at night—primarily
because she and her doctor have admitted that she cannot.
Kirincich's primary argument appears to be that ISP substituted Dr. Yohay's
medical judgment with its own. No reasonable jury could make such a finding. Indeed,
ISP accepted Dr. Yohay's medical determination that to minimize the risk of another
hypoglycemic episode, Kirincich could only work a day shift. That, however, is the
problem, given the fact that ability to work at night is an essential function of the
position. Kirincich's contention seems to be that ISP ought to have deferred to Dr.
Yohay's implicit view that the job of a state trooper did not require work at night. But Dr.
Yohay herself admitted that she was unsure of the total range of duties required to be a
state trooper.
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This case is similar to Webster v. Methodist Occupational Health Centers, Inc.,
141 F.3d 1236 (7th Cir. 1998), in which the Seventh Circuit affirmed the district court's
grant of summary judgment for an employer on the ground that the employee's
requested (and indeed, required) accommodation was unreasonable. The plaintiff in
Webster suffered a stroke that rendered her unable to perform the essential functions of
her nursing position unless she had supervision. Her employer refused to grant the
accommodation and instead terminated her. The Seventh Circuit concluded that the
necessary accommodation—constant supervision during Webster's shift—would have
been economically prohibitive and objectively unreasonable.
Kirincich takes issue with ISP's reliance on Webster. First, she points out that
the Seventh Circuit partially rested its holding on the "prohibitively expensive" nature of
the plaintiff's only possible accommodation, concluding that Webster's proposed
accommodation was unreasonable "because it meant that it could not reinstate [her]
without effectively paying a double salary for her." Webster, 141 F.3d at 1238. Kirincich
is correct that this is not the case here. But the cases are similar in that in both Webster
and this case, the employee's physician released her to return to work only if she was
granted a particular accommodation. In this case as in Webster, the requested
accommodation essentially renders the plaintiff unable to perform the essential
functions of her job. Because a state trooper is required to be available at all times
regardless of her assigned shift, and because Kirincich's own doctor—whose opinion
she relies on entirely—opined that she could return to work only if confined to a day
shift, no reasonable jury could find that Kirincich could perform the essential functions of
her position.
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B.
Failure to accommodate
Even though Kirincich could not perform the essential functions of a state
trooper, ISP was required to engage in an interactive process to determine if there was
an accommodation that would allow her to continue working for the agency. See Gile v.
United Airlines, Inc., 213 F.3d 365, 374 (7th Cir. 2000) ("[T]he ADA requires an
employer to reassign a disabled employee to a vacant position for which the employee
is otherwise qualified."); but see Webster, 141 F.3d at 1238 (acknowledging the
reassignment requirement but noting that the employee broke down the interactive
process).
Kirincich argues that the accommodations ISP offered were unreasonable
because they were unsworn positions that constituted "demotions." Pl.'s Resp. at 5 ("As
a result of the ISP's decision, the Plaintiff was demoted . . . ."). She also contends that
the proposed accommodations were unreasonable because ISP required her to sign a
resignation form before transferring her to a new position. It appears that Kirincich
contends that the only reasonable accommodation would have been one that allowed
her to keep her trooper status and duties. See id. ("Plaintiff . . . is no longer able to
carry a gun; is no longer able to drive a squad car; is no longer able to perform the
duties of a sworn trooper; she is limited to a desk job . . . .").
ISP argues that its offer of alternative positions fulfilled its obligations under the
ADA given Kirincich's admitted medical limitations and her resultant inability to perform
the essential functions of a trooper. Further, ISP argues that even if a day-shift
accommodation could have allowed Kirincich to perform the essential functions of the
trooper position, it was not required to make that accommodation because of ISP's
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established seniority system.
1.
Alternative positions
After an employee's initial disclosure of her disability, "the ADA requires the
employer to engage with her in an 'interactive process' to determine the appropriate
accommodation under the circumstances." EEOC v. Sears, Roebuck, and Co., 417
F.3d 789, 804 (7th Cir. 2005). The interactive process "imposes a duty upon employers
to engage in a flexible . . . process with the disabled employee needing accommodation
so that, together, they might identify the employee's precise limitations and discuss
accommodations which might enable the employee to continue working." HendricksRobinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998). The Seventh Circuit has
described the interactive process as having "give-and-take" elements—"if an employee
has requested an appropriate accommodation, the employer may not simply reject it
without offering other suggestions or at least expressing a willingness to continue
discussing possible accommodations." Sears, Roebuck and Co., 417 F.3d at 806.
Kirincich (along with her doctor) proposed a shift transfer as the only appropriate
accommodation for her disability. ISP does not dispute that it declined to grant this
request. But a refusal to grant a particular accommodation does not automatically
subject an employer to liability. An employer "flunk[s] its obligation under the ADA"
when, in the face of a shift transfer request, it refuses to grant the request and then
does nothing to engage in finding alternative accommodations. Gile, 213 F.3d at 373.
Kirincich does not dispute that ISP did not simply say no but rather attempted to find
alternative accommodations. In fact, she points directly to the proposed alternative
positions, claiming that they were unreasonable because they necessitated resignation
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from her original position.
Kirincich contends that ISP should have found a way to accommodate her while
allowing her to remain a trooper. The ADA, however, does not require this. An attempt
to reassign a disabled employee to an alternative position is not simply acceptable, it is
required if the employee cannot perform the essential functions of her position and there
are no other available accommodations. 42 U.S.C. § 12111(9)(B). In considering
reassignment to a different position, the employer must make a reasonable effort to
explore the possibilities with the employee. Hendricks-Robinson, 154 F.3d at 693. It is
undisputed that ISP explored possibilities with Kirincich, ultimately offering her three
alternative positions—one of which, the Court notes, paid more than her trooper
position. Kirincich may not have been satisfied with those alternatives, but that does not
make ISP liable. The ADA does not require employers to "bump" other employees or
create new positions to reassign a disabled employee. Gile, 213 F.3d at 374. Rather, it
requires an employer to reassign a disabled employee to a vacant position for which the
employee is otherwise qualified. Id. No reasonable jury could find that ISP failed to
engage in the interactive process, because no reasonable jury could find that ISP failed
to offer Kirincich alternative positions as reasonable accommodations.
2.
Breakdown of interactive process
That said, the interactive process did not ultimately succeed. Kirincich is now
unemployed, having never reported for duty on any of the alternative positions that ISP
offered her. If reasonable accommodations were available, the question is which party
caused the breakdown. Sears, Roebuck, and Co., 417 F.3d at 805.
It is undisputed that ISP maintains a variety of "non-sworn" positions that are not
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subject to the same night-shift requirements as the position of state trooper. Kirincich
disputes that these positions were reasonable accommodations, arguing that their nonsworn status constituted a demotion. But even a position that amounts to a demotion
may be a reasonable accommodation in appropriate circumstances. Gile, 213 F.3d at
374. "[T]he employer is obligated to identify the full range of alternative positions for
which the individual satisfies the employer's legitimate, nondiscriminatory prerequisites
and consider transferring the employee to any of those other jobs, including those that
would represent a demotion." Id.
Kirincich argues that the interactive process broke down when ISP required her
to sign a resignation form. ISP disagrees, arguing that Kirincich caused the breakdown
when she failed to report to work in her newly assigned position. Alternatively, ISP
argues that even if the resignation requirement broke down the process, the agency
complied with the ADA because the alternative positions it offered Kirincich remained on
the table until she rejected them by failing to report for duty.
If an employer "takes an active, good-faith role in the interactive process, it will
not be liable if the employee refuses to participate . . . ." Id. It is undisputed that ISP
offered Kirincich alternative positions that would have aligned with her need to work only
during daytime hours. It is likewise undisputed that Kirincich accepted one of the
positions but failed to report for duty. Given these circumstances, no reasonable jury
could find that ISP acted in bad faith or tried to thwart the interactive process and block
reasonable accommodations. Indeed, "[a]n employer cannot 'reasonably
accommodate' an employee who refuses to return to work." Weiler v. Household Corp.,
101 F.3d 519, 526 (7th Cir. 1996).
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But even if ISP did prompt the end of the interactive process, it argues that it
complied with the ADA because the alternative positions it offered Kirincich were
reasonable and remained available to her. For this proposition, ISP cites Rehling v. City
of Chicago, 207 F.3d 1009 (7th Cir. 2000). In Rehling, the Seventh Circuit held that a
reasonable accommodation offered by an employer was not rendered unreasonable
simply because there was some defect in the interactive process. Id. at 1016. As in
this case, the employer in Rehling offered the employee two alternative positions.
Rehling argued that the positions were inadequate because of the method of their
selection—specifically, because the employer allegedly failed to engage in a truly
interactive process. In affirming summary judgment for the employer on Rehling's
accommodation claim, the Seventh Circuit concluded that "a plaintiff must allege that
the employer's failure to engage in an interactive process resulted in a failure to identify
an appropriate accommodation for the qualified individual." Id. Kirincich makes no
viable contention along these lines. She takes issue with the types of alternative
positions ISP offered her, but she has not offered evidence that there were additional
alternative positions available for which she was qualified.
3.
Seniority system
Finally, ISP argues that even if Kirincich had been
qualified—that is, even if she could have performed the essential functions of the
position with a reasonable accommodation of a shift change—the shift change she
requested would have been unavailable to her. ISP contends that it had in place an
established system whereby employees bid on their top shift choices, and such
preferences are assigned according to seniority. In response, Kirincich counters that
ISP has failed to demonstrate that transferring her actually would have been out of step
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with the seniority system—in other words, she alludes to a possibility that she would
have had the requisite seniority for a transfer even if she did not require a disability
accommodation.
But Kirincich's arguments are misplaced. All that the law requires ISP to do is
present evidence demonstrating that it employed a seniority system and that system's
rules. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 405 (2002) ("[T]he employer's
showing of violations of the rules of a seniority system is by itself ordinarily sufficient").
Indeed, the Supreme Court has held that "to require the typical employer to show more
than the existence of a seniority system might well undermine the employees'
expectations of consistent, uniform treatment—expectations upon which the seniority
system's benefits depend." Id., at 404. Because ISP has presented evidence
demonstrating that it had a seniority system in place for shift transfers that doled them
out based on seniority, it has met its burden.
Still, Kirincich is correct to argue that there may be exceptions to the rule in some
cases. An employer is not required to offer an accommodation that would conflict with
the rights of other employees under an established seniority system, unless the
employee can establish "special circumstances that make an exception from the
seniority system reasonable in the particular case." U.S. Airways, Inc., 404-06. For
instance, if an employer's official policies mandate a seniority system but it regularly
ignores the system or operates outside of its bounds, or if the system contains
exceptions, the ADA may require the employer to make an exception in order to
accommodate an employee's disability. Id. at 405. Kirincich, however, has offered no
evidence from which a finding reasonably could be made that ISP operated outside the
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bounds of its seniority system. In fact, her testimony has done the opposite—she has
demonstrated that ISP did in fact have a seniority system through which it did in fact
assign its troopers' shifts.
Kirincich has not meaningfully disputed the existence or enforcement of the
seniority system. A collective bargaining agreement and subsequent memoranda lay
out the seniority system in full. Kirincich testified that she was a member of the
Fraternal Order of Police, which she acknowledged subjected her to an employment
contract—and although she did not affirmatively testify that the employment contract
she referenced was the CBA, no reasonable jury could find otherwise. See Def.'s Ex.
H, at 50:6-12; Def.'s Ex. H, at Ex. 29. Further, she testified regarding her understanding
of seniority-based shift assignments, noting that she had been assigned to the night
shift through the exact process she questions now. She also testified that she felt
comfortable with her seniority status as listed in ISP's documentation, noting that
although some of the employees listed in 2012 might no longer be at ISP, her general
placement was correct in terms of sequence. See id. at 237:17-246:9; see also Def.'s
Ex. H, at Ex. 30 (listing Kirincich as 30th out of 34 employees in 2012). This testimony
essentially proves ISP's point—ISP utilized a seniority system for shift changes, and
there is no evidence of deviations. Thus Kirincich's arguments regarding ISP's seniority
system fall short of the mark.. .
Conclusion
For the foregoing reasons, the Court grants defendant's motion for summary
judgment [dkt. no. 26] and directs the Clerk to enter judgment in favor of defendant and
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against plaintiff.
________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: July 22, 2016
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