Roth v. Francesca's Collections, Inc.
MEMORANDUM AND ORDER denying 47 Motion for Summary Judgment. Signed by Chief District Judge Julie A Robinson on 3/12/2018. (ydm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 16-2841-JAR
FRANCESCA’S COLLECTION, INC.,
MEMORANDUM AND ORDER
Plaintiff Avrielle Roth brings this action against her former employer, Francesca’s
Collection, Inc. (“Francesca’s”), alleging that her termination from employment was retaliatory
in violation of public policy after she complained of alleged violations of the Kansas Wage
Payment Act (“KWPA”). This matter is before the Court on Francesca’s Motion for Summary
Judgment (Doc. 47) on Plaintiff’s claim. For the reasons discussed in detail below, the Court
denies Defendant’s motion.
Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is no
genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.1 In
applying this standard, the court views the evidence and all reasonable inferences therefrom in
the light most favorable to the nonmoving party.2 “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
reasonable jury could return a verdict for the nonmoving party.”3 A fact is “material” if, under
Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008).
City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).
Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
the applicable substantive law, it is “essential to the proper disposition of the claim.”4 An issue
of fact is “genuine” if “‘the evidence is such that a reasonable jury could return a verdict for the
The moving party initially must show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.6 In attempting to meet this standard, a movant that
does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim;
rather, the movant need simply point out to the court a lack of evidence for the other party on an
essential element of that party’s claim.7
Once the movant has met this initial burden, the burden shifts to the nonmoving party to
“set forth specific facts showing that there is a genuine issue for trial.”8 The nonmoving party
may not simply rest upon its pleadings to satisfy its burden.9 Rather, the nonmoving party must
“set forth specific facts that would be admissible in evidence in the event of trial from which a
rational trier of fact could find for the nonmovant.”10
The facts “must be identified by reference to an affidavit, a deposition transcript, or a
specific exhibit incorporated therein.”11 Rule 56(c)(4) provides that opposing affidavits must be
Wright ex rel. Tr. Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)).
Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).
Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at
671); see Kannady, 590 F.3d at 1169.
Adams, 233 F.3d at 1246.
made on personal knowledge and shall set forth such facts as would be admissible in evidence.12
The non-moving party cannot avoid summary judgment by repeating conclusory opinions,
allegations unsupported by specific facts, or speculation.13
Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of
every action.”14 In responding to a motion for summary judgment, “a party cannot rest on
ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the
mere hope that something will turn up at trial.”15
The following material facts are uncontroverted, stipulated to for the purposes of
summary judgment, or viewed in the light most favorable to Plaintiff.
Roth started her employment with Francesca’s in October 2014, as the Boutique Manager
of Francesca’s Oak Park Mall location in Overland Park, Kansas (“the Boutique”). Roth was a
salaried, at-will employee. While employed with Francesca’s, Sue Newsom was Roth’s
Regional Director and Ashley Russell was her District Manager. On October 10, 2014, Roth
signed a Field Book Acknowledgment in which she acknowledged receipt of Francesca’s
Employee Handbook and agreed to abide by all policies and procedures set forth in the
Fed. R. Civ. P. 56(c)(4).
Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citation
Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).
Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).
Roth objects to the foundation and authenticity of this exhibit because when presented with the handbook
as an exhibit during her deposition, she testified she did not specifically recall the document or filling it out.
Francesca’s attaches the handbook as Ex. 4 and files a business records affidavit, Doc. 48, attaching signature page
Roth’s Training/Onboarding Process
“Onboarding” is the process by which new Boutique employees and their Boutique
Managers must complete various new hire paperwork. Francesca’s New Hire Paperwork & Set
Up policy states that “[i]t is the Boutique Manager’s responsibility to ensure new hire paperwork
is completed per guidelines. All guidelines can be found for each individual state on the
francesca’s® Intranet.”17 Until a new hire has completed the onboarding process, he or she will
not be entered into the payroll system or receive a login to electronically clock in and out.
Francesca’s New Hire Paperwork & Set Up policy also states, “[f]ailure to complete new hire
forms accurately can result in problems with new Team member’s pay.”18
In November and December 2014, Francesca’s Human Resources (“HR”) personnel
became aware that several of the employees at the Boutique had not completed the onboarding
process and therefore, had not been entered into the payroll system. As of December 2, 2014,
seven of the Boutique’s employees had not completed the onboarding process. Francesca’s HR
Coordinator, Patricia Merlos, offered to help Roth complete the onboarding process for the
employees and worked with Roth to complete the onboarding process for the Boutique’s
employees so the employees could be entered in the payroll system and be paid. Several of the
employees’ onboarding paperwork was incomplete in part because Roth failed to complete the
required section of the employee’s I-9 form. In addition, District Manager Russell reached out to
Roth regarding the status of the onboarding process and offered her assistance. Russell showed
Roth how to complete the missing onboarding information. Roth testified that she did not feel
from the handbook kept in Roth’s personnel file. Accordingly, the exhibit is a record regularly kept in the course of
business and is admissible pursuant to Fed. R. Evid. 803(6)(B).
Doc. 49, Ex. 6.
Id., Ex. 5.
fully or properly trained in the process of completing new hire paperwork, and voiced complaints
about her lack of training.
Roth hired several new employees at some point around the start of the Black Friday
holiday shopping season in 2014. Roth testified that although her notes from that time period
indicate that the employees could not start work until their paperwork was completed, Russell
told her to “push them through, we’ll worry about the paperwork later.”19 Because the
onboarding process for the Boutique’s employees was not completed, and the employees were
thus not able to electronically clock in or clock out, Roth submitted manual timecards for the
employees on December 7, 2014. The December 7 timesheets lacked employee numbers and
one time sheet was not signed.
On December 21, 2014, Roth sent an email to Natalie Hannah, an employee in
Francesca’s HR department, asking for paychecks for the time period of November 23 through
December 20, 2014, for employees Beverly Knox, Rosette Wertz, and KaytAnne Carpenter. 20
Although the onboarding process was not complete and the employees were unable to
electronically clock in or clock out, payroll cards were issued to Knox, Wertz, and Carpenter on
December 22, 2014. The payroll cards for these employees were sent to Francesca’s HR
department so their payroll funds could be loaded onto the cards. On December 24, 2014,
Hannah confirmed that a paycheck had been mailed to Knox on December 19, 2014.21
Roth’s Complaints that Employees had not been Paid
Roth complained of unpaid wages for three of her employees: Knox, Wertz, and
Carpenter. Russell recalls that she believes Roth reported to her, before December 21, 2014, that
Doc. 55, Ex. 1 at 95:11–20, 96:2–14.
Doc. 49, Ex. 17.
Id., Ex. 19.
Wertz and Knox did not receive paychecks when they were supposed to be paid.
Newsom testified that Roth repeatedly complained about Knox, Wertz, and Carpenter not
being paid in a timely manner, and specifically recalled that Roth called her on December 24,
2014, to complain that Wertz had not been paid. Newsom also recalled that Roth called
Francesca’s corporate office with concerns about employees not being paid, and that the
corporate office had to repeatedly call Roth to get her to complete the necessary paperwork for
her employees. Newsom noted that “people at corporate really did not like taking her calls
because she was so hostile.”22
Natalie Hannah in HR testified that Roth complained to her about employees in her
Boutique not being paid. Hannah testified about the December 21, 2014 email Roth sent
complaining that Wertz and Carpenter had been working for one month without pay and were
threatening to quit. Hannah then brought Roth’s complaints to the attention of Russell and
Roth testified that Newsom visited the Boutique on or about February 12, 2015. Roth
testified that she again complained to Newsom at that time about employees not being fully
Following her store visit in February, Newsom asked Hannah to run a time card audit for
the Boutique, which Hannah emailed to Newsom on February 18, 2015. Newsom then sent the
audit report to Russell. Newsom could not recall what led to her request for an audit. When
Hannah emailed the audit report to Newsom, she wrote, “I . . . do see where Avrielle is editing
Doc. 55, Ex. 3 at 36: 9–23.
time. If you want to call me, I can walk you through the report.”23 Hannah testified that it was
possible that Newsom may have requested the audit because she believed Roth may have made
some edits to her time.
Russell testified that the time card audit came about because she was visiting Roth’s
Boutique when she overheard an employee who was returning from break say, “oh, I’ll just clock
in from my phone” when the register that was normally used for clocking in was occupied by a
transaction.24 Russell testified that she became concerned that employees were not utilizing the
electronic timeclock system correctly, so she discussed the matter with Newsom. Russell
testified that she was not aware of whether Roth ever clocked in on her phone.
The time card audit was conducted on February 18, 2015, and included information
regarding six Boutique employees in addition to Roth.25 The time card audit for the time period
January 20 through February 18, 2015, revealed that Roth edited her own time on eight
occasions. The audit further revealed that during that time period, Roth submitted her time edits
in accordance with Francesca’s policy to her District Manager, Russell, on three occasions for
Russell to make the edits instead of Roth. Russell testified the only thing she recalls discussing
with Newsom about the audit report is the edits Roth made to her time card rather than
employees clocking in or out on their phones. Russell was not aware that any employees in the
Boutique were disciplined for clocking in our out on their phones as a result of the audit.
Francesca’s Time and Attendance policy states: “Boutique managers are to submit their
missed punches to their District Managers for Correction.”26 The Time and Attendance and
Id., Ex. 4 at 50:11–51:5; Ex. 13.
Doc. 49, Ex. 15 at 66:3–8.
Id., Ex. 20.
Id., Ex. 21.
Time Reporting policies, in a subheading titled “Altering Time Records,” each state that
“[a]ltering, falsifying, tampering with records, or recording time on another employee’s time
record may result in disciplinary action, up to and including termination of employment.”27
These policies applied to Roth, and she was aware of these policies.
As Boutique Manager, if Roth needed to make any changes to her time entries,
Francesca’s policy required her to submit her edits to District Manager Russell. If Roth did not
clock in correctly, she would edit her time entries, sometimes more than twice a week. Roth
testified that Russell told her she could edit her own time, which Russell denies. Russell did not
recall ever questioning the hours Roth reported she worked.
Francesca’s terminated Roth’s employment on February 26, 2015. Russell was present at
the Boutique and Newsom was present on the phone. During the meeting, Newsom brought up
the topic of compensation allegedly owed to Rosette Wertz, and Roth confirmed her belief that
Wertz was still owed compensation for hours worked. Roth also confirmed Wertz’s mother also
believed her daughter was still missing a paycheck. Newsom assured Roth that Wertz had been
paid despite Roth’s beliefs.
That day, Roth’s time cards indicated Roth had edited her time. Roth confirmed to
Newsom and Russell that she “change[d] the timecards,” but explained that she had not done so
in a dishonest manner. Roth also stated that she felt Newsom “did not like her because she
speaks up and would not stand in line and follow orders.”28 Newsom and Russell informed Roth
she was being terminated for editing her own time. Roth did not know about the time card audit
Id., Exs. 21, 22.
Doc. 55, Ex. 2 at 83:5–8.
until the date of her termination, nor did anyone at Francesca’s speak with her about the edits to
her time cards prior to her termination.
Russell testified that no other reason was discussed for Roth’s termination, nor was any
form of lesser discipline for Roth discussed with her. In her written recap of the termination
meeting, Russell states “The end. (Thankfully!),” which she explains reflected the way Roth
“exited her employment with us, it was a pretty frustrating and uncomfortable ordeal.”29
Francesca’s identified Newsom as the decision-maker in Roth’s termination.30 Newsom
testified that Hannah in HR provided her with the time card audit that showed Roth was editing
her time entries in violation of Francesca’s policies. Newsom testified that she did not have the
authority to make the final decision on how to proceed with Roth without HR involvement, and
that after she received the audit from Hannah, she contacted HR and the decision was made “as a
company” to terminate Roth’s employment.31 Newsom testified the normal protocol would be
for Hannah to consult Tricia Butler, Vice President of HR, then get back with Newsom to advise
what course of action would be taken with respect to the employee. Newsom testified that in her
experience, every situation where an employee modified their time resulted in termination.
Newsom did not identify any specific employee who had been terminated for this reason, nor
was she aware of whether such terminations were preceded by prior discipline.
Russell testified that she was not involved in the decision to terminate Roth, and believes
that Newsom and Hannah made the termination decision. Hannah testified that she conducted
the time card audit but was not involved in the decision to terminate Roth. Hannah does not
have any specific recollection of any employee being terminated for editing timecards.
Id. at 83:24–84:11.
Id., Ex. 11.
Id., Ex. 3 at 62:5–8.
Kansas courts recognize a cause of action for retaliatory discharge based on an
employee’s pursuit of a wage claim under the KWPA.32 In this case, Roth contends she was
terminated in retaliation for complaining to Francesca’s that the company did not timely pay
three of the Boutique’s employees: Wertz, Knox, and Carpenter.
Wrongful discharge claims under Kansas law are analyzed using the three-part
framework established in McDonnell Douglas v. Green.33 Under this framework, the plaintiff
has the initial burden of establishing a prima facie case that raises a rebuttable presumption of
retaliatory intent.34 Once the plaintiff establishes a prima facie case, the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory justification for the discharge.35 Finally,
if the defendant meets this burden, the burden shifts back to the plaintiff to “assert specific facts
establishing a triable issue as to whether the employer’s reason for discharge is a mere cover-up
or pretext for retaliatory discharge.”36
The parties dispute the evidentiary standard to be applied to wrongful discharge claims
under Kansas common law. Francesca’s argues that the Court should apply a clear and
convincing standard, while Roth argues that the Court should apply a preponderance of the
evidence standard. Under Kansas law, a retaliatory discharge claim must be established “by a
preponderance of the evidence, but the evidence must be clear and convincing in nature.”37 The
Campbell v. Husky Hogs, L.L.C., 255 P.3d 1, 7 (Kan. 2011).
141 U.S. 792, 824 (1973); see Balfour v. Medicalodges, Inc., No. 05-2086-KHV, 2006 WL 37620410, at
*12 (D. Kan. Dec. 19, 2006) (citing Foster v. AlliedSignal, Inc., 293 F.3d 1187, 1193 (10th Cir. 2002)).
Foster, 293 F.3d at 1193.
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1116 (10th Cir. 2001).
Foster, 293 F.3d at 1194 (quoting Braken v. Dixon Indus., Inc., 38 P.3d 679, 682 (Kan. 2002)).
Ortega v. IBP, Inc., 874 P.2d 1188, 1198 (Kan. 1994).
Kansas Supreme Court has concluded that a plaintiff “need not meet the clear and convincing
standard at the summary judgment stage of the proceedings.”38 Because a federal court
evaluating state claims is guided by federal standards governing summary judgment procedure,
the evidentiary standard that Kansas courts apply on summary judgment do not apply.39 “[A]
plaintiff in federal court who opposes a summary judgment in a retaliatory discharge case based
on Kansas law must set forth evidence of a clear and convincing nature that, if believed by the
ultimate fact finder, would establish that plaintiff was more likely than not the victim of illegal
retaliation by her employer.”40 Plaintiff is not required, however, to establish the elements of his
or her prima facie case by clear and convincing evidence.41 The clear and convincing evidence
standard applies once the burden shifts back to plaintiff to demonstrate that the employer’s
proffered reasons for termination are pretextual.42
To state a prima facie case for retaliatory discharge based on whistleblowing, Roth must
establish that (1) a reasonably prudent person would have concluded that Francesca’s failed to
timely compensate employees in violation of the KWPA; (2) Francesca’s was aware of Roth’s
reporting of the alleged violation prior to her termination; and (3) Francesca’s terminated Roth in
retaliation for her complaints.43 “However, the whistleblowing must have been done out of a
good faith concern over the wrongful activity reported rather than from a corrupt motive such as
Rebarchek v. Farmers Coop. Elevator, 35 P.3d 892, 898 (Kan. 2001).
See Foster, 293 F.3d at 1194–95.
Id. at 1195.
Id. at 1193 n.3 (holding plaintiff to such standard at prima facie stage would pervert logic of McDonnell
Douglas burden-shifting scheme adopted by Kansas courts; claimant’s prima facie case not onerous burden).
Id. at 1193 (if employer offers legitimate, nondiscriminatory reason for termination, burden shifts to
plaintiff to show clear and convincing evidence of retaliation).
Palmer v. Brown, 752 P.2d 685, 686 (Kan. 1988).
malice, spite, jealousy or personal gain.”44
Francesca’s challenges the third element of Roth’s prima facie case—a causal connection
between her protected activity and termination of her employment. The Tenth Circuit has found
a causal connection exists between the protected activity and the materially adverse action
“where the plaintiff presents evidence of circumstances that justify an inference of retaliatory
motive.”45 Courts typically consider “protected conduct closely followed by adverse action” as
sufficient evidence.46 Here, the record shows that beginning in November 2014 through
February 2015, Roth complained to Newsom, Russell, and HR about wages owed to three
employees in the Boutique. Roth was terminated shortly thereafter on February 26, 2015, and
thus the close temporal proximity between the protected conduct and the adverse action is
sufficient to justify a retaliatory motive.
Because Roth has met her prima facie case, the Court considers Francesca’s stated reason
for termination. As its legitimate, non-retaliatory reason for Roth’s termination, Francesca states
it terminated Roth after a time card audit revealed that she edited her own time in violation of
Francesca’s policy on eight occasions. Roth does not dispute that she violated the policy, but
argues that the proffered reason is pretextual. The relevant issue is not whether the stated
reasons were wise, fair, or correct but whether the defendant honestly believed in those reasons
and acted in good faith.47 In examining this issue, a court must “look at the facts as they appear
to the person making the decision to terminate plaintiff.”48 The Court’s role is not to second
Id. at 689–90.
Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1091 (10th Cir. 2007).
Stover v. Martinez, 382 F.3d 1064, 1076 (10th Cir. 2004).
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000).
guess an employer’s business judgment.49 The Court finds that Francesca’s has met its burden
and turns to the third step of its analysis.
At this step of the McDonnell Douglas inquiry, the burden shifts back to Roth to show
that a reasonable jury could find Francesca’s proffered reason for termination pretextual. A
plaintiff can show pretext by pointing to “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them unworthy of credence.”50 A plaintiff typically
makes a showing of pretext in one of three ways: (1) evidence that defendant’s stated reason for
the adverse employment action was false, i.e. unworthy of belief; (2) evidence that defendant
acted contrary to a written company policy prescribing the action to be taken under the
circumstances; or (3) evidence that defendant acted contrary to an unwritten policy or contrary to
company practice when making the adverse employment decision affecting plaintiff.51 As noted,
Francesca’s maintains that Roth was discharged for editing her own time in violation of company
policy. While the Court does not quibble with whether this decision was reasonable or
legitimate, there remain several reasons, taken together, why a reasonable jury might discredit
Francesca’s proffered explanation.
First, while Francesca’s purported reason for Roth’s termination has remained consistent,
the same cannot be said for its statements regarding who was responsible for the decision to fire
Roth. Although Francesca’s identified Newsom as the decisionmaker, she denied making the
final decision to terminate Roth, speaking instead of the decision as being made “as a company.”
Newsom identified Tricia Butler and Natalie Hannah as individuals who might have made the
Stover, 382 F.3d at 1076.
Morgan v. Hilti, 108 F.3d 1319, 1323 (10th Cir. 1997) (quotations omitted).
Kendrick, 220 F.3d at 1230.
termination decision, but Francesca’s did not identify Butler as a person involved in the decision
to terminate Roth and Hannah testified she was not involved at all in the decision. Roth’s direct
supervisor Russell likewise denied involvement in the decision to fire Roth. Indeed, Russell
identified Newsom and Hannah as the decision-makers. The Tenth Circuit has determined that
where it is not clear who made the determination decision, a “crucial factor in the termination
process, then, is left a mystery,” which in turn “casts a shadow of doubt over” the employer’s
explanation for the termination decision.52
Similarly, Francesca’s proffered explanations for the circumstances prompting the time
card audit are inconsistent. Newsom testified she asked Hannah to conduct an audit of Roth’s
time cards after she visited the Boutique, a visit where Roth testified she complained to Newsom
about unpaid wages. Newsom testified she requested the audit because someone likely notified
her of a discrepancy with respect to Roth’s time. Hannah sent the audit to Newsom, who then
shared it with Russell. Russell, however, has a different recollection, and testified the audit came
about after she overheard an employee at the Boutique say she would clock in from her phone,
which violated company policy. Although Francesca’s adopts Russell’s explanation that the
audit was conducted for the purpose of determining whether employees were improperly
clocking in or out on their phones, Newsom’s testimony suggests the audit was intended to
address discrepancies in Roth’s time cards. Moreover, Roth testified that Russell gave her
permission to edit her own time and Francesca’s does not have reason to believe that Roth, a
salaried employee, was dishonest in reporting her time to reflect her actual hours worked.
Finally, Roth presents evidence that she repeatedly complained about the three employees
Paup v. Gear Prods., Inc., 327 F. App’x 100, 112 (10th Cir. 2009) (citing Coburn v. Rockwell
Automation, Inc., 238 F. App’x 112, 122 (6th Cir. 2007)).
going unpaid, including days before the time card audit; that the corporate office considered her
hostile; that Roth often bypassed Russell to complain to Newsom; that Newsom raised the issue
of Roth’s complaints about unpaid employees at the February 26, 2015 termination meeting; and
in her notes made afterward, Russell expressed relief that Roth had been fired. The Court finds
that from this record, taken as a whole, a reasonable jury could find that Francesca’s proffered
reason for terminating Roth is unworthy of belief. Because Roth has cited clear and convincing
evidence that reveals a genuine issue of material fact as to pretext, Francesca’s is not entitled to
summary judgment on Roth’s claim of retaliatory discharge in violation of public policy after she
complained of alleged violations of the KWPA.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Summary Judgment (Doc. 47) is denied.
IT IS SO ORDERED.
Dated: March 12, 2018
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE
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