Bowman v. Baltimore City Board of School Commissioners
Filing
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MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 3/24/2016. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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YOLANDA BOWMAN,
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Plaintiff,
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v.
Civil Action No. RDB-15-01282
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BALTIMORE CITY BOARD OF
SCHOOL COMMISSIONERS,
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Defendant.
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MEMORANDUM OPINION
Plaintiff Yolanda Bowman (“Plaintiff” or “Bowman”) has brought this action against
Defendant Baltimore City Board of School Commissioners (“Defendant” or “the Board”),
alleging retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq. (“Title VII” and/or “Count One”) and Title VI of the Civil Rights Act of 1964,
§§ 42 U.S.C. 2000d-7 et seq. (“Title VI” and/or “Count Two”). Currently pending before
this Court is Defendant’s Motion to Dismiss, or in the alternative for Summary Judgment
(ECF No. 4). The parties’ submissions have been reviewed, and no hearing is necessary. See
Local Rule 105.6 (D. Md. 2014). For the reasons stated herein, Defendant’s Motion to
Dismiss, or in the alternative for Summary Judgment (ECF No. 4), construed as a Motion to
Dismiss, is DENIED.
BACKGROUND
This Court accepts as true the facts alleged in the plaintiffs’ complaint. See Aziz v.
Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). Plaintiff Yolanda Bowman (“Bowman”)
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alleges the following:
In October 2012, Bowman was hired to work as a fifth grade language arts teacher
within the Baltimore City Public School system. Compl. ¶ 10, ECF No. 1. Bowman is an
African American woman in her forties and is a certified special education teacher with more
than twenty years of teaching experience. Id. ¶¶ 7-8. She was initially assigned to William
Paca Elementary School, where she received a “satisfactory” rating on her annual job
performance evaluation for the 2012-2013 school year. Id. ¶¶ 11-12.1
In August 2013, Bowman was transferred to Mary E. Rodman Elementary School
(“Rodman”) where she again taught fifth grade. Id. ¶¶ 13-14. Rodman is within the Baltimore
City Public School system and encompasses students from Pre-Kindergarten to fifth grade.
Id. ¶¶ 14, 17. Bowman alleges that in 2014, approximately 240 students enrolled at Rodman
and the student body was “approximately one hundred percent” African American. Id. ¶¶
17-18. Bowman also contends that the teachers at Rodman consisted of both African
American and Caucasian individuals. Id. ¶ 19.
During the 2013-2014 school year, Bowman was a Team Leader and assisted other
teachers with school-related tasks. Id. ¶¶ 20-21. Bowman also led the Performing Arts Club,
which organized student performances during that school year. Id. ¶ 27. On her 2013-2014
annual performance evaluation, Bowman received an “effective” rating. Id. ¶ 25. Bowman
asserts that Rodman’s Principal Michelle Broom (“Broom”), who is African American, sent
teachers to her room to observe her teaching techniques, and brought the State
Superintendent to Bowman’s classroom for this purpose. Id. ¶¶ 22, 24.
1 The annual performance review scales are “high effective,” “effective,” “satisfactory,” and “ineffective.”
Compl. ¶ 26.
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At the beginning of the 2014-2015 school year, Bowman contends that Broom asked
her to organize student activities. Id. ¶ 28. Bowman volunteered to run the After School
Club, career program (“CAP Club”), Performing Arts Club, Student Counsel, Prison Pen Pal
program, and School and Family Counsel. Id. ¶ 29. Bowman alleges that she discussed these
activities with Broom, and in August 2014, Broom encouraged her to get the activities
started. Id. ¶¶ 30-31. Bowman was again a Team Leader during this school year and alleges
that Broom continued to send teachers to her classroom to observe her teaching techniques.
Id. ¶¶ 32-33.
At the beginning of the academic year, Bowman states that she noticed Rodman’s
seven Caucasian teachers had significantly fewer students than the three African American
teachers. Id. ¶ 34. Bowman alleges that the African American teachers were assigned forty or
more students, while the Caucasian teachers generally had fewer than twenty-five students.
Id. ¶¶ 35-36. Bowman, along with the other African American teachers, allegedly complained
about having too many students assigned to their classes. Id. ¶ 37. Bowman complained to
school administrators during the weekly team meetings, including to the Staff Developer,
Michelle Goosby (“Goosby”). Id. ¶ 38. Bowman felt the class size was too large to control
and detrimental to the students. Id. ¶¶ 39-42.
Bowman also alleges that Broom engaged in discriminatory behavior toward African
American employees, faculty, and staff at Rodman. Id. ¶¶ 43-46. Bowman contends that
Broom made disparaging remarks about African American employees at staff meetings and
criticized them in public. Id. ¶ 44. Furthermore, Bowman alleges that Broom did not engage
in this behavior towards Rodman’s Caucasian teachers. Id. ¶ 45. Other African American
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teachers allegedly complained to Bowman about Broom’s discriminatory treatment. Id. ¶ 45.
During September 2014, Bowman again complained to Broom about her large
classroom size, stating, “It is not fair that every other day I am getting observed with so
many students.” Id. ¶¶ 47-48. On October 4, 2014, Bowman sent an e-mail to Broom stating
that her classroom size was too big. Id. ¶ 49. Bowman alleges that Broom either did not
respond to her complaints or told Bowman that “you can handle it.” Id. ¶ 50. Bowman also
complained to Baltimore City Public Schools’ Support Networks Office, but her class size
was not reduced. Id. ¶¶ 51-52.
On October 13, 2014, Broom assigned another teacher to the fourth grade, which
was previously assigned to Kristi Tousignant (“Tousignant”), a Caucasian. Id. ¶ 53. Bowman
alleges that the addition of a new teacher decreased Tousignant’s workload by half, but
similar action was not taken to decrease Bowman’s workload. Id. ¶ 54-55. Later that day,
Bowman complained to Broom that “Departmentalization wasn’t even considered to
decrease my load. Why was Tousignant given relief? This is discrimination.” Id. ¶ 56.
Bowman alleges that Broom retaliated against her complaints by not responding to Bowman,
becoming antagonistic, and questioning her performance without providing specific
criticisms. Id. ¶¶ 57-60. At the end of October 2014, Bowman claims that Broom
discontinued sending teachers to Bowman’s class to observe her teaching techniques and reassigned her Team Leader duties to other teachers. Id. ¶¶ 62-63. Bowman continued to have
forty students in her classroom throughout the remainder of the academic year. Id. ¶ 64.
On January 5, 2015, Bowman was placed on administrative leave, and then on
February 5, 2015, suspended without pay for alleged misconduct. Id. ¶¶ 65-66. Bowman filed
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a timely complaint with the Equal Employment Opportunity Commission (“EEOC”). Id. ¶
6. On February 5, 2015, the EEOC dismissed the charge and instead, issued a Notice of
Right to Sue Letter. Id. On May 1, 2015, the Board did not renew her teaching contract.2
Plaintiff has filed the subject Complaint (ECF No. 1) claiming retaliation in violation
of Title VI and Title VII of the Civil Rights Act of 1964. Specifically, Bowman alleges that
the Board engaged in discriminatory behavior by assigning significantly fewer students to
Caucasian teachers than African American teachers. The Board allegedly retaliated against
her after she complained about the purported racial discrimination by removing her Team
Leader duties, questioning her job performance, maintaining the same number of students in
her class, suspending Bowman without pay for alleged misconduct, and ultimately declining
to renew her employment contract.
STANDARD OF REVIEW
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain
a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the
dismissal of a complaint if it fails to state a claim upon which relief can be granted. The
purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
2 This Court notes that Plaintiff did not include this information in her Complaint. In Defendant’s Motion to
Dismiss, the Board clarifies that Plaintiff’s employment contract ultimately was not renewed. Mot. to Dismiss,
1-2, ECF No. 4. The Plaintiff confirms that her employment contract was not renewed in her affidavit filed
with Plaintiff’s Opposition to Defendant’s Motion to Dismiss. Plaintiff’s Aff. ¶ 46, ECF No. 5-1.
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The Supreme Court’s recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that complaints in civil actions be
alleged with greater specificity than previously was required.” Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012) (citation omitted). In the employment discrimination context, this
pleading standard should not be “onerous.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d
761, 764 (4th Cir. 2003). The Supreme Court has indicated that an employment
discrimination plaintiff need not plead particular facts conclusively satisfying each element of
a prima facie case. Swierkiewicz v. Sorema, 534 U.S. 506 (2002).3 Swierkiewicz, however, did not
abrogate the requirement that the plaintiff allege “facts sufficient to state all the elements of
her claim.” Bass, 324 F.3d at 765 (emphasis added); see Coleman v. Maryland Court of Appeals,
626 F.3d 187, 190 (4th Cir. 2010) (explaining that Swierkiewicz does not nullify the heightened
pleading requirements of Twombly and Iqbal); Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th
Cir. 2002) (“[T]he Supreme Court’s holding in Swierkiewicz v. Sorema did not alter the basic
pleading requirement that a plaintiff set forth facts sufficient to allege each element of his
claim.” (internal citation omitted)).
Even with the degree of flexibility arguably given to employment discrimination
plaintiffs, the court must consider whether plaintiff’s complaint has met the plausibility
requirement of Twombly and Iqbal. See Miller v. Carolinas Healthcare System, 561 F. App’x 239,
241 (4th Cir. 2014) (explaining that, in the Fourth Circuit, “Swierkiewicz left untouched the
burden of a plaintiff to allege facts sufficient to state all elements of her claim.” (internal
3 Although the general 12(b)(6) standard used in Swierkiewicz was overruled by Twombly, see Francis v. Giacomelli,
588 F.3d 186, 192 (4th Cir. 2009), the analysis cited here remains good law. Reed v. Airtran Airways, 531 F.
Supp. 2d 660, 666 (D. Md. 2008) (“The Twombly Court made clear that its holding did not contradict the
Swierkiewicz rule that ‘a complaint in an employment discrimination lawsuit [need] not contain specific facts
establishing a prima facie case of discrimination.’” (citations omitted)).
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quotation marks and citation omitted)). In making this assessment, a court must “draw on its
judicial experience and common sense” to determine whether the pleader has stated a
plausible claim for relief. Iqbal, 556 U.S. at 679. “At bottom, a plaintiff must nudge [its]
claims across the line from conceivable to plausible to resist dismissal.” Wag More Dogs, LLC
v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (internal quotation marks omitted).
ANALYSIS
Plaintiff has alleged discriminatory treatment based on race, contending Caucasian
teachers at Rodman were assigned fewer students to their classes than the African American
teachers. She claims that the Board terminated her employment as retaliation for
complaining about the classroom sizes and alleged discriminatory treatment. In moving to
dismiss, the Board argues that Bowman fails to establish a prima facie case of retaliation.
Specifically, the Board contends that Bowman does not allege that she engaged in any
protected activity, nor was there causal proximity between the claimed protected activity and
adverse employment action.
Title VII provides that an employer may not “discharge . . . or otherwise discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . race.” 42 U.S.C. § 2000e-2(a)(1). Under Title
VII, an employer may not discriminate against an employee who “has opposed any . . .
unlawful employment practice” covered by the statute.4 42 U.S.C. § 2000e-3(a). Under Title
VI, “[n]o person in the United States shall, on the ground of race, color, or national origin,
4 To state a claim of retaliation under Title VII, a plaintiff first must exhaust administrative remedies. In this
case, the Plaintiff filed a timely complaint with the EEOC, received a right to sue letter, and thus, exhausted
the requisite administrative remedies.
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be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance.” 42
U.S.C. § 2000d-7. A recipient of this federal funding shall not discriminate “against any
individual . . . because he has made a complaint” regarding unlawful employment activity. 34
CFR 100.7(e). In Peters v. Jenney, 327 F.3d 307 (4th Cir. 2003), the United States Court of
Appeals for the Fourth Circuit held that Title VI prohibits intentional discrimination and
includes a private right of action for retaliation claims.
Title VII and Title VI claims of retaliation are examined under the same standard.
Howerton v. Board of Educ. of Prince George’s Cty., CIV. A. No. TDC-14-0242, 2015 WL
4994536, at *17 (D. Md. Aug. 19, 2015) (citing Peters, 327 F.3d at 307). To state a claim of
retaliation under Title VII or Title VI, the plaintiff must show that “(1) she engaged in
protected activity: (2) the employer acted adversely against her; and (3) there was a causal
connection between the protected activity and the asserted adverse action.” Ziskie v. Mineta,
547 F.3d 220, 229 (4th Cir. 2008) (citing Holland v. Washington Homes, Inc., 487 F.3d 208, 218
(4th Cir. 2007)). Although a claim for retaliation under Title VII or Title VI must satisfy the
same three elements, Title VI attaches an additional requirement. Under Title VI, a plaintiff
must show that “the program or activity under which a plaintiff was allegedly subjected to
discrimination received federal financial assistance. Federal funding is deemed an element of
the cause of action.” Rogers v. Bd. of Educ. of Prince George’s Cty., 859 F.Supp. 2d 742, 750 (D.
Md. 2012). For purposes of a motion to dismiss, the plaintiff must allege receipt of federal
funds by the defendant, and that this funding was received for the “express purpose of
creating jobs and maintaining existing ones.” Id. at 752. In this case, Plaintiff adequately
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alleges that Baltimore City Public Schools receive federal stimulus funds through the
American Recovery and Reinvestment Act of 2009 for the “expressed purpose of creating
jobs and maintaining existing ones.” Compl. ¶ 2.5
A. Protected Activity
The Board contends that Bowman did not sufficiently allege that she engaged in a
protected activity as required under Title VI and VII. Specifically, the Board alleges that
Bowman never complained to the Board or to any employee of the Board that the difference
in classroom size was due to race.
Protected activity includes an employee’s opposition to what he or she believes is an
unlawful employment practice. This opposition encompasses “utilizing informal grievance
procedures as well as staging informal protests and voicing one's opinions in order to bring
attention to an employer's discriminatory activities.” Laughlin v. Metro. Wash. Airports Auth.,
149 F.3d 253, 259 (4th Cir. 1998). The Fourth Circuit noted that while individual acts may be
scrutinized to determine “their nature, purpose, and nexus to the alleged objective,” the
plaintiff’s conduct must be examined “as a whole.” DeMasters v. Carilion Clinic, 796 F.3d 409,
418 (4th Cir. 2015). This inquiry first looks to whether the employee “communicates to her
employer a belief that the employer has engaged in . . . a form of employment
discrimination.” Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 276
(2009). If this first question is answered in the affirmative, then a court considers whether
this communicated belief concerns a practice that is “actually unlawful under Title VII” or
5 The Board qualifies as a “local educational agency” under 28 U.S.C. § 7801(26)(A), which constitutes a
“program or activity” under Title VI, 42 U.S.C. § 2000d–4a(2)(B).
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that the employee “reasonably believes to be unlawful.” Boyer–Liberto v. Fontainebleau Corp.,
786 F.3d 264, 282 (4th Cir. 2015).
It is the first element of this inquiry, whether Bowman communicated her belief to
the Board, that requires further examination.6 General complaints of unfair treatment are not
protected activity. Romeo v. APS Healthcare Bethesda, Inc., 876 F. Supp. 2d 577, 587 (D. Md.
2012); accord Harris v. Md. House of Corrections, 209 F. Supp. 2d 565, 570 (D. Md. 2002).
However, where the employer understood or should have understood that the plaintiff
opposed an unlawful practice, that opposition is protected activity. Burgess v. Bowen, 466 F.
App’x 272, 282 (4th Cir. 2012). To determine whether an employer should have understood
the complaint to constitute a protected activity, a court must consider whether the employer
could have understood the complaint in the context in which it was made. Id. (holding that
the employee’s verbal complaint of being “targeted” should have conveyed to the employer
a concern of racial discrimination); Okoli v. City of Baltimore, 648 F.3d 216, 223-224 (4th Cir.
2011) (although the employee did not explicitly mention sexual harassment or convey details
of the incident, the use of the word “harassment” was enough to convey to the employer
that her complaint “likely encompassed sexual harassment”).
In this case, Bowman alleges that she repeatedly complained about her large
classroom size to both Broom and school administrators. Admittedly, Bowman’s initial
complaints did not allege racially discriminatory conduct. Rather, these initial complaints
related only to general unfair treatment resulting from the large classroom size. See Compl.
6 The Plaintiff satisfies the second element of this inquiry. She alleges a quantifiable difference in classroom
sizes and prior discriminatory treatment of African American employees at Rodman to establish that she
reasonably believed classroom sizes were determined by race, and hence unlawful.
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¶¶ 37-38, 47-51. As such, these initial complaints, alone, are not sufficient to allege that she
communicated her belief to the Board that racially discriminatory practices were occurring at
Rodman.
Nevertheless, on October 13, 2014, Bowman alleges that she specifically complained
to Broom about the discriminatory treatment in regards to classroom sizes. Compl. ¶¶ 53-56.
Bowman allegedly expressed to Broom her belief that the addition of a new teacher to the
fourth grade class lightened the workload of Tousignant, a Caucasian teacher. Id. Bowman
then complained to Broom that “Departmentalization wasn’t even considered to decrease
my load. Why was Tousignant was given relief? This is discrimination.” Id. From this
context, Broom reasonably should have been aware that Bowman’s complaint noted a
distinction in treatment between Tousignant, a Caucasian teacher, and Bowman, an African
American teacher. Although, Bowman did not explicitly state it was racial discrimination,
she did not have to be so explicit when the context clearly conveyed the purported racial
impetus. Bowman has thus sufficiently alleged that she engaged in a protected activity.7
B. Adverse Employment Action
The Board does not dispute it took adverse employment action against Bowman.
Bowman was placed on administrative leave in January 2015 and, on February 5, 2015, she
was suspended without pay for alleged misconduct. Compl. ¶¶ 65, 66, 69.
7 Under Title VI, the standard for protected activity is slightly different than that of Title VII. Title VI asks (1)
whether the plaintiff subjectively, in good faith, believed that the employer engaged in a practice violative of
Section 601 (42 U.S.C. § 2000d); and (2) whether this belief was objectively reasonable in light of the facts.
Peters, 327 F.3d at 320—21. In this case, Plaintiff has also satisfied these requirements and sufficiently alleged
that she engaged in a protected activity under Title VI.
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C. Causal Link
Even assuming that Plaintiff sufficiently alleged protected activity, Defendant argues
that she has failed to show a causal nexus between the protected activity and the adverse
employment action.8 Although a plaintiff may not conclusorily assert the existence of a
“causal connection,” the presence of a “close” temporal relationship between the protected
activity and the alleged adverse action can be sufficient to establish a causal connection at the
pleading stage. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (holding that
alleged “temporal proximity” must be “very close” to satisfy this third element). If the
employer did not know of the protected activity, then even temporal proximity cannot save a
plaintiff’s claim. Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004) (explaining that the
employer must know the employee engaged in protected activity as a prerequisite to
establishing a causal connection). The Fourth Circuit has not set forth a specific timeframe
for what constitutes “very close.” Pascaul v. Lowe’s Home Centers, Inc., 193 F. App’x 229, 233
(4th Cir. 2006). However, in cases where the temporal proximity is “missing,” “courts may
look to the intervening period for other evidence of retaliatory animus.” Lettieri v. Equant,
Inc., 478 F.3d 640, 650 (4th Cir. 2007) (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271,
281 (3rd Cir. 2000)).
8 In moving to dismiss, Defendant describes an alleged incident of serious misconduct by Plaintiff where she
had her students engage in an unauthorized pen-pal program with an incarcerated person. Mot. to Dismiss, 12, ECF No. 4. Defendant alleges that Plaintiff’s conduct violated the employee handbook and constitutes a
legitimate, non-discriminatory basis for the termination of her employment. Any discussion of Defendant’s
proffered legitimate reasons for termination, however, is reserved for summary judgment. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishing a burden shifting framework for Title VII claims);
Swierkiewicz, 534 U.S. at 510—11 (explaining that the McDonnell Douglas test is appropriately used on
summary judgment). At the motion to dismiss stage, however, it is the Plaintiff’s complaint that controls.
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Approximately three months passed between Bowman’s direct complaint to Broom
alleging discriminatory treatment on October 13, 2014 and the placing of Bowman on
administrative leave in January 2015. Yet, certain intervening events may demonstrate
plausible retaliatory animus. For example, Bowman claims that she was relieved of Team
Leader duties, other teachers were no longer sent to observe her room, and she allegedly
received negative comments about her job performance. Each adverse action was plausibly
in retaliation for her October 13th complaint to Broom. Accordingly, Bowman has alleged
facts sufficient to show a causal link between her protected activity and the Board’s adverse
employment action.
In sum, Plaintiff’s Complaint sufficiently alleges prima facie claims of retaliation under
both Title VI and Title VII. At this early stage in the proceedings, she need not prove her
claims, but instead only allege a plausible claim for relief. As such, Defendant’s Motion must
be denied.
CONCLUSION
For the reasons stated above, Defendant Baltimore City Board of School
Commissioner’s Motion to Dismiss, or in the in the alternative for Summary Judgment (ECF
No. 4), construed as a Motion to Dismiss is DENIED.
A separate Order follows.
Dated: March 24, 2016
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Richard D. Bennett
United States District Judge
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