Dones v. Donahoe

Filing 83

MEMORANDUM OPINION (c/m to Plaintiff 11/23/15 sat). Signed by Judge Deborah K. Chasanow on 11/23/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
CONNELL DONES
:
v.

:

Civil Action No. DKC 12-3369

:
MEGAN J. BRENNAN,
Postmaster General,
United States Postal Service1

:
:

MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

employment discrimination case is a motion for summary judgment
filed by Defendant Megan J. Brennan, Postmaster General of the
United States (“Defendant”).

(ECF No. 66).

Also pending is a

motion for leave to file a surreply filed by Plaintiff Connell
Dones (“Plaintiff”).
briefed,

and

necessary.

the

(ECF No. 78).

court

Local

Rule

now

The issues have been fully

rules,

105.6.

no

For

hearing

the

being

following

deemed

reasons,

Defendant’s motion for summary judgment will be granted in part
and denied in part.

Plaintiff’s motion for leave to file a

surreply will be denied.

1

Defendant notes that Megan J. Brennan succeeded Patrick R.
Donahoe as Postmaster General.
Accordingly, Ms. Brennan is
“automatically substituted as a party.” Fed.R.Civ.P. 25(d).

I.

Background
A.

Factual Background

Unless
construed

otherwise
in

the

nonmoving party.

light

the

most

facts

outlined

favorable

to

here

are

Plaintiff,

the

Additional facts are presented in a prior

memorandum opinion.
Plaintiff

noted,

was

(See ECF No. 23, at 1-6).
an

employee

of

the

United

States

Postal

Service (“the USPS”) from October 1993 to October 5, 2010.

Most

recently,

USPS

Plaintiff

worked

as

a

mail

processor

at

the

Southern Maryland Processing and Distribution Center in Capitol
Heights, Maryland.

This job required Plaintiff to “process mail

using automated mail processing equipment or manual methods of
sortation

and

distribution.”

(ECF

No.

66-5).

suffered on-the-job injuries in 2000 and 2006.
at 4).

Plaintiff

(ECF No. 66-4,

One of Plaintiff’s injuries stemmed from his use of a

“rest-bar,”

which

is

a

“stool-like

piece

of

equipment

ergonomically designed to lift the employee forward as he sits
or leans on it and it keeps the employee erect while he or she
cases

the

Plaintiff’s

mail.”
injury

(ECF
was

Nos.

66-2,

chronic

at

9-10;

cervicalgia,

66-4,
or

neck

at

3).

pain.

Plaintiff also suffered from a herniated disk and experienced
related back pain.

Because of his injuries, Plaintiff’s doctor

noted that Plaintiff “need[ed] a swivel chair” and should engage
in “no twisting of neck.”

(ECF No. 66-6).
2

Plaintiff was also

unable to stand continuously for the entire eight hour workday.
(ECF No. 66-8 ¶ 9).
In light of his disability, in October 2008, Plaintiff was
offered

a

“light-duty

assignment.”

(Id.).

This

assignment

indicated, in part, that Plaintiff would not be required to
twist his neck.

(ECF No. 68-3 ¶ 11).

provided a rest bar to lean on.

Plaintiff was also

(ECF No. 66-2, at 9-10).

Despite the limited nature of his new assignment and the use of
the rest bar, Plaintiff avers that “it was not possible to avoid
twisting [his] neck.”

(ECF No. 68-3 ¶ 11).

Plaintiff contends

that, while performing his modified job duties, “he continued to
experience injury and pain requiring frequent leave from work.”
(ECF No. 68-1 ¶ 7).
Plaintiff noticed that other USPS employees were able to
perform
multiple

their

tasks

occasions,

while

sitting

Plaintiff

in

a

approached

request the use of a swivel chair.

swivel
his

chair.

On

supervisors

(Id. ¶ 11).

to

In June 2009,

Plaintiff offered to purchase a swivel chair with his own money,
but his manager did not approve the request.

(ECF No. 68-14).

This case stems from Plaintiff’s September 2010 request.
No.

1

¶

14).

Plaintiff’s

managers

continually

(ECF
denied

Plaintiff’s requests, including the September 2010 request, to
use a swivel chair and told Plaintiff that he must submit his
request to the Department of Labor.
3

(ECF No. 66-10 ¶ 21).

Following the denial of his September 2010 request, Plaintiff
submitted

his

retirement

application

on

September

which became effective on October 5, 2010.
B.

20,

2010,

(ECF No. 66-9 ¶ 2).

Procedural History

Plaintiff filed a claim of discrimination with the USPS’s
Equal Employment Opportunity Office (“EEO”) on October 15, 2010.
Plaintiff claimed discrimination based on race, color, gender,
age,

retaliation,

and

disability

when:

(1)

he

was

denied

a

swivel chair in September 2010; (2) he was given a letter of
warning after asking for leave pursuant to the Family Medical
Leave Act (“FMLA”); and (3) when he was forced to retire.
No. 19-13).

(ECF

USPS issued a final agency decision on October 12,

2012 rejecting his claims.

(Id.).

Plaintiff avers that he

received this decision on October 17, 2012.

(ECF No. 12, at 3).

On November 16, 2012, Plaintiff filed a pro se complaint in this
court.

(ECF

refusal

to

No.

1).

provide

Plaintiff
him

a

contends

swivel

chair

that

Defendant’s

and

subsequent

constructive termination of his employment constitute employment
discrimination on the basis of sex, age, disability, and prior
protected activity in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq.; the Age Discrimination

4

in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; and the
Rehabilitation Act, 29 U.S.C. § 701, et seq.2
On December 12, 2013, the undersigned granted in part and
denied

in

part

Defendant’s

motion

alternative, for summary judgment.
court

entered

judgment

against

to

dismiss

or,

in

(ECF Nos. 23; 24).

Plaintiff

with

regard

to

the
The
his

claims of age discrimination, sex discrimination, and disability
discrimination in the form of wrongful discharge.
4).

Plaintiff’s

claims

for

retaliation

and

accommodate under the Rehabilitation Act remained.

(ECF No. 24 ¶
failure

to

(Id. ¶ 5).

The parties then conducted discovery and attended a settlement
conference on March 26, 2015 before Magistrate Judge Charles B.
Day.
On May 15, 2015, Defendant filed the pending motion for
summary judgment.

(ECF No. 66).

Plaintiff filed a response in

opposition (ECF No. 68), and Defendant replied (ECF No. 72).

On

July 21, 2015, Plaintiff filed the pending motion for leave to
file a surreply.

(ECF No. 78).

Defendant filed a response in

opposition (ECF No. 81), and Plaintiff replied (ECF No. 82).

2

Plaintiff has elected not to pursue his claim of
discrimination based on denial of FMLA leave.
Plaintiff also
has not listed race and color as bases for discrimination in his
complaint.
5

II.

Motion for Summary Judgment
A.

Standard of Review

A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
party

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).

250
In

Liberty Lobby, the Supreme Court explained that, in considering
a motion for summary judgment, the “judge’s function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.”

477 U.S. at 249.

A dispute about a material fact is

genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”

Id. at 248.

Thus,

“the judge must ask himself not whether he thinks the evidence
unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on
the evidence presented.”

Id. at 252.

In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
favorable to the party opposing the motion.”

Matsushita Elec.

Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting

United

States

v.

Diebold,
6

Inc.,

369

U.S.

654,

655

(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).
evidence

in

The mere existence of a “scintilla” of

support

of

the

non-moving

party's

case

is

sufficient to preclude an order granting summary judgment.

not
See

Liberty Lobby, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”

Shin v.

Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed,

this

court

has

an

affirmative

obligation

to

prevent

factually unsupported claims and defenses from going to trial.
See

Drewitt

v.

Pratt,

999

F.2d

774,

778–79

(4th

Cir.

1993)

(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
B.

Analysis

1.

Discriminatory Failure to Accommodate

To establish a prima facie case for failure to accommodate,
Plaintiff must show: “(1) that he was an individual who had a
disability

within

the

meaning

[employer]

had

notice

reasonable

accommodation

of

of

his
he

the

statute;

disability;

could

perform

(2)

(3)
the

that
that

the
with

essential

functions of the position . . . ; and (4) that the [employer]
refused to make such accommodations.”
Corp., 717 F.3d 337, 345 (4th

Wilson v. Dollar Gen.

Cir. 2013) (quoting

Rhoads v.

F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001)) (alteration in
7

original).

“Implicit

requirement

that

the

interactive

process

in

the

fourth

employer

to

and

identify

a

element

employee

is

the

engage

reasonable

ADA

in

an

accommodation.”

Haneke v. Mid–Atlantic Capital Mgmt., 131 F.App’x 399, 400 (4th
Cir. 2005) (citing 29 C.F.R. § 1630.2(o)(3)).
Defendant does not dispute that Plaintiff had a disability
and that the USPS was on notice of that disability.

Defendant

also does not contest that Plaintiff could have performed the
essential functions of his position using the requested swivel
chair.
prima

Rather, Defendant focuses on the fourth prong of the
facie

case,

accommodations

arguing

by

that

modifying

the

Plaintiff’s

providing him a rest bar to use.
Defendant

contends

that

USPS

these

provided
job

reasonable

description

and

(ECF No. 66-2, at 26-27).

accommodations

are

sufficient

because the law requires only that an employer “provide some
reasonable accommodation,” not the accommodation the employee
“requests or prefers or even the best accommodation.”

(Id. at

27

(D.D.C.

(citing

2014))).

Doak

v.

Johnson,

19

F.Supp.3d

259,

274

Plaintiff counters that the USPS’s accommodations were

not effective because he was still required to twist his neck to
perform the essential functions of his job.
11).

Plaintiff

asserts

that

the

USPS

(ECF No. 68-3 ¶

failed

to

provide

a

reasonable accommodation, which was the use of a swivel chair,
as prescribed by his doctor.
8

Plaintiff bears the burden of establishing his ability to
perform the essential functions of his job with a reasonable
accommodation.
209,

213

Defendant

(4th

Tynall v. Nat’l Educ. Centers, Inc., 31 F.3d
Cir.

makes

no

1994).

Here,

as

in

argument

challenging

her

earlier

that

a

motion,

swivel

chair

would have been a reasonable accommodation allowing Plaintiff to
perform the essential functions of his job.

Plaintiff asserts

that he could do his job using a swivel chair.
at 10).

(ECF No. 66-4,

Other employees performing similar work used swivel

chairs (ECF Nos. 66-8 ¶ 20; 68-3 ¶¶ 9, 15), and Plaintiff used a
swivel chair to perform his job duties “[t]wo or three times.”
(ECF No. 66-4, at 14).
a

swivel

chair

would

Defendant does not argue that providing
be

an

“undue

offered to purchase the chair himself.

hardship,”

and

Plaintiff

(ECF No. 68-3 ¶ 18).

Defendant is correct that an employer is not required to
provide the employee’s preferred accommodation,

Reyazuddin v.

Montgomery Cnty., Md., 7 F.Supp.3d 526, 549 (D.Md. 2014), rev’d
on other grounds, 789 F.3d 407 (4th Cir. 2015), but this argument
misses a key component of the reasonable accommodation analysis.
“‘In order to be reasonable, the accommodation must be effective
(i.e., it must address the job-related difficulties presented by
the employee’s disability).’”

Id. (quoting Fleetwood v. Harford

Sys. Inc., 380 F.Supp.2d 688, 699 (D.Md. 2005)).

The mere fact

that the USPS provided Plaintiff with some accommodations does
9

not relieve it of the responsibility to provide an effective,
reasonable accommodation.
job

description

provided

for

Defendant asserts that the modified

addressed

no

Plaintiff’s

twisting

of

his

disability

neck.

However,

because
the

it

record

indicates that Plaintiff was still required to twist his neck
despite the purported limitations.
¶

11).

Even

with

the

use

of

(ECF Nos. 66-4, at 10; 68-3
the

rest

bar,

required to twist his neck to perform his job.

Plaintiff

was

The rest bar was

stationary, and Plaintiff’s doctor noted that, should Plaintiff
be required to sit for his job, he should be provided with a
swivel chair to be able to perform his job without twisting his
neck.

(ECF No. 66-6).

In addition, Plaintiff asserts that he

had been injured while using a rest bar, further indicating that
it

was

not

disability.
The

an

effective,

reasonable

accommodation

for

his

(ECF No. 66-4, at 3).

fact

that

Plaintiff

could,

at

least

to

a

certain

degree, perform his job without a swivel chair does not indicate
that

the

reasonable.

accommodations
As

provided

discussed

in

the

were

effective,

preceding

and

paragraphs,

thus
the

accommodations do not appear to have addressed Plaintiff’s jobrelated difficulties.

Defendant relies extensively on a case

from the District of Columbia to support her assertion that the
USPS provided sufficient accommodation, Doak, 19 F.Supp.3d 259,
but the situation here differs significantly from the one in
10

Doak.
on

The employee in Doak requested six accommodations based

her

doctor’s

granted

five

of

recommendations,
them.

Id.

and

at

the

274.

employer
The

ultimately

only

requested

accommodation the employer in Doak did not grant was a request
for a modified work schedule because a doctor employed by the
defendant deemed it to be not medically necessary.

Id.

district

defendant

court

“implemented

agreed

all

the

and

determined

reasonable

that

office

the

accommodations

The

[the

plaintiff] requested because of her disability, and only denied
[her] requests for telework and a modified schedule because they
were unreasonable as a matter of law.”

Id. at 280.

The court

found the scheduling request unreasonable because it was and
“open-ended work whenever you want” request and her job required
the plaintiff to be present in the office at certain hours.
at 277-78.
whether

Id.

Here, conversely, a genuine dispute remains as to

the

accommodations

offered

were

effective

and

reasonable, and Defendant has made no assertion that providing a
swivel chair would have been unreasonable or an undue hardship.
This is not a case where the USPS simply failed to provide
Plaintiff’s
contention

preferred
is

that

the

accommodation.
USPS

did

reasonable accommodation at all.
to

alter

the

analysis

in

the

11

not

Rather,
provide

an

Plaintiff’s
effective,

Accordingly, Doak does little
current

case,

and

Defendant’s

motion

for

summary

judgment

will

be

denied

for

Plaintiff’s

discriminatory failure-to-accommodate claim.
2.

Retaliatory Failure to Accommodate

Under the Rehabilitation Act, to establish a prima facie
case of retaliation, Plaintiff must show that: (1) he engaged in
a protected activity; (2) his employer acted adversely against
him; and (3) the protected activity was causally connected to
the adverse action.

See Holland v. Washington Homes, Inc., 487

F.3d 208, 218 (4th Cir. 2007).
must

prove

occurred

in

“that

the

the

absence

As to the final prong, Plaintiff

unlawful

actions of the employer.”

of

the

retaliation
alleged

would

wrongful

not

have

action

or

Univ. of Texas S.W. Med. Ctr. v.

Nassar, 133 S.Ct. 2517, 2533 (2013).

Unlike a discrimination

claim, a plaintiff need not establish an “ultimate employment
decision” to make out his prima facie case; rather, he must show
only that the action would be seen as materially adverse through
the eyes of a reasonable employee.

Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 68 (2006).
of

ultimate

employment

decisions

“‘Although conduct short
can

constitute

adverse

employment action,’ there still must be a ‘tangible effect on
the terms and conditions of employment.’”

Geist v. Gill/Kardash

P'ship, 671 F.Supp.2d 729, 737 n.6 (D.Md. 2009) (quoting James
v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th
2004)).

Actions

like

“petty

slights,
12

minor

annoyances,

Cir.
and

simple

lack

of

good

manners”

are

insufficient

to

support

retaliation claim, even under this lower standard.
N., 548 U.S. at 68.

a

Burlington

Thus, an action is materially adverse if,

from an objective point of view, “it well might have dissuaded a
reasonable

worker

discrimination.”

from

making

or

supporting

a

charge

of

Id.

Defendant’s only argument against Plaintiff’s prima facie
case is that the denial of a swivel chair was not an adverse
employment action.

However, the court has already deemed this

argument “unpersuasive.”

As the undersigned noted in a prior

memorandum opinion:
A reasonable jury could find that denial of
the swivel chair could constitute a tangible
effect
on
the
terms
of
Plaintiff’s
employment as a mail processor, such that a
reasonable worker would be dissuaded from
filing a discrimination claim.
Defendant
argues that the fact that Plaintiff filed a
discrimination claim demonstrates that he
was not so dissuaded and that it cannot, as
a result, constitute an adverse action.
Accepting that argument would eviscerate the
anti-retaliation
protection;
an
employer
could always argue that the fact that the
employee filed the claim is proof that he
was not dissuaded from making a charge of
discrimination.
This would turn Burlington
Northern’s lesser standard for retaliation
claims into a nullity.
(ECF No. 23, at 23-24).

As discussed in the preceding section,

there is a genuine dispute whether the accommodations the USPS
provided were effective.

Plaintiff maintains that he continued

13

to suffer pain due to his disability while performing his job
without the requested swivel chair.
Defendant

also

asserts

that,

even

if

Plaintiff

has

established a prima facie case of retaliation, summary judgment
is

appropriate

because

Plaintiff

has

failed

to

show

that

Defendant’s asserted legitimate, non-retaliatory reason for the
refusal to provide a swivel chair was pretext for retaliation.
(ECF No. 66-2, at 23-24).
case,

“the

burden

shifts

Once Plaintiff presents a prima facie
to

the

employer

to

articulate

a

legitimate, non[retaliatory] reason for the adverse employment
action.”

Hill v. Lockheed Martin Logistics Mgmt., Inc., 354

F.3d 277, 284 (4th Cir. 2004).

If the defendant meets this

burden of production, “the burden shifts back to [the plaintiff]
to prove by a preponderance of the evidence that the employer’s
stated reasons ‘were not its true reasons, but were a pretext
for discrimination.’”

Id. at 285 (quoting Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)).
Defendant

argues

that

Plaintiff’s

supervisors

denied

Plaintiff’s requests for a swivel chair because they honestly
believed that Plaintiff was required to make such a request
through the Department of Labor.
¶¶ 19-21).

(ECF Nos. 66-2, at 23; 66-10

Although it is clear that Plaintiff was not actually

required to file a request with the Department of Labor, “‘[i]t
is

the

perception

of

the

decisionmaker
14

which

is

relevant.’”

Holland, 487 F.3d at 217 (quoting Tinsley v. First Union Nat’l
Bank, 155 F.3d 435, 444 (4th Cir. 1998)); see also Tavernier v.
Health Mgmt. Assocs., Inc., 498 F.App’x 349, 351 (4th Cir. 2012)
(“An employer is liable only for discriminating [or retaliating]
on

grounds

reasons

that

that

are

are

improper,

not

mistaken.”).

for

Here,

differentiating

Plaintiff’s

for

supervisors

submitted affidavits asserting that they believed Plaintiff was
required to file his request with the Department of Labor.
Nos. 66-8 ¶¶ 20-25; 66-10 ¶¶ 19-21).

(ECF

Plaintiff admitted in his

deposition that his colleagues who had chairs “said they got the
chair[s] from the Department of Labor,” and other colleagues
“said they were waiting on a response from the Department of
Labor.”
her

(ECF No. 66-4, at 11).

burden

of

production

Accordingly, Defendant has met

that

Plaintiff’s

supervisors,

the

decisionmakers in this case, believed Plaintiff was required to
submit his request to the Department of Labor.
Plaintiff asserts that his supervisors’ reason for denying
his

use

of

incorrect;

a

swivel

that

is,

chair

was

Plaintiff

pretextual
was

not

because

actually

submit his request to the Department of Labor.
66-8 ¶ 23; 66-10 ¶ 20; 68-15, at 2).
previously

noted

that

the

USPS’s

they

were

required

to

(See ECF Nos.

Although the undersigned
handbook

envisions

most

reasonable accommodation requests, such as Plaintiff’s request
for a swivel chair, will be handled internally (ECF No. 23, at
15

20), Plaintiff’s supervisors aver in affidavits that they were
unfamiliar

with

the

handbook

and

reasonable

accommodation

procedures at the time of Plaintiff’s requests (ECF Nos. 66-8 ¶
23;

66-10

¶

20).

Plaintiff’s

only

evidentiary

support

questioning his supervisors’ belief that he was required to file
his request with the Department of Labor is an affidavit from
one

of

his

supervisors

in

an

earlier

EEO

proceeding

references the internal reasonable accommodation process.
No. 68-12).

that
(ECF

This reference, however, does not create a genuine

dispute as to whether his supervisors believed Plaintiff was
required to go first to the Department of Labor.

In fact,

although the affidavit indicates that the supervisor was aware
of an internal reasonable accommodation process, it also shows
that

he

believed

swivel

chairs

must

be

authorized

by

the

Department of Labor and did not understand when requests should
be

referred

confusion

to

the

supports

internal

process.

Defendant’s

(Id.

contention

¶¶
that

3-4).

Such

Plaintiff’s

supervisors believed Plaintiff was required to file a request
for a swivel chair with the Department of Labor.
Plaintiff has failed to cast any doubt on the fact that his
supervisors believed, albeit mistakenly, that he was required to
request

a

swivel

chair

from

the

Department

of

Labor.

See

Holland, 487 F.3d at 216 (citations and internal quotation marks
omitted) (“Once an employer has provided a non-discriminatory
16

explanation
expose

for

that

its

decision,

rationale

discrepancies

that

validity.”).

The

do

the

plaintiff

as

pretextual

not

cast

evidence

in

by

doubt
the

cannot

focusing

on

record

the

seek
on

to

minor

explanation’s

demonstrates

that

Plaintiff’s supervisors denied his requests for a swivel chair
because of their mistaken belief, not because of a retaliatory
motive.

Accordingly, summary judgment is proper on Plaintiff’s

retaliation claims.3
III. Motion to File a Surreply
Local

Rule

105.2(a)

states

that,

“[u]nless

otherwise

ordered by the Court, surreply memoranda are not permitted to be
filed.”

The court may permit a surreply when a party would not

otherwise have an opportunity to respond to arguments raised for
the first time in the opposing party’s reply.

See Khoury v.

Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003).
Here, Defendant’s reply presents no new arguments or facts
beyond those included in the motion for summary judgment, and
Plaintiff’s motion for leave to file a surreply does not assert
as such.
re-open

Rather, it appears that “Plaintiff[] seek[s] merely to
briefing

on

the

issues

3

raised.”

Interphase

Garment

To the extent that Plaintiff’s claim for retaliatory
constructive discharge remains, Defendant’s motion for summary
judgment will be granted.
As the undersigned articulated in a
prior memorandum opinion, “Plaintiff has not provided sufficient
evidence that he was subjected to objectively intolerable
working conditions” rising to the level of constructive
discharge. (ECF No. 23, at 14).
17

Solutions, LLC v. Fox Television Stations, Inc., 566 F.Supp.2d
460, 467 (D.Md. 2008).

Plaintiff has had sufficient opportunity

to present his arguments in response to two separate motions for
summary judgment.

Accordingly, Plaintiff’s motion for leave to

file a surreply will be denied.
IV.

Conclusion
For the foregoing reasons, Defendant’s motion for summary

judgment

will

be

granted

in

part

and

denied

in

part.

Plaintiff’s motion for leave to file a surreply will be denied.
A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

18