Houston v. AFSCME Local 2250

Filing 66

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 7/10/2017. (tds, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Soutltem Dil'isiou TERRY HOUSTON, * Plaintiff, ,. * v. Case No.: G.HI-15-2507 * SHIRLEY KIRKLAND, et al., * Defendants. * * * * * * * * * * * * * * MEMORANDUM OPINION In an earlier Memorandum Defendants' Motion fill"Summary under the Age Discrimination Opinion. the Court granted. in part. and denied. in part. Judgment. in Employment ECF NO.7. ECF No. 19. Only Plaintilrs claim OO 29 U.S.C. ~ 621 e/ seq. rcmains. ). Act (OOADEA Prescntly pending before the Court is Defendants' Renewed Motion fi.lr Summary ECF No. 46. For the Ii.lliowing reasons. Defendants' Judgment. Renewed Motion for Summary Judgment is granted. I. BACKGROUND The laets of this case were fully set forth in the Court's Opinion. ECF No. 19 at 1-8.' working as an administrative Federation In short. PlaintilTTerry assistant Iiouston. for the Association of State. County. and Municipal Employees December 7. 2016 Memorandum a then 66-year old ]emalc of Class iii cd Employees/American Local 2250 (..the Union") experienced large pay cut in April 2012. which shc alleges was a result of age discrimination. 1 Pin cites 10 a Jd at 2-3. Alier documents filed on the Court"s electronic tiling system (CM/ECF) refer to the page numbers generated by that system. briefing and argument wcre "genuine on DclCndants' issues of material Motion for Summary lact as to the cxistcnce of agc discrimination. put forth enough dircct or circumstantial claim:' .Judgment. the Court Illlll1d that there and Plainti IThad cvidence to survivc summary judgmcnt on her ADEA ECF No. 19 at 21. The mattcr was sct fllr trial. Two weeks prior to trial. Defendants Mattcr .Jurisdiction. contending. Union meets the definition jurisdiction. filcd a Motion to Dismiss fl)r Lack of Subject Illl' the first timc. that becausc Plaintiff cannot establish of employer under the ADEA. the Court did not have subject matter ECF No. 46. After Plaintiff was given an opportunity a telephone confcrence was held on .June 2.2017. lack of subject matter jurisdiction. that the to file a response. ECF No. 52. and the Court declined to dismiss the case Illr but convertcd Defendants' Motion into a Rcncwcd Motion Illr Summary .Judgment. See ECF No. 63.2 Thc Court Illrthcr dircctcd the parties to submit any additional evidcnce cntirety. relevant to the issucs raiscd. Thc Court has now rcvicwcd the additional is unable to cstablish cmploycr. submissions ofthc parties. and rclcvant authoritics. an cssential c1cmcnt of her claimundcr thc Union. had the requisite twenty cmployecs. thc rccord in its and finds that Plaintiff thc ADEA. namely that hcr Thcrclllrc. summary judgmcnt is grantcd in favor of Dcfcndants. II. STANDARD OF REVIEW Thc court "shall grant summary judgmcnt dispute as to any matcrial Civ. P. 56(a). A matcrial if the movant shows that thcrc is no genuine Itlct and the movant is entitled to judgmcnt as a mattcr of law:' Fcd. R. Itlct is one that "might affect the outcome of the suit under the governing law:' Amiers(J/1 ". Liherl)' Lohh)'. Inc .. 477 U.S. 242. 248 (1986). A genuine issue over a material tact cxists "ifthc .! This decision evidcnce was based on the C01ll1'S is such that a rcasonable jury could return a vcrdict flJr the determination involved an clement of the claim. See Arhaugh CrollI'. Case No. 16-864.2017 1'. that the issue was Ilotjurisdiclional in nature. but rather. f&/f Corp .. 546 U.S. 500. 504 (2006). Frel1ch 1'. Apphl.!d I\ych WL 1234059 (E.D. Tex. Mar. 24. 2017). 2 nonmoving party:' Id In undertaking this inquiry. the Court must consider the 1~letsand all reasonable inlerences in the light most favorable to the nonmoving party. Scoll \'. lIarris. 550 U.S. 372. 378 (2007). But this Court must also abide by its affirmative ohligation to prevent factually unsupported claims and de lenses from going to trial. Dre\l'ill \', I'rall. 999 F.2d 774. 778-79 (4th Cir. 1993). The burden is on the moving party to show ..that there is no genuine issue as to any material fact. However. no genuine issue of material fact exists if the nonmoving party lilils to make a sutlieient showing on an essential clement or his or her case as to which he or she would have the burden of proof." Bellioll \'. I'rillce George's Cml)'. Col/.. No. CIV.A, DKC 12-1577. 2013 WL 4501324. at *3 (D. Md. Aug. 21. 2013) (citing Ce/o/ex Corp. \'. Calrell. 477 U.S, 317. 322-23 (1986ยป. Thus. upon a motion I()r summary judgment. the opposing party "may not rest upon ... mere allegations or denials." hut rather, "must set lorth specilic facts showing that there is a genuine issue lor trial. . , :. Tyler \', I'rince George's Cly.. Mm:\'lalld. 16 F. App'x 191. 192 (4th Cir. 2001) (citing Fed. R. Civ, P. 56(e)), III. ANALYSIS The ADEA prescrihes that "[i]t shall he unlawrullor an employer to, , ,discriminate against any individual with respect to [her] compensation. terms. conditions. or privileges of employment. hecause or such individual's age, . :. 29 U.S,c. ~ 623(a). The issue he!()re the Court is whether the Delendant had a sufficient numher of employees to he considered an employer under the ADEA. Under 29 U.S.c. ~ 630(b) ... [tlhe term 'employer' means a person engaged in an industry alketing commerce who has twenty or more employees 1(11' each working day in each of twenty or more calendar weeks in the current or preceding calendar ycar , . :. ~ 630(h). Plaintiff has identilied a number or individuals who she contends were employees during 3 the relevant time periods. It is for thc Court to determinc which ofthcsc individuals are. as a mattcr of law. cmployccs. As courts havc notcd. the "dctinitions often circular and cxplain nothing:' of 'employcr' and 'cmploycc' in fcdcrallaw are Blilier \'. Dril'e A 1110. ndlls. o(Am .. In('.. 793 F.3d 404. 408 I (4th Cir. 2(15) (cit in\: Naliol1ll'ide Mill. Ins. Co. \'. Darden. 503 U.S. 318. 323 (1992)). Thc ADEA only providcs that ..[tlhe tcrm 'cmploycc' cmployer." 29 U.S.c. ~ 630(1). "An cmploycr has an employee cmploycd by any if[thc cmploycrlmaintains an Taylor \'. CardioloKY Clinic. Inc .. 195 F. Supp. 3d cmployment relationship 865.871-72 (W.D. Va. 2016) (citing Wallers \'. Mell'll. Edllc. Ell/as .. Inc.. 519 U.S. 202. 207 (1997)). Accordingly. cmploymcnt with that individual:' mcans an individual courts have adoptcd a tcst "call cd the 'payrollmethod: rclationship is most rcadily dcmonstrated by the individual's Id. (citing lVallers. 519 U.S. at 206-07). cmployer's payroll:' appcarancc on the employcr's payroll is not nccessarily appcars on thc payroll but is not an 'employcc' not count" toward the minimum thrcshold dispositivc. undcr traditional whether a particular appcarancc on thc an individual's as "an individual principlcs who of agency law would lVal/ers. 519 U.S. at 211. Thus. in of employccs. addition to thc payroll method. thc Court also considcrs agcncy when dctcrmining However. since thc principlcs individual of control and common is an "cmployce" law undcr thc rclevant statutes. See. e.g. Clackamas Gas/I'llell/el'lllo?,,!' ssocs.. P. C. ". Wells. 538 U.S. 440. 448: A JllIIphy-Taylor ". 11t!/illlll1n.968 F. Supp. 2d 693.724 (D. Md. 2013): (hl'CI1s\'. S. Del'. COllncil. Inc.. 59 F. Supp. 2d 1210. 1214 (M.D. Ala. 1999). The Court looks to thc numbcr ofcmployecs discrimination. as well as thc prcccding cmploycd at thc timc ofthc allcgcd calcndar ycar. See. e.g. Brame \'. I.ahoras' COllncil Heallh & Welfare Fllnd. No. CIV!. A. 89-0745. . 4 Disl. - 1989 WI. 95225. at *2 (E.D. I'a. Au\:. 11. 19R9). In this casco the year 2012 provides the basis for Plaintifrs ADEA claim. See ECF No. 12 at R-14. Thus. thc Court must determine the number of employees the Union had during years 2011 and 2012 to assess whether Plaintiff can establish that the Union is liable as an "cmployer"' undcr thc ADEA. The allegcd employees can be groupcd into thrcc catcgorics: (I) full-time Union cmployccs: (2) part-timc and temporary workers: and (3) the Exccutivc Board of Directors. a. Full-Time Union Employees According to an affidavit from Shirley Kirkland. current Presidcnt ofthc Union. ECF No. 46.2. as well as an Employee Information Report. ECF No. 52-1 at 1: see a/so ECF NO.7-I at IR. the Union had ten full-time employees in 2012 (six full-timc professional employees. three full-time clerical employees. and the Union President). These individuals include: Executivc Director Daniel Besseck. James Spears. Jr.. Courtney Wright. Adolfo Botello. Angela Thomas. Fred Shumatc. Rcnee Dixon. Lisa Clemons. Terry Iiouston. and the then-President Shirley Adams. See ECI' No. 52-1 at I: ECF No. 7-2 at 1R. In 20 II. the preceding ycar. thc Union had the same ten (10) employees. See id. Thcre is no dispute that thesc individuals count towards the total number of employees. h. Part-Time and Temporary \Vorkers For 20 II. in addition to the ten employees named abovc. the Union also employed James Shearer. Richard Putncy. Faith Joncs. and Shirley Breese. as part-time or tcmporary workers. See ECF No. 52-1 at 1: ECF No. 7-2 at IR. Mr. Shearer and Mr. Putncy's statuscs as cmployccs under the statute do not appear to be disputcd by the parties. Added to thc tcn full-time cmployees for 2011. that makes twclve employces. According to an affidavit submitted by current Union President Shirley Kirkland. howevcr. Faith Jones "only worked until Fcbruary 17. 5 20 II:' ECF No. 53-1 ,; 4. Thus. Ms. Jones did not work for the requisite twenty-week be detined as an employee under the statute. Shirley Breese was hired on August period to IS. 2011. Id She therefore worked for only nineteen weeks in 20 II. Thus. neither Ms. Jones nor Ms. Breese is added to the total Ie))'20 I I. In 2012. according to the Employee Clark. Shirley Breese. Constance 3 2 at IS Mr. Clark's to the ten full.time however. Rep0l1. the Union a\so employed docs not appear to be disputed tor 2012. that makes eleven. According by the parties. Added to Shirley Kirkland. Shirley Breese worked only until February 29. 2012. ECF No. 51 there lore did not work lor the requisite hired on September Keneth Brown. and Morris Tolson. See ECF No. 52.1 at I: lOCI' No. 7- status as an employee employees InleJnnation twenty weeks in 2012. Similarly. 6. 2012. and her employment ended on September 'i 6. Ms. Constance Breese Brown was 29. 2012. !d. Theretell'e. Ms. Brown also did not work le)r the requisite twenty weeks. Finally. Morris Tolson was hired on 16.2012. and his employment October ended on January 13.2013. lOCI' o. 51 ~ 6. Thus. Mr. Tolson also did not work lor the requisite twenty weeks in 2012. Plaintiff also submits the affidavit of current President were five other individuals who worked temporarily Shirley Adams. stating that there lor the Union during the relevant time periods. ECF No. 58 at I. Ms. Adams names Beverly Johnson. "Mr. Curtis:' employee" and Alexander allegedly Dixon. Mary Newman. Tom Cavenaugh. "a retiree:' helped assume some of Ms. Houston's was out of work on injury alier May 2012.1d ~ 4. According Mary Newman. and Beverly Johnson. responsibilities a "temp when Ms. Houston to Ms. Adams. Mr. Curtis. a The Employee Information Report for 201~ indicates that Faith Jones was employed by the Union in 2012. EeF No. 52-1 at I; however. Shirley Kirkland attests in her affidavit that Ms. Jones' employment ended on February 17. 20 II. and no W2 for 20 12 exists for Ms. Jones. ECF No. 53-1 ~ 4; Sf!e ECF No. 51-1 at 3-9. Plaintitrthus fails to show that Ms. Jones \\.ould be included in the employee count for 20 12. .. \Vilh respect to Constance Brown. PlaintifTsubmits the affidavit of Shirley Adams. who attests that Ms. Brown worked ulltil the "second wcek of October 2012'" ECF No. 62. This difTerence is immaterial. hO\\'cvcr. bccause it .l still would not push Ms. Brown across the twenty-week threshold. 6 maintenance worker, had an "ongoing employment relationship with the union that lasted throughout [Ms. Adams' J term as president li'om 20 I 1 thru 2014'" Id. ~ 5. Tom Cavenaugh, who Defendants term as a computer consultant. ECF No. 60 at L also allegedly had an "employment relationship" with the Union. Id. Ms. Adams further attests that Alcxandcr Dixon, the son of Rcnce Dixon, did work for the Union ovcr thc summcr and was on the payroll. Id. I'laintiffhas not. howevcr, submitted any evidence ofthesc individuals' cmploymcnt with the Union or thcir compensation history. Conclusory statemcnts, made "without specilic cvidentiary support" arc insurticient to avoid summary judgment. See Callsey \'. Balog, 162 F.3d 795,802 (4th Cir. 1998). For example, Plaintiff submits only the artidavit of Shirley Adams attesting that Mary Newman "had a working relationship with the Local to assist with the processing of the sick leave bank from July to August 2012," which, in any case, would not constitute twenty weeks. By contrast, Defendants submit another aflidavit of Shirley Kirkland attesting that Ms. Johnson was "an individual that was provided to us by a temporary employment agency," and that Ms. Johnson was not placed until 2013. ECl' No. 60 ~ 2, and Defendants also attach several invoices supporting this fact. ECl' No. 60-1 at 2-3. Ms. Kirkland further attests that Mr. Cavenaugh has his own computer consulting business and worked with the Union as an indepcndent contractor. ECl' No. 60 ~ 3. I'laintiffhas submitted no evidence refuting this testimony, or showing that Mr. Cavenaugh was in fact an employee of the Union or worked at least twenty weeks for the Union in 201 lor 20125 Evcn if the Court included all live of these named individuals, the count would fall short of twenty employees lor both 201 1 and 2012. To the ex.tent PlaintifThas complained that Defendants raised this issue without warningjust prior to trial. and that it involves an issue \vhere most relevant material is in Defendants' possession. it must be noted that PlaintiO'had months of pre-trial discovery during which she could have sought evidence from Defendants as to this element of her claim. 5 7 Neither Plaintiffs attaehment of Defendants' Financial Reports indicating salary amounts expended for "Temp Help." ECF No. 64-1 at 1-9. nor the invocation of the joint employer doctrine. ECF No. 64 at 2. alter this conclusion. Plaintiff attests that between March 20 II and December 2012. Delendant AFSCME Local 2250 paid for "Temp services:' ECF No. 64 at 2. For example. Plainti 1'1' attaches a linancial report from March 2011 that indicates $9.340.00 was paid for "Salaries - Temp -Ilelp" in that month. Similarly. a report states that $9.450.00 was paid Itlr "Salaries - Temp - Help" in April 20 II and that $9.000 was paid in May 20 I I. etc. !d The Court is still unable to conclude based upon this submission. or any other evidence submitted thus Illr. how many employees were actually employed during this time. Even if PlaintilTcould link the payment of temp salaries. see ECF No. 64 at 2. to any particular individual. she still fails to show that the alleged "employment relationship" (i.e. the individuals' appearance or non-appearance on the Union payroll) lasted for the requisitc twcnty weeks. See Wallers I'. Melro. Edl/c. Enlerprises. Inc .. 519 U.S. 202. 206 (1997). Additionally. under thc joint-employment doctrine. Plaintiff Illils to cstablish how any temporary workers werc actually 'jointly employed" by both their respective employment agency (i.e. Cortemps Stal1lng Scrvices. ECF No. 64 at 2. or otherwise) and Local 2250. See BI/ller l'. Dril'e A 1/10. Indl/s. of Am .. Inc .. 793 F.3d 404. 414 (4th Cir. 2(15) (adopting "hybrid test:' combining control test and economic realities test. for detemlining whether an individual is jointly employed by two or more entities. reiterating that "control" is thc principal guidepost. but noting that authority to hire and lire. degree to which worker is supervised. and whcre and how the work takes place are also "important" factors). Specilically. Plaintiff fails to show how the Union established "signilicant control" over these workers. such that they would be deflncd as "employees" at all. mueh Icss It)r twenty weeks or more. Thus. in total. Plaintiff has only 8 identilicd twelve employecs for 2012 and elevcn cmployecs from 2011 Ii'om the lirst two categories. c. Executive Board of Dircctors Thc Union's President Executivc Board also had sixtccn board membcrs (not including Shirlcy Adams) at all rclcvant timcs. see ECF No. 7-2 at 2-3. whom PlaintilTargues should bc countcd as cmployecs. Pursuant to Articlc VIII ofthc "shall havc its busincss conductcd the dcpartmcnts all classified they represent." employees by an Executivc the members members elect a President. members are "required and Secretary. to attend each regularly scheduled Executive without an appropriate compensation 1'01' Id at 12-14. Board Board meeting:' and those excuse shall be removed only board member that receives compcnsation. Union:' ECF No. 46-2 'i 4. Kirkland of all Union mcmbers. County Public Schools. to Kirkland. the board mcmbcrs but the board membcrs is the further allests that "do not perlaI'm work lor the Union. or take any dircetion Id. According with the Union stan: See ECF No. 7-2 at 3. 14. Current President of the Union. Shirley Kirkland. attests that the Union President the board members Irom thc board Id at 15. Among other Union business. the Executive Board is empowered to determine of and to the Board consists of two members Id. From their mcmbership. Treasurer. meetings thc Union Board is open to County Public Schools ("'PGCPS") represcnt." Vice President. who fail ..to attend three consecutive from oflice:' Constitution. lOCI' No. 7-2 at 14. Election to thc Exceutivc of the Prince Georgc's each of eight departments Union's Board duly c1cctcd by the toWlmcmbcrs full-time staff of the Union. See id at 10. The Executive authority thc from anyone at the attend mcetings and advocate on behalf arc full-timc employccs ofPrincc Gcorge's not thc Union. See id (I) Administrative Ollice Employees. (2) Central Garage Employees, (3) Food Services Employees. (4) Ilealth Employees. (5) Instructional Aides. (6) Maintenance Employees. (7) School Ollice Employees. (8) Transportation Employees. ECF No. 7-2 at 14. <, 9 Plaintiff argues in her Opposition that the board members "hours that they perform duties for Local 2250:' because the board members are employed can request paid "organizational board members that these Union-related Union oftice, attcnding activities 'i 16, Plaintiff appears to argue that full-time by PGCPS, and because thc board members involvement should be considered ECl' No, 52 are paid by Local 2250 for leave" ("'OIL") for Union-related of the Union. See it!. "employees" 'i activities, 16. Plainti 1'1' explains include assisting "with mailings, othcr support scrviccs in thc Board mcctings or filling in for an abscnt or ill cmploycc:' "[dJuring this time, thc mcmbers howevcr. provided that the are on Local 2250's payroll." the Court any information and that Id ~ 17. Plaintiffhas as to how many wccks, ifany, not. thc board members wcre actually on the Union payroll. Moreover, some compcnsation on this point. Defendant for participating counters that even if the board mcmbers do rcccivc in Union-related come from the PGCPS Board of Education, activities through OIL. the funds actually not the Union itsell: See ECl' No. 53 at 3-4: ECl' No. 53-1 at 2. Kirkland attests that "this leave is paid for by the HOE:' and .. [olther than submitting the leave slip to the labor relations depat1ment any other role in this Icave benefit provided controvert this testimony, describing the reimburscmcnt lor the cost of any substitutc approved for OIL:' by the HOE:' ECl' No. 53-1 at 2. Plaintiff does not but submits an aftidavit procedure used ... Irom IOrIner Union President. whereby "the board shall be reimburscd in the absence of regular employees Eel' No. 58 ~ 2. None of Plaintiffs that the board members of the BOE. the Union does not play wcre compensated proffcrs, howevcr, Shirley Adams. by the union who have been supports her assertion as Union employees. See Dea" ". Alii. Fed'" o{G()\", Employees. Lo("(/I-/76, 509 l'. Supp. 2d 39. 53 (D.D.C. 20(7) (finding union ofticcrs not employces whcrc thcy did not rcceive compensation 10 Irom thc union). Even assuming that Plaintiff could producc cvidcncc that thc board mcmbcrs wcre on the Union payroll for the rcquisite twenty wccks. the board mcmbcrs' appcarance on thc payroll would not resolve the question whether they wcrc "employees" in light of traditional agcncy principles. In determining whether a director is an "employee:' courts havc applicd thc f()lIowing factors of common-law agency: ,,( 1) whether the dircctor performcd traditional cmploycc duties: (2) whcthcr thc director was regularly employed by a separatc cntity: and (3) whcthcr thc dircctor reported to someone higher:' Frederick l'. United Bill/. o(Corpenters & Joiners o(AIII. (UBe/A) 1.0('(/1926. 558 F. App'x 83. 85 (2d Cir. 2014): E.E.o.C. I'. Johnson & !Iiggins. !nc.. 91 F.3d 1529. 1539 (2d Cir. 1996): Chol'ero \'.1.0('(/12-11. Dil'. ,!(the Allloigollloted T/'(fnsit Union. 787 F.2d 1154. 1157 (7th Cir. 1986). It is truc that thc board mcmbcrs "shall be required to attend cach rcgularly schcdulcd Exccutive Board mcetings:' and thosc who fail "to attend threc consecutive meetings without an appropriatc cxcuse shall bc rcmoved from office:' ECl' No. 7-2 at 15. However. with the exception of limited activities perftll'll1Cdfor undefined periods of time. EC F No. 52 'i 17. what could be considcred "traditional cmployec duties" cnds thcre. See Deon. 509 F. Supp. 2d at 55 (finding union officers not employees whcre. in addition to not bcing compensated. officers did not perform traditional employee duties such as maintaining records or managing the officc). Although the Union President does rcccivc compcnsation from thc Union. and would bc considered an employec ofthc Union, see ECl' No. 7-2 at 12. cvidcncc in the rccord demonstrates that board members do not "take any dircction Ii'om anyonc at thc Union:' ECl' No. 46-2 at 2. and in fact remain full-timc cmployces of PGCI'S. not thc Union. Accordingly. thcrc is no genuine dispute that thc board mcmbcrs wcrc not Union "employccs" within thc mcaning ofthc statutc. II Thus. as thc total number of employecs cmploycd by thc Union in 2011 and 2012 is less than twcnty. Plainti ff cannot raise a genuinc disputc of matcrial fact as to whcthcr thc Union was an cmploycr. an essential elemcnt of her ADEA claim. warranting summary judgmcnt for Defendants. IV. CONCLUSION For thc forcgoing rcasons. thc Court grants Dcfcndants' Rcncwcd Motion for Summary Judgment. lOCI'No. 46. Plaintiffs Motion for Leavc to File a Surrcply in Opposition to Defendants' Motion to Dismiss. ECF No. 65. is dcnicd.7 A separatc Ordcr shall issuc. Date: Julv &;f----- to .2017 GEORGE.J. HAZEL Unitcd Statcs District Judgc Following the telephone status conference held on June 2. 2017. the Court provided both parties with the 10 submit additional evidence regarding the number of Union employees. The deadline tiJf such submissions was set for 12:00 p.m. on June 3. 2017. in order 10 allow the Court 10 determine whether to proceed with the then-imminent trial. The Court subsequently reviewed Plaintifrs timely submission. ECF No. 61. as well as three late submissions. ECF Nos. 62. 63. and 64. in preparation for this Memorandum Opinion. On June 6. 2017. Plaintiff filed a Motion for Leave to File a Surreply in Opposition to Defendants' Motion to Dismiss. ECF No. 65. Loc. R. I05.2(a) provides that ,,[u ]nJess othen\,'isc ordered by the court. surreply memoranda are not pennitted to be tiled. Surrcplies may be permitted when the moving party would be unable to contest matters presented to the court lor the lirst time in the opposing party's reply:' Kholl/:l' 1'. Mese,,'e. 268 F. Stipp. 2d 600. 605 (D. Md. 2003) (internal citations omitted). In this instance. Plaintiff has been afTorded ample opportunity to provide evidence establishing the requisite elements of her claim. and the Motion for Leave to File Surreply shall accordingly. be denied. 7 opportunity 12

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