Lanigan v. Hallmark Health System, Inc.

Filing 40

Judge Richard G. Stearns: ORDER entered granting 27 Motion for Summary Judgment. (Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-11950-RGS
PHYLLIS LANIGAN,
v.
HALLMARK HEALTH SYSTEM, INC.
MEMORANDUM AND ORDER ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
May 5, 2015
STEARNS, D.J.
On January 16, 2013, defendant Hallmark Health Systems, Inc.
(Hallmark) notified plaintiff Phyllis Lanigan that she was the chosen
casualty of a corporate reorganization. At the time she was terminated,
Lanigan worked in Hallmark’s Billing Department as one of eight Physician
Account Representatives (PARs). More than a year later, on April 15, 2014,
she filed this lawsuit in the Middlesex Superior Court asserting two claims
against Hallmark: (i) interference with her employee rights under the
Family Medical Leave Act (FMLA) (Count I); and (ii) termination in
retaliation for her “attempt[] to take FMLA leave” on the day she was fired,

1

January 16, 2013 (Count II).1 Given the subject matter involved, Hallmark
removed the case to the federal district court.
Now that discovery is complete, Hallmark seeks summary judgment.
In a nutshell, Hallmark contends that Lanigan had been selected to be laid
off before she incurred the injury for which she sought FMLA leave, thus
precluding any finding of causation. Hallmark also argues that Lanigan has
failed to show that the decision makers who approved her termination were
aware of her attempt to take FMLA leave, much less harbored any
retaliatory animus towards her.
Lanigan, for her part, maintains that she had taken FMLA twice
before her termination, once in 2007, and again in early 2012 (although
this is not pled in her Complaint) and that, as a result, she should be
allowed to ask a jury to draw an inference that Hallmark sought to punish
her for her prior absences.

She also relies on an incomplete (and

unauthenticated) report of a Department of Labor (DOL) investigator who
opined that Hallmark had violated the FMLA by terminating her. Finally,
she argues that Hallmark has failed to satisfactorily articulate why, despite
prior favorable reviews for her handling of a “difficult” client account, she
received the lowest score of the eight PARs on the Staff Adjustment

1

See 29 U.S.C. § 2601, et seq.; 29 C.F.R. § 825.
2

Analysis (SAA) conducted in anticipation of the layoff decision. Lanigan
argues that only a jury can evaluate the “honesty” of the manager (Melissa
Kingston) who rated her so poorly on the SAA. Opp’n at 3.2
BACKGROUND
The following facts are taken from Hallmark’s and Lanigan’s
Statements of Undisputed Material Facts (SOF). See Fed. R. Civ. P. 56 and
L.R. 56.1. Plausibly pleaded facts that are in dispute are taken in the light
most favorable to Lanigan as the nonmoving party.
Lanigan was hired by Hallmark on May 22, 2006, as a Data Entry
Control Clerk at its Saugus, Massachusetts facility. In April of 2007, she
was promoted to the position of PAR. As a PAR, Lanigan was a member of
Hallmark’s Finance Department for Physician Practices, which included the
Billing Department. Lanigan was primarily responsible for patient-

At the hearing, Lanigan advanced a previously unpled “cat’s-paw”
theory to counter Hallmark’s evidence that the supervisor (Kingston) who
selected her for termination was unaware of her attempt to take FMLA
leave. Under this theory, Lanigan blames a coworker, Cathy Dunn, who
she insists disliked her, for manipulating Kingston into firing her. See
generally, Staub v. Proctor Hosp., 562 U.S. 411, 131 S. Ct. 1186, 1189 (2011)
(considering “the circumstances under which an employer may be held
liable for employment discrimination based on the discriminatory animus
of an employee who influenced, but did not make, the ultimate employment
decision”); Ahmed v. Johnson, 752 F.3d 490, 496-497 (1st Cir. 2014)
(same).
2

3

associated billing and collections from Network Health, an insurance
provider for patients in Hallmark’s physician network. During Lanigan’s
tenure at Hallmark, Melissa Kingston served as the Finance Director.
Kevin Cronin managed the Billing Department. From April of 2007 until
December 5, 2012, Lanigan reported to Cathy Dunn, a supervisor in the
Billing Department.

Thereafter, Lanigan reported to Cronin, however,

Dunn continued to oversee the daily operations of the Department
including “attendance and staffing.” Kingston Dep. at Ex. 1.
In August of 2010, Hallmark initiated a reduction in force in the
Billing Department. Kingston was responsible for determining which of the
PARs would be laid off. As part of the selection process, she completed a
SAA for each PAR. By virtue of her low to middling evaluation, Lanigan
was among the PARs who were notified that they would be laid off as of
December 31, 2010. In October of 2010, a PAR who had not been selected
for termination voluntarily resigned her position.

Kingston made the

decision to retain Lanigan in her place.
In 2012 and early 2013, Hallmark went through a second
“management reorganization” – this time company-wide – in order to
“maintain and to improve the collaboration and efficiency in [its] operating
performance, to judiciously reduce costs, and to evaluate real care delivery
4

changes rather than temporary trends.” Clark Aff. at Ex. I. During the
reorganization, Michael Turilli, Kingston’s direct supervisor and Hallmark’s
Vice President of Finance, ordered Kingston “to eliminate either the
manager or the supervisor [in the Finance – Physician Practices
Department] and it was X dollars that [she] had to find.” Kingston Dep. at
15-16. After an initial discussion, Kingston asked Turilli to reconsider in
Dunn’s case. Kingston testified,
I went back to my boss, Mike, and where Cathy [Dunn] had
been with us 20 plus years, had a wealth of knowledge, I asked
if I could give her a demotion and have a pay cut, if she would
be willing to do that, to save her because she ran the entire
department. And if I still had to find dollars, because I had
multiple physician account representatives that could cover for
each other, could I find the dollars in the staff. He asked Jim
Namia who was the CFO. He said “As long as human resources
is okay with it, it’s okay with us.” I asked Madeline Hoffman,
Human Resources. She told me it was fine and that was the
decision.
Id. at 18.
Hoffman also instructed her as follows:
I assume you mean you would be changing [Dunn] to a staff
position first. Then doing a reduction from among the
remaining staff including her in the group. If you do this, then
you would follow our Reduction in Force policy which has a
worksheet (SAA). You fill one out on each staff person
including Cathy. The one or ones with the lowest scores are
eliminated.

5

Clark Aff. at Ex. K. Kingston followed up with Turilli by email that same
day reporting,
I am going to talk with Andrea Andrews on Monday to figure
out Cathy, her new position and what needs to be done to move
her. Then, I am going to meet with Johna to work on the rest
next week. I want to make Cathy’s change effective immediately
and the rest maybe the end of the month. Is this okay?
Id.
Turilli approved and, in early December of 2012, Kingston and Cronin
met with Dunn and offered her a demotion in lieu of a layoff.

Dunn

accepted and was demoted effective December 5, 2012. Also on December
5, 2012, Kingston sent an explanatory email to the PARs, attaching an
organization chart showing the Billing Department as it would be staffed
under the new business plan.
Following Dunn’s demotion, Kingston undertook what she termed
“phase two” of the Billing Department reorganization. She completed SAAs
for each PAR relying on input from Dunn and Cronin, as well as
assessments from Hallmark’s various office managers. Kingston Dep. at
23-27 and Ex. 2. She testified, however, that she did not collaborate with
Cronin or Dunn on her final SAA evaluations. Kingston scored Lanigan the
lowest of the PARs and, as a result, decided that she would be laid off. Id.
at 28-29.

Prior to this evaluation, Lanigan had consistently received
6

favorable annual reviews, always meeting or exceeding expectations. See
Pl. Ex. 33-1. As recently as April of 2012, Dunn had written that Lanigan
completes all her tasks in an accurate and timely fashion. She
takes pride in her work and is always open to new processes in
order to make her time more efficient. Phyllis is always on time
for work and is dressed professionally. She is positive and open
when interacting with her co-workers, patients and physician
offices. Phyllis is always supportive and helpful. She shares
information with members of her team that is useful in
receiving claims payment. She also asks for assistance when
she is not able to complete her work.
Pl. Ex. 33-1 at 14.
Kingston testified that, contrary to the instructions she had received
from Turilli, she did not complete a SAA for Dunn. According to Kingston,
she submitted the completed SAA forms to Turilli for his approval on
December 19, 2012. See id. at 27. On January 3, 2013, both Turilli and
Hoffman signed off on the completed SAA forms and the decision to
terminate Lanigan. See id. at 27-28.
While an employee at Hallmark, Lanigan applied for and received two
FMLA leaves.3 In 2007, she took twelve weeks of FMLA leave after she

3

Hallmark’s FMLA Eligibility Policy provides, in relevant part:

[c]onsistent with its intent of complying with all applicable laws
Hallmark Health will comply with the requirements of the
Family Medical Leave Act. Hallmark Health grants Family
Medical Leaves of Absence to all employees who meet eligibility
criteria. Leaves may be taken continuously, intermittently, or in
the form of a reduced work schedule based on the medical
7

fractured her elbow. In June of 2012, she took approximately 2-3 weeks of
FMLA leave after contracting a virus. On December 28, 2012, while taking
down Christmas decorations at her home, Lanigan fell and broke her wrist.
The following Monday (December 31), she came to work with her wrist in a
sling. She informed Dunn that she had broken her wrist and would need to
take time off to see her orthopedic surgeon that afternoon. On January 3,
2013, Lanigan told Dunn that she intended to pick up FMLA paperwork
should she need FMLA time for “doctors’ appointments or whatever.”
Lanigan Dep. at 112. She also told Dunn that she “did not plan to have
surgery.” Pl. Response to Def.’s SOF ¶ 26. Dunn approved Lanigan taking
the following day off (Friday, January 4) to take the pain killers prescribed
by her physician, and other time as needed.
After speaking with Dunn, Lanigan contacted Hallmark’s Human
Resources Department at Melrose-Wakefield Hospital, and requested an
FMLA leave form, which she picked up later that day (January 3, 2013).
Lanigan was told to return the completed leave application on or before

documentation provided. All such leaves are unpaid unless the
employee has available accrued time to use.
Lanigan Dep. Ex. 4 at 75.

8

January 18, 2013.4 On January 14, 2013, Lanigan spoke to Stacey Walsh, a
Human Resources representative, regarding the procedure for taking
intermittent FMLA leave. Walsh explained that, if she was eligible, Lanigan
could use intermittent FMLA leave for necessary physical therapy and
doctor’s appointments.
Kingston testified that in mid-December, when she selected Lanigan
to be laid off, she had no knowledge (nor could she have) that Lanigan
would request FMLA leave in January. Kingston Dep. at 36. Lanigan, for
her part, admits that she had no conversations with Kingston between the
time that she injured her wrist and the date (January 16, 2013) that she was
notified by Hoffman of her termination.5 Lanigan Dep. at 55. Prior to
receiving the termination notice, Lanigan had never met with, or spoken to,
Hoffman. Lanigan also concedes that she has no evidence that any of the
other supervisors in the Billing Department had knowledge of her intent to
request FMLA leave.6 See Lanigan Dep. at 131-132.

Lanigan does not recall the name of the person with whom she
spoke. Id. at 86.
4

It is undisputed that Kingston was on vacation in Orlando, Florida
from Christmas until her return to the office on Thursday, January 3, 2013.
Lanigan took a sick day on Friday, January 4. Id. at 57.
5

When asked whether Cronin knew that Lanigan was going to request
or did request FMLA leave, Lanigan testified “I don’t know. I never spoke to
him about it. I don’t know.” Lanigan Dep. at 133. Similarly, when asked
9
6

In her SOF, Lanigan states that both Dunn and Cronin had learned of
Kingston’s determination to select her for termination (regardless of the
results of the SAA evaluations) as early as the first week of December.
“Dunn testified that Kingston had determined that Lanigan would be the
PAR [who] would be terminated at the time Dunn was informed of her
(Dunn’s) demotion, prior to Kingston completing the SAAs. Dunn. Dep. at
29.” Pl. SOF ¶ 11. Lanigan also notes that “Cronin testified that Kingston
had determined that Lanigan would be the PAR that would be terminated
in early December, prior to Kingston completing the SAAs. Cronin Dep. at
18.” Pl. SOF ¶ 12.
Following her layoff, Lanigan contacted the DOL to complain about
Hallmark’s alleged FMLA violation.

A DOL investigator conducted a

twelve-month inquiry and, after interviewing members of Hallmark’s
management, reached the tentative conclusion that Hallmark had
discriminated against Lanigan. However, in December of 2014, when the
investigator learned that Lanigan had retained private counsel, she closed

whether Turilli, Kingston’s direct supervisor and Hallmark’s Vice President
of Finance, had any knowledge that she had, or was going to take, or had
applied for FMLA leave, Lanigan testified “Mike Tur[i]lli didn’t know me
from a hole in the wall.” Id. at 133-134. When asked whether or not
Hoffman knew that Lanigan had requested FMLA leave, Lanigan testified “I
don’t, I don’t know if she knew or not.” Lanigan Dep. at 110.
10

her file “recommend[ing] that the case be concluded administratively.” Pl.
Ex. 3 (Dkt #32-3).
After

Lanigan’s

termination,

Hallmark

responsibilities among the remaining PARs.

distributed

her

job

See Cronin Dep. at 9;

Kingston Dep. at 32. Since that time, the Billing Department at Hallmark
has not hired any additional PARS or Senior PARs. See Dunn Dep. at 19-20;
Kingston Dep. at 34-35. While Lanigan asserts that she was the only PAR
who took FMLA leave more than once, Hallmark offers undisputed
evidence that two current PARs – Deanna Nobile and Janet Golini – have
taken FMLA leave on more than one occasion.
DISCUSSION
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). For a
dispute to be “genuine,” the “evidence relevant to the issue, viewed in the
light most flattering to the party opposing the motion, must be sufficiently
open-ended to permit a rational factfinder to resolve the issue in favor of
either side.” Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735
(1st Cir. 1995) (citation omitted). “Even in employment discrimination
cases where elusive concepts such as motive or intent are at issue, summary
11

judgment is appropriate if the nonmoving party rests merely upon
conclusory

allegations,

improbable

inferences,

and

unsupported

speculation.” Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.
2003) (internal quotations omitted). However, “when the facts support
plausible but conflicting inferences on a pivotal issue in the case, the judge
may not choose between those inferences at the summary judgment stage.”
Coyne v. Taber Partners I, 53 F.3d 454, 460 (1st Cir. 1995).
The FMLA provides that “[i]t shall be unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt to exercise,
any right provided under this subchapter.”

29 U.S.C. § 2615(a)(1).

“Interference” means to deny or restrict an entitlement guaranteed to an
employee under the FMLA. Colburn v. Parker Hannifin, 429 F.3d 325, 331
(1st Cir. 2005). Under the FMLA, employers are also “prohibited from
discriminating against employees . . . who have used FMLA leave.”
Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998), citing
29 C.F.R. § 825.220(c). “Nor may an employer ‘use the taking of FMLA
leave as a negative factor in employment actions, such as hiring,
promotions or disciplinary actions.’” Hodgens, 144 F.3d at 160, quoting 29
C.F.R. § 825.220(c).

12

To make out a prima facie case of retaliation under the FMLA, an
employee “must show that (1) [s]he availed [her]self of a protected right
under the FMLA; (2) [s]he was adversely affected by an employment
decision; [and] (3) there is a causal connection between the employee’s
protected activity and the employer’s adverse employment action.”
Hodgens, 144 F.3d at 161. To state a prima facie case of FMLA interference,
the plaintiff must demonstrate that (1) [s]he is an eligible employee; (2) the
defendant is an employer as defined in the Act; (3) [s]he was entitled to
leave under the FMLA; (4) [s]he gave the defendant notice of [her]
intention to take leave; and (5) the defendant denied [her] FMLA benefits
to which [s]he was entitled. Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th
Cir. 2012) (citations omitted). In both types of FMLA claims, where there is
no direct evidence of retaliation or interference, the McDonnell Douglas7
framework applies, meaning that the employer must respond to the prima
facie case with evidence that it had a legitimate reason unrelated to the
exercise of FMLA rights for terminating (or demoting) the employee. Once
the burden of production is satisfied, the plaintiff must come forward with
evidence of pretext. See Ameen v. Amphenol Printed Circuits, Inc., 777
F.3d 63, 69 (1st Cir. 2015).

7

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803(1973).
13

Lanigan told Dunn on January 3, 2013, that she intended to apply for
FMLA leave. That Lanigan met the requirements for entitlement to leave
and that Hallmark is a “covered employer” under the FMLA is not disputed.
See Colburn, 429 F.3d at 330-331. The only issue, therefore, with respect to
Lanigan’s interference claim (assuming that she has made out a prima facie
case), is whether her stated intent to apply for leave was the causative factor
in her termination.8

Hallmark, for its part, has come forward with a

legitimate reason for Lanigan’s termination – a company-wide reduction in
force and a scoring process that evaluated her as the most vulnerable
employee in the Billing Department. It therefore falls to Lanigan to show
that her request for FMLA leave on January 3, 2013, the day that Kingston’s
recommendation to terminate her was approved by senior management,
was the causative factor in that approval. Since it is undisputed that the
senior managers had no knowledge of Lanigan’s intent to request FMLA
leave (something she had confided earlier that day only to Dunn), a jury

Whether causation must be “but for” or simply “motivating” is a
matter still open to debate. Compare DiBlasi v. Liberty Mut. Grp. Inc.,
2014 WL 1331056, at *10 (D. Mass. Apr. 3, 2014) (Stearns, J.) (requiring
“but-for” causation, citing Univ. of Texas S.W. Med. Ctr. v. Nassar, 133
S.Ct. 2517, 2534 (2013)) with Chase v. U.S. Postal Serv., 2013 WL 5948373,
at *8 (D. Mass. Nov. 4, 2013) (Woodlock, J.) (considering, but not deciding
whether a showing of “motivating factor” causation might be sufficient).
8

14

would have to credit an implausible series of events to adopt Lanigan’s
“cats-paw” theory: namely, that upon learning that Lanigan was about to
apply for FMLA leave, Dunn rushed about Hallmark and successfully
secured the signatures of Kingston, Hoffman, and Turilli (executives very
much her senior) on the paperwork confirming Lanigan’s termination, and
all before the day ended.9

While the court may not, as a rule, reject

interested testimony that conflicts with the other parties’ version of the
facts, it may do so where the testimony is inherently implausible, Dennis v.
Osram Sylvania, Inc., 549 F.3d 851, 856 (1st Cir. 2008), or where the
conflict is “[in]sufficiently open-ended to permit a rational factfinder to
resolve the issue in favor of either side.” Nat’l Amusements, 43 F.3d at 735.
Kingston testified that she completed the SAAs, selected Lanigan for
layoff, and put the SAAs, along with her recommendation, on Turilli’s desk
for approval on December 19, 2013. Lanigan argues that the date on which
Kingston gave Turilli the paperwork for his approval is disputed. Lanigan
cites a portion of the DOL investigator’s report that states that, “Mr. Turilli
previously told the writer that he signed the [SAA forms] the same day he
received them” – that is, on January 3, 2013. Opp’n Mem. at 7. Whether
Kingston gave the approval forms to Turilli on December 19 or January 3
has no discernible bearing on the causation issue. Lanigan also contends
that there is a dispute over whether Kingston personally completed the
SAAs without assistance from either Dunn or Cronin. Kingston insists that
she did. Kingston Dep. at 25-28. Lanigan claims, based on the DOL
investigator’s report, that the SAA forms were completed by Dunn, Cronin,
and Kingston ensemble. See Pl. SOF ¶14. Again, this dispute has no bearing
on the ultimate merits of Lanigan’s case for causation. To the extent that
she claims that her evaluation on the SAA unfairly discounted her value as a
Hallmark employee, this is not a matter with which the FMLA is concerned.
9

15

To demonstrate retaliation for engaging in FMLA-protected conduct,
Lanigan “must show that the retaliator knew about her protected activity –
after all, one cannot have been motivated to retaliate by something he was
unaware of.” Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139 (1st Cir.
2013). In this regard, Lanigan points to the fact that she had taken two
prior FMLA leaves and, as a result, argues that a jury should be permitted
to draw the inference that she was seen as a problem employee by senior
Hallmark management. This is a late-blooming theory, and by surfacing
only in Lanigan’s memorandum opposing summary judgment, places
Hallmark at an unfair disadvantage.10

Consequently, it will not be

considered by the court.
This leaves the DOL investigator’s report and her opinion that
Hallmark (in some undefined respect) violated the FMLA. As a general
matter, only evidence that would be admissible at trial may be considered
in connection with a motion for summary judgment. See Garside v. Osco
Drug, Inc., 895 F.2d 46, 49 (1st Cir. 1990). Lanigan, as the proponent of

Hallmark argues (correctly) that Lanigan’s prior FMLA leaves are
not alleged anywhere in the pleadings prior to the summary judgment
opposition.
In the Complaint, Lanigan focuses exclusively on her
December 2012 wrist injury and her January 2013 inquiry concerning
FMLA leave, alleging that Hallmark retaliated against her “by terminating
her employment as a direct result of her attempt to take leave under the
FMLA.” Compl. ¶33.
16
10

the challenged evidence, “bears the burden” of proving admissibility.
United States v. Bartelho, 129 F.3d 663, 670 (1st Cir. 1997). Hallmark
argues that Lanigan may not resort to hearsay statements or an opinion in
an unauthenticated government investigator’s report to create a material
factual dispute. See Carmona v. Toledo, 215 F.3d 124, 131 (1st Cir. 2000)
(“The law is well-established that ‘[d]ocuments supporting or opposing
summary judgment must be properly authenticated.’”) (internal citation
omitted). As Hallmark notes, the investigator’s report: (i) does not contain
any findings of fact or recommendations; (ii) is based on a “limited”
investigation that was prematurely “discontinu[ed]” (DOL Report at 1, 7);
and (iii) is replete with inadmissible double hearsay, including hearsay
statements that are internally inconsistent and contradict the sworn record
in the case. Moreover, the court notes that there is no indication that the
Report was ever adopted as an official statement or finding by the DOL.
“[T]he[] probative force [of agency reports] in individual cases varies
considerably and is left to the determination of the trial court.” Hilton v.
Wyman-Gordon Co., 624 F.2d 379, 383 (1st Cir. 1980) (holding that EEOC
findings in general “may be significant” but that their probative value is left
to the court to assess). “At bottom, the question [of admitting an agency
report] is one of relevancy and prejudice under Rule 403, and it is well17

settled that abuse of discretion is the proper standard to be applied to such
issues.” Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 26-27 (1st Cir.
2002) (upholding exclusion of an agency report that contained conclusory
statements unsupported by factual specificity). Here the court will not rely
on the unauthenticated hearsay opinion of an investigator of unknown
qualifications whose legal opinion would not be admissible at trial.
At the end of the day, this case is not about the FMLA, but involves a
no doubt sincerely felt belief by Lanigan that she was unfairly evaluated and
singled out for termination because of the animosity and influence of a
coworker.

Unfairness

in

the

workplace,

however,

unless

it

is

discriminatory, is not a matter with which employment discrimination law
is concerned. See, e.g., Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st
Cir. 1991) (“Courts may not sit as super personnel departments, assessing
the merits -- or even the rationality -- of employers’ nondiscriminatory
business decisions.”); cf. Dunn v. Trs. of Boston Univ., 761 F.3d 63, 73 (1st
Cir. 2014) (“A plaintiff cannot make pretext a trial-worthy issue by
‘essentially relying on his personal belief that he was more qualified’ for a
job that his employer gave to someone outside of the protected class”,
quoting Vega-Colon v. Wyeth Pharms., 625 F.3d 22, 28 (1st Cir. 2010)).
ORDER
18

For the foregoing reasons, Hallmark’s motion for summary judgment
is ALLOWED. The Clerk will enter judgment accordingly and close the
case.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

19