Ruessler v. Boilermakers-Blacksmiths National Pension Trust Board of Trustees

Filing 50

MEMORANDUM AND ORDER re: 31 First MOTION for Summary Judgment filed by Plaintiff Adam Ruessler, 32 MOTION for Summary Judgment filed by Defendant Boilermakers-Blacksmiths National Pension Trust Board of Trustees. IT IS HE REBY ORDERED that defendant's motion for summary judgment [Doc. 32] is GRANTED. IT IS FURTHER ORDERED that plaintiffs motion for summary judgment [Doc. 31] is DENIED. IT IS FINALLY ORDERED that the trial date set for this matter is VACATED. Signed by District Judge Stephen N. Limbaugh, Jr on 11/18/21. (CSG)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ADAM RUESSLER,

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Plaintiff,
vs.
BOILERMAKER-BLACKSMITH
NATIONAL PENSION TRUST BOARD
OF TRUSTEES,
Defendant.

No. 1:20cv128 SNLJ

MEMORANDUM and ORDER
Plaintiff Adam Ruessler filed this action under the Employee Income Security Act
of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”). He alleges defendant, as trustees of the
Boilermaker-Blacksmith National Pension Trust (the “Plan”), improperly denied him
disability pension benefits. The parties have filed cross motions for summary judgment.
I.

Background
The facts are largely not in dispute. Plaintiff is a covered participant in the

defendant trustees’ Plan. He filed for disability pension benefits on July 17, 2017. At that
time, plaintiff admits his application did not attach a Notice of Award from the Social
Security Administration (“SSA”)—one of several documents used to authenticate an
applicant’s claim and a required step in the claims process. Defendant notified plaintiff at
least six times that he needed to submit the Notice of Award by January 13, 2018, or else
he would need to reapply. Defendant was required to make an initial determination
regarding plaintiff’s application within 180 days—by January 13, 2018. On January 11,
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2018, defendant wrote to plaintiff informing him that his application was denied because
he “failed to provide a copy of [his] Social Security Disability Notice of Award.”
A SSA Administrative Law Judge determined plaintiff was disabled on February
22, 2018. Plaintiff appealed defendant’s initial denial on February 27, 2018, noting that
he was in the final stages of seeking social security disability benefits with the SSA and
had just “had [a] hearing before their judge” on November 2, 2017 (the record does not
make clear if plaintiff was yet aware of the ALJ’s decision just days earlier). Defendant
acknowledged plaintiff’s appeal on March 5, 2018. Plaintiff forwarded his “Notice of
Decision—Fully Favorable” to defendant on March 18, 2018—275 days after the initial
application. Notably, the “Notice of Decision” is not the same as a “Notice of Award”
because the Notice of Decision is not final. The Plan requires submission of a “Notice of
Award.”
On June 13, 2018, defendant denied plaintiff’s appeal, again noting that he had
“failed to provide a copy of [his] Social Security Disability Notice of Award within the
180-day time period allowed[.]” (emphasis added). In support, defendant quoted Sections
4.09 and 10.01(c) of the Plan, which state in relevant part:
C. Disability Pension
Section 4.09. Eligibility for a Disability Pension. A Participant shall be
entitled to a Disability Pension if he is totally and permanently disabled prior
to attaining age 65 provided he:
(a) Has been awarded a Social Security Disability Benefit under Title II of
the Social Security Act, a Social Security Supplemental Income Award
for disability, a Railroad Retirement Annuity because of disability under
the Railroad Retirement Act or Canadian Pension Plan Disability benefits
offered by the Department of Human Resources and Skills Development
Canada (all subsequent references to Social Security Disability or
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Railroad Retirement Disability under this Part C of Article IV shall be
interpreted as including Canadian Pension Plan Disability benefits and all
substantially equivalent programs and benefits under the Canadian
Pension Plan Disability, such as trial work);
[…]
(d) Has filed a written application for benefits with the Fund Office in
accordance with Section 8.01, together with a notice of award of
disability benefits from the Social Security Administration or the
Railroad Retirement Board.
[…]
Section 10.01. Claims and Appeals Procedures.
[…]
(c) Initial Benefit Determination. Approval or denial of the claim will
normally be made within ninety (90) days after the claim has been
received by the Plan. If additional time is required in special cases, the
claimant will be notified in writing of the special circumstances requiring
an extension of time and of the date by which the Plan expects to render
the final decision, which will be not more than ninety (90) days from the
end of the initial time period. Written notice of the extension shall be
furnished to the claimant prior to the commencement of the extension. If
additional information is required, the claimant will be notified and
requested to furnish the necessary data within the 180-day time period
specified by this provision.
[…]
[#1-8, #8-1 (emphasis added).] Based on these provisions, and specifically Section
10.01(c), defendant said it was time-bound to either accept or deny plaintiff’s
application within 180 days. Because the SSA award was not added to the application
with that 180-day period, defendant says it was required—by both the Plan and federal
regulations—to deny it. Defendant notes, for example, that 29 C.F.R. § 2560.503-1(f)(1)

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essentially mirrors the Plan’s language in requiring timely benefit determinations within
180 days. 1
Section 10.01(e) of the Plan provides that plaintiff is entitled to appeal any denial
of benefits. Section 10.01(g) provides the procedures for that appeal. Section
10.01(g)(1) allows plaintiff to “submit in writing issues, comments, documents, records,
and other information relating to a claim.” Further, Section 10.01(g)(4) requires trustees
to “Review all comments, documents, records, and other information submitted by the
claimant related to the claim regardless of whether such information was submitted or
considered in the initial benefit determination.” And Section 10.01(g)(5) requires
defendant to “decide the claim anew.”
Plaintiff engaged in several communications with defendant during the pendency
of his appeal. On April 26, 2018, defendant sent plaintiff a pension application packet

1

The regulation reads:
(f) Timing of notification of benefit determination—
(1) In general. Except as provided in paragraphs (f)(2) and (f)(3) of this section,
if a claim is wholly or partially denied, the plan administrator shall notify the
claimant, in accordance with paragraph (g) of this section, of the plan's adverse
benefit determination within a reasonable period of time, but not later than 90
days after receipt of the claim by the plan, unless the plan administrator
determines that special circumstances require an extension of time for
processing the claim. If the plan administrator determines that an extension of
time for processing is required, written notice of the extension shall be furnished
to the claimant prior to the termination of the initial 90–day period. In no event
shall such extension exceed a period of 90 days from the end of such initial
period. The extension notice shall indicate the special circumstances requiring
an extension of time and the date by which the plan expects to render the benefit
determination.

29 C.F.R. § 2560.503-1(f)(1).

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and a letter explaining that the application should be completed if the Board denied
plaintiff’s appeal. On May 4, 2018, plaintiff called defendant by phone to inquire about
the unsolicited pension application packet. Plaintiff asked whether his pension amount
would increase if he waited to apply. On May 7, 2018, the Board sent plaintiff pension
estimates for different scenarios.
Underlying the parties’ dispute is “Amendment No. 4” to the plan, which was
adopted in early 2017 and became effective for annuity starting dates on or after October
1, 2017. 2 Amendment No. 4 substantially reduced benefits available under the
disability pension benefit for annuity starting dates starting on or after October 1, 2017.
Plaintiff alleges that his disability pension benefits would potentially decrease by nearly
$2,000 per month depending on whether his claim were filed in June 2017 (when he
initially filed) or some time thereafter (the necessary result of any refiling effort).
Plaintiff filed his first lawsuit about the appeal denial on September 6, 2019. On
September 19, defense counsel emailed plaintiff’s counsel and informed him that
plaintiff could reapply for pension benefits and that reapplying would not prevent him
from litigating the decision on his 2017 application. Defendant later filed a motion to
dismiss noting that plaintiff could simply reapply for benefits. Plaintiff did not respond
to the motion and later dismissed the case without prejudice. He then reapplied for
benefits and began receiving an early retirement pension.

2

The amended complaint identified the source of the Plan changes as a document titled
“Funding Improvement Plan for Plan Year Beginning January 1, 2018.” [See Doc. 19, Doc. 22
at ¶ 27.]

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Plaintiff filed this lawsuit a few months later with two counts: Count I for unpaid
benefits under 29 U.S.C. § 1132(a)(1)(B); and Count II for equitable relief resulting
from defendant’s breach of fiduciary duties under 29 U.S.C. § 1132(a)(3)(B). Both
parties have filed for summary judgment.
II.

Legal Standard
Pursuant to Federal Rule of Civil Procedure 56(c), a district court may grant a

motion for summary judgment if all of the information before the court demonstrates that
“there is no genuine issue as to material fact and the moving party is entitled to judgment
as a matter of law.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467
(1962). The burden is on the moving party. City of Mt. Pleasant, Iowa v. Assoc. Elec.
Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges this
burden, the nonmoving party must do more than show that there is some doubt as to the
facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Instead, the nonmoving party bears the burden of setting forth specific facts showing that
there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986).
In ruling on a motion for summary judgment, the court must review the facts in a
light most favorable to the party opposing the motion and give that party the benefit of
any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d
844, 846 (8th Cir. 1983). The court is required to resolve all conflicts of evidence in
favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541
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F.2d 207, 210 (8th Cir. 1976). With these principles in mind, the Court turns to the
discussion.
III.

Discussion
Plaintiff contends that he is entitled to judgment as a matter of law on his claim

that the defendant wrongfully denied his appeal and also that the defendants violated their
Duty of Loyalty owed to plaintiff under the Plan.
A. Count I
In a benefits dispute claim under 29 U.S.C. § 1132(a)(1)(B), the Court must
decide if the Board wrongly denied plaintiff benefits to which he is entitled under the
terms of the Plan. Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan, 555 U.S. 285,
300 (2009). The parties dispute what standard of review this Court must apply.
If the plan document gives the administrator or fiduciary “discretionary authority
to determine eligibility for benefits or to construe the terms of the plan,” courts review
the administrator’s decision under an arbitrary or capricious standard. Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Here, defendant notes, the Plan provides
the Trustees with full discretion to decide (1) whether an applicant is eligible for benefits
and (2) the meaning of the Plan’s terms. Thus, defendant says the Court should review
the Board’s decision under the arbitrary and capricious standard.
Plaintiff argues that this Court should review the defendant’s decision using the
“modified abuse of discretion” standard. See McIntyre v. Reliance Std. Life Ins. Co., 972
F.3d 955, 959 (8th Cir. 2020). This standard of review allows judges to explore all
conflicts of interests and procedural irregularities that exist in the administrative record
and determine how such conflicts and irregularities affect the lawfulness of a Plan
administrator’s discretionary decision making. Id. The modified abuse of discretion
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standard is appropriate when: (1) a palpable conflict of interest exists, which (2) caused a
serious breach of the plan administrator’s fiduciary duty. See McIntyre, 972 F.3d at 959.
To satisfy the second prong of this test, the plaintiff must show that the conflict has some
connection to the substantive decision reached. Woo v. Deluxe Corp., 144 F.3d 1157,
1161 (8th Cir. 1998) (citing Buttram v Central States, S.E. & S.W. Areas Health &
Welfare Fund, 76 F.3d 896, 901 (8th Cir. 1996)). Plaintiff argues that defendant has
“exclusive management and control of the Trust” and “benefits under this Plan will be
paid only if the Trustees and their designees decided, in their discretion, that the applicant
is entitled to benefits.” As such, plaintiff argues, defendant is both the decider and payer
of benefits under the Pension Plan and thus an inherent conflict of interest exists. See
Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 114 (2008).
But defendant points out that being both the decider and payer of benefits does not
support overturning a decision. See id. at 117. Instead, particularly where there is no
evidence that the conflict affected the decision, courts simply use this factor as a
tiebreaker. Boyer v. Schneider Elec. Holdings, Inc., 993 F.3d 578, 581 (8th Cir. 2021).
Notably, plaintiff appears to abandon his argument for a stricter standard of review in his
reply memorandum and thus this Court will apply the arbitrary and capricious standard.
Under the arbitrary and capricious standard, the Court needs to determine only
“whether the decision to deny [the plaintiff] benefits was supported by substantial
evidence, meaning more than a scintilla but less than a preponderance.” Schatz v. Mut. of
Omaha Ins. Co., 220 F.3d 944, 949 (8th Cir. 2000). “Provided the decision is supported
by a reasonable explanation, it should not be disturbed, even though a different
reasonable interpretation could have been made.” Id. (quotation and citations omitted).
To evaluate the reasonableness of an interpretation, courts examine:
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[1] whether [the plan administrator’s] interpretation is consistent with the
goals of the Plan, [2] whether their interpretation renders any language in
the Plan meaningless or internally inconsistent, [3] whether their
interpretation conflicts with the substantive or procedural requirements of
the ERISA statute, [4] whether they have interpreted the words at issue
consistently, and [5] whether their interpretation is contrary to the clear
language of the Plan.
Finley v. Special Agents Mut. Benefits Assoc., Inc., 957 F.2d 617, 621 (8th Cir. 1992).
ERISA requires plan administrators like defendants to provide an appeal
procedure for the review of adverse decisions and a full and fair review of the appeal. 29
U.S.C. § 1133(2); 29 C.F.R. § 2560.503-1(h). A full and fair review during an appeal
concerns a beneficiary’s procedural rights and requires a thorough review of all relevant
information submitted and should consider all evidence and arguments made by the
appealing party. See Anderson v. Nationwide Mut. Ins. Co., 592 F. Supp. 2d 1113, 1132
(8th Cir. 2009). A failure to consider all evidence and arguments constitutes an abuse of
discretion. Pettit v. Unum Provident Corp., 774, F. Supp. 2d 970, 988 (S.D. Iowa 2011)
(citing Anderson, 592 F. Supp. 2d at 1130). Plaintiff relies on Section 10.01(e) and (g) of
the Plan in support of his claim that his appeal was wrongfully denied because those
provisions allow plaintiff to rely on new evidence to support his appeal. Plaintiff says his
new evidence is the SSA’s “notice of decision—fully favorable,” which was not available
during the initial application period but which became available just as plaintiff’s appeal
period started. [See #35 at 14.] Section 10.01(g)(4) in particular required defendant to
review all information submitted by plaintiff “regardless of whether such information
was submitted or considered in the initial benefit determination.” (Emphasis added.)
Here, defendant denied the appeal because plaintiff “failed to provide a copy of [his]
Social Security Disability Notice of Award within the 180-day time period allowed of
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January 13, 2018.” Plaintiff says that defendant’s stated reason ignores that plaintiff was
entitled to and did submit the notice of decision during his appeal, for which the Plan
required defendant to “decide the claim anew.” Section 10.01(g)(5). Plaintiff thus argues
that the defendant’s interpretation of the Plan renders these provisions meaningless.
Notably, however, plaintiff does not deny that the “Notice of Award” was required
to have been submitted within 180 days of the application. Plaintiff did not submit a
“Notice of Award” within 180 days, nor did he submit the Notice of Award with the
appeal. The record reflects only that the “Notice of Decision – Fully Favorable” was
submitted with plaintiff’s appeal. As noted, a “Notice of Decision” is not the same as a
“Notice of Award,” because a “Notice of Decision” is not yet final and can be overruled
by the SSA. See 20 C.F.R. § 416.1469. This Court therefor need not reach whether a
late-submitted “Notice of Award” should result in a successful appeal—such a
circumstance is not present here. Plaintiff did not submit a Notice of Award with his
application, nor did he submit one in support of his appeal. None of plaintiff’s arguments
can overcome that basic failing of plaintiff’s application and appeal, and plaintiff’s Count
I must therefore fail.
B. Count II
Plaintiff’s Count II is for breach of fiduciary duties. Because the claims are
somewhat overlapping and are not linearly addressed by the parties, and because plaintiff
does not appear to move for summary judgment on all the claims, the Court will address
each party’s motion separately.
1. Plaintiff’s motion
The Court will address plaintiff’s motion first. Plaintiff argues that defendant
breached fiduciary duties that it owed to plaintiff by: (1) not informing him of the effect
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submitting a new Pension benefit application would have on his pending appeal; and
(2) failing to inform him that the notice of decision was not sufficient to secure
benefits during the appeal process.
a. Effect of a new pension application
Plaintiff claims that the Board failed to clarify that he could reapply for a pension
and that reapplication would have no effect on his ability to challenge the Board’s
decision about the 2017 application. However, an ERISA fiduciary need not explain “the
specific impact of the general terms of the plan upon them” as long as it issues a
sufficient Summary Plan Description. Maxa v. John Alden Life Ins. Co., 972 F.2d 980,
985 (8th Cir. 1992). An insufficient summary plan description is one that lacks
information required by ERISA and its regulations. Antolik v. Saks, Inc., 463 F.3d 796,
801 (8th Cir. 2006). Although ERISA requires the summary plain description to describe
the claims procedure, the regulations do not require plans to spell out that reapplying
does not undermine a claimant’s ability to contest the original decision. 29 U.S.C. §
1022(b); 29 C.F.R. 2520.102-3(s).
It is true that a fiduciary does have a duty to affirmatively inform participants
about their rights when the fiduciary knows or should know that silence will harm the
participants. See Kalda v. Sioux Valley Physician Partners, Inc., 481 F.3d 639, 644 (8th
Cir. 2007). This duty is triggered when the fiduciary “knows that silence may be
harmful” or “knows or should know that the beneficiary is laboring under a material
misunderstanding of plan benefits....” Id. (internal citation omitted). The only evidence
plaintiff cites to support that defendant knew or should have known that plaintiff did not
realize he could reapply and retain his ability to litigate the 2017 application was the May
2018 phone call. In that call, however, plaintiff did not appear to express confusion about
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whether reapplying would affect his appeal. Instead, plaintiff and the pension specialist
discussed plaintiff’s waiting to reapply to that his monthly pension amounts would
increase.
b. Inform that the Notice of Decision was insufficient
Next plaintiff argues that the defendant breached its fiduciary duty by failing to
inform him that the Notice of Decision was insufficient to support his claim for a
Disability Pension. At the outset, the Court notes that ERISA imposes no duty on
fiduciaries “to tell claimants what they must say (or persuade others to say) in order to
succeed on their claim.” Jarecke v. Hartford Life & Acc. Ins. Co., 343 F. Supp. 2d 855,
859 (W.D. Mo. 2004). Fiduciaries “must treat each claimant with procedural fairness,
but, because it must also guard against improper claims, it is not its duty to affirmatively
aid claimants in proving their claims.” Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 236
(4th Cir. 1997), abrogated on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S.
105 (2008).
Rather, ERISA requires the benefit determination to include (i) “[t]he specific
reason or reasons for the adverse determination,” (ii) “the specific plan provisions on
which the determination is based,” (iii) what additional information is necessary to
perfect a claim10 and why that information is needed, and (iv) “the plan’s review
procedures and the time limits applicable to such procedures....” 29 C.F.R. 2560.5031(g)(1)(i)–(iv). There is no suggestion that the January 11, 2018 letter denying plaintiff’s
2017 Application did not meet those requirements. In addition, plaintiff’s appeal letter
focused on the fact that the 180-day deadline should not apply to him because the process
was beyond his control. Plaintiff’s Notice of Decision appeared to support that the
process was beyond his control. Plaintiff does not argue that the Plan was ambiguous
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about whether the Notice of Decision could suffice for the Notice of Award requirement:
the Plan clearly states a Notice of Award was required, and the Notice of Decision was
clearly labeled as such. In addition, the Board advised plaintiff to submit any additional
documents by May 1, 2018 that he thought would be helpful. Despite receiving this
document, he never submitted the Notice of Award during the appeal process, which SSA
issued on March 18, 2018.
2.

Defendant’s motion

Defendant divides plaintiff’s breach of fiduciary duty claim into three categories:
the Board’s (1) denying his appeal and requiring him to submit a new application, (2)
allegedly failing to inform him about the Auxiliary Disability Benefit and the Conditional
Disability Pension, and (3) allegedly encouraging plaintiff to abandon his appeal.
a.

Denying the appeal and requiring a new application

Mr. Ruessler argues three parts of the claims and appeal process violate the
Board’s fiduciary duties: allegedly failing to decide the claim anew, applying a rule that
is allegedly absent from the Plan (i.e., 180-Day Rule), and delaying the approval of Mr.
Ruessler’s Disability Pension. Ultimately, plaintiff offers no evidence to support these
alleged breaches. He has submitted no evidence to support his allegation that the Board
failed to decide his claim “anew” because there is no evidence that the Board presumed
that the original decision was correct. Plaintiff admits in his briefing that Plan Document
and ERISA both require defendant to make a determination within 180 days of the
application. [Doc. 35 at 12.] And plaintiff offers no evidence showing that the Board
delayed approving his application.
b.

Failing to inform about the Auxiliary Disability Benefit
and the Conditional Disability Pension
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Plaintiff alleges that the Board breached its fiduciary duties by failing to inform
him about the Conditional Disability Pension and the Auxiliary Disability Benefit. The
Eighth Circuit has held that ERISA fiduciaries need not individually notify participants
“of the specific impact of the general terms of the plan upon them.” Maxa v. John Alden
Life Ins. Co., 972 F.2d 980, 985 (8th Cir. 1992). Instead, fiduciaries fulfill their duty to
adequately inform participants by providing them with the summary plan description.
Erlitz v. Cracker Barrel Old Country Stores, Inc., 416 F. Supp. 2d 711, 722 (E.D. Mo.
2006). Here, the Summary Plan Description describes both the Auxiliary Disability
Benefit and the Conditional Disability Pension. Further, the Board alerted plaintiff about
the Conditional Disability Pension in the cover letter with the pension packet, the pension
application instructions, and the pension application itself. Notably, plaintiff does not
appear to contest summary judgment on this point, and the Court will thus not devote
further time to it. Thus, this part of Count II fails.
c.

Encouraging plaintiff to abandon his appeal

Plaintiff alleges that the Board breached its fiduciary duty by encouraging him to
reapply for benefits and “abandon his appeal.” [Doc. 19 at ¶ 69]. Plaintiff identifies
three instances when the Board encouraged him to reapply for benefits: (1) the April
2018 letter, (2) the May 2018 letter, and (3) its brief supporting the motion to dismiss in
Ruessler I. Plaintiff claims that defendant breached its fiduciary duty by failing to
explain both why it sent the April and May letters and what effect reapplying would have
on his appeal. He also claims that encouraging him to reapply to begin receiving benefits
under Amendment 4 violates the Board’s fiduciary duties. Plaintiff’s argument here is
somewhat perplexing in that plaintiff simultaneously contends [Doc. 35 at 18] that
defendant did not adequately tell him he could reapply without jeopardizing his appeal.
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As noted above, fiduciaries must affirmatively inform participants about their
rights when the fiduciary knows or should know that silence will harm the participants.
Kalda, 481 F.3d 644. Here, defendant discovered that plaintiff had not reapplied when
reviewing his appeal. It again noticed this when reviewing his complaint in Ruessler I.
This failure indicated to the Board that plaintiff might not have known that he could
reapply for benefits and begin receiving at least some benefits while he litigated the
denial of his 2017 application. As such, the Board was fulfilling its fiduciary duty, as
articulated in Kalda, when it informed him about his ability to reapply.
In addition, plaintiff can identify no harm that arose from this alleged breach.
Shortly after receiving the April 2018 letter, plaintiff called the Pension Trust to ask
about the letter. Then, he requested estimates for his pension benefits for different
reapplication scenarios. As such, no evidence supports plaintiff’s assertion that
defendant failed to explain why it sent the April and May 2018 letters. Similarly, the
Board’s counsel sent plaintiff’s counsel an email indicating that plaintiff could reapply
for benefits and still pursue his claim. Thus, encouraging plaintiff to reapply for benefits
violated no fiduciary duty.

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IV.

Conclusion
The defendant’s motion for summary judgment will be granted, and plaintiff’s

motion for summary judgment will be denied.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion for summary judgment
[Doc. 32] is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion for summary judgment
[Doc. 31] is DENIED.
IT IS FINALLY ORDERED that the trial date set for this matter is VACATED.

Dated this 18th day of November, 2021.
STEPHEN N. LIMBAUGH, JR.
SENIOR UNITED STATES DISTRICT JUDGE

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