Castellanos v. Aramark Corporation et al
Filing
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ORDER Granting 31 Motion for Summary Judgment. Signed by Judge James C. Mahan on 5/26/11. (Copies have been distributed pursuant to the NEF - ASB)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOAQUIN G. CASTELLANOS,
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2:09-CV-1378 JCM (PAL)
Plaintiff,
v.
ARAMARK CORPORATION and
TONY RODRIGUEZ,
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Defendants.
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ORDER
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Presently before the court is defendants Aramark Corporation and Tony Rodriguez’s motion
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for summary judgment or, in the alternative, summary adjudication. (Doc. #31). Pro Se plaintiff
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Joaquin G. Castellanos failed to file an opposition. Defendants filed a notice of non-receipt of
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opposition. (Doc. #36).
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The plaintiff’s complaint (doc. #9) stems from the alleged discrimination he suffered during
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his employment as a banquet server for defendant Aramark Corp. On April 2, 2010, he filed a civil
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rights complaint pursuant to 42 U.S.C § 1983, alleging that he suffered discrimination, harassment
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and retaliation from manager defendant Tony Rodriguez. (Doc. #9). After the defendants filed their
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answer to the complaint (doc. #17), the court held an early neutral evaluation conference on October
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15, 2010, before Magistrate Judge George Foley, Jr. (Doc. #25). No settlement was reached at the
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conference. Id.
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Motion for Summary Judgment /Summary Adjudication
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James C. Mahan
U.S. District Judge
Defendants filed their motion for summary judgment (doc. #31) on February 24, 2011, and
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plaintiff’s opposition was due on March 18, 2011. As no opposition was filed, defendants filed a
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notice with the court, notifying it that plaintiff failed to oppose the motion and asking the court to
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grant the motion for summary judgment (doc. #31). In the motion (doc. #31), defendants assert that
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plaintiff’s claims fail because (1) he cannot establish a claim under 42 U.S.C. § 1983, since he does
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not allege a state action, (2) he cannot demonstrate a prima facie case of discrimination based on his
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national origin, (3) his employment was terminated for legitimate, non-discriminatory reasons, and
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(4) his claim of harassment does not rise to the level of “sufficiently severe or pervasive.”
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A.
Failure To File An Opposition
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Pursuant to Local Rule 7-2(d), a non-moving party’s failure to file points and authorities in
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response to a motion for summary judgment shall constitute a consent to the granting of the motion.
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However, as the Ninth Circuit enumerated in Martinez v. Stanford, 323 F.3d 1178 (9th Cir.2003),
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a district court cannot grant a motion for summary judgment merely based on the fact that the
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opposing party failed to file an opposition. The court in Martinez held that the failure to oppose the
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motion does “not excuse the moving party’s affirmative duty under [r]ule 56 to demonstrate its
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entitlement to judgment as a matter of law.” Id.
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In the case before the court, summary judgment is appropriate not only because plaintiff
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failed to file an opposition in accordance with the local rules, but because the defendants have
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demonstrated to the court that there are no genuine issues of material fact precluding summary
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judgment under Federal Rule of Civil Procedure 56.
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B.
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Summary judgment/adjudication is appropriate when, viewing the facts in the light most
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favorable to the nonmoving party, there is no genuine issue of material fact which would preclude
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summary judgment/adjudication as a matter of law. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.
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1996); Federal Rule of Civil Procedure 56(c); Matsushita Elec. Indus. v. Zenith Radio Corp., 475
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U.S. 574, 587 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assn., 809 F.2d 626, 630
Summary Judgment/Adjudication Standard
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James C. Mahan
U.S. District Judge
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(9th Cir.1987). The purpose of summary judgment/adjudication is to “pierce the pleadings and assess
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the proof in order to see whether there is a genuine need for trial.” Matsushita Elec., 475 U.S. at 586;
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International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985).
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The moving party bears the burden of informing the court of the basis for its motion, together
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with evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp.v.
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Catrett, 477 U.S. 317, 323 (1986). Once the moving party has satisfied its burden, it is entitled to
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summary judgment/adjudication if the non-moving party fails to present, by affidavits, depositions,
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answer to interrogatories, or admissions on file, "specific facts showing that there is a genuine issue
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for trial." Celotex Corp., 477 U.S. 317, 324; Fed. R. Civ. P. 56(c).
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1.
Claims Under 42 U.S.C § 1983
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A claim under section 1983 must allege that a party, acting under color of state or local law,
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deprived the plaintiff of any of his rights under the Constitution or the laws of the United States. 42
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U.S.C. § 1983. The statute does not apply to claims against private employers, and can only survive
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against a state actor. See Rendell-Baker v. Kohn, 457 U.S. 830 (1982). Here, plaintiff filed a civil
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rights complaint under section 1983 (doc. #9), alleging discrimination, harassment, and retaliation
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by his employer. Since there can be no dispute as to the fact that his employer is a private
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corporation, not a state actor, all of his claims under section 1983 fail and summary judgment is
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warranted.
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2.
Claims Under 42 U.S.C. § 1981
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Defendants ask this court to grant summary adjudication on plaintiff’s claims of
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discrimination, harassment and retaliation, because even if they were brought under section 1981
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based on national origin, there are no genuine issues of material fact.
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a.
Relevant Facts
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Plaintiff is a Cuban-American who was employed as a banquet server by defendant Aramark
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and under the managerial supervision of defendant Rodriguez from 2003 to 2007. (Doc. #9). While
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plaintiff was employed in this position, he was a member of the Culinary Worker’s Union and was
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one of the senior servers “assigned to high profile and lucrative events.” Id.
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James C. Mahan
U.S. District Judge
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Beginning in January of 2006, and continuing until November 30, 2006, plaintiff began to
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perform below the level required by the defendants, causing him to receive five disciplinary
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warnings. Id. These disciplinary warnings were the result of missing delivery dates, setting up a
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customer’s lunch service in the wrong room, failing to properly set up the meal service for a VIP
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meeting, failing to use proper safety procedures, and delivering an order incomplete. Id. On February
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15, 2007, plaintiff received his sixth disciplinary warning for displaying “unprofessional behavior
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toward a coworker, deliver[ing] his service in an untimely manner, fail[ing] to properly set out the
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lunch service, and fail[ing] to take direction from management and lead servers.” Id. Consequently,
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on that date, a lead server submitted a written statement to human resources complaining about the
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plaintiff’s performance, and defendant Aramark terminated his employment. Id.
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Following his termination, the plaintiff’s coworkers signed a petition stating that they would
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no longer work with him because of his “unsafe work practices” and “rude and elicit [sic] behavior.”
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(Doc. #33 Exhibit H). On March 1, 2007, the plaintiff filed a grievance with the union regarding his
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termination and discipline. (Doc. #33). Notably, the complaint did not mention discrimination in any
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manner. Id. After a meeting was held on the matter, Aramark agreed to reinstate him conditioned on
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the following terms; (1) Aramark would not compensate him for back pay, (2) plaintiff would retain
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the same seniority that he had previously held, and (3) he would be placed on a six-month
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performance improvement plan. Id. Further, the parties agreed that any future incidents of
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unsatisfactory performance would result in the termination of his employment. Id.
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Shortly after the parties entered into this arrangement, plaintiff was issued disciplinary
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warnings for unacceptable performance and for failing to appear for training that was a mandatory
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part of his performance improvement plan. Id. Additionally, a client filed a complaint with Aramark
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asserting that it was concerned for the safety of the people in attendance, when plaintiff caused a tray
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of coffee cups and saucers to fall to the ground during a VIP event. Id. Consequently, on July 19,
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2007, after three disciplinary issues, defendant terminated plaintiff’s employment.
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b.
Prima Facie Discrimination
In order for plaintiff to establish a prima facie claim for national origin discrimination,
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James C. Mahan
U.S. District Judge
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plaintiff must establish that (1) he belongs to a protected class, (2) his job performance was
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satisfactory, (3) he suffered some adverse employment action, and (4) the action occurred under
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circumstances suggesting a discriminatory motive. See McDonnell Douglas Corp. v. Green, 411 U.S.
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792, 802 (1973); Fonseca v. Sysco Food Services of Arizona, Inc., 374 F.3d 840, 850 (9th Cir. 2004).
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Here, the evidence demonstrates that there are no issues surrounding the fact that plaintiff’s
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job performance was unsatisfactory. He was given several opportunities to correct his performance,
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yet continued to get disciplinary warnings which ultimately led to his termination. (Docs. #31 and
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#33). Additionally, there is no evidence presented by the plaintiff that there was any discriminatory
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motive underlying his termination, and he does not allege that his termination was discriminatory
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in his complaint. (Doc. #9). Lastly, the person accused of discrimination, defendant Rodriguez, is
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of the same national origin as the plaintiff, Cuban-American, which gives rise to an inference of
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nondiscrimination. See Elrod v. Sears, Roebuck and Co., 939 F.2d 1466, 1471 (11th Cir. 1991).
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Thus, summary adjudication is appropriate on any claim for national origin discrimination
brought under section 1981.
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Harassment Claim
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To bring a claim for harassment, plaintiff must prove that he experienced harassment on the
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basis of his national origin that was “sufficiently severe and pervasive” to alter the conditions of his
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employment and create an abusive working environment. Meritor Savings Bank v. Vinson, 477 U.S.
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57, 67 (1986). The court looks at the totality of the circumstances, including the severity of the
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conduct, whether or not it is physically threatening or humiliating, the frequency, the number of days
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over which it occurred, and the context. Id.
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In his complaint (doc. #9), plaintiff alleges that defendant Rodriguez harassed him by
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“assigning him more work than his coworkers, speaking Spanish to him, standing over him and
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watching every move while he set up for his assignments, and continually checking his work and
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disturbing his process.” As that is the factual basis for plaintiff’s harassment claim, the court finds
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that the claim does not rise to the requisite level of severity, offensiveness, or frequency to support
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a finding that the conditions of his employment were “altered” or “abusive.” Meritor Savings Bank,
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James C. Mahan
U.S. District Judge
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477 U.S. 57, 67; See also Vasquez v. County of Los Angeles, 349 F.3d 534, 642-44 (9th Cir. 2004).
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Therefore, summary adjudication is warranted on any claim under section 1981 for harassment.
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c.
Retaliation Claim
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In a claim for retaliation, plaintiff has the burden of proving that (1) he engaged in a
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statutorily protected activity, (2) he suffered an adverse action taken by his employer, and (3) there
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was a casual connection between the two. Poland v. Chertoff, 494 F.3d 1174 (9th Cir. 2007).
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Summary adjudication is appropriate on this claim because the evidence is undisputed that plaintiff
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did not engage in any protected activity, i.e. he did not file a grievance or complain of discrimination
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or harassment to anyone from Aramark during the time he was employed. (Doc. #33). Specifically,
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he did not complain of discrimination during the grievance process, and it wasn’t until two years
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after his termination in 2007, that he made any allegations of discrimination. Id. Therefore, summary
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adjudication is appropriate on any claim of retaliation brought under section 1981.
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Accordingly,
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IT IS HEREBY ORDERED ADJUDGED AND DECREED that defendants Aramark
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Corporation and Tony Rodriguez’s motion for summary judgment or, in the alternative, summary
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adjudication (doc. #31)be, and the same hereby is, GRANTED.
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DATED May 26, 2011.
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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge
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