Garces v. New York City Housing Authority

Filing 26

MEMORANDUM OPINION AND ORDER: re: 13 MOTION to Dismiss Amended Complaint filed by New York City Housing Authority. For the foregoing reasons, Defendant's motion to dismiss Plaintiff's amended complaint is denied. Plaintiff' s request that the Court award him the costs of responding to Defendant's motion to dismiss is denied. The initial pretrial conference will be held on September 22, 2017, at 10:45 a.m. The parties must confer and file a joint statement in advance of the conference in accordance with the Initial Conference Order (Docket Entry No. 6). This Memorandum Opinion and Order resolves Docket Entry No. 13. SO ORDERED. (Signed by Judge Laura Taylor Swain on 7/17/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------X
JUAN PABLO GARCES,
Plaintiff,
-v-

NO. 16-CV-2811-LTS

THE NEW YORK CITY HOUSING
AUTHORITY,
Defendant.
-------------------------------------------------------X

MEMORANDUM OPINION AND ORDER
Plaintiff Juan Pablo Garces (“Plaintiff” or “Garces”), brings this civil rights
action, pursuant to The Americans with Disabilities Act, 42 U.S.C. § 12111 et seq. (the “ADA”),
against Defendant The New York City Housing Authority (“Defendant” or “NYCHA”). In a
one-count Amended Complaint, Plaintiff, a former NYCHA employee, alleges that he suffered
unlawful discrimination on the basis of his disability, that his employer unlawfully failed to
make a reasonable accommodation of his disability, and that Defendant’s actions resulted in his
constructive discharge. (Docket Entry No. 11.) Plaintiff seeks declaratory judgment,
compensatory damages, and costs. Defendant now moves, pursuant to Federal Rule of Civil
Procedure 12(b)(6), to dismiss all of Plaintiff’s claims, for failure to exhaust administrative
remedies as to the ADA constructive discharge claim, and for failure to state a claim upon which
relief can be granted. (Docket Entry No. 13.)
The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.
The Court has reviewed carefully all of the submissions of the parties. For the
following reasons, the Defendant’s motion is denied in its entirety.

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BACKGROUND
The following summary is derived from the factual allegations in the amended
complaint, which are accepted as true for purposes of the instant motion practice, and the
complaint that Plaintiff filed with the New York State Division of Human Rights (“SDHR”),
which is referenced in the Amended Complaint and is material to Defendant’s exhaustion
arguments.1
Plaintiff was sixty-eight years old at the time he filed the Amended Complaint in
this action, and was employed by Defendant for more than twenty-five years, from February 9,
1990, until September 30, 2015. (Amended Complaint, Docket Entry No. 11, ¶ 8 (“Am.
Compl.”).) Since 2004, Plaintiff has suffered from a disability due to medical problems with his
kidneys. (Id. ¶ 10.) In February 2006, Plaintiff had a kidney transplant that has significantly
affected his immune system, and anti-rejection medication has made Plaintiff vulnerable to
contracting “infections from exposure to bacteria in unsanitary environments.” Id. Because of
these health issues, Plaintiff, who had served as a Construction Project Manager for NYCHA

1

Defendant’s motion is accompanied by a variety of evidentiary proffers, ranging from
doctors’ notes to a transcript of a grievance hearing. While documents that accompany,
are incorporated by reference in, or are integral to a complaint may properly be
considered in connection with a motion under Federal Rule of Civil Procedure 12(b)(6),
most of the documentation upon which Defendant relies is outside the proper scope of the
record for this motion practice. See Chambers v. Time Warner, Inc., 282 F.3d 147, 15253 (2d Cir. 2002) (holding that a “court’s consideration of [a] document on a dismissal
motion” turns on “a plaintiff’s reliance on the terms and effects of [a] document in
drafting the complaint[,]” as “mere notice or possession [of a document] is not enough”).
The Court has considered Plaintiff’s SDHR complaint, which is specifically referenced in
Plaintiff’s Amended Complaint and is annexed as Exhibit I to the Kilduff-Conlon
Declaration in support of Defendant’s motion. (See Kilduff-Conlon Declaration
(“Kilduff-Conlon Decl.”), Docket Entry No. 14, Ex. I.) The remainder of Defendant’s
additional proffers, which are neither incorporated by reference into nor integral to the
complaint, have not been considered.

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since 1996, requested and was granted a reasonable accommodation for office work at
Defendant’s central office, located at 90 Church Street in New York, New York, beginning
October 17, 2006. (Id. ¶¶ 9, 11.) On or about October 22, 2014, Deputy Director of
Construction Victor Brenner (“Brenner”) assigned Plaintiff to a new position and title—
“Program Specialist”—within the 90 Church Street office. (Id. ¶ 13.) That position had a higher
civil service title and higher compensation associated with it. Id. After several months in the
Program Specialist position, Plaintiff asked to receive the higher salary that was associated with
the position; Mr. Brenner refused to increase his salary. Plaintiff then filed a grievance through
his union in March 2015, and Brenner removed Plaintiff from the Program Specialist position
shortly thereafter, as of March 27, 2015. (See id. ¶¶ 14-16.)
In April 2015, Brenner informed Plaintiff that he was being transferred from the
90 Church Street location to NYCHA’s Upper Park Avenue Community Association
(“UPACA”) office, located at 125th Street and Lexington Avenue, in Upper Manhattan. (Id. ¶
17.) Plaintiff “immediately objected” to the transfer, “explaining that due to his health condition
and need for a reasonable accommodation, he could not be moved to the UPACA Harlem office
as of May 11, 2015.” (Id. ¶ 18.) On May 8, 2015, Plaintiff emailed Defendant’s Human
Resources Director and Equal Employment Opportunity office, explaining his need for a
reasonable accommodation and why he would be unable to report to UPACA. Id. Plaintiff
alleges that Defendant ignored this email and did not engage in an interactive process to consider
Plaintiff’s request for a reasonable accommodation to remain at the 90 Church Street office. Id.
Plaintiff further alleges that he advised Adam Eagle, NYCHA’s Deputy Director of Capital
Projects and Administration, about his medical conditions in either May and/or June of 2015
“that would specifically prevent him from reporting to UPACA due to his need for reasonable

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accommodation,” but neither Mr. Eagle nor Defendant met with Plaintiff or tried to reasonably
accommodate Plaintiff. (Id. ¶ 20.) Plaintiff alleges that he continued to object to the transfer and
provide Defendant with medical notes to support his request for a reasonable accommodation.
(Id. ¶ 19.) On May 26, 2015, Brenner directed Plaintiff to report to the UPACA office, “under
threat of insubordination by refusing to do so.” Id.
As directed, Plaintiff reported to UPACA on May 26, 2015, and “found the
environment unclean and unsanitary,” and was concerned that such an environment “would
further aggravate his condition and substantially increase the likelihood of [contracting]
infections” that could further jeopardize his kidney and overall health. (Id. ¶ 21.) After
Plaintiff’s first day at UPACA, he “immediately” returned to the 90 Church Street NYCHA
office to speak with Capital Projects Director Patricia Zander about his need for a reasonable
accommodation and transfer back to the 90 Church Street location, citing the unsanitary
conditions at the UPACA location, the physical stress of the commute to UPACA due to the
increased travel time, and the high subway stairs required to travel there. (Id. ¶ 22.) Ms. Zander
refused to meet with Plaintiff in person, and emailed Plaintiff the following day, May 27, 2015,
ordering him back to UPACA. (Id. ¶¶ 22-23.)
Plaintiff simultaneously notified his union of the unsanitary work conditions at
UPACA, which were allegedly confirmed by a letter the local union president sent to NYCHA
on June 3, 2015. (Id. ¶ 24.) Plaintiff alleges that Defendant did not undertake to “clean up the
environment at UPACA until at least July 24, 2015, almost two months after Plaintiff was
involuntarily assigned there” and that, initially, “Defendant tried to [hide] the unhealthy
conditions at UPACA from the union” by intentionally “taking misleading photographs” of
bathrooms. Id.

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Plaintiff alleges “he was not assigned any meaningful work at the UPACA
location,” and that he “could do the . . . same close-out work he was assigned [at UPACA] from
the 90 Church Street location;” thus, allowing him “to remain at 90 Church Street would have
posed no undue hardship to the agency.” (Id. ¶ 25.) Plaintiff continued to report to the UPACA
location as directed, though he missed two weeks of work in June of 2015, “due to bronchial
conditions, which his doctor had diagnosed as due to the toxins he was exposed to in his work
environment at the UPACA location.” (Id. ¶ 26.) According to Plaintiff, “[t]he new location
also unreasonably extended his commuting and work time, aggravating his stress and preexisting
health conditions.” Id. Plaintiff further alleges that he exhausted his sick leave balance due to
his “aggravated health conditions in May and June 2015,” which he attributes to the “unsanitary
work environment at UPACA.”
On or about June 17, 2015, Plaintiff filed a complaint with the New York State
Division of Human Rights (“SDHR”), “based in part on disability discrimination due to
Defendant’s failure to reasonably accommodate his health condition.” (Id. ¶ 27.) “At about the
time of filing his SDHR complaint,” Plaintiff also filed his retirement papers, effective
September 30, 2015, “due to the stressful conditions he has been placed under at UPACA
without reasonable accommodation, causing severe aggravation of his fragile health condition.”
(Id. ¶ 28.) Plaintiff alleges that he “had originally planned to retire at his full retirement age after
30 years of service,” and thus “lost at least ten percent of his pension and additional salary by
being pressured into retiring early.” (Id. ¶ 31.)
On or about September 7, 2015, Defendant returned Plaintiff to the 90 Church
Street office, “but gave him no meaningful work there.” (Id. ¶ 32.) The transfer occurred after

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Plaintiff had filed the SDHR complaint and a separate verified petition with the New York City
Office of Collective Bargaining, and after he had already submitted his retirement papers. Id.
On January 20, 2016, Plaintiff received a right to sue letter from the Equal
Employment Opportunity Commission (“EEOC”). (Id. ¶ 33.) On April 15, 2016, Plaintiff
commenced the instant action, and he filed the Amended Complaint on August 4, 2016.

DISCUSSION
Defendant argues that Plaintiff’s action must be dismissed because he failed to
exhaust his disability-based constructive discharge claim before filing suit, and because the
amended complaint fails plausibly to plead causes of action for failure to reasonably
accommodate Plaintiff’s disability and disability-related constructive discharge.
When deciding a motion, brought pursuant to Federal Rule of Civil Procedure
12(b)(6), to dismiss a complaint for failure to state a claim, the Court assumes the truth of the
facts asserted in the complaint, and draws all reasonable inferences in favor of the plaintiff. See
Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). In order to survive a motion to dismiss, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
“In adjudicating a motion to dismiss, a court may consider only the complaint,
any written instrument attached to the complaint as an exhibit, any statements or documents
incorporated in it by reference, and any document upon which the complaint heavily relies.”

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Geron v. Seyfarth Shaw LLP (In re Thelen LLP), 736 F.3d 213, 219 (2d Cir. 2013) (citing
Chambers, 282 F.3d at 152-53). As noted above, many of the additional documents that
Defendant has proffered to draw into question the believability of Plaintiff’s allegations fall
outside the scope of material that may properly be considered on a motion to dismiss the
complaint, and have therefore been disregarded for purposes of this motion practice.

Constructive Discharge Claim
Exhaustion of Administrative Remedies
In his Amended Complaint in this action, Plaintiff asserts that “by insisting
Plaintiff report to an unsanitary UPACA location,” Defendant “caused Plaintiff’s health
condition to become severely aggravated, resulting in severe physical and emotional distress to
Plaintiff, and causing Plaintiff to have [to] resign prematurely from the agency, resulting in his
constructive discharge.” (Am. Compl. ¶ 36.) In his SDHR complaint, which was filed in June
2015, Plaintiff complained of health issues and a failure to accommodate his needs in connection
with the assignment to the 125th Street location, and asserted that “My employer is clearly . . .
seeking to target me to retire based on my age.” (See Kilduff-Conlon Decl., Ex I, Docket Entry
No. 14, at 97.) The complaint did not include any language specifically tying the disabilitybased complaints to the issue of pressure to retire. Defendant asserts that the Amended
Complaint in this action should be dismissed because Plaintiff failed to raise his claim of
disability-related constructive discharge at the administrative level.
“[A]s a general matter, the failure to exhaust administrative remedies is a
precondition to bringing a Title VII claim in federal court.” Francis v. City of New York, 235
F.3d 763, 768 (2d Cir. 2000) (internal citations and quotation marks omitted). “A plaintiff must

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first pursue available administrative remedies and file a timely complaint with the EEOC.”
Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003). 2 “The purpose of [the] exhaustion
requirement is to give the administrative agency the opportunity to investigate, mediate, and take
remedial action.” Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015) (internal
quotation marks and citation omitted)). Claims that were not asserted before the EEOC may
nonetheless, however, “be pursued in a subsequent federal court action if they are reasonably
related to those that were filed with the agency[,]” and “[a] claim is considered reasonably
related if the conduct complained of would fall within the scope of the EEOC investigation
which can reasonably be expected to grow out of the charge that was made.” Deravin, 335 F.3d
at 200-01. When determining whether a claim that was not asserted at the administrative level is
“reasonably related” to claims that were, courts focus “on the factual allegations made in the
EEOC charge itself, describing the discriminatory conduct about which a plaintiff is grieving.”
Id. at 201 (internal brackets omitted). The main inquiry is whether the complaint filed with the
EEOC provided the agency with “adequate notice to investigate discrimination on both bases.”
Id. at 202.
Plaintiff’s SDHR complaint included specific allegations concerning his health
conditions and asserted that the 125th Street location was “very difficult . . . to report to and [was]
an unsafe working environment due to dust and other very unsanitary conditions.” (KilduffConlon Decl., Ex. I, at 97.) Because he raised health-related issues implicating his ability to
work in the location to which he was assigned, the EEOC investigation would necessarily have

2

In New York, administrative complaints may be lodged in the first instance with the
SDHR, which is authorized to accept complaints on behalf of the EEOC. See Nunez v.
N.Y. State Dep’t of Corr. & Cmty. Supervision, No. 14-CV-664- JMF, 2015 WL
4605684, at *7 (S.D.N.Y. July 31, 2015).

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covered the conditions Plaintiff’s Amended Complaint cites as amounting to constructive
discharge. The disability-related constructive discharge issue would thus have “fall[en] within
the scope of the EEOC investigation” because it could “reasonably [have been] expected to grow
out of the charge” of disability discrimination. See Deravin, 335 F.3d at 200-01. Plaintiff’s
complaint to the SDHR also provided NYCHA with notice of Plaintiff’s concern regarding
perceived pressure to leave his job, as he alleged that NYCHA was seeking to “target [him] to
retire.” (Kilduff-Conlon Decl., Ex. I, at 97.) Plaintiff’s claim for constructive discharge based
on disability is reasonably related to his SDHR complaint. Defendant’s motion to dismiss
Plaintiff’s constructive discharge claim for failure to exhaust administrative remedies is therefore
denied.

Sufficiency of Disability Discrimination Allegations
Defendant argues in the alternative that Plaintiff’s claim of constructive discharge
based on disability should be dismissed for failure to state a plausible claim, asserting that
Plaintiff’s transfer to UPACA had only been temporary and noting that Plaintiff had been
reassigned to 90 Church Street prior to retiring but nonetheless chose to retire. Defendant’s
assertions regarding the temporary nature of the assignment are supported by evidentiary
proffers, as are further allegations that the conditions at the 125th Street location were not
materially deficient and were remedied promptly after Plaintiff complained of them. (See Def.
Opening Br. and Kilduff-Conlon Decl.) Defendant’s reliance on material extraneous to the
Amended Complaint to contradict or undermine Plaintiff’s factual allegations is, however,
misplaced. On this motion pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court
determines whether the factual allegations of the Plaintiff’s pleading, read in the light most

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favorable to Plaintiff, are sufficient to support plausibly the cause of action asserted. See Iqbal,
556 U.S. at 678.
“‘Constructive discharge of an employee occurs when an employer, rather than
directly discharging an individual, intentionally creates an intolerable work atmosphere that
forces an employee to quit involuntarily. Working conditions are intolerable if they are so
difficult or unpleasant that a reasonable person in the employee’s shoes would have felt
compelled to resign.’” Theilig v. United Tech Corp., 415 F. App’x 331, 334 (2d Cir. 2011)
(quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996)) (citing Terry v.
Ashcroft, 336 F.3d 128, 151-52 (2d Cir. 2003)). Allegations that simply suggest difficulty or
unpleasantness, or the employee’s dissatisfaction with working conditions, are insufficient to
frame a claim for constructive discharge. See De La Pena v. Metro. Life Ins. Co., 953 F. Supp.
2d 393, 419 (E.D.N.Y. 2013) (dismissing complaint for failure to plead an intolerable
workplace). A constructive discharge claim cannot be established “simply through evidence that
an employee was dissatisfied with the nature of his assignments.” Stetson v. NYNEX Serv. Co.,
995 F.2d 355, 360 (2d Cir. 1993).
Here, Plaintiff alleges that by “insisting [he] report to an unsanitary UPACA
location,” causing his “health condition to become severely aggravated, resulting in severe
physical and emotional distress to [him], and causing [him] to have [to] resign prematurely from
the agency,” Defendant constructively discharged Plaintiff. (Am. Comp. ¶ 36.) Plaintiff further
alleges that the unsanitary conditions at the UPACA office caused him to exhaust his paid sick
leave time throughout May and June of 2015, as well as to miss two weeks of work in June of
2015, “due to bronchial conditions, which his doctor had diagnosed as due to the toxins he was
exposed to in his work environment at the UPACA location.” (Id. ¶ 26.) Further, Plaintiff

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asserts, that when he returned to the 90 Church Street office on September 7, 2015, he was not
given any meaningful work. (Id. ¶ 32.) Plaintiff alleges that he had repeatedly notified his
supervisors, Defendant, and his union about his preexisting health conditions, as well as the
unsanitary conditions at the UPACA location, throughout April and May 2015. (See Am.
Compl. ¶¶ 18-24.) By pleading that the 125th Street workplace made him so ill that he was
unable to work and, in fact, had to take unpaid leave, and that he was given “no meaningful
work” when he was reassigned to the 90 Church Street location prior to his previouslyannounced retirement date, Plaintiff has framed a claim of intolerable workplace conditions that
is sufficient at this pleading stage of the proceedings. Unsanitary conditions and a “substantial[]
increase [in] the likelihood of” contraction of infections that would put the kidney and overall
health of an employee with serious, documented ailments in significant danger (see Am. Compl.
¶ 21) and that rendered the employee unable to report to work (Id. ¶ 26), are not merely “difficult
or unpleasant” working conditions. See De La Pena, 953 F. Supp. 2d at 419. Rather, Plaintiff
plausibly alleges that Defendant “intentionally creat[ed] an intolerable work atmosphere” to such
an extent that “a reasonable person in [Plaintiff’s] shoes would have felt compelled to resign.’”
See Theilig, 415 F. App’x at 334. Accordingly, Defendant’s motion to dismiss for failure to
state a plausible constructive discharge claim is denied.

Failure to Reasonably Accommodate
Plaintiff alleges that NYCHA violated the ADA “by discriminating against
Plaintiff on the basis of his disability and failing to engage in any interactive process and/or
making any attempts to reasonably accommodate his disability by insisting he report to an
unhealthy environment at UPACA,” that he could have performed the same work from the 90

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Church Street location, and that allowing Plaintiff to continue working at the 90 Church Street
location would not have posed an “undue hardship” on the agency. (See Am. Compl. ¶¶ 25, 35.)
Defendant asserts that the amended complaint fails to state a legally cognizable claim of
disability discrimination for failure to reasonably accommodate. Again relying principally on
material extrinsic to the Amended Complaint, Defendant alleges that Defendant provided
Plaintiff with reasonable accommodations of office work as requested, and that Plaintiff’s
doctor’s notes never indicated Plaintiff needed to remain at the 90 Church Street office.
The ADA requires employers to provide reasonable accommodations for an
employee with a known disability, unless the accommodation would pose an undue hardship on
the employer. 42 U.S.C. § 12112(b)(5)(A). To state a plausible failure-to-accommodate claim
under the ADA, the plaintiff must allege that:
(1) plaintiff is a person with a disability under the meaning of the ADA; (2) an
employer covered by the statute had notice of his disability; (3) with reasonable
accommodation, plaintiff could perform the essential functions of the job at issue;
and (4) the employer has refused to make such accommodations.
Dooley v. JetBlue Airways Corp., 636 F. App’x 16, 18 (2d Cir. 2015) (quoting McMillan v. City
of New York, 711 F.3d 120, 125–26 (2d Cir. 2013)). The only issue in dispute is whether
Defendant has failed to provide Plaintiff with a reasonable accommodation. Whether an
accommodation is reasonable is a “fact-specific” inquiry and must be determined “on a case-bycase basis.” See Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379, 385 (2d Cir. 1996). A
reasonable accommodation “enable[s] an individual with a disability who is qualified to perform
the essential functions of that position ... [or] to enjoy equal benefits and privileges of
employment.” 29 C.F.R. § 1630.2(o)(1)(ii), (iii). An “employer need not ‘take account of the
disabled individual’s preferences in choosing the means of accommodation,’” and “the employer
need not demonstrate that the employee’s requested accommodation is impractical; rather the

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employee must plausibly allege that the offered accommodation was not reasonable.” Miller v.
McHugh, No. 14-CV-5026 (CS), 2016 U.S. Dist. LEXIS 20474, at *14 (S.D.N.Y. Feb. 19, 2016)
(quoting Fink v. N.Y.C. Dep’t of Personnel, 855 F. Supp. 68, 72 (S.D.N.Y. 1994), aff’d, 53 F.3d
565, 567 (2d Cir. 1995)).
Plaintiff alleges that he informed multiple supervisors at NYCHA, including Mr.
Eagle, Defendant’s Deputy Director of Capital Projects and Administration, and Ms. Zander,
Defendant’s Capital Projects Director, as well as his union, about his health conditions, the
effects of the UPACA assignment, and need for assignment to a different, more sanitary and
easy-to-reach location as a reasonable accommodation. According to Plaintiff, Defendant did
not take steps to remediate unsanitary conditions at the UPACA location until almost a month
after he began to work there, and did not make any attempts to reasonably accommodate his
disability by reassigning him to the 90 Church Street office until September 7, 2015, and did not
assign him any meaningful work upon his return there. (See Am. Compl. ¶¶ 19-22, 24, 35.)
Plaintiff alleges that Defendant did not attempt to offer Plaintiff any accommodation, much less
a reasonable or effective one, until over three months after he first reported to UPACA, and that
throughout that period, Plaintiff was subjected to working in conditions that adversely affected
his health, including his bronchial systems. These allegations, whether or not Plaintiff will
ultimately be able to prove them, are sufficient to state a claim that he was unable to “enjoy [the]
equal benefits and privileges of employment,” from the time of his transfer to the UPACA
location. See 29 C.F.R. § 1630.2(o)(1)(ii), (iii). Whether or not Plaintiff will ultimately be able
to prove these allegations, they are sufficient to plead his cause of action for failure to reasonably
accommodate his disability.

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CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss Plaintiff’s amended
complaint is denied. Plaintiff’s request that the Court award him the costs of responding to
Defendant’s motion to dismiss is denied.
The initial pretrial conference will be held on September 22, 2017, at 10:45 a.m.
The parties must confer and file a joint statement in advance of the conference in accordance
with the Initial Conference Order (Docket Entry No. 6).
This Memorandum Opinion and Order resolves Docket Entry No. 13.

SO ORDERED.

Dated: New York, New York
July 17, 2017

/s/ Laura Taylor Swain .
LAURA TAYLOR SWAIN
United States District Judge

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