HURT v. RHA HEALTH SERVICES, INC.
Filing
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MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 05/14/2019, that Defendant's Motion for Summary Judgment, (ECF No. 22 ), is GRANTED, and Plaintiff's Complaint, (ECF No. 1 - 2 ), is DISMI SSED. FURTHER ORDERED that Plaintiff's Motion for Summary Judgment, (ECF No. 27 ), is DENIED. A Judgment dismissing this action will be entered after the Court rules on Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, (ECF No. 25 ). (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOSEPHINE HURT,
Plaintiff,
v.
RHA HEALTH SERVICES, INC.,
Defendant.
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1:17CV846
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Plaintiff, appearing pro se, initiated this action in Guilford County Superior Court on
August 22, 2017, against her former employer, RHA Health Services, Inc. (“RHA”), alleging
wrongful termination based on age discrimination in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 623, and disability discrimination in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112. (ECF No. 1-2 at 1–6.)
Defendant removed the case to this Court on September 21, 2017, (ECF No. 1), and Plaintiff’s
age discrimination claim was dismissed by Order of this Court on July 27, 2018, (ECF No.
18). Before the Court are Plaintiff’s and Defendant’s cross-motions for summary judgment
related to Plaintiff’s sole remaining claim of wrongful termination based on disability
discrimination. (ECF Nos. 22, 27.) For the reasons set forth below, Defendant’s motion for
summary judgment will be granted and Plaintiff’s motion will be denied.
I.
BACKGROUND
RHA operates a network of group homes for people with intellectual, physical, and
developmental disabilities throughout North Carolina and the Southeast. (ECF No. 23-1 ¶ 2.)
Plaintiff was hired by RHA on January 11, 2016 to serve as a Qualified Professional (“QP”).
(Id. ¶ 4.) As a QP, Plaintiff was tasked with ensuring the four group homes under her
management “complied with health department regulations, . . . preparing the homes for
compliance inspections, and ensuring that the residents’ basic needs, including clothing, food,
and transportation, were adequately provided.” (Id. ¶¶ 4, 5.)
On or about March 1, 2016, while Plaintiff was still completing her training, she was
excused from work for a skin rash. (Id. ¶ 6.) Although she was initially diagnosed with scabies,
Plaintiff was later diagnosed with chickenpox. (ECF No. 23-12 at 7, 13.) She was admitted
to Wake Forest Baptist Medical Center for a total of twenty-two days, from March 4–14 and
March 17–29. (ECF Nos. 23-5, 23-7.) Upon her discharge on March 29, 2016, her treating
physician instructed her to “remain out of work until evaluated by her Primary Care Provider
within the next 7 business days.” (ECF No. 23-7.) On April 6, Plaintiff’s primary care
physician instructed her to remain out of work until April 18, 2016. (ECF No. 23-8; ECF No.
23-12 at 17.)
Throughout March and April, during the period when Plaintiff was experiencing her
health problems, she kept RHA informed about her condition and potential return dates. (See
ECF No. 23-12 at 7, 10–11; ECF No. 23-1 ¶ 9; ECF No. 28-1 at 1.) During this time, Plaintiff
was on “unprotected medical leave” from RHA, because she was not eligible for protected
leave under the Family and Medical Leave Act (“FMLA”). (ECF No. 23-1 ¶ 7; ECF No. 232
4.) Further, although Plaintiff’s responsibilities were generally being covered by one or two
other QP’s, “the group homes Plaintiff had been hired to oversee struggled throughout
Plaintiff’s month-long absence.” (ECF No. 23-1 ¶ 8.) On April 5, after one of the group
homes Plaintiff was assigned failed a “mock survey” by the RHA Quality Assurance team,
“RHA’s HR department made the decision . . . that it needed to fill Plaintiff’s position.” (Id.
¶¶ 8–9.) RHA terminated Plaintiff the next day. (ECF No. 28-7.)
Each of the parties now move for summary judgment on Plaintiff’s remaining claim of
wrongful termination based on disability discrimination.1 (ECF Nos. 22, 27.)
II.
STANDARD OF REVIEW
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). A dispute is “genuine” if the evidence would permit a reasonable jury to find
for the nonmoving party, and “[a] fact is material if it might affect the outcome” of the
litigation. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015). The role
of the court is not “to weigh the evidence and determine the truth of the matter” but rather
“to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). When reviewing a motion for summary judgment, the court must view
the evidence and “resolve all factual disputes and any competing, rational inferences in the
light most favorable” to the nonmoving party. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th
Cir. 2003) (quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)).
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There is also an outstanding application by Plaintiff to proceed in forma pauperis. (ECF No. 25.)
Pursuant to a Text Order entered by this Court on December 13, 2018, “[t]he Court will consider
Plaintiff’s request at the conclusion of this case.”
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In cases where the nonmovant will bear the burden of proof at trial, the party seeking
summary judgment bears the initial burden of “pointing out to the district court . . . that there
is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). If the moving party carries this burden, then the burden shifts to the
nonmoving party to point out “specific facts showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ.
P. 56(e) (emphasis omitted)). In so doing, “the nonmoving party must rely on more than
conclusory allegations, mere speculation, the building of one inference upon another, or the
mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir.
2013). The nonmoving party must support its assertions by “citing to particular parts of
materials in the record,” or by “showing that the materials cited do not establish the absence
. . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1); see Celotex, 477 U.S. at 324. The judicial
inquiry on summary judgment “thus scrutinizes the plaintiff’s case to determine whether the
plaintiff has proffered sufficient proof, in the form of admissible evidence, that could carry
the burden of proof of his claim at trial.” Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th
Cir. 1993). Where, as in this case, the Court has before it cross-motions for summary
judgment, the Court reviews each of them separately to determine if either party is entitled to
judgment as a matter of law. Rossignol, 316 F.3d at 523.
III.
DISCUSSION
“Disability discrimination may be proven through direct and indirect evidence or
through the McDonnell Douglas2 burden-shifting framework.” Jacobs, 780 F.3d at 572 (footnote
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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added). Plaintiff does not contend, nor does she appear to point to any direct or indirect
evidence of discrimination based on her chickenpox. (See ECF No. 28.) Therefore, the Court
will examine Plaintiff’s claim under the McDonnell Douglas framework. See Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996) (explaining that in the absence of
direct evidence of discrimination, for plaintiff “to prevail then it must be by using the proof
scheme established in McDonnell Douglas”.)
Under the McDonnell Douglas burden-shifting framework, the plaintiff has the initial
burden of proving, by a preponderance of the evidence, a prima facie case of discrimination.
Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995). If the plaintiff
succeeds, “the burden shifts to the defendant to articulate some legitimate, nondiscriminatory
explanation which, if believed by the trier of fact, would support a finding that unlawful
discrimination was not the cause of the employment action.” Id. Should the defendant satisfy
its burden of production, the plaintiff has the final burden to persuade the factfinder that “the
legitimate reasons offered by the defendant were not its true reasons but were a pretext for
discrimination.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
To establish a prima facie case for wrongful termination based on disability
discrimination, a plaintiff must show “(1) that she has a disability, (2) that she is a ‘qualified
individual’ for the employment in question, and (3) that [her employer] discharged her (or took
other adverse employment action) because of her disability.” Jacobs, 780 F.3d at 572 (alteration
in original) (quoting EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir. 2000)). The
burden of establishing a prima facie case of discrimination based on disability is “not onerous.”
Ennis, 53 F.3d at 59 (quoting Burdine, 450 U.S. at 253).
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Defendant argues in its motion that Plaintiff has failed to show that she was disabled
or that she remained “qualified” for her employment. (ECF No. 23 at 7–11.) Specifically,
Defendant argues that chickenpox is not considered a “disability” under the ADA, and that
Plaintiff’s indefinite absence made her unable to perform the essential functions of her job.
(Id.) Plaintiff did not file a response to Defendant’s motion; rather, she filed her own motion
for summary judgment. (ECF No. 27.) Plaintiff’s motion and accompanying brief do not cite
any law or make any legal arguments on her own behalf. (ECF Nos. 27, 28.) Nor does Plaintiff
respond to the legal arguments made in Defendant’s motion. (See ECF Nos. 23, 28.) The
Court will nevertheless review Defendant’s motion and supporting brief to determine whether
RHA is entitled to summary judgment as a matter of law. See Robinson v. Wix Filtration Corp.,
599 F.3d 403, 409 n.8 (4th Cir. 2010) (“[W]e have previously held that, in considering a motion
for summary judgment, the district court must review the motion, even if unopposed, and
determine from what it has before it whether the moving party is entitled to summary
judgment as a matter of law.” (internal quotation marks and emphasis omitted)).
The ADA defines “disability” as “a physical or mental impairment that substantially
limits one or more major life activities,” “a record of such an impairment,” or “being regarded
as having such an impairment.”3 42 U.S.C. § 12102(1). Here, to establish a prima facie case
of wrongful termination based on disability discrimination, Plaintiff must establish that her
illness was a physical or mental impairment that substantially limited a major life activity. See
id.; Jacobs, 780 F.3d at 572. To do so, Plaintiff must first identify one or more major life
3
The definition of “disability” was broadened in 2008 by the ADA Amendments Act (“ADAAA”).
Jacobs, 780 F.3d at 572.
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activities which her impairment substantially limits. See Jacobs, 780 F.3d at 572. Next, there is
the question of whether the plaintiff’s impairment “substantially limits” that major life activity.
See id. at 573–74. The “duration of an impairment is one factor that is relevant in determining
whether the impairment substantially limits a major life activity.” 29 C.F.R. § 1630.2(j)(1)(ix)
(app.). Courts also consider whether an impairment lasting less than six months is “sufficiently
severe” to qualify as a disability under the ADA. Summers v. Altarum Inst., Corp., 740 F.3d 325,
330 (4th Cir. 2014) (quoting 29 C.F.R. § 1630.2(j)(1)(ix) (app.)); see also Mancini v. City of
Providence ex rel. Lombardi, 909 F.3d 32, 43 (1st Cir. 2018) (considering “factors such as the
‘condition, manner, or duration’” of the impairment (quoting 29 C.F.R. § 1630.2(j)(4))); Willis
v. Noble Envtl. Power, LLC, 143 F. Supp. 3d 475, 481 (N.D. Tex. 2015) (considering three
factors, including “the nature and severity of the impairment; the duration or expected
duration of the impairment; and the permanent or long term impact, or the expected
permanent or long term impact of, or resulting from, the impairment”). “The determination
of whether an impairment substantially limits a major life activity requires an individualized
assessment.” 29 C.F.R. § 1630.2(j)(1)(iv).
Although Plaintiff does not explicitly identify any “major life activity” that her
chickenpox substantially limited, Plaintiff does state, “I was disabled during the documented
dates in March and April 2016 and was unable to work.” (ECF No. 27 at 1); see 42 U.S.C.
§ 12102(2) (defining and giving examples of “[m]ajor life activities” to include caring for
oneself, performing manual tasks, seeing, hearing, thinking, communicating, and working,
among others); 29 C.F.R. § 1630.2(i) (same). Because “work” is considered a “major life
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activity,” 42 U.S.C. § 12102(2)(a), the Court will address whether Plaintiff’s chickenpox
“substantially limited” her ability to work.
While the evidence may show that Plaintiff had what may be characterized as a severe
case of chickenpox, Plaintiff’s condition was neither sufficiently severe nor of a sufficient
duration to be considered “substantially limit[ing],” under the ADA. See 29 C.F.R. § 1630.2(j).
The evidence in the record shows that on March 1, 2016, Plaintiff left work because of a rash
and was seen by a doctor at Moses Cone Urgent Care Center (“Moses Cone”), where she was
diagnosed with scabies and given a note that said she could return to work on March 3, 2016.
(ECF No. 23-12 at 6, 7; ECF No. 23-2.) On March 3, 2016, she returned to Moses Cone
because she felt “really tired and sick and weak,” and she was given a note that said she could
return to work on March 7. (ECF No. 23-12 at 9, 12; ECF No. 23-3.) Plaintiff stated that she
was told by the doctor that she needed to see a dermatologist and was given instructions to
purchase what she believes were over the counter treatments like Aveeno or oatmeal bath.
(ECF No. 23-12 at 8–9.) Plaintiff never made an appointment with a dermatologist. (Id. at
10.) Because Plaintiff’s condition worsened the next day, on March 4, she sought treatment
at Wake Forest Baptist Medical Center (“Wake Forest”). (Id. at 12–13.) Plaintiff was
diagnosed with chickenpox and hospitalized at Wake Forest from March 4 to March 14. (Id.
at 13; ECF No. 23-5.) When Plaintiff was released from Wake Forest on March 14, she was
given a note that stated that she could return to work “after completion of her new medication
(scheduled to end on 3/19/2016) with no activity restrictions.” (ECF No. 23-5.) Plaintiff was
readmitted to Wake Forest three days later, on March 17, due to “vomiting [and] hot and cold
chills.” (ECF No. 23-12 at 14.) Plaintiff could not remember the medication that she was
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taking, and she states that she “didn’t really know a lot about [her] treatments, other than [for]
chickenpox.” (Id.) Plaintiff was also diagnosed with an “acute kidney injury” on March 17,
which Plaintiff’s daughter claims, in a declaration, was “due to the virus treatment.”4 (ECF
No. 28-5 at 8; ECF No. 28-1 at 3.) Plaintiff’s daughter also stated that “[Plaintiff] was
quarantined for days and it was noted that . . . she had shingles on her right side of her body
and in her eyes and her throat.” (ECF No. 28-1 at 3.) When Plaintiff was released from Wake
Forest on March 29, she was instructed to follow-up with her primary care physician “within
the next 7 business days.” (ECF No. 23-7.) On April 6, 2016, Plaintiff drove herself about
two and one-half hours to Bluefield, West Virginia to see her primary physician. (ECF No.
23-12 at 15–16.) Plaintiff stated she told her doctor “what was going on and that [she] needed
a doctor’s note to return to work.” (Id. at 17.) The doctor asked how she felt and if she
thought she could go back to work on April 18. (Id.) She told the doctor she felt “a little bit
weak,” but she could go back on the 18th. (Id.) Plaintiff further stated that none of the doctors
that she had seen during her illness had placed restrictions or limitations on her. (Id. at 11.)
Specifically, she stated, “I’ve never been on restriction as far as I can work.” (Id. at 14.)
It would appear that neither the duration nor the severity, as detailed by Plaintiff, of
her chickenpox rise to the level to qualify as a disability as contemplated by the ADA. See 29
C.F.R. § 1630.2(j)(1)(ix) (app.) (giving an example of “an individual [that] has a back
impairment that results in a 20–pound lifting restriction that lasts for several months” as
someone who has a disability pursuant to the ADA). Compare Summers, 740 F.3d at 330–31
4
The record does not contain any further information regarding the duration, severity, or symptoms
accompanying Plaintiff’s kidney injury.
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(“[A] person whose broken legs and injured tendons render him completely immobile for
more than seven months is . . . disabled.”), with Kieffer v. CPR Restoration & Cleaning Serv., LLC,
200 F. Supp. 3d 520, 537 (E.D. Penn. 2016) (“The common cold is precisely the kind of
‘transitory and minor’ impairment that is not considered a disability under the ADA.” (quoting
29 C.F.R. § 1630.2(g)(1)(3))), and Leone v. All. Foods, Inc., No. 8:14-cv-800-T-27TBM, 2015 WL
4879406, at *6–7 (M.D. Fla. Aug. 14, 2015) (concluding that a plaintiff’s eye injury that lasted
20 days did not “substantially limit” any major life activity). In this case, Plaintiff was in the
hospital for twenty-two days. (ECF Nos. 23-5, 23-7.) Further, the entirety of her illness, from
her first leaving work on March 1 to being cleared to return on April 18, lasted less than seven
weeks, with nearly three of the seven weeks following her last hospitalization. (ECF Nos. 237, 23-8, 23-1 ¶ 6.) Thus, taking Plaintiff’s evidence in the record as true and drawing all
reasonable inferences in her favor, while a reasonable juror could find based on the evidence
presented by Plaintiff that she may have had a severe case of chickenpox, neither the severity
nor duration of her illness would qualify it as “substantially limit[ing]” under the ADA.
Accordingly, Plaintiff has failed to establish the first element of her prima facie case—that she
had a “disability” under the ADA. See Summers, 740 F.3d at 331.
Defendant next argues that Plaintiff was not an otherwise “qualified individual” for her
position due to her indefinite, unprotected leave. (ECF No. 23 at 9–10.) “To determine
whether a disabled individual is ‘qualified,’ courts consider: (1) whether the individual can
perform the essential functions of the job at issue; and (2) if not, whether any reasonable
accommodation by the employer would enable the individual to perform these functions.”
Andrews v. Virginia, 232 F.3d 886, 2000 WL 1532333 (4th Cir. 2000) (unpublished table
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opinion) (citing Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994)).
Attendance is considered an “essential function” of most jobs, unless the employee can
“effectively perform all work-related duties at home.” Tyndall, 31 F.3d at 213; see also Works v.
Berryhill, 686 F. App’x 192, 196 (4th Cir. 2017); Lamb v. Qualex, Inc., 33 F. App’x 49, 56–57 (4th
Cir. 2002). Further, an employer’s duty to provide a reasonable accommodation does not start
until the “employee communicates . . . [her] disability and [her] desire for an accommodation.”
Wilson v. Dollar Gen. Corp., 717 F.3d 337, 346–47 (4th Cir. 2013) (citing EEOC v. C.R. England,
Inc., 644 F.3d 1028, 1049 (10th Cir. 2011)). Indefinite leave is not considered a “reasonable
accommodation” under the ADA. See id. at 346 n.8 (“In leave cases, the accommodation must
be for a finite period of leave.” (emphasis omitted)); Bell v. Shinseki, No. 1:12CV57, 2013 WL
3157569, at *6 (M.D.N.C. June 20, 2013) (“[A]n employer is not required to ‘wait indefinitely’
for an employee’s medical condition to improve.” (quoting Myers v. Hose, 50 F.3d 278, 283 (4th
Cir. 1995)), aff’d, 584 F. App’x 42 (4th Cir. 2014).
Plaintiff has failed to show that she could perform the essential functions of her job,
with or without a reasonable accommodation. At the time Plaintiff became ill she was still in
training for the position of QP, less than two months after beginning to work at RHA. (ECF
No. 23-1 ¶¶ 4, 6.) When asked about her duties as a QP, Plaintiff stated that her responsibilities
were “to go into the group homes, . . . keeping [them] ready for inspections, making sure the
meals were prepared right, . . . making sure the consumers had adequate clothing, were being
fed right, transportation.” (ECF No. 23-12 at 3) Plaintiff then stated, “[u]nfortunately, I was
not there long enough to learn everything about [the position].” (Id.) There is little question
based on the duties, as described by Plaintiff and her supervisor, Deborah Foster, that
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Plaintiff’s attendance was necessary to both complete her training as well as to perform the
essential functions of her employment. (See id.; ECF No. 23-1 ¶ 5 (“[A]ttendance is an essential
requirement of this position.”).) At the time of Plaintiff’s termination on April 6, 2016, she
had been absent from work for approximately five weeks on unprotected leave. (See ECF No.
23-1 ¶ 6; ECF No. 28-7.) This was nearly as long as she had been employed by RHA, as she
worked for just seven weeks before needing to take leave. (See ECF No. 23-1 ¶¶ 4, 6.)
Moreover, during her absence, Plaintiff changed her date of return no less than three times
with the final date being approximately three weeks following her last period of hospitalization.
(See ECF Nos. 23-2, 23-3, 23-5, 23-8.) While there is no evidence that Plaintiff requested or
notified Defendant that a reasonable accommodation would allow her to perform the essential
functions of her job, the evidence in the record shows that RHA did attempt to accommodate
Plaintiff by providing five weeks of unprotected leave prior to terminating her. As stated
above, indefinite leave is not a “reasonable accommodation” under the ADA. Bell, 2013 WL
3157569, at *6.
Plaintiff has thus failed to show that she had a disability as defined under the ADA or
that she was a “qualified individual” under the ADA, with or without a reasonable
accommodation. Accordingly, Plaintiff has failed to establish a prima facie case of disability
discrimination under the ADA. See Jacobs, 780 F.3d at 572.
Even assuming that Plaintiff could establish a prima facie case, this Court concludes
that Defendant has articulated a legitimate, nondiscriminatory reason for terminating Plaintiff.
Defendant states that it had to terminate Plaintiff because another QP, who was helping to fill
in for Plaintiff while she was on indefinite, unprotected leave, also had to go on intermittent
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FMLA leave for chemotherapy treatments. (ECF No. 23-1 ¶ 8.) This situation left Defendant
with only one QP trying to cover the responsibilities of three employees. (Id.) Further,
because Plaintiff had not yet completed her job training, she would have still required
additional training upon her return from leave. (See id. ¶ 6.) Nor has Plaintiff provided any
evidence to show that Defendant’s reasons for her termination “were not its true reasons but
were a mere pretext for discrimination.” Burdine, 450 U.S. at 253.
Because Plaintiff has failed to establish at least two of the essential elements of her
prima facie case and has also failed to point to evidence in the record showing that Defendant’s
reasons for terminating her were a pretext for discrimination, Defendant is entitled to
summary judgment as a matter of law on Plaintiff’s claim of wrongful termination based on
disability discrimination. Id. In addition, since Plaintiff has no remaining outstanding claims
against Defendant, Plaintiff’s motion for summary judgment, (ECF No. 27), must be
dismissed.
For the reasons outlined herein, the Court enters the following:
[ORDER TO FOLLOW ON NEXT PAGE]
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ORDER
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment,
(ECF No. 22), is GRANTED, and Plaintiff’s Complaint, (ECF No. 1-2), is DISMISSED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment, (ECF
No. 27), is DENIED.
A Judgment dismissing this action will be entered after the Court rules on Plaintiff’s
Application to Proceed in District Court Without Prepaying Fees or Costs, (ECF No. 25).
This, the 14th day of May 2019.
/s/ Loretta C. Biggs
United States District Judge
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