Nelsen v. Geren

Filing 111

ORDER: The Court ADOPTS Magistrate Judge Stewart's Findings and Recommendation 35 . The Court Grants in Part Denies in Part Defendant's Motion Motion for Summary Judgment 61 . Signed on 08/04/2011 by Judge Anna J. Brown. See 20 page Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

FRANCIS M. NELSEN,

3:08-CV-1424-ST

Plaintiff,

ORDER

v.

JOHN McHUGH, Secretary of the
Army,
Defendant.

BROWN, Judge.
Magistrate Judge Janice M. Stewart issued Findings and
Recommendation (#97) on April 5, 2011, in which she recommended
the Court grant in part and deny in part Defendant John McHugh's
Motion (#61) for Summary Judgment.

Defendant filed timely

Objections (#105) to the Findings and Recommendation.
is now before this Court pursuant to 28 U.S.C.

§

The matter

636(b) (1) and

Federal Rule of Civil Procedure 72(b).
For the reasons that follow, the Court ADOPTS Magistrate

1 - ORDER

Judge Stewart's Findings and Recommendation.
When any party objects to any portion of the Magistrate
Judge's Findings and Recommendation, the district court must make
a de novo determination of that portion of the Magistrate Judge's
report.

28 U.S.C.

§

636(b) (1).

See also United States v. Reyna-

Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); United
States v. Bernhardt, 840 F.2d 1441, 1444 (9th Cir. 1988).

For

those portions of the Findings and Recommendation to which the
parties do not object, the Court is relieved of its obligation to
review the record de novo as to this portion of the Findings and
Recommendation.

Reyna-Tapia, 328 F.3d at 1121.

BACKGROUND
On December 5, 2008, Plaintiff filed her Complaint seeking
redress for alleged discrimination and retaliation by her
employer, the U.S. Army Corps of Engineers, while she worked at
the Dalles Dam.

In her Complaint Plaintiff asserts the following

two claims against Defendant under Title VII to the Civil Rights
Act of 1964, 42 U.S.C.

§

2000e:

(1) two counts of unlawful sex

discrimination for hostile work environment (Count 1) and
disparate treatment (Count 2); and (2) unlawful retaliation
against Plaintiff for opposing Defendant's unlawful employment
practices.
On November 1, 2010, Defendant filed his Motion for Summary
2 - ORDER

Judgment as to each of Plaintiff's claims.
On April 5, 2011, the Magistrate Judge issued Findings and
Recommendation in which she recommends the Court grant in part
and deny in part Defendant's Motion for Summary Judgment as
follows:

(1) grant Defendant's Motion as to Count One of

Plaintiff's First Claim for hostile work environment claim in its
entirety;

(2) grant in part Defendant's Motion as to Count Two of

Plaintiff's First Claim for disparate treatment as to Plaintiff's
allegations of a lack of job recognition, unwarranted discipline,
non-selection for the position of rigger at the John Day dam, a
lack of informal training, and denial of deployment
opportunities, but to deny the remainder of Defendant's Motion as
to Plaintiff's other allegations of disparate treatment under
Count Two; and (3) to grant in part Defendant's Motion as to
Plaintiff's Second Claim for retaliation as to Plaintiff's
allegations of unwarranted performance evaluations in 2008 and
2009, improper documentation of her medical leave status, an
incident of misdirected pay in May 2007, denial of promotion to
the position of rigger at the John Day dam, reassignment to
menial tasks, and denial of informal training,

but to deny the

remainder of Defendant's Motion as to Plaintiff's other
allegations of retaliation after her March 2007 discrimination
complaint.
On May 11, 2011, Defendant filed timely Objections to the

3 - ORDER

Findings and Recommendation.

STANDARDS

Summary judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law."
States,

Washington Mut.

636 F.3d 1207, 1216 (9th Cir. 2011).

Civ. P. 56(a).

Ins. v. Uni ted
See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005).

In response to a properly

supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.

Id.

A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

281 F.3d

Villiarimo v. Aloha Island Air, Inc.,

1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby,
Inc.,

477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc.,

606 F.3d 584, 587 (9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
381 F.3d 948, 957

Easter V. Am. W. Fin.,

(9th Cir. 2004) (citing Sherman Oaks Med. Arts

Ctr., Ltd. V. Carpenters Local Union No. 1936, 680 F.2d 594, 598

4 - ORDER

(9th Cir. 1982)).
A "mere disagreement or bald assertion" that a genuine
dispute as to a material fact exists "will not preclude the grant
of summary judgment."

Deering v. Lassen Cmty. Coll. Dist., No.

2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20,
2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.

1987)).

See also Jackson v. Bank of Haw., 902 F.2d 1385, 1389

(9th Cir. 1990).

When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citing Blue Ridge

Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998)).
The substantive law governing a claim or a defense
determines whether a fact is material.

Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.

Id.

The Ninth Circuit "require[s] very little evidence to
survive summary judgment in a discrimination case, because the
ultimate question is one that can be resolved through a searching
inquiry-one that is most appropriately conducted by the factfinder, upon a full record."

Schnidrig v. Columbia machine,

Inc., 80 F.3d 1406, 1410 (9th Cir.) (citations omitted), cert.
denied, 519 U.S. 927 (1996).
5 - ORDER

DISCUSSION

Neither party raises any objection to that portion of the
Findings and Recommendation in which the Magistrate Judge
recommends the Court grant Defendant's Motion as to Count One of
Plaintiff's First Claim sex discrimination based on hostile work
environment.

Defendant, however, objects to the Magistrate

Judge's recommendation to deny in part Defendant's Motion as to
Count Two of Plaintiff's First Claim for disparate treatment and
as to Plaintiff's Second Claim for retaliation.

Specifically, as

to Plaintiff's First Claim for disparate treatment, Defendant
objects to the Magistrate Judge's recommendation to deny
Defendant's Motion as to:

(1) Plaintiff's claim of denial of

formal training opportunities,
overtime, and (3)

(2)

Plaintiff's claim of denial of

Plaintiff's claim of non-selection for the

position of rigger at the Dalles Dam.

As to Plaintiff's Second

Claim for retaliation, Defendant objects to the Magistrate
Judge's recommendation to deny Defendant's Motion as to:
(1) Plaintiff's claim of denial of formal training opportunities,
(2) Plaintiff's claim of informal counseling,

(3) Plaintiff's

claim of non-selection for the Dalles Dam rigger position, and
(4) Plaintiff's claim that her supervisor intentionally injured
her by improperly running over a fire hose she was operating with
his vehicle.

6 - ORDER

I.

Plaintiff's First Claim of Disparate Treatment.
As noted, Defendant objects to the Magistrate Judge's

recommendation to deny Defendant's Motion as to Count Two of
Plaintiff's First Claim for disparate treatment arising from
Plaintiff's allegations of denial of formal training
opportunities, denial of overtime opportunities, and nonselection to the rigger position at the Dalles Dam.

A.

Denial of Formal Training.

As noted, the Magistrate Judge recommends the Court grant
Defendant's Motion as to Plaintiff's allegation that she was
denied informal training opportunities but recommends the Court
deny the Motion with respect to Plaintiff's allegation that she
was denied all but one of her requests for formal training in
such skills as rigging and welding.
In order to make a prima facie case of disparate treatment
under Title VII, a Plaintiff must offer proof:
(1) that the plaintiff belongs to a class of
persons protected by Title VII; (2) that the
plaintiff performed his or her job
satisfactorily; (3) that the plaintiff
suffered an adverse employment action; and
(4) that the plaintiff's employer treated the
plaintiff differently than a similarly
situated employee who does not belong to the
same protected class as the plaintiff.

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028.

An

adverse employment action is one that " "constitutes a
significant change in employment status, such as hiring, firing,

7 - ORDER

failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits."
761,

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,

(1998).
Defendant contends Plaintiff has failed to make a prima

facie claim of disparate treatment on the basis of her allegation
of denial of formal training because she has not shown such a
denial is an adverse employment action nor that Defendant treated
other employees differently from Plaintiff.
As the Magistrate Judge noted, denial of training may be an
adverse employment action.

See Freedman v. MCI Telecomm. Corp.,

255 F.3d 840, 845 (D.C. Cir. 2001).

In general, the denial of

training must result in some tangible harm to the plaintiff.

See

Hess v. Multnomah County, 216 F.Supp 2d 1140, 1154 (D. Or.
2001) (Plaintiff "offered no evidence that any of the training she
was denied would have resulted in a promotion or led to a salary
increase.").

See also Everson v. Medlantic Healthcare Group, 414

F.Supp. 2d 77, 84

(D. D.C. 2006).

Here, for example, Defendant

has asserted that the reason Plaintiff was not selected for the
promotion to the position of rigger at the Dalles Dam was because
she did not have formal welding training and the male candidate
whom Defendant selected had a welding certification.

Thus,

Plaintiff has provided sufficient evidence on this record to show
that the denial of formal training by Defendant was an impediment

8 - ORDER

to a promotion and is, thus, sufficient on this record to
constitute an adverse employment action.
As to Defendant's contention that Plaintiff did not show
that men were treated differently with respect to formal training
opportunities, the Court disagrees.

One of Plaintiff's

supervisors, Art Kunigel, admitted he told Plaintiff that he had
to treat her differently to avoid the perception by the other
members of his crew (who were all male) that he treated Plaintiff
favorably because he was in a sexual relationship with Plaintiff.
This evidence is sufficient to state a prima facie case of
disparate treatment.
Defendant also argues that Plaintiff has not provided
sufficient evidence to show that Defendant's asserted nondiscriminatory reason for not providing Plaintiff formal training
is mere pretext.

Under the Title VII McDonnell-Douglas burden-

shifting framework, after a plaintiff has made a prima facie
showing of retaliation and a defendant has proffered a
legitimate, nondiscriminatory basis for its actions, the
plaintiff must show discrimination was more than likely the
defendant's motivation or that the defendant's proffered
explanation is not entitled to credence.

See Cornwell,

439 F.3d

at 1028.
Defendant asserts it did not provide Plaintiff formal
training because new safety regulations enacted in 2008 limited

9 - ORDER

the amount of rigging that non-rigging employees could perform.
Plaintiff counters that the Magistrate Judge correctly concluded
that such safety regulations might limit the on-the-job, informal
training Defendant could provide to Plaintiff, a non-rigger, but
it does not explain Defendant's decision not to provide Plaintiff
with formal rigging training.

In addition, Plaintiff attested

that Defendant did not enforce such safety regulations and that
she continued to perform some rigging duties after 2008.

In

addition, the Court notes such safety regulations could, in fact,
be an incentive for Defendant to train Plaintiff formally to be a
rigger or a welder because Defendant often relied on her to
assist with rigging and welding duties.

In any event, when

considered in light of Kunigel's statement that he treated
Plaintiff differently to avoid the perception that he favored
Plaintiff, Plaintiff has presented sufficient evidence on this
record to undermine Defendant's asserted non-discriminatory basis
for denying Plaintiff formal training opportunities.

B.

Denial of Overtime.

Defendant also objects to the Magistrate Judge's
recommendation that the Court deny Defendant's Motion as to
Plaintiff's claim of disparate treatment based on Defendant's
denial of overtime to Plaintiff in March 2009.
At summary judgment, Defendant stated it did not use
Plaintiff for overtime on certain occasions because Plaintiff's

10 - ORDER

skills, which were as a non-craft position of utility worker,
were not always required.

Defendant points to the testimony of

Kunigel that he often did not need Plaintiff's skills and could
not justify paying her overtime wages in such situations.
Defendant contends Plaintiff has not shown that this
nondiscriminatory basis for not utilizing Plaintiff for certain
overtime shifts is a pretext for discrimination.
Plaintiff attested Kunigel would not permit her to work
overtime and sent her home early form a "mandatory" overtime
period in March 2009.

Plaintiff points to testimony by Stephen

Rich, the rigger and "working foreman" on the same "structural"
crew as Plaintiff.

Rich attested Kunigel struck Plaintiff's name

on multiple occasions from the list of volunteers for overtime
work.

In particular, Rich recalled a weekend in March 2009

during what Defendant terms a "Navlock," a time when it was
customary for all members of the crew to work overtime through
the Navlock period.

Rich attested Kunigel directed Rich to send

Plaintiff home after less than half of the scheduled overtime had
elapsed while the rest of the crew remained working the full
schedule.

When considered in light of Kunigel's statement that

he treated Plaintiff different than others to avoid any
appearance of impropriety, Plaintiff has provided sufficient
evidence to show Defendant's nondiscriminatory reason for cutting
her overtime was pretextual.

11 - ORDER

C.

Non-Selection to the Rigger Position.

Defendant also objects to the Magistrate Judge's
recommendation to deny Defendant's Motion as to Plaintiff's
allegation of disparate treatment on the basis of her nonselection for the temporary rigger position at the Dalles Dam.
Specifically, Defendant contends Plaintiff did not provide
sufficient evidence to show Defendant's asserted
nondiscriminatory basis for selecting another candidate was
pretextual.

Defendant maintains it lawfully chose a better

qualified male candidate for the rigger position, "particularly"
as Rich attested, based on the fact that the male candidate had a
"prior welding certificate."
In support of her recommendation, the Magistrate Judge
noted:
Nelsen's "subjective personal judgments of
her competence alone do not raise a genuine
issue of material fact." Bradley v.
Harcourt, Brace and Co., 104 F3d 267, 270
(9th Cir 1996), citing Schuler v. Chronicle
Broadcasting Co., Inc. 793 F2d 1010, 1011
(9th Cir 1986). However, Nelsen provides
some objective evidence of her competence
compared to Harris, including her undisputed
on-the-job welding and rigging experience.
In addition, Rich confirms that Nelsen knew
how to signal crane operators, which is a
"necessary function of a rigger." Rich Depo.,
p. 75. Moreover, Rich acknowledged that
Harris had a record of personality issues
that at one point was a concern, though he
had improved. Id, p. 76.
F&R at 41.

12 - ORDER

Plaintiff points out the Magistrate Judge found several
bases in the record to undermine Defendant's explanation for not
selecting Plaintiff for the position:

(1) Plaintiff had more

relevant welding experience with the "cavitation U welding
required at the Dalles Dam,
the-job rigging training,

(2) Plaintiff had more relevant on-

(3) Plaintiff knew how to signal crane

operators and, in fact, had to train the man Defendant selected
to perform proper crane signals,

(4) although Rich said the male

candidate's welding certificate was a "particular u basis for not
selecting Plaintiff, the record contains conflicting statements
about whether the male candidate actually had a welding
certificate when Defendant hired him, and (5) the structural crew
already had a dedicated welder.

The Court concludes this

evidence is sufficient to show Defendant's reasons for not
selecting Plaintiff for the temporary rigging position at the
Dalles Dam are not entitled to credence.
Accordingly, on this record the Court finds Defendant's
Objections are not sufficient bases to modify the Findings and
Recommendation as to Plaintiff's Claim for disparate treatment.

II.

Plaintiff's Second Claim for Retaliation.
As noted, Defendant objects to the Magistrate Judge's

recommendation to deny Defendant's Motion as to Plaintiff's
Second Claim·for retaliation against Plaintiff in the form of
denial of formal training opportunities, improper informal

13 - ORDER

counseling, non-selection to the rigger position at the Dalles
Dam, and intentionally endangering Plaintiff by running over a
fire hose she was operating.

A.

Denial of Formal Training.

Defendant repeats the same argument as with Plaintiff's
disparate treatment claim that the denial of formal training
opportunities is not an adverse employment action.

Plaintiff

points out the standard for proof of an adverse employment action
is less exacting for a retaliation claim, requiring only that the
action be "reasonably likely to deter employees from engaging in
protected activity."
(9th Cir. 2000).

Ray v. Henderson,

217 F.3d 1234, 1242-43

See also Burlington Northern and Santa Fe Ry.

Co. v. White, 548 U.S. 53, 57 (2006).

Accordingly, the Court

finds Plaintiff satisfied this prima facie element of her
retaliation based on the Court's analysis set out above.
Defendant also contends Plaintiff failed to meet her burden
to show a causal connection between her reports. of discrimination
and sexual harassment and Defendant's denial of Plaintiff's
requests for formal training.

As the Magistrate Judge noted, the

Ninth Circuit has held "when adverse employment decisions are
taken within a reasonable period of time after the complaints of
discrimination have been made, retaliatory intent may be
inferred."

Passantino v. Johnson & Johnson Consumer Prods. Inc.,

212 F.3d 493, 507 (9th Cir. 2000) ("[W]e have held that evidence
14 - ORDER

based on timing can be sufficient to let the issue go to the
jury, even in the face of alternative reasons proffered by the
defendant.H).

The Ninth Circuit has found proximity of a few

months to be sufficient to establish an inference of causation,
but has declined to find causation when as much as a year and a
half elapsed between the protected activity and the adverse
employment action.

See Villiarimo v. Aloha Island Air, Inc.,

F.3d 1054, 1065 (9th Cir. 2002)

281

("causation can be inferred from

timing alone where an adverse employment action follows on the
heels of protected activity,H but 18 months was too long to infer
causation).

See also Yartzoff v. Thomas, 809 F.2d 1371, 1376

(9th Cir. 1987) (causation could be inferred when an adverse
employment action took place less than three months after
protected activity); Clark County Sch. Dist. v. Breeden, 532
268, 273-74

u.s.

(2001) (timing alone is insufficient to support a

claim of retaliation when almost two years had passed between the
protected activity and the adverse employment action).
The record reflects Plaintiff made complaints to her
supervisors in September 2007 and filed an EEO complaint in
November 2007.

Plaintiff testified she made numerous requests to

her supervisors for formal training, and both Rich and Kunigel
attested Plaintiff sought additional training opportunities.
Defendant argues Plaintiff did not provide any evidence of the
timing of her alleged multiple requests for formal training.

15 - ORDER

Plaintiff, however, filed with her Response to Defendant's
Objections the Declaration of Jeffrey M. Edelson, which
supplements the record with Plaintiff's performance reviews from
March 2008 and 2009 in which she requested training.

In

addition, it is undisputed that Plaintiff received significant
on-the-job training before March 2008.

In the light most

favorable to the Plaintiff, there is sufficient evidence that
Defendant denied Plaintiff's requests for formal training within
several months of Plaintiff's complaints to her supervisors of
unlawful discrimination and harassment.
Finally, although the Magistrate Judge concluded Defendant
did not articulate a nonretaliatory basis for not providing
Plaintiff with the requested training, Defendant now asserts its
reason for not providing Plaintiff with formal rigger or welding
training is that Plaintiff is a utility worker, not a rigger or a
welder.

In any event, that reason is inconsistent with the

record, which reflects Defendant, in fact, gave Plaintiff rigging
and welding training (on-the-job and one instance of formal
training) to improve her skills before 2008 while she was a
utility worker.
B.

Informal Counseling.

Defendant does not offer any specific objection to the
Magistrate Judge's recommendation that the Court deny Defendant's
Motion as to Plaintiff's complaints of retaliation related to

16 - ORDER

several incidents of "informal counseling."

Instead Defendant

briefly reiterates arguments it made in its Motion for Summary
Judgment in objection to the Magistrate Judge's conclusion that
Plaintiff provided sufficient evidence of retaliation based on
Defendant's use of "informal counseling" or "unwarranted
discipline" against Plaintiff.

The Magistrate Judge noted

several incidents, supported by the record, that demonstrate
Plaintiff received informal discipline for actions that her male
counterparts were not disciplined for.

F&R at 46-47, 50.

The

Court does not find any basis in the record for modifying the
Magistrate Judge's recommendation.

C.

Non-Selection to the Rigger Position.

Defendant merely repeats the objections it made to the
Magistrate Judge's recommendation as to Plaintiff's disparate
treatment claim based on non-selection to the rigger position.
The Court does not find any basis for distinguishing the
analysis, and, as it did with Plaintiff's disparate treatment
claim above, the Court concludes Defendant's objections are not a
basis for modifying the Findings and Recommendation.

D.

Fire Hose Incident.

In Paragraph 14 of her Declaration in Support of her
Response to Defendant's Motion for Summary Judgement, Plaintiff
included the following recent allegation of retaliation that was
not a part of her Complaint:

17 - ORDER

The week of September 27, 2010, Kunige1
assigned me to clean out drains on a spillway
deck. The job required three lengths of fire
hose to reach the water valve and to clean
the debris.
I am a volunteer firefighter for
the City of Dufur, Oregon, so I am familiar
with how to handle fire hoses.
The hose
could not be easily moved, and was in a
position so that vehicles might have to run
over it.
I know that, with Kunigel's
experience, he would know that driving over
the fire hose would cause a change in water
pressure in the hose and therefore a
potential handling problem for whoever was
using the hose. Moreover, it is established
policy on the Project to wait for
acknowledgement before driving past someone
who is working on the deck.
The job took
several days, and my co-workers at the
Project who saw me working with the fire hose
stopped and drove slowly over it after I had
signaled them or had at least gotten my
attention. Kunigel, however, made it a point
to drive rapidly over the hose, and
repeatedly.
This caused surging in the hose,
which made it difficult for me to maintain
control of it.
I saw Kunigel smiling, waving
at me, and enjoying himself as he watched
what happened, so I asked Rich, the crew
foreman, to talk to Kunigel about slowing
down when crossing the fire hose.
On the
afternoon of September 29, 2010, Kunigel
accelerated his Suburban over the first line
of fire hose, causing the hose to whip back
and forth.
He then sped over the second line
of hose, causing ano'ther sudden pressure
change in the hose.
The sudden jerking of
the hose forcefully pulled my right arm and
shoulder and caused a back injury.
Since
that time, I have been off work and in pain
because of the injury.
The fact that Kunigel
deliberately injured me makes me afraid to
return to the Project.
Although it does not appear that Defendant raised any
objection to these allegations on Summary Judgment, Defendant now

18 - ORDER

objects to these allegations on the basis that it was not on
notice of them during discovery.

Because the nature of these

allegations is of such a different character than the other
allegations in this case, Defendant contends it would prejudice
Defendant to have to take this matter to trial without further
discovery and an opportunity to file any necessary dispositive
motions.
Plaintiff counters that Defendant's request is not a proper
objection to the Findings and Recommendation but is instead a
request for additional discovery.

Plaintiff contends Defendant

should first confer with Plaintiff in accordance with Local Rule
7-1 and then, if the matter cannot be resolved, file the
appropriate motion with the Magistrate Judge.
The Court agrees with Plaintiff's position and declines to
construe Defendant's stated objection as a motion.

In any event,

the Court concludes Defendant's objection is not a basis to
modify the Findings and Recommendation.
In summary, the Court has performed a de novo review of the
record in relation to each of the Objections raised by Defendant
and concludes none of those Objections provide a basis to modify
the Findings and Recommendation.

The Court also has reviewed the

legal principles relating to those portions of the Findings and
Recommendation to which the parties did not object and does not
find any legal error.

19 - ORDER

CONCLUSION

Accordingly, the Court ADOPTS Magistrate Judge stewart's
Findings and Recommendation (#35).

Accordingly, the Court GRANTS

in part and DENIES in part Defendant's Motion (#61) for Summary

Judgment as set out herein.
IT IS SO ORDERED.
DATED this

~ day

of August, 2011.

ANN~&nJ

United States District Judge

20 - ORDER