Wrolstad, Gary v. CUNA Mutual Insurance Society
Filing
45
OPINION & ORDER granting 42 Motion to Amend Complaint; granting 10 Motion for Summary Judgment as to all claims preserved in the plaintiff's amended complaint. The clerk of court is directed to enter judgment in favor of defendant and close this case. Signed by District Judge James D. Peterson on 4/4/2017. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
GARY WROLSTAD,
Plaintiff,
v.
CUNA MUTUAL INSURANCE SOCIETY,
OPINION & ORDER
15-cv-798-jdp
Defendant.
Plaintiff Gary Wrolstad worked for defendant CUNA Mutual Insurance Society for
more than 25 years. Then, in 2009, his department’s priorities shifted, and senior
management began demanding more from Wrolstad. Whether these evolving standards were
adequately communicated to Wrolstad is an open question, but in fall 2009, the company
decided to eliminate Wrolstad’s position and assign his duties to a more senior employee.
Wrolstad applied for several other positions with the company around that time, but the
company refused to hire him in any of these capacities. Wrolstad signed a Waiver and
Release of All Claims in exchange for severance pay and other consideration, and he left the
company on December 30, 2009.
Several months later, Wrolstad filed an age discrimination complaint against CUNA
Mutual with the Madison Equal Opportunities Commission. As a result, CUNA Mutual
turned around and sued him in state court for violating the terms of the Waiver and Release
of All Claims. So Wrolstad filed this suit, bringing discrimination and retaliation claims
against CUNA Mutual under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et
seq.
Now CUNA Mutual has moved for summary judgment. Dkt. 10. In response,
Wrolstad has moved for leave to amend his complaint to drop a number of allegations and
claims. Dkt. 42. Wrolstad concedes that he cannot adduce sufficient evidence to sustain
discrimination claims as to four of the five positions he applied for and did not secure.1
CUNA Mutual agrees to the proposed amendments. The proposed amendments will
streamline summary judgment, so the court will grant Wrolstad’s motion. Wrolstad’s
proposed amended complaint, Dkt. 43, is the operative complaint, and the court will redirect
CUNA Mutual’s motion for summary judgment toward that pleading.
Because Wrolstad has not adduced evidence sufficient to sustain his remaining
discrimination claims, and because Wrolstad’s retaliation claim is time barred, the court will
grant CUNA Mutual’s motion for summary judgment and close this case.
UNDISPUTED FACTS
Except where noted, the following facts are undisputed.
A. Wrolstad’s employment and termination
CUNA Mutual provides insurance products and financial services to credit unions and
their members throughout the United States. Wrolstad began working for CUNA Mutual in
1984. Over the course of his employment there, Wrolstad held a variety of positions. Most
recently, beginning in August 2006, Wrolstad worked as a financial reporting manager.
Wrolstad worked as a financial reporting manager until December 30, 2009, when CUNA
Mutual eliminated that position and terminated Wrolstad.
1
Specifically, Wrolstad has withdrawn claims regarding the sales financial reporting manager
position, the senior operations analyst position (later repurposed into an operations analytics
manager position), and the senior manager corporate financial reporting position.
2
In July 2009, Michael Bress became CUNA Mutual’s Vice President, Corporate
Financial Planning & Analysis, and, in that capacity, oversaw Wrolstad (among others). Bress
reported to Jerry Pavelich, CUNA Mutual’s CFO at that time. In response to “a good deal of
dissatisfaction with [the Corporate Financial Planning & Analysis] area of CUNA Mutual,”
Bress began exploring how to better organize the department and improve its financial
reports. Dkt. 37, ¶ 18. In particular, CUNA Mutual’s senior leadership wanted more analysis
in the financial reports: they wanted the reports to explain the data and “tell a story.” Id. ¶ 26.
Wrolstad prepared those reports, and these new goals marked the beginning of the end for
Wrolstad.
Tim Nygard, Wrolstad’s direct supervisor at that time, addressed these new, increased
expectations during Wrolstad’s 2009 mid-year review. Wrolstad’s mid-year evaluation—
prepared in September 2009—provided:
Areas for development that have been observed in the short
managerial window needed for the evolving expectations of the
Corporate FP&A group:
Change agency: with the group change, the focus has been
on replication of the existing model. Success of the group
will require crafting a new vision for reporting.
Strategic view: reporting historically has been expected to be
a compliance exercise which has been very focused on
rudimentary variance analysis. Reporting commentary needs
to move focus to impact of results upon expected
performance (forecast) and alignment with strategic vision.
Root cause analysis: variance analysis needs to move to a
root cause from the strict plan vs. actual line item variance.
These will challenge [Wrolstad] as the Corporate FP&A group
evolves to this new set of expectations. He will need to leverage
his strong historical knowledge, network and work ethic to
continue to be successful this year.
3
In the short term, I look to [Wrolstad] to draft an individual
development plan (IDP) and establish goals for the rest of the
year that take the above into consideration.
Id. ¶ 30. For his part, Wrolstad commented, “I feel like my job is to prepare and review our
monthly financial results in formats that are understandable to most people in the company.
I interact with and work well with a diverse group of personalities.” Id. ¶ 31.
Around that time, Bress told Wrolstad, “Jerry doesn’t like the reports.” Dkt. 27, ¶ 18.
Wrolstad states that he did not understand what Bress and Pavelich expected, that Bress did
not explain the comment, and that the performance review did not provide any concrete
guidance for him. Wrolstad believes that the mid-year evaluation was not fair to him: he “was
criticized for needing more strategic analysis in [his] reports when [he] was never told that by
Nygard, Bress or Pavelich.” Id. ¶ 14. Bress—apparently rightly so—did not believe that
Wrolstad understood what needed to be done, and he did not see any improvement in
Wrolstad’s work over the next several months, in terms of incorporating more “analysis” into
his reports.
In October 2009, Nygard left and Bress began directly supervising Wrolstad. Around
that time, Bress prepared a proposed reorganization plan for the Corporate Financial
Planning & Analysis department, per Pavelich’s request. Bress proposed that the director of
financial reporting or a new, more senior financial reporting position take over financial
reporting—i.e., Wrolstad’s work. Bress developed a position description for a “senior
manager, corporate financial reporting position.” Dkt. 37, ¶ 49. The new position was
different than Wrolstad’s. Wrolstad’s position produced financial reports to present “business
execution results to senior leadership” and “measure the various activities in which the
business division is engaged.” Id. ¶ 52. The new position focused on “operational analysis,”
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identifying “root cause variance drivers,” and “interpret[ing] the impact on current and
expected performance of the organization.” Id. ¶ 53. The new position also required more
experience and a number of other more advanced qualifications.
On November 1, 2009, Bress informed human resources that he would be eliminating
Wrolstad’s position, but he hoped to place Wrolstad elsewhere in the company. Human
resources identified an opening for a position similar to Wrolstad’s, and Bress passed the
information along to Wrolstad. Bress and human resources met with Wrolstad on November
20, 2009, to inform him that the company would be eliminating his position, effective
January 1, 2010. At that meeting, Bress told Wrolstad that he had decided to eliminate the
position not because of Wrolstad’s performance but because of the company’s evolving
needs. Later, after the meeting, Bress, Wrolstad, and human resources agreed to move his last
day up to December 30, 2009, to better take advantage of retiree medical benefits.
On December 4, 2009, Wrolstad received a letter that outlined the nature of his
separation from the company, including his right to seek other employment within the
company, and a Waiver and Release of All Claims. By signing the Waiver, Wrolstad received
50 weeks of severance pay.
Wrolstad’s last day in the office was December 18. Between December 18 and 30,
Wrolstad had trouble accessing CUNA Mutual’s internal job board. Human resources
acknowledged the problem on December 23 and sent Wrolstad a list of job postings.
Wrolstad was 52 years old when CUNA Mutual eliminated his position.
B. Wrolstad’s application for a new position
Wrolstad applied for a job with CUNA Mutual as a pension participant support
specialist (PPSS). Put simply, it was a customer service job. The job required knowledge of
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401Ks and similar investment and retirement plans, the ability to identify sales opportunities
and obtain referrals, and strong customer communication skills. About 100 people applied for
the PPSS position, including Wrolstad and three other internal applicants. An outside
recruiter’s interview notes—CUNA Mutual was using the recruiter to screen applicants at
that time—indicate that Wrolstad was “very overqualified” for the position but that he did
not want to leave the company. Jeffrey Zimmer, the hiring manager at the time, felt that
although Wrolstad had a lot of experience, it was not particularly relevant to the PPSS
position. During the interview process, Wrolstad stated that he would be willing to work for
$55,000 (a pay cut compared to his recently eliminated job); Zimmer reports that he would
not have considered hiring someone for the PPSS position for that kind of money (the pay
range for a PPSS was $32,390 to $52,665, and no one in that position at that time was at or
close to the maximum end of the range). Wrolstad disputes this characterization of his
statement and claims that he would have accepted the position for $42,527 or less; no one
ever countered his initial $55,000.
On February 3, 2010, Zimmer offered the position to Josh Logemann, an external
applicant, at a starting salary of $35,000. Zimmer believed that Logemann was the most
qualified candidate, “because of his substantial experience with various financial institutions”
and because of his sales experience. Dkt. 19, ¶ 20. Logemann was 23 years old when Zimmer
hired him. Zimmer does not recall interviewing Wrolstad for the position, but having
considered his resume, he has stated that he would not have considered Wrolstad to be as
qualified for the position as Logemann: his resume does not indicate that he has any
experience with 401Ks or similar retirement accounts, customer service experience, or sales
experience.
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C. Wrolstad’s Waiver and Release of All Claims and the aftermath
As mentioned, CUNA Mutual offered Wrolstad a Waiver and Release of All Claims as
he prepared for termination. Wrolstad signed the Waiver on December 30, 2009. But for
signing the Waiver, Wrolstad would not have been entitled to any severance benefits.
Wrolstad received all compensation, benefits, and other consideration promised under the
Waiver. The Waiver provides, in relevant part, that Wrolstad has released CUNA Mutual
“from any and all claims or causes of action . . . that [he] may have against CUNA Mutual.”
Dkt. 37, ¶ 197. But the Waiver did not prohibit Wrolstad from filing a complaint with or
assisting the U.S. Equal Employment Opportunity Commission.2
On March 18, 2010, Wrolstad filed a complaint with the Madison Equal
Opportunities Commission, alleging that CUNA Mutual discriminated against him on
account of his age when they eliminated his position and did not hire him for any other
position. CUNA Mutual timely responded to the complaint and argued that the Waiver
barred the claims and that the claims were otherwise meritless. On December 2, 2010, an
MEOC investigator determined that probable cause did not exist to believe that Wrolstad
had been discriminated against on account of age and dismissed the complaint. This
determination did not address the Waiver. Wrolstad appealed, and on December 22, 2010,
CUNA Mutual warned Wrolstad in no uncertain terms that if he pursued the appeal, it
would file a breach of contract action against him for breaching the terms of the Waiver.
Wrolstad pursued the appeal, and CUNA Mutual filed suit on January 28, 2011.
2
The Waiver provides that it “shall not be interpreted to preclude [Wrolstad] from filing a
complaint, or charge with or assisting in any investigation by the EEOC, to the extent such
right is not subject to waiver.” Dkt. 13-1, at 3.
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But that did not deter Wrolstad. He filed a second complaint with the MEOC in
November 2011, complaining that CUNA Mutual retaliated against him when it filed the
breach of contract action.
On March 15, 2012, the Circuit Court for Dane County, Wisconsin, dismissed
CUNA Mutual’s complaint, finding that the MEOC should determine the enforceability of
the Waiver. On April 15, 2015, an MEOC hearing examiner determined that he could not
decide whether the Waiver was enforceable on the record before him. He allowed Wrolstad
15 days to decide whether to transfer his claims to the EEOC for further processing, and
Wrolstad took the MEOC up on its offer.
On September 17, 2015, the EEOC issued a Dismissal and Notice of Rights Letter,
finding that reasonable cause did not exist to believe that Wrolstad had been discriminated
against on account of age. And on February 29, 2016, the EEOC issued a Notice of Right to
Sue as to the retaliation claim.
The court has subject matter jurisdiction over Wrolstad’s claims pursuant to 28
U.S.C. § 1331, because they arise under federal law.
ANALYSIS
Wrolstad brings discrimination and retaliation claims under the ADEA: Wrolstad
claims that CUNA Mutual discriminated against him when it eliminated his position and
when it refused to hire him as a PPSS; and CUNA Mutual retaliated against Wrolstad when
they sued him for breach of contract. Summary judgment on those claims is appropriate if
the moving party “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). “Only disputes over
8
facts that might affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
reviewing CUNA Mutual’s motion for summary judgment, the court construes all facts and
draws all reasonable inferences in Wrolstad’s favor. Id. at 255. “To survive summary
judgment, the nonmovant must produce sufficient admissible evidence, taken in the light
most favorable to it, to return a jury verdict in its favor.” Fleishman v. Cont’l Cas. Co., 698
F.3d 598, 603 (7th Cir. 2012).
A. Discrimination
The ADEA provides that “[i]t shall be unlawful for an employer . . . to fail or refuse to
hire or to discharge any individual or otherwise discriminate against any individual . . .
because of such individual’s age.” 29 U.S.C. § 623(a)(1). “[T]he ordinary meaning of the
ADEA’s requirement that an employer took adverse action ‘because of’ age is that age was the
‘reason’ that the employer decided to act.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176
(2009). In other words, Wrolstad must prove that his age was the “but-for” cause of some
adverse employment action—i.e., the decision to eliminate his position and the decision to
refuse to hire him for the PPSS position. See id. at 177-78.
To defeat CUNA Mutual’s motion for summary judgment, Wrolstad may adduce
either direct or indirect evidence of age-based discrimination. Roberts v. Columbia Coll. Chi.,
821 F.3d 855, 865 (7th Cir. 2016). Wrolstad may show that an admission or other evidence
“points directly to a discriminatory reason for the employer’s action.” Fleishman, 698 F.3d at
603 (quoting Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 783 (7th Cir.
2004)). Or he may “show that (1) ‘he was meeting his employer’s legitimate expectations,’
(2) ‘he suffered an adverse employment action,’ and (3) ‘similarly situated, substantially
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younger employees were treated more favorably.’” Id. at 609 (quoting Franzoni v. Hartmarx
Corp., 300 F.3d 767, 771-72 (7th Cir. 2002)). Under Ortiz v. Werner Enterprises, Inc., 834
F.3d 760, 765 (7th Cir. 2016), the test “is simply whether the evidence would permit a
reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other
proscribed factor caused the discharge or other adverse employment action.” The court
considers the evidence “as a whole, rather than asking whether any particular piece of
evidence proves the case by itself—or whether just the ‘direct’ evidence does so, or the
‘indirect’ evidence.” Id. The critical question is whether Wrolstad has adduced evidence that
would allow a reasonable jury to find that Wrolstad’s age was the but-for cause of an adverse
employment action.
Wrolstad has not adduced any evidence that his age was a factor in either adverse
employment action, much less that it was the but-for cause of those actions.
We’ll start with the decision to eliminate his position. Bress made the decision;
Wrolstad has not adduced any evidence that Bress made the decision because of Wrolstad’s
age or that Bress harbored any age-based discriminatory animus. In fact, Bress looked for
another position for Wrolstad. In November 2009, Bress emailed a colleague about an open
position:
I have a person on my team (Gary Wrolstad, 508) who currently
does financial metrics reporting for me. With some changes we
are making to our broader Reporting functions in Finance, his
position is being eliminated (he does not know yet), but I still
think that he can add a lot of value. So I am looking around to
see if there are other positions he could look into.
Let me know. I am going to move forward with the position
elimination pretty quickly, but would appreciate having a place
to direct him if you have it open and might be interested.
10
Dkt. 37, ¶ 121. And Wrolstad has not adduced any indirect evidence of age-based
discrimination, either: even if he had been meeting CUNA Mutual’s expectations (the
evidence says otherwise), he has not shown that any similarly situated, substantially younger
employees were treated more favorably.
That leaves the decision to refuse to hire him for the open PPSS position. Zimmer
made that decision, and Wrolstad has not adduced any direct evidence that his age played a
role in the decision. The “evidence” Wrolstad has managed to adduce cannot carry the day
for him. Out of the gate, Wrolstad attempts to lead the court away from the relevant inquiry
by discussing CUNA Mutual’s internal hiring policies and potential violations thereof. But
Wrolstad has not adduced any evidence that CUNA Mutual violated its internal policies, and
even if he had, he does not explain how that evidence would be relevant to his discrimination
claim.3 Next, Wrolstad spends some time attempting to prove that he was qualified for the
position. There are two problems with his approach. First, Wrolstad’s evidence that he was
qualified for the position is the recruiter’s interview note that he “seem[ed] very
overqualified.” Dkt. 19-12, at 4. But “over-qualification constitutes a legitimate, nondiscriminatory reason for rejecting [an applicant] for [an] open position[].” Sembos v. Philips
Components, 376 F.3d 696, 701 n.4 (7th Cir. 2004). Second, being qualified for a position
and not securing it, alone, is insufficient to return a favorable jury verdict: Wrolstad must
also prove that similarly situated yet substantially younger individuals were treated more
favorably if he hopes to prove age discrimination. Logemann and Wrolstad were not similarly
situated, and Wrolstad offers no argument to the contrary: CUNA Mutual has adduced
3
He cannot prove that CUNA Mutual posted the opening internally and externally at the
same time, for example. And regardless, this potential policy violation does not suggest agebased discrimination.
11
evidence that Logemann had more on-point customer service experience, and, critically,
Logemann did not demand the salary that Wrolstad wanted.
Wrolstad does not offer evidence of age-based discrimination: he offers rhetorical
questions to suggest age-based discrimination: “was an objective hiring policy followed, was a
contracted posting policy followed, were appropriate applicants (internal) objectively
screened (or screened at all), and was Plaintiff by-passed for the position without an
interview due to an initial, but not final, salary request.” Dkt. 24, at 11. But he cannot prove
any of the foregoing. He points to Logemann and suggests that age “may be” the but-for
reason Wrolstad did not secure the position. But rhetorical questions and suggestions are not
enough to survive summary judgment. Wrolstad has not adduced evidence that would allow a
reasonable jury to find that his age was a but-for cause of CUNA Mutual’s decision to
eliminate his position or its decision to refuse to hire him for the PPSS position. The court
will grant summary judgment in favor of CUNA Mutual on Wrolstad’s discrimination claim.
B. Retaliation
The ADEA also provides that “[i]t shall be unlawful for an employer to discriminate
against any of his employees or applicants for employment . . . because such individual . . .
has opposed any practice made unlawful by this section, or because such individual . . . has
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or litigation under this chapter.” 29 U.S.C. § 623(d). This section “explicitly
prohibits discrimination against employees who engage in protected activity.” EEOC v. Bd. of
Governors of State Colls. & Univs., 957 F.2d 424, 427 (7th Cir. 1992). Even though Wrolstad’s
underlying discrimination claim has failed, he may still pursue a claim that CUNA Mutual
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retaliated against him for complaining about age discrimination. See Horwitz v. Bd. of Educ. of
Avoca Sch. Dist. No. 37, 260 F.3d 602, 612 (7th Cir. 2001).
But the court need not reach the merits of Wrolstad’s retaliation claim because it is
untimely. The parties agree that Wrolstad had 300 days to file a charge with the EEOC
following CUNA Mutual’s allegedly unlawful (i.e., retaliatory) act. See 29 U.S.C.
§ 626(d)(1)(B); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (“In a State
that has an entity with the authority to grant or seek relief with respect to the alleged
unlawful practice, an employee who initially files a grievance with that agency must file the
charge with the EEOC within 300 days of the employment practice; in all other States, the
charge must be filed within 180 days. A claim is time barred if it is not filed within these time
limits.”). The operative question here is when did the allegedly unlawful practice occur: when
CUNA Mutual warned Wrolstad that it would sue if he did not abandon his MEOC appeal
(more than 300 days before Wrolstad filed a charge with the EEOC), or when it actually sued
(less than 300 days before Wrolstad filed a charge with the EEOC)?
An unlawful—discriminatory or retaliatory—action occurs when the “decision [is]
made and communicated” to the employee, even if the consequences of that decision do not
occur until later. Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980). Here, an allegedly
retaliatory action occurred when CUNA Mutual decided that it would file a breach of
contract action against Wrolstad if he pursued his MEOC appeal and told him as much. See
Dkt. 13-6, at 1 (“If Mr. Wrolstad pursues this appeal, CUNA Mutual will file a breach of
contract action against him in state court.” (emphasis added)). But this decision is not
actionable: it is time barred. See Morgan, 536 U.S. at 113 (“[D]iscrete discriminatory acts are
13
not actionable if time barred, even when they are related to acts alleged in timely filed
charges.”).
The act of actually initiating the suit would be actionable only if it were a discrete,
independently discriminatory decision. See id. (examining identical statutory language from
Title VII and holding that “[t]he existence of past acts and the employee’s prior knowledge of
their occurrence . . . does not bar employees from filing charges about related discrete acts so
long as the acts are independently discriminatory and charges addressing those acts are themselves
timely filed.” (emphasis added)). So is the actual initiation of the breach of contract action a
discrete, independently discriminatory decision?
It is a stretch to say that CUNA Mutual committed two discrete, independently
retaliatory acts: one when it promised to bring a state court suit, and a second when it
actually made good on that promise. Indeed, “a plaintiff’s time begins to run ‘when the
employer communicates an adverse employment decision to the employee, not when the full
consequences of that action are felt.’” Young v. Easter Enters., Inc., 915 F. Supp. 58, 66 (S.D.
Ind. 1995) (quoting Gustovich v. AT & T Commc’ns, Inc., 972 F.2d 845, 847 (7th Cir. 1992)).
That is what happened here: CUNA Mutual communicated its adverse, purportedly
retaliatory decision to Wrolstad, and the full consequences of that decision hit when it
actually initiated the state court suit.4
In Ikossi-Anastasiou v. Board of Supervisors of Louisiana State University, 579 F.3d 546,
550 (5th Cir. 2009), a letter communicated the employer’s allegedly discriminatory decision
to the employee, and subsequent confirmation of that decision and the adverse consequences
4
Wrolstad contends that the letter communicating this decision is an offer of compromise
inadmissible under Federal Rule of Evidence 408. Even if it were an offer of compromise, it is
not inadmissible to show the beginning of the limitations period.
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of that decision did not constitute new discriminatory acts. The employee’s claim accrued
when she received the letter: she was on notice that an adverse, purportedly discriminatory
employment action (termination) would occur if she did not take certain steps (return to
work). The same may be said here: Wrolstad was on notice that a purportedly retaliatory
action would occur if he did not take certain steps (abandon his MEOC appeal). The
retaliation claim accrued more than 300 days before Wrolstad filed a claim with the EEOC.
As a result, the court will grant summary judgment in favor of CUNA Mutual on Wrolstad’s
retaliation claim.
ORDER
IT IS ORDERED that:
1. Plaintiff Gary Wrolstad’s motion to amend complaint, Dkt. 42, is GRANTED.
2. Defendant CUNA Mutual Insurance Society’s motion for summary judgment,
Dkt. 10, is GRANTED as to all claims preserved in plaintiff’s amended complaint.
3. The clerk of court is directed to enter judgment in favor of defendant and close
this case.
Entered April 4, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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