SHARON LOVELACE BLACKBURN, District Judge.
This case is presently pending before the court on defendant's Motion for Summary Judgment. (Doc. 58.)
Pursuant to Fed. R. Civ. P. 56(a), summary judgment is appropriate "if 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); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 ("it is never enough simply to state that the non-moving party cannot meet its burden at trial").
In deciding a motion for summary judgment, the court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. "[C]ourts are required to view the facts and draw reasonable inferences `in the light most favorable to the party opposing the [summary judgment] motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). Nevertheless, the non-moving party "need not be given the benefit of every inference but only of every reasonable inference." Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at 380 ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment."). And, "when conflicts arise between the facts evidenced by the parties, [the court] credit[s] the nonmoving party's version. [Its] duty to read the record in the nonmovant's favor stops short of not crediting the nonmovant's testimony in whole or part: the courts owe a nonmovant no duty to disbelieve his sworn testimony which he chooses to submit for use in the case to be decided." Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005)(emphasis in original); see also Jones v. UPS Ground Freight, 683 F.3d 1283, 1296 (11th Cir. 2012)(quoting Evans).
Curry began work at the VA hospital in Birmingham, Alabama, in 1985. (Doc. 1 ¶ 8; doc. 57-1 at 30 [Plaintiff's Depo. at 117].) She has never worked, applied for a job, or even considered working anywhere other than the VA. (Doc. 57-1 at 18, 30 [Plaintiff's Depo. at 69-70, 117].)
Until 1996, Curry worked as a program assistant in the VA's outpatient substance abuse clinic. (Id. at 11, 12 [Plaintiff's Depo. at 43, 45-46, 48].) There, she kept track of the administrative part of the clinic — admitting patients, assigning them a therapist, and maintaining data on patient numbers. (Id. at 12 [Plaintiff's Depo. at 46]; see generally doc. 57-12 at 2-4 ["major duties" of a program clerk/typist in Psychological Services].) The program assistant position was a GS-4. (Doc. 57-1 at 12 [Plaintiff's Depo. at 47-48].)
However, in 1996, Curry went on worker's compensation due to depression and anxiety. (Id. at 12, 14 [Plaintiff's Depo. at 48, 55].) In her worker's compensation claim, she alleged that the VA patients who came in for therapy "hit on [her] all the time," meaning they made "romantic overtures" or harassed her. (Id. at 11 [Plaintiff's Depo. at 43-44].) She also claimed, "Because [she] rejected his advances, [her supervisor] started making life difficult." (Id. [Plaintiff's Depo. at 44].) "In May 1997 the Federal Office of Worker's Compensation Program [OWCP] accepted [Curry's] claim for prolonged chronic depressive reaction (chronic depression)[,] placed her on total disability[,] and removed her from her employment with the [VA]." (Doc. 1 ¶ 9; see also doc. 57-1 at 17 [Plaintiff's Depo. at 67-68].) While Curry was receiving worker's compensation benefits, she received Social Security Disability benefits, which made up for the difference between worker's compensation and total disability. (Doc. 57-1 at 13 [Plaintiff's Depo. at 50].)
Curry testified that she has been on medications for depression, sleep, and anxiety since she went out on worker's compensation. (Id. at 3 [Plaintiff's Depo. at 9-10].) She believes the medications are effective and, when taking the medications, her "medical conditions" do not "make it impossible for her to work" or "affect [her] day-to-day functioning in any other way." (Doc. 57-1 at 3 [Plaintiff's Depo. at 11].) With regard to whether she is "disabled," Curry stated:
(Id. at 15 [Plaintiff's Depo. at 57-58].)
Prior to her on-the-job injury, Curry had taken some nursing classes at Lawson State Community College in the 1990's. (Id. at 6 [Plaintiff's Depo. at 22-23].) While receiving disability and worker's compensation benefits, she attended nursing school and graduate nursing school. (Doc. 57-10 at 8.) She received a Masters of Nursing Administration in 2008. (Doc. 57-1 at 5-6 [Plaintiff's Depo. at 20-21].)
On or about December 4, 2008, Plaintiff filed an EEO complaint regarding her unsuccessful attempts to return to work in October 2008. (Doc. 57-1 at 19-20 [Plaintiff's Depo. at 76-77]; doc. 57-9 [her EEO Complaint states, "I have attempted to return to work and have tried to seek assistance regarding the proper procedure in doing so. I have been ignored. I have been unable to get any assistance. I was once told `what make[s] you think they would want you back?'"].) She also alleged that the VA was harassing her "by having private investigators . . . follow[ ] [her] absolutely `everywhere'." (Doc. 57-9.) Thereafter, Curry filed a civil action, which was dismissed; the dismissal of her claims based on her 2008 EEO Complaint was affirmed by the Eleventh Circuit. Curry v. Shinseki, No. 2:09-CV-02441-AKK, 2011 WL 13129972 (N.D. Ala. Aug. 31, 2011), aff'd in part, vacated in part 518 Fed. Appx. 957 (11th Cir. 2013).
In early 2009, Tara Encalade, a VA Human Resources Specialist, sent a request to the OWCP for updated medical evidence for Curry's worker's compensation file. (Doc. 57-14 at 3 [Encalade Test. at 7-8].) The OWCP requires a federal agency to have updated medical evidence describing an employee's medical limitations before the agency may make a job offer after total disability has ended. (Doc. 57-3 at 5, § 8-4(A).)
On May 13, 2009, Lyle Shehi, M.D., examined Curry and prepared a Work Capacity Evaluation, Psychiatric/Psychological Condition, and an accompanying report. (See doc. 57-2; see also doc. 57-14 at 4 [Encalade Test. at 10].) Dr. Shehi stated, in part:
(Doc. 57-2 at 5-7.) Based on his evaluation, Dr. Shehi found that Curry could work "4 hour workdays with a gradual increase over time," that he did "not think she would work as a clerk,"
Under the OWCP Guidelines, "[t]he [reemployment] position should be compatible with the employee's medical condition." (Doc. 57-3 at 6, § 8.4(C).) "If the employee is expected to return eventually to the job held at the time of injury, the agency may offer light, limited or modified duty pending for recovery." (Id. § 8.4(B).) However,
(Id.) The policies of the OWCP and the VA are to get employees off of worker's compensation and back in a position close to the position they held when they went out on worker's compensation. (Doc. 57-7 at 4 [Ward's Test. at 11]; doc. 57-14 at 4 [Encalade Test. at 11-12]; see also doc. 57-3 at 6, §§ 8.4 (B)-(C).) Albert Ward, Supervisor of Labor Relations at the Birmingham VA, testified that he was primarily concerned about getting Curry back to work as close to her prior grade and level as possible. (Doc. 57-7 at 2, 4 [Ward's Test. at 4, 10-11].) However, he stated that Curry could apply for any position she wanted if she had the qualifications.
An entry-level nursing position, a "novice" nurse, does not require previous nursing experience. (Doc. 62-3 at 32 [McDuffie's Depo. at 31]; see doc. 57-1 at 10 [Plaintiff's Deposition at 39-40].) The VA recruits nurses on an ongoing basis. (Doc. 62-3 at 54 [McDuffie's Depo. at 53].)
Curry was referred to vocational rehabilitation counselor, Lori Hodge, on or about June 3, 2009. (Doc. 57-1 at 20-21 [Plaintiff's Depo. at 79, 81-82]; see doc. 57-13 at 1.) Hodge had a contract with OWCP to provide rehabilitation services to Curry. (See generally doc. 57-13.) Less than one month passed between Curry's work capacity evaluation and her referral to Hodge for vocational rehabilitation services. (Doc. 57-1 at 23-24 [Plaintiff's Depo. at 92-93].)
Curry understood, and expected, that the VA would try to find her a position with the limitations and recommendations of Dr. Shehi's work capacity evaluation. (Id. at 21-22 [Plaintiff's Depo. at 84-85].) Also she understood that her return-to-work may not be to the same position with the same pay scale and promotion prospects as her prior position because that position may not be available. (Id. at 22 [Plaintiff's Depo. at 85].) The only request for accommodation made on her behalf was the recommendation in Dr. Shehi's work capacity evaluation —
(Id. at 34 [Plaintiff's Depo. at 133].)
When Ward was notified sometime in 2009 that there had been a change in Curry's medical restrictions and that she may be capable of returning to work, he started looking at the possibility of getting her back to work. (Doc. 57-7 at 4 [Ward Test. at 9].) The work capacity evaluation recommended four-hour workdays with a gradual increase over time, but it did not expressly state when Curry would be able to work a full-time shift of eight to twelve hours. (See doc. 57-2 at 8.) Ward and Encalade searched for a position at the VA that Curry could perform based on her past employment and her limitations, which was standard procedure; Encalade testified:
(Doc. 57-14 at 5-6 [Encalade's Test. at 16-17].) As for Curry being offered a nursing position, Ward testified:
(Doc. 57-7 at 6 [Ward's Test. at 19-20].) As Encalade stated:
(Doc. 57-14 at 4 [Encalade Test. at 11-12].) The obligation to return Curry to a position similar to the one she had before her worker's compensation injury comes from the Department of Labor regulations regarding worker's compensation. (Id. [Encalade Test. at 12].) At the time of Dr. Shehi's evaluation, the VA did not have any part-time RN positions. (Id. at 6 [Encalade's Test. at 17].)
In her deposition, Curry testified, "[The VA has] hired nurses in part-time positions and flexi-pools and stuff, and I could have done that. Nurses come in and work four hours all the time. You pull somebody from the flexi-pool to come in and work four hours." (Doc. 57-1 at 36 [Plaintiff's Depo. at 141].) She also submitted an affidavit from Yvette Johnson, an RN employed at the VA from 1995-1997, who testified that she was "aware that VA maintains a flexi-pool of nurses who are made available to report to work to cover uncovered shifts and portions of shifts when an RN cannot be present to cover that particular position on a given shift," and that she was "also aware that during the period of time from 1995 through my departure in 1997, an RN was given accommodation for Irritable Bowel Syndrome [and] VA allowed her to work partial days when necessary." (Doc. 62-1 ¶¶ 7-8.) Doris Blue, a VA employee from 1972 until 2004, testified that, at the VA Hospital, "The Nurse Managers routinely got other nurses who worked on the floor to cover uncovered shifts or to cover partial shifts by coming in early or leaving later." (Doc. 62-1 ¶ 5.) Although Curry was in orientation with a nurse who told her she was hired to work "part time," Curry testified that nurses from the flexi-pool working a four-hour shift was not a regular occurrence and she had no personal knowledge of any nurse working a regular four-hour shift:
Q. So you don't know how she was actually employed; you just sat with her in orientation, right?
A. Yes. She said she was working part-time over here. Like, I'm working over here part-time.
A. No. What I said was that VA had people who would work weekend shift or evening shift or something like that.
They could be 8-hour shifts.
(Doc. 57-1 at 28-29 [Plaintiff's Depo. at 111-13].)
Following the work capacity evaluation, when Curry sought to return to work, she needed a part-time position and the VA did not have a part-time position available. (Doc. 57-14 at 5-6 [Encalade's Test. at 13-14, 17, 19].) Curry's evidence does not support a finding of fact that — between May 2009 (the date of Curry's work capacity evaluation) and June 2010 (the date of Encalade's testimony regarding Curry's claims) — the VA had an available position for a novice nurse working a regular four-hour shift.
On or about July 17, 2009, Ward sent a letter to Hodge, Curry's vocational rehabilitation counselor, stating:
(Doc. 57-5 at 1.)
In September 2009, Hodge told Curry that the VA did not have a position for her to return to work. Shortly thereafter, Curry made an informal EEO complaint; on or about January 6, 2010, she filed a formal EEO complaint. (See doc. 57-8 at 1.) Her EEO complaint described her alleged disability discrimination as occurring on September 22, 2009, and —
(Id.) As for her retaliation claim, also occurring on September 22, 2009, Curry stated:
(Id.)
In October 2010, the VA reemployed Curry as a patient escort/nursing assistant, a position equivalent to her former job as a program assistant. (Doc. 57-1 at 13, 30 [Plaintiff's Depo. at 49, 118].) Curry testified that she believes she was brought back to work
Curry worked four hours or less per day when she returned to work. (Id. at 30-31, 32 [Plaintiff's Depo. at 120-21, 128].) In April 2011, the VA increased Curry's hours per shift to six, with her physician's approval. (Id. at 32 [Plaintiff's Depo. at 126].) Almost a year later, the VA increased her work hours to an eight hour shift. (Id. at 32, 33 [Plaintiff's Depo. at 127, 129-30].) Shortly thereafter, in June 2012, the VA selected Curry for a nursing position. (Id. at 33 [Plaintiff's Depo. at 131].)
The VA paid Curry $48,000 a year as a Nurse I/Level 1. (Id. at 10 [Plaintiff's Depo. at 37].) Nurse I is a novice nurse, with no experience upon hiring. (Id. at 10 [Plaintiff's Depo. at 40].) As a nurse on the medical/surgical floor, Curry worked a 12-hour shift. (Id. at 8, 28 [Plaintiff's Depo. at 31, 112].) Most nurses work 12-hour shifts when they work on the floor. (Id. at 9 [Plaintiff's Depo. at 33].) After working about two years as a nurse on a medical/surgical floor, the VA promoted Curry; she currently works as a case manager. (Id. at 8, 9 [Plaintiff's Depo. at 29, 36].)
Curry's Complaint alleges four claims, each based on both the ADA and the Rehabilitation Act. (See doc. 1 at 8, 9, 11, 12.) Under the ADA, "[t]he term `employer' does not include — (i) the United States [or] a corporation wholly owned by the government of the United States. . . ." 42 U.S.C.A. § 12111(5)(B)(i). "The United States, therefore, is not a covered entity under the ADA. 42 U.S.C. § 12111(2). Accordingly, the Secretary of the VA may not be held liable for a violation of the ADA." Dockery v. Nicholson, 170 Fed. Appx. 63, 65 (11th Cir. 2006);
To the extent Curry claims the VA violated her rights under the ADA, those claims will be dismissed. Nevertheless, "[the Eleventh Circuit has] observed that the Rehabilitation Act expressly adopts the same liability standards as the ADA, and, therefore, whether the Secretary would be liable under the ADA is relevant to [Curry's] Rehabilitation Act claim[s]." Dockery, 170 Fed. Appx. at 65 (citing, inter alia, Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); internal citations omitted); see 29 U.S.C. § 794 ("The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 to 12204 and 12210), as such sections relate to employment.").
Curry's Complaint alleges four claims: (1) failure to reinstate her based on her disability, (2) failure to accommodate her based on her disability, (3) failure to reinstate her in retaliation for her protected activity, and (4) failure to accommodate her in retaliation for her protected activity. (Doc. 1.) For the reasons set forth herein, the court finds that the VA is entitled to judgment as a matter of law because Curry has failed to submit evidence that a position as a clerk or novice nurse working a shift of four hours or less was available during the relevant time period.
The Rehabilitation Act prohibits discrimination "under any program or activity conducted by any Executive agency," such as the VA, against any "otherwise qualified individual with a disability . . . solely by reason of her . . . disability." 29 U.S.C. § 794(a); see 38 C.F.R. § 15.140 ("No qualified individual with handicaps shall, on the basis of handicap, be subject to discrimination in employment under any program or activity conducted by [the Department of Veterans Affairs]."). Claims of employment discrimination based on a disability can be proven "through (1) direct evidence, (2) circumstantial evidence, or (3) statistical proof." Paye v. Sec'y of Def., 157 Fed. Appx. 234, 236 (11th Cir. 2005)(citing Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990)). In this case, Curry argues that she has direct evidence of discrimination, as well as circumstantial evidence.
"Direct evidence of discrimination is `evidence which reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee' and `that, if believed, proves the existence of a fact without inference or presumption.'" Hamilton v. Southland Christian School, Inc., 680 F.3d 1316, 1320 (11th Cir. 2012)(quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)); see also Damon v. Fleming Supermarkets, 196 F.3d 1354, 1358-59 (11th Cir. 1999)("We have defined direct evidence of discrimination as evidence which reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.)(internal quotations and citations omitted). "Only the most blatant remarks, whose intent could be nothing other than to discriminate . . . constitute direct evidence of discrimination." Carter v. Miami, 870 F.2d 578, 582 (11th Cir. 1989).
Curry contends:
(Doc. 57-5, Dx. 5) As the letter indicates, Ms. Curry was seeking re-employment. Ward used Ms. Curry[`]s medical conditional as a reason for denying her employment, even after her medical doctor had cleared her for re-employment.
(Doc. 62-4 at 10-11.)
In this case, the evidence is not disputed that Curry's Work Capacity Evaluation recommended that she return to work on a four-hour shift due to the fact that she had not worked in thirteen years and noted that she may benefit from a rehab assignment outside the agency because of her delusions regarding the VA. (Doc. 57-2 at 8.) Indeed, Dr. Shehi noted that working at the VA may not be in her best interest. (Id. at 7.) Given these limitations and/or qualifications on Curry's work capacity, Ward's statements — that work was not "available," followed by the separate statement that the VA did not want to create "undue stress" — are not so "blatant, unequivocal, and unconditional" that his "intent could be nothing other than to discriminate" against Curry on the basis of her disability. See Carter, 870 F.2d at 582. Indeed, Ward's statements are based on the language of Dr. Shehi's evaluation and do not indicate that he intended to deny Curry reinstatement to an available position because of her disability.
The court finds that Ward's letter is not direct evidence of disability discrimination by the VA.
"In the absence of direct evidence, a plaintiff may prove disparate treatment in disability cases through circumstantial evidence using the familiar burden-shifting analysis employed in Title VII employment discrimination cases." Monaco v. City of Jacksonville, 51 F.Supp.3d 1251, 1258 (M.D. Fla. 2014)(quoting Nadler v. Harvey, No. 06-12692, 2007 WL 2404705, at *4 (11th Cir. Aug. 24, 2007)(quoting Wascura v. City of S. Miami, 257 F.3d 1238, 1242 (11th Cir. 2001))), aff'd, 671 Fed. Appx. 737 (11th Cir. 2016).
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43(2000)(internal citations and quotations omitted).
"To establish a prima facie case of discrimination under the Rehabilitation Act, a plaintiff must show that (1) [she] has a disability, (2) [she] is otherwise qualified for the position, and (3) [she] was subjected to unlawful discrimination as a result of [her] disability." Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir. 2017)(citation omitted). The court assumes that Curry can prove she has a disability because she has not submitted sufficient evidence to demonstrate an issue of fact as to whether she was "otherwise qualified" for a position as a clerk and/or a novice nurse working a shift of four hours or less.
"A person with a disability is `otherwise qualified' if [she] is able to perform the essential functions of the job in question with or without a reasonable accommodation. `[T]he issue of whether an employee is an otherwise qualified individual and whether a reasonable accommodation can be made for that employee is determined by reference to a
United States Equal Employment Opportunity Comm'n v. St. Joseph's Hosp., 842 F.3d 1333, 1345-47 (11th Cir. 2016)(footnotes omitted; emphasis in original). "In providing reasonable accommodations [or making selection decisions] under the [Rehabilitation Act], employers are not required to change the essential functions of a position or to reassign an employee when no positions are
After receiving Curry's Work Capacity Evaluation, Ward, Encalade, and Smith met to discuss whether a position was available at the VA that would accommodate Curry's work capacity and allow her to return to work. Encalade testified, unequivocably, that the VA did not have part-time clerk or entry-level nursing positions between the date of Dr. Shehi's evaluation and June 22, 2010. The record contains no evidence that novice nurses were hired into the flexi-pool or hired or allowed to work a regular or temporary shift of four hours or less. The only evidence upon which Curry relies on to support her claim for a four-hour shift is testimony from Yvonne Johnson, a former VA nurse, that sometime between 1995 and 1997 a nurse with irritable bowel syndrom was "allowed . . . to work partial days when necessary." (Doc. 62-1 ¶ 8.) Curry testified that she had no personal knowledge of any nurse working a regular four-hour shift and that, although a nurse may work a shift of four-hours or less this was an irregular circumstance. (Doc. 57-1 at 28-29 [Plaintiff's Depo. at 111-13].) Moreover, she testified that she had applied for and sought a full-time nursing position that would allow her to work in accordance with her functional capacity;
Therefore, Curry's disability discrimination claims based on failure to hire and/or accommodate her by employing her in a novice nurse or clerk position with a shift of four hours or less will be dismissed.
"To prevail on her [Rehabilitation Act] retaliation claim, Plaintiff must show that: (1) she engaged in a statutorily protected expression, (2) she suffered an adverse employment action, and (3) there was a causal link between the two. Lucas [v. W.W. Grainger], 257 F.3d [1249,] 1260 [(11th Cir. 2001)]." Frazier-White v. Gee, 818 F.3d 1249, 1258 (11th Cir.), cert. denied, 137 S.Ct. 592 (2016). To establish an adverse employment action based on non-selection, "the plaintiff must demonstrate that (1) he or she `applied for a particular position (2) which was vacant and (3) for which [he or] she was qualified and further that (4) he or she was not hired for that position." Jones v. Alabama Power Co., Civil Action No. 2:06CV780-ID, 2007 WL 3496720, *9 (M.D. Ala. Nov. 14, 2007)(quoting Velez v. Janssen Ortho, LLC, 467 F.3d 802, 807 (1st Cir. 2006)(internal quotations omitted), aff'd 282 Fed. Appx. 780, 785 (11th Cir. 2008)("However, because it is undisputed that Jones did not reapply for any positions with Alabama Power after his termination, Jones cannot show that he suffered a materially adverse employment action and thus cannot make out his prima facie case."); cited in Ritchey v. S. Nuclear Operating Co., Inc., Case No. 2:07-CV-1844-RDP, 2010 WL 11520488, *21 (N.D. Ala. Mar. 29, 2010), aff'd, 423 Fed. Appx. 955 (11th Cir. 2011).
As discussed above, Curry has not submitted evidence that a position for which she was qualified and which satisfied the limitations set forth in her functional capacities evaluation was available at the time Curry alleges the VA denied her request to return to work or denied her a reasonable accommodation. Therefore, Curry suffered no adverse action by not being selected to a non-existent position. Accordingly, she has failed to establish a prima facie case for retaliation for requesting an accommodation or non-selection after her 2009 functional capacity evaluation.
The VA's Motion for Summary Judgment as to Curry's Rehabilitation Act retaliation claims will be granted.
For the foregoing reasons, the court is of the opinion that there are no material facts in dispute and defendant is entitled to judgment as a matter of law. An Order granting defendant's Motion for Summary Judgment, (doc. 58), will be entered contemporaneously with this Memorandum Opinion.
(Doc. 57-3 at 5, § 8.4(A).)
