WILLIAM L. OSTEEN, Jr., District Judge.
Presently before this court is Defendant's Motion for Summary Judgment with supporting Memorandum. (Docs. 26, 27.) Plaintiff filed a response in opposition (Doc. 32), and Defendant filed a reply (Doc. 38). This court has carefully reviewed Defendant's Motion and Memorandum, Plaintiff's Response, and Defendant's Reply. For the reasons stated below, this court will grant Defendant's Motion for Summary Judgment. In light of this finding, Defendant's motion to withdraw and motion to continue (Doc. 44) will be denied as moot.
Plaintiff Tempie Ann Bell ("Plaintiff") commenced this action by filing a Complaint with this court on March 4, 2014, against Defendant Robert A. McDonald, Secretary of Department of Veterans Affairs ("Defendant"). (Complaint (Doc. 1).) Plaintiff moved to amend her complaint on June 10, 2014. (Doc. 5.) This court granted Plaintiff's motion on September 29, 2014. (Doc. 10.) Plaintiff filed her Amended Complaint on October 11, 2014. (Amended Complaint ("Am. Compl.") (Doc. 11).) In her Amended Complaint, Plaintiff asserted four causes of action: (1) wrongful discrimination and harassment because of a disability, (2) retaliation, (3) breach of contract based on Defendant's alleged violation of a Settlement Agreement, and (4) a request to enjoin Defendant from collecting any tuition assistance money from Plaintiff. (
While Plaintiff's motion to amend was pending, Defendant filed a motion to dismiss Plaintiff's Third and Fourth Causes of action with supporting Memorandum. (Docs. 6, 7.) Per this court's September 29, 2014 Order (Doc. 10)), and subsequent to the filing of Plaintiff's Amended Complaint (Doc. 11), Defendant filed a Notice to the court (Doc. 13) requesting that this court rule on Defendant's Motion to Dismiss (Doc. 6) as if it had been filed subsequent to the Amended Complaint.
On June 1, 2015, this court filed a Memorandum Opinion and Order and granted Defendant's Motion to Dismiss Plaintiff's Third and Fourth Cause[s] of Action, but allowed Plaintiff the right to file, within ten days from the entry of the Memorandum Opinion and Order, an amended complaint for the limited purpose of waiving all damages in excess of $10,000 in Plaintiff's third cause of action. (Doc. 15 at 17.) This court further ordered that if Plaintiff did not amend her complaint, the third cause of action would be dismissed without prejudice. (
As such, only two of Plaintiff's claims remain: (1) discrimination and harassment based on disability in violation of the Rehabilitation Act and the Americans with Disabilities Act ("ADA"), and (2) retaliation. (Am. Compl. (Doc. 11) ¶¶ 22-27). Defendant has moved for summary judgment on both remaining claims. (Doc. 26.) Plaintiff has responded. (Resp. to Mot. for Summ. J. ("Pl.'s Resp.") (Doc. 32); and Defendant has filed a reply (Doc. 38).
Viewed in light most favorable to Plaintiff, the evidence shows the following:
Plaintiff was an employee of the Department of Veterans Affairs ("VA"), with her primary place of employment at the VA Medical Center in Durham, North Carolina ("DVAMC"). (Am. Compl. (Doc. 11) ¶ 2.) Plaintiff worked as a Staff Nurse, an Assistant Nurse Manager, and a Lead Charge Nurse for a number of years at DVAMC. (Def.'s Br. in Supp. of Summ. J. ("Def.'s Br.") (Doc. 27) at 3; Ex. C ("Resume") (Doc. 27-4) at 3-4.)
As a result of an earlier discrimination suit in this district, Plaintiff and Defendant entered into a Settlement Agreement ("Agreement") in 2005.
As a result of several conversations in 2007 and 2009 with her DVAMC supervisor, Gwen Waddell-Schultz ("Ms. Waddell-Schultz"), Plaintiff believed that if she was pursuing a Master's Degree, she need "not worry about" getting the diabetes certification. (Pl.'s Dep. (Doc. 27-5) at 35-36.) However, in March 2009, a Proficiency Report signed by Ms. Waddell-Schultz and Plaintiff listed "[t]o become certified in diabetes education" as one of Plaintiff's "2009 Nursing Goals." (Def.'s Br., Ex. G-1 (Doc. 28-2) at 5-6.)
Plaintiff completed her Master's Degree in August 2009. (Resume (Doc. 27-4) at 2.) In September 2009, Ms. Waddell-Schultz sent Plaintiff a notice reminding her of the certification obligation and advising her to complete the exam by November 2009, and to be in compliance with the Agreement by December 20, 2009. (Def.'s Br., Ex. G-2 (Doc. 28-3).) Plaintiff never obtained the NCBDE certification. (
Plaintiff suffers from chronic back pain that limits her ability to work. (Am. Compl. (Doc. 11) ¶ 7.) Plaintiff provided her DVAMC supervisors a letter from a physician outlining Plaintiff's permanent restrictions and providing guidelines for how Plaintiff's job duties could meet these restrictions. (Def.'s Br., Ex. I ("Physician Ltr.") (Doc. 29-2) at 2-3.) The restrictions were: (1) a seven-hour work day; (2) daytime work hours (to avoid nighttime driving); (3) no lifting more than 20 pounds; (4) avoidance of extensive bending; and (5) rest from walking/standing as needed. (
Defendant acknowledged the restrictions, advised Plaintiff to follow the restrictions, and concluded that Plaintiff's abilities were within the scope of the ward nursing position. (Notice of Reassignment (Doc. 28-5); Ex. G-5 (Doc. 28-6).) The requirements of the position were also modified to account for Plaintiff's work restrictions. (
Plaintiff complained to senior management and protested the reassignment, but was returned to ward nursing duties. (
Plaintiff does not dispute that she was allowed to work a seven-hour daytime shift in compliance with the first two restrictions. (Pl.'s Dep. (Doc. 27-5) at 55-56.) Because Plaintiff worked a seven-hour shift, she accumulated one hour each day of leave without pay ("LWOP"), which was an approved leave status, and was required to submit LWOP forms for those hours. (Waddell Decl. (Doc. 28-1) ¶ 17.) However, Plaintiff asserts that she experienced problems staying within the confines of the other three restrictions.
Plaintiff asserts she was given tasks outside the lifting restriction when she was given category 3 and 4 patients who required lifting or moving. (Pl.'s Dep. (Doc. 27-5) at 70.) Plaintiff was instructed to ask other nurses for help if a patient needed lifting. (
Plaintiff asserts she had to pick things up off of the floor, which conflicted with her avoidance of extensive bending. (
Plaintiff asserts she was allowed to rest in the morning and at lunch but was admonished for resting too much in the afternoon, despite the restriction that she rest from walking or standing as needed. (Pl.'s Dep. (Doc. 27-5) at 77-80.) Specifically, Plaintiff asserts she was not allowed a 15-minute break in the afternoon. (
Plaintiff alleges there were times when staff or patients were "ugly" to her or patients asked "[w]hat good are you?" when Plaintiff needed help because of her restrictions. (Pl.'s Dep. (Doc. 27-5) at 58-59.) Plaintiff never made additional suggestions to her supervisors for other accommodations that would help Plaintiff. (
All new nurses assigned to the ward where Plaintiff was transferred were required to complete the same 8-week orientation. (Adalam Aff. (Doc. 29-3) ¶¶ 4-6.) During orientation, nurses had to complete the "Orientation Competency Checklist." (
Plaintiff asserts that during her time on the ward, between February and August 2010, she had numerous confrontations with her managers, was followed, stalked, threatened with arrest, and was the target of harassing and demeaning conduct by her managers. (Am. Compl. (Doc. 11) ¶ 11.) Plaintiff asserts she sought assistance during this time from her union and senior management, but remained assigned to ward nursing. (
Also during this period, the hospital continued to provide diabetes education, but that work was decentralized and assigned to others who were not certified. (Am. Compl. (Doc. 11) ¶ 12; Pl.'s Resp., Ex. 6 (Doc. 33-2) at 4-6.) Because of budgeting constraints, the diabetes educator position was eliminated after Plaintiff's reassignment. (Waddell Decl. (Doc. 28-1) ¶ 9; Pl.'s Resp., Ex. 17 (Doc. 35-3) at 2-4.) Plaintiff requested transfers to other work that was less physically demanding, but those transfers were refused. (Am. Compl. (Doc. 11) ¶ 13.) Specifically, Plaintiff requested to be transferred to a different nursing ward or to a different department within DVAMC during a two-week period when she needed light duty assignment following finger surgery. (Pl.'s Dep. (Doc. 27-5) at 81-85).
On April 23, 2010, Plaintiff received an admonishment for "Absence without Leave" and "Failure to Follow Instruction on Requesting Leave." (Def.'s Br., Ex. G-7 (Doc. 28-8).) The incident occurred when Plaintiff brought a doctor's note stating that she needed a "primarily sitting" position. (Waddell Decl. (Doc. 28-1) ¶ 20; Adalam Decl. (Doc. 29-3) ¶ 15.) Plaintiff was advised that no such position was available and she would need to take leave. (Adalam Decl. (Doc. 29-3) ¶ 15.) Plaintiff did not show for work for two days without requesting leave. (
On May 20, 2010, Plaintiff filed a complaint in state court challenging the transfer from diabetes educator to ward nurse. (Am. Compl. (Doc. 11) ¶ 10.) The action was removed to this district and later dismissed.
On July 15, 2010, Plaintiff was given a "Notice of Decision-Suspension" suspending Plaintiff for one day because of "Failure to Follow a Written Instruction" and "Disrespectful Conduct towards your Supervisor." (Def.'s Br., Ex. L ("Suspension Notice") (Doc. 29-7).) The suspension followed an incident that occurred after Plaintiff had finger surgery and came to work with a doctor's note for light duty. (Def.'s Br., Ex. G-9 ("June Memo") (Doc. 28-10).) Plaintiff was advised there were no light duty positions in her area and that pursuant to policy, she could not be given light duty in another area. (
On August 10, 2010, Ms. Waddell-Schultz confronted Plaintiff and threatened to initiate the revocation of Plaintiff's nursing license. (Am. Compl. (Doc. 11) ¶ 14; Proposed Suspension (Doc. 28-11).) Plaintiff asserts that the confrontation caused her to become so distraught that she fell, hit her head, and suffered several injuries. (Am. Compl. (Doc. 11) ¶ 15.) Plaintiff filed a worker's compensation claim. (
On or about September 16, 2010, Defendant insisted Plaintiff return to work as a ward nurse or be terminated. (
Plaintiff filed two EEOC claims regarding the above matters (January 15, 2010 and September 29, 2010), and the agency issued its final decision on December 9, 2013. (
Summary judgment is appropriate where an examination of the pleadings, affidavits, depositions, and other proper discovery materials before the court demonstrates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.
In considering a motion for summary judgment, the court is not to weigh the evidence, but rather must determine whether there is a genuine issue for trial.
As an initial matter, this court notes that Plaintiff's allegations in the Amended Complaint claiming certain facts and circumstances leading to her termination following her August 2010 injury were discriminatory, retaliatory, or both were already addressed by this court and found not to be discriminatory or retaliatory.
Additionally, this court notes that Plaintiff did not allege a separate claim for failure to provide reasonable accommodations under the ADA. Plaintiff's Amended Complaint delineated four separate causes of action, two of which remain, and none of which asserted a claim for failure to accommodate. The factual allegations in the complaint are insufficient to state a separate cause of action for reasonable accommodation and did not fairly place Defendant on notice that Plaintiff was pursuing a separate claim for failure to accommodate.
Even if Plaintiff had sufficiently alleged a separate reasonable accommodation claim, it would not change Defendant's entitlement to summary judgment. Plaintiff did not support, with sufficient evidence, any allegations that she requested and was denied specified accommodations other than a transfer. In Plaintiff's brief, she asserts Defendant failed to engage in an interactive process to identify reasonable accommodations, yet Plaintiff admits she did not request additional accommodations to aid her performance on the nursing ward and further admits she was able to do the job and provide adequate care. (Pl.'s Dep. (Doc. 27-5) at 87-88; Pl.'s Resp. (Doc. 32) at 4, 6.)
Plaintiff offers the conclusory statement from her preceptor that it was probably unsafe for Plaintiff to be assigned to a ward, and further argues that Defendant requiring other employees to assist her with certain duties was an unreasonable accommodation. ((Pl.'s Resp. (Doc. 32) at 2-3.) It is true that the ADA does not require a defendant to provide an assistant to help perform essential functions of a job.
Plaintiff suggests that her request for reassignment to her previous position or to a new department within the DVAMC following finger surgery would have been a reasonable accommodation. A reasonable accommodation may include reassignment, but the proposed position should be vacant or set to become vacant within a reasonable amount of time.
The diabetes educator position was eliminated due to budget cuts after Plaintiff was reassigned to the nursing ward, but even if it was not, Plaintiff was not entitled to reassignment there.
Plaintiff's evidence is insufficient to support a claim that reasonable accommodations were not provided, were requested and denied, or were necessary for performance of her essential job functions.
The Rehabilitation Act and the ADA prohibit discrimination against employees on the basis of disability.
In the absence of direct evidence of discriminatory intent, disability discrimination claims proceed under the
If a prima facie case is presented, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse action.
For purposes of the summary judgment motion, Defendant does not contest that Plaintiff was disabled within the meaning of the ADA or that she was otherwise qualified for the job. Plaintiff's prima facie case turns on whether she presented sufficient evidence that she suffered an adverse employment action solely on the basis of her disability.
"An adverse action is one that `constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'"
Plaintiff alleges the following adverse actions: (1) a transfer from diabetes education to a nursing ward; (2) Defendant's refusal to transfer Plaintiff back to diabetes education and refusal to transfer her to a different department following finger surgery;
Plaintiff alleges the transfer was inappropriate because she objected to it and because it involved work she should not have been expected to do. Plaintiff did not allege the transfer was a demotion or caused a decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion, which are "typical requirements for a showing of an adverse employment action."
As already noted, Plaintiff did not allege any decrease in compensation, job title, level of responsibility, or opportunity for promotion. In fact, it appears that Plaintiff retained her same job title and experienced no reduction in salary, benefits, or potential for promotion. Plaintiff asserts that the work was difficult and that she found it demeaning to request the help of co-workers, but asserts that the fact that she "was able to do the job at all with her limitations and not have any complaints about the quality of her care is a testimony to her determination to work." (Pl.'s Resp. (Doc. 32) at 4.) This self-serving assertion, unsupported by any other evidence of adverse effects on the terms, conditions, or benefits of employment, are insufficient.
Plaintiff further argues that she was singled out and transferred out of diabetes education for failure to obtain her certification although other employees assigned to diabetes education were not certified. However, Plaintiff entered into an Agreement with the DVAMC in which she agreed to obtain NCBDE certification or face the possibility of transfer. The Agreement also created a new job for Plaintiff. Plaintiff presented no evidence about other non-certified employees in diabetes education who were under a similar contractual condition or otherwise similarly situated so as to allow this court to make any determination that Plaintiff was exposed to disadvantageous conditions to which other employees were not.
Plaintiff alleges that Defendant's refusal to transfer her back to her old position or to a temporary position in another department constituted an adverse employment action. The principle stated in the section above that a decision to transfer is not an adverse employment action absent any significant detrimental defects applies with equal force to the decision to deny a transfer request.
"Plaintiff must point to a genuine issue of material fact either that her requested transfer was a promotion and not merely a transfer or that Defendant's refusal to . . . transfer resulted in a `significant detrimental effect' in her employment status."
Although Plaintiff was not allowed a temporary light duty assignment during her finger surgery recovery, after taking leave for approximately two weeks, Plaintiff returned to work in the same position with no reduction in responsibility, hours, salary or benefits. It was not discriminatory for Defendant to require Plaintiff to take a short leave instead of reassignment to another department for light duty.
Plaintiff alleges that she was followed and stalked by co-workers spying on her actions on the ward; that her supervisor followed her during on-duty hours on the ward; that her co-workers made "ugly" comments about her work; and that she was generally harassed by her supervisor and threatened with arrest.
This Circuit has held that a manager yelling at an employee during a meeting or directing employees to spy on a co-worker "does not rise to the level of an adverse employment action . . . without evidence that the terms, conditions, or benefits of her employment were adversely affected."
Similarly, where co-workers are snubbing and vilifying an employee and the employer fails to correct the uncivility, it may be considered "ordinary workplace strife" which does not constitute adverse employment action.
As for the allegations that Plaintiff was threatened with arrest, the evidence shows that around the time of Plaintiff's first admonishment, she was instructed that if she returned to the ward that day, the police would be called. However, there is no evidence that the police were contacted — other than by Plaintiff herself — or that there was any change in the terms, conditions, or benefits of Plaintiff's employment because of this incident.
Nor can Plaintiff claim that the first written admonishment for "Absence without Leave" and "Failure to Follow Instruction on Requesting Leave" rose to the level of an adverse employment action. The admonishment did not lead to further discipline or cause a loss in pay, benefits, or rank.
Whether the second admonishment leading to the imposition of Plaintiff's one-day suspension is an adverse employment action requires more discussion. It does not appear that the Fourth Circuit has made a finding of whether a one-day suspension can be an adverse employment action, but there is an unpublished opinion suggesting that it likely could be an adverse action. The Fourth Circuit, in
Ms. Waddell-Schultz's threat to take action to initiate the revocation of Plaintiff's nursing license as outlined in the Proposed Suspension does not constitute an adverse employment action in this case because it was never put into effect and did not cause Plaintiff to suffer any loss in pay, benefits, or rank.
Plaintiff's evidence does not support her contention that the Proposed Suspension was based on her disability. The Proposed Suspension related to Plaintiff's failure to complete her competencies. The evidence shows that all nurses on Plaintiff's ward were required to complete these competencies, and the evidence suggests there were competencies that undisputedly fell within Plaintiff's restricted abilities, such as administering medicine.
Even if this court were to assume that Plaintiff established an adverse employment action and established a prima facie case of discrimination, Defendant has proffered the following legitimate, non-discriminatory reasons for its actions in this case: that the transfer was based on Ms. Waddell-Schultz's understanding that Plaintiff failed to become certified as required by the Agreement; that Defendant was following the DVAMC policy regarding light duty assignments in its refusal to allow a temporary transfer; that Plaintiff's first admonishment was for being absent without requesting leave as instructed; that Defendant's "harassment" and threats regarding Plaintiff's nursing license related to Plaintiff's failure to complete the competencies required of all ward nurses; and that Plaintiff's final Proposed Suspension related to Plaintiff's insubordinate conduct towards her supervisors.
Plaintiff's offered evidence to rebut Defendant's reasoning is the allegation that Ms. Waddell-Schultz provided inconsistent explanations regarding Plaintiff's reassignment. Plaintiff is correct that an employer providing different explanations at different times can support a finding of pretext.
The
For purposes of the summary judgment motion, Defendant does not contest that Plaintiff engaged in protected conduct. Plaintiff's prima facie case for retaliation turns on whether she presented sufficient evidence that she suffered an adverse employment action subsequent to engaging in protected conduct, and whether there was a causal link between the protected activity and the adverse action.
In a retaliation case, a plaintiff must show that "a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."
Additionally, in analyzing the third prong of the test, courts have held that mere temporal proximity between the two events is insufficient to satisfy the causation element of the prima facie requirement.
In this case, the transfer from diabetes education to the nursing ward occurred several years after Plaintiff's first EEOC complaints, and the transfer had already been put in motion prior to the January 2010 EEOC complaint. In the absence of temporal proximity between the EEOC complaints and the transfer, Plaintiff failed to produce sufficient alternative evidence showing that the earlier EEOC complaints and the transfer were related.
On Plaintiff's other allegations of adverse actions, if this court assumes, for purposes of Defendant's motion, that Plaintiff could show an adverse action and show that there was a causal connection between the January 2010 EEOC complaint and the action such that Plaintiff satisfied her burden of presenting a prima facie case of retaliation, Defendant would still be entitled to summary judgment on Plaintiff's retaliation claim.
Defendant's proffered reasons, which were discussed above, were legitimate, non-retaliatory reasons. Defendant's rationale has not been rebutted by Plaintiff with sufficient evidence to call such reasons into question as pretext. In determining whether Plaintiff met her burden, this court examined whether there were inconsistencies or contradictions in Defendant's proffered legitimate reasons such that a reasonable factfinder might find the reasons unworthy of credibility. However, mere conclusory allegations and assertions by Plaintiff do not suffice to establish pretext as long as Defendant's reasons are ones that might motivate a reasonable employer. Thus, even assuming that Plaintiff established a prima facie case of retaliation, she failed to show that a genuine issue of material fact existed as to pretext.
Defendant also moved for summary judgment on Plaintiff's claim of harassment. To prevail on a hostile work environment claim, Plaintiff must prove that she: (1) is a qualified individual with a disability; (2) was subject to unwelcome harassment; (3) the harassment was based on her disability; (4) the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; and (5) some factual basis for imputing liability to the employer.
For purposes of the summary judgment motion, Defendant does not contest that Plaintiff was disabled and was subject to unwelcome harassment based on her disability. Defendant disputes that the harassment was sufficiently severe or pervasive so as to alter Plaintiff's employment, and also disputes that liability can be imputed to Defendant.
"Plaintiffs must clear a high bar to satisfy the severe or pervasive test. . . . On summary judgment, the court must identify situations that a reasonable jury might find to be so out of the ordinary as to meet the severe or pervasive criterion."
Here, Plaintiff complains she was harassed about obtaining NCBDE certification and that the subsequent transfer to the nursing ward was harassment. However, the certification requirement and transfer stemmed from an Agreement Plaintiff entered into with Defendant, which Ms. Waddell-Schultz reasonably believed should be enforced. Defendant provided Plaintiff the opportunity to take the certification exam along with several reminder notices. The notices encouraged and reminded Plaintiff to take the exam to fulfill the conditions of the Agreement. The notices in this case do not rise to the level necessary to state a hostile work environment claim. There is no evidence that these reminders related to anything other than fulfilling the Agreement. The subsequent transfer, which was based on the conditions of the Agreement, was not sufficiently severe to alter a term, condition, or privilege of Plaintiff's employment as was discussed above.
Plaintiff also alleges that Defendant's requests for Plaintiff to provide additional medical information regarding her disability and to begin filling out SF-71 forms for her one hour of LWOP each day was harassment. Plaintiff asserts that she was asked to provide additional medical information because Defendant lost her records. This request does not rise to the level necessary to state a hostile work environment claim. An employer has the right to request medical documentation for the purpose of assessing Plaintiff and her requests.
The same is true for the request that Plaintiff fill out SF-71 forms. Plaintiff does not take issue with the policy that she accrues LWOP for her accommodation to work shorter hours (as she has done for several years), but argues that being asked to fill out DVAMC forms for the leave was harassment. There is no evidence that Plaintiff was singled out to fill out these forms, and it is not severe and pervasive so as to rise to the level of a hostile work environment.
Finally, although Plaintiff did not allege in her harassment claim that the comments by her co-workers and the stalking and threats by her co-workers and supervisors were harassment, this court finds that such instances would not rise to the level necessary to state a hostile work environment claim. Plaintiff may have had a strained relationship with some of her co-workers, but the evidence shows that her co-workers did provide aid to Plaintiff. Further, Plaintiff was assigned a preceptor to help with job duties. Plaintiff's supervisor met with Plaintiff and her preceptor once a week to check on Plaintiff's progress. While Plaintiff may have subjectively perceived the ward as hostile, the evidence does not support an objective view that it was deeply repugnant or anything more than occasional insensitive conduct by some coworkers that may sporadically wound or offend but does not alter employment.
Further, the allegations that Plaintiff was threatened with arrest are not supported by evidence sufficient to suggest a hostile work environment. There is no evidence that the police were contacted — other than by Plaintiff herself — or that this was anything other than a single incident relating to Plaintiff's first admonishment. Furthermore, Plaintiff returned to work following the admonishment with no apparent change to the terms, conditions, or benefits of her employment.
As for the allegations of stalking, it is not unreasonable for a supervisor, or even co-workers, to check that employees are present during their working hours and performing their assigned duties. There is no legally sufficient evidentiary basis to show that the co-workers or supervisors monitoring Plaintiff's daily work activities were objectively severe and pervasive workplace harassment.
Based on the foregoing, this court will grant Defendant's motion for summary judgment as to Plaintiff's harassment claim.
For the reasons stated herein,
A judgment in accordance with this Memorandum Opinion and Order will be entered contemporaneously herewith.
