T.S. ELLIS, III., District Judge.
At issue on cross-motions for summary judgment in this Title VII
The parties have extensively briefed and argued the various questions presented and the matter is now ripe for resolution.
Plaintiff Jay Bauer is a 40-year-old
Defendant Eric Holder, Jr. is the Attorney General at the U.S. Department of Justice. The FBI is a bureau of the U.S. Department of Justice, and thus the Attorney General is the proper defendant in a Title VII action against the FBI as the head of the relevant department. See 42 U.S.C. § 2000e-16(c).
The NATP is designed (i) to ensure that, upon graduation, a NAT has "attained the necessary proficiencies in specialized knowledge, skills, and abilities needed to effectively perform the duties of a[n] FBI [Special Agent]" and (ii) "to assess each NAT's suitability for the [Special Agent] position as measured by the NAT's level of conscientiousness, cooperativeness, emotional maturity, initiative, integrity and judgment." Stip. ¶ 12 (emphasis in original). To complete the NATP successfully, NATs must meet designated requirements in each of four categories: (1) academics, (2) firearms training, (3) physical/defensive tactics training, and (4) practical applications/skills training. The Physical Training program and the PFT are components of the physical/defensive tactics training category. A document distributed to all NATs titled "Rules, Regulations and Requirements at the FBI Academy for New Agent Trainees" ("Requirements Document") includes the requirements and standards for each of these four categories and provides that failure to demonstrate proficiency in any one of the four categories could result in dismissal from the NATP.
The Physical Training program for NATs at the FBI Academy is important for at least two reasons: (i) "a basic level of fitness and conditioning is essential for a NAT to perform at his/her best in all aspects of training and to successfully complete the entire fast-paced training program without serious physical injury and undue mental stress," and (ii) "a NAT's level of fitness serves as a foundation for his/her ability to effectively apply principles and non-deadly force alternatives being taught in the [defensive tactics] program." Stip. ¶ 25. Successful completion of an Academy-administered PFT, considered a "key component" of the Physical Training program, is an FBI Academy graduation requirement. See Stip. ¶ 26. The PFT contains four individual tests: (1) one-minute sit-ups, (2) 300 meter run, (3) push-ups to maximum, and (4) 1.5 mile run. Each NAT must achieve a minimum cumulative score of twelve points with at least one point in each of the four events. Each PFT event is scored on a ten-point scale, for a maximum overall score of 40 points. One point is awarded for achieving the minimum standard in an event, and three points are awarded for reaching the mean. To achieve one point in each of the four events, NATs must meet the following minimum standards by sex:
Event Male Female Sit-ups 38 35 300 meter run 52.4 sec 64.9 sec Push-ups 30 14 1.5 mile run 12:42 min 13:59 min
The PFT was implemented in 2004 as a mandatory physical fitness test for all NATs. The process by which the FBI selected
The record reflects that the PFT is the last mandatory physical fitness test that FBI Special Agents must pass during their FBI careers. There is no required physical fitness test for incumbent FBI Special Agents, despite the fact that the FBI's own validation study suggested that the FBI consider adopting a mandatory physical fitness test for incumbent Special Agents.
By letter dated February 24, 2009, the FBI offered plaintiff an appointment as a Special Agent and required plaintiff, if he
Plaintiff took the PFT a total of seven times, twice at the FBI's Milwaukee Field Office prior to starting the NATP and five times during the NATP at the FBI Academy in Quantico. He attained satisfactory passing scores in each component of the NATP other than the PFT,
300 1.5 Total
Date Location Sit-ups Points meter Points Push-ups Points mile Points Points
10/31/2008 FBI 48 5 43sec 7 25 0 10:50 4 16
Milwaukee min
Field
Office
1/12/2009 FBI 51 6 44sec 6 32 1 11:25 3 16
Milwaukee min
Field
Office
Week 1 FBI 40 2 42.6sec 8 26 0 10:49 4 14
NATP Academy min
Quantico
Week 7 FBI 47 4 43.4sec 7 25 0 10:24 5 16
NATP Academy min
Quantico
Week 14 FBI 50 6 43.7sec 7 28 0 10:45 4 17
NATP Academy min
Quantico
Week 18 FBI 51 6 43.8sec 7 27 0 11:09 4 17
NATP Academy min
Quantico
Week 22 FBI 49 5 44.1sec 6 29 0 10:57 4 15
NATP Academy min
Quantico
Females in plaintiff's NAT Class 09-08 passed the PFT and became Special Agents with the following scores:
300 1.5 Total
NAT Sit-ups Points meter Points Push-ups Points mile Points Points
Female 39 2 54.3 sec 5 16 1 10:49 min 4 14
A12
Female B 42 3 54.3sec 5 24 3 12:51min 3 14 Female C 46 4 54.7sec 5 19 2 12:26min 4 15 Female D 41 3 55.2sec 5 15 1 11:50min 5 14
On July 30, 2009, during week 22 of plaintiffs NATP, plaintiff was able to complete only 29 push-ups in the PFT, rather than the required 30. Immediately following this event, FBI personnel Melinda Casey, Gerald Jackson, and Jason VanGoor met with plaintiff and informed him that he had three "options": (i) to resign as a Special Agent and preserve the possibility of working as an FBI Intelligence Analyst in Chicago; (ii) to resign and forgo the possibility of any future position with the FBI; or (iii) to be terminated from employment with the FBI. Plaintiff was required, then and there, to choose one of the three options. He chose the first option, and FBI personnel provided him with a template resignation letter addressed to then-FBI Director Robert Mueller that gave plaintiff precisely what he must say to resign from the NATP while preserving the possibility of being considered in the future for an FBI Intelligence Analyst position. Plaintiff, as directed, then and there handwrote and signed a resignation memorandum addressed to Director Mueller using the provided template. Plaintiff's decision to choose that option was, in his view, the only way to mitigate damages at that time in terms of being able to provide for his family. After resigning, plaintiff left Quantico and drove to Chicago, where his wife and two children were then living. Two weeks later, the FBI offered plaintiff an Intelligence Analyst position, and he accepted.
There are two "career paths" listed on the FBI's external website: "Special Agent" and "Professional Staff." The Intelligence Analyst position is considered a "support" position within the FBI, and appears under the "Professional Staff" designation, alongside numerous other positions including lawyers in the Office of General Counsel, scientists and engineers specializing in fields ranging from chemistry to cryptography, experts in communications and surveillance, and linguists.
FBI Special Agents are responsible for conducting investigations and enforcing federal law. Specifically, FBI Special Agents:
Stip. ¶ 48. As a general matter, male and female Special Agents are expected to perform the same physical tasks at the same level of job performance.
Duties of an FBI Intelligence Analyst include:
Stip. ¶ 52. FBI Intelligence Analyst "positions require a basic knowledge and understanding of one or more of the natural or social sciences, engineering, or military science, but do not demand, as a primary qualification requirement, full knowledge of the current state of the art." Id.
Plaintiff's specific duties as an Intelligence Analyst include being embedded in an investigative squad of Special Agents in the field to provide support on active cases. In this capacity, an Intelligence Analyst must: (i) assess and communicate real-time analytic judgments regarding specific threats and intelligence gaps, (ii) understand emerging threats to enhance domain knowledge and exploit collection opportunities, (iii) bridge operational squads by identifying collection opportunities and gaps, and (iv) help to assure timely and accurate reporting of intelligence.
On April 2, 2012, plaintiff filed the instant case in the United States District Court for the Northern District of Illinois, seeking reinstatement to the position of FBI Special Agent. On January 23, 2013, the case was transferred to this district pursuant to 28 U.S.C. § 1404(a). On November 8, 2013, the parties filed cross-motions for summary judgment. The precise questions presented in these cross-motions for summary judgment are:
The summary judgment standard is too well-settled to merit extended discussion, and the parties do not dispute this standard. Summary judgment is appropriate where "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." Rule 56, Fed.R.Civ.P. It is settled that "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On the other hand, a genuine factual dispute exists "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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
To prevail on his Title VII claim, plaintiff must show that he suffered an adverse employment action as a result of
Analysis properly begins with addressing this issue because if, as defendant contends, plaintiff cannot establish an adverse employment action, plaintiff's Title VII claim fails and defendant is entitled to summary judgment. On the other hand, if plaintiff has established that he was coerced into resigning and that his resignation amounted to termination, it will then be necessary to address the sole remaining disputed element of a Title VII disparate treatment claim, namely whether the FBI's NATP PFT is discriminatory under Title VII.
The facts pertinent to whether plaintiff's resignation was voluntary or involuntary are easily summarized. It is undisputed that when plaintiff performed only 29 push-ups rather than the required 30 push-ups during week 22 of his NATP, he was required to meet immediately with FBI personnel, who informed plaintiff to choose immediately among the following three "options": (i) to resign as a Special Agent and preserve the possibility of working in the future as an FBI Intelligence Analyst in Chicago; (ii) to resign and forgo the possibility of any future position with the FBI; or (iii) to be terminated from employment with the FBI. Stip. ¶ 37. In addition to the requirement that he make his choice immediately, plaintiff was told that if he chose to resign, he was required, then and there, to handwrite a resignation memorandum to then-FBI Director Mueller using a template provided to him by the FBI personnel with whom he was meeting. Stip. ¶ 39. Plaintiff acceded to these requirements; he resigned immediately by using the FBI's template to handwrite a letter of resignation to the FBI Director. Stip. ¶ 40. Thus, plaintiff "chose" the first option and eventually accepted a position he was offered later as an Intelligence Analyst in Chicago. Stip. ¶ 38.
The following legal principles govern whether an employer's specific action constitutes an adverse employment action. It is clear in this circuit that, "[a]n adverse employment action is a discriminatory act which adversely affect[s] the terms, conditions, or benefits of the plaintiff's employment." James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375-76 (4th Cir.2004) (citing Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001)) (internal quotations omitted). It is also clear that "conduct short of ultimate employment decisions can constitute adverse employment action." Id. Job reassignments may or may not constitute adverse employment actions, depending on the circumstances. Thus, whereas "[t]he mere fact that a new job assignment is less appealing to the employee ... does not constitute adverse employment action," a reassignment with some "detrimental effect" such as "any decrease in compensation, job title, level of responsibility, or opportunity for promotion" can amount to an adverse action. Id. at 376
In Stone, the Fourth Circuit made clear that "a resignation may be found involuntary if on the totality of circumstances it appears that the employer's conduct in requesting resignation effectively deprived the employee of free choice in the matter." 855 F.2d at 174-75. Specifically, Stone identifies four factors to consider in this regard: (1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice he was given; (3) whether the employee was given a reasonable time in which to choose; and (4) whether the employee was permitted to select the effective date of resignation. Id. These factors, applied here, point persuasively to the conclusion that plaintiff's resignation was coerced and therefore involuntary.
To begin with, plaintiff was offered no real alternative to immediate resignation. Indeed, the sole alternative to immediate resignation offered to plaintiff was immediate termination. In other words, plaintiff had no alternative, no choice, but to accept the immediate ending of his FBI Special Agent status. He could choose only how this would occur: immediate resignation or immediate termination. Of course, this is no genuine choice or alternative at all; it is rather a variant of the proverbial Hobson's choice where the so-called "choice" is wholly
The remaining Stone factors also weigh decisively in favor of the conclusion that plaintiff's resignation was involuntary. Although it appears that plaintiff understood the nature of the choice before him, he was not given a reasonable time in which to make his decision, nor was he permitted to select the effective date of resignation or any other terms of his resignation. Rather, plaintiff was required to make his decision right then and there, and after he opted to resign, effective immediately, plaintiff was required, on-the-spot, to handwrite his resignation letter using an FBI-provided template. Thus, the totality of the circumstances makes unmistakably clear that plaintiff lacked free choice in his resignation. Indeed, it is worth noting that defendant itself, as the record reflects, repeatedly referred to plaintiff's so-called voluntary resignation more accurately as a "dismissal" or "removal." See, e.g., Stip. ¶¶ 76-77. Accordingly, plaintiff's resignation was involuntary and thus amounts to a constructive discharge, which qualifies as an adverse action under Title VII. See Martin, 48 F.3d 1343; Coston v. Hooper, 885 F.2d 864 (4th Cir.1989).
Defendant argues that because the Stone court found that plaintiff's resignation to be voluntary, the same result should obtain here. Yet, the instant case is clearly factually distinguishable from Stone. In Stone, the court found that the plaintiff's resignation was voluntary because he "dictated the terms of his resignation himself, and he drove a hard bargain, demanding that he be given a clean record, a delayed effective date, and a full year's salary." Stone, 855 F.2d at 177-78. Nothing of the sort happened here. Indeed, the Stone court acknowledged that under slightly different circumstances, the fact that the plaintiff was forced to decide between resignation and termination could constitute an involuntary resignation. Id. (citing Paroczay v. Hodges, 297 F.2d 439 (D.C.Cir.1961) (denying summary judgment because the plaintiffs resignation, when made under the threat of immediate misconduct charges, could be deemed involuntary)). Far from being similar to Stone, this case is more analogous to Coston, which held that a resignation "was so involuntary that it amounted to constructive discharge" where the plaintiff there resigned rather than face immediate termination because, unlike Stone, there were no "substantive negotiations or "discussions" over the terms of plaintiffs resignation." 885 F.2d at *5. Here, as in Coston, there was no negotiation; the termination of plaintiffs status as a Special Agent was clearly non-negotiable.
Nor is this conclusion altered by the fact that, following his forced resignation, plaintiff accepted later-offered alternate employment with the FBI. Yet, defendant argues that this fact means that plaintiff's resignation was the equivalent of a reassignment and thus should be analyzed as a reassignment rather than as a termination. Notably, defendant has failed to produce a single case in which an analogous factual scenario was considered to be a reassignment.
In sum, the summary judgment record makes clear that plaintiff suffered an adverse employment action, as his resignation was coerced and thus did not constitute a voluntary resignation.
As plaintiff has established that he suffered an adverse employment action, it is now necessary to address the central question presented in this case; namely whether the FBI's gender-normed PFT violates Title VII by requiring male NATs to perform 30 push-ups, while requiring female NATs to perform only 14. Plaintiff, who has the burden to demonstrate that the PFT is discriminatory,
The starting point of the analysis must be the language of the statute,
The scant relevant Supreme Court authority on this issue supports this conclusion. Although no Supreme Court decision considers the precise question whether gender-normed physical fitness tests violate Title VII, two analogous cases lend substantial support to the result reached here. Most pertinent is City of Los Angeles, Dep't of Water & Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), where a majority of the Supreme Court held that a city violated Title VII's prohibition on sex discrimination by requiring females to pay more into pension funds simply because females, on average, live longer than males.
Nor is this conclusion altered by the fact that defendant, in imposing the PFT, did not intend to favor or exclude one sex over the other. This is so because plaintiff has alleged disparate treatment, which does not require any evidence of animus or discriminatory motive; rather "[w]hether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination." Johnson Controls, Inc., 499 U.S. at 199, 111 S.Ct. 1196. In sum, the plain language of § 2000e-2(a)(1) clearly warrants the conclusion that the PFT is discriminatory treatment based on sex, and this conclusion finds firm support in the pertinent Supreme Court authority.
Defendant's cited authority does not point persuasively to a contrary conclusion. The Supreme Court's decision in United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) [hereinafter VMI], on which defendant heavily relies, is not a Title VII case; it is an Equal Protection Clause case in which the Court majority ordered the Virginia Military Institute to admit women. As such, VMI does not contradict the conclusion reached here. Still, defendant points to a single footnote of dicta in VMI in which the Court majority contemplated that "[a]dmitting women to VMI would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements, and to adjust aspects of the physical training programs." 518 U.S. at 551 n. 19, 116 S.Ct. 2264. This footnote, an aside in a non-Title VII case, has no bearing on the definition of sex discrimination under Title VII and cannot fairly be said to sanction the use of gender-normed physical fitness tests under Title VII.
Defendant also relies on various lower court decisions addressing grooming and maximum weight standards that treat males and females differently. These lower court cases,
Also unpersuasive are the four cases that defendant cites that specifically address the effect of gender-normed fitness standards on males. None is either controlling in this circuit or persuasive in its reasoning. In Powell v. Reno, No. 96-2743, 1997 U.S. Dist. LEXIS 24169 (D.D.C. July 24, 1997), an unpublished case in which the U.S. District Court for the District of Columbia held that the FBI's PFT for NATs was not facially discriminatory against males under § 2000e-2(a)(1), the court failed to cite any authority directly supporting the conclusion that gender-normed physical fitness test standards are nondiscriminatory under Title VII and provided virtually no reasoning or analysis.
The result reached here is not meant to imply that gender-normed fitness tests are per se illegal under Title VII. Indeed, to require that all physical fitness tests use a single standard for both males and females would likely give rise to Title VII violations in the form of physical fitness tests that have an impermissible disparate impact on females.
Plaintiff argues that the PFT violates not only § 2000e-2(a)(1)'s plain prohibition on treating males and females differently, but also § 2000e-2(l), enacted as part of the Civil Rights Act of 1991. This statute provides in pertinent part that:
42 U.S.C. § 2000e-2(l). No court has thus far addressed the question whether § 2000e-2(l) applies to using different cutoff scores for males and females in physical fitness tests. It must therefore be determined whether the FBI's PFT falls under the purview of § 2000e-2(l) as a matter of statutory interpretation. More specifically, the question presented is whether the statutory phrase "employment related tests" encompasses gender-normed physical fitness tests required by employers.
Questions of statutory interpretation necessarily begin (and may very well end) with the text of the statute,
This plain language interpretation is also consistent with the limited existing jurisprudence on § 2000e-2(l), which has thus far focused on instances in which employers set different employment test cut-off scores for different racial groups to avoid
Although in this case the possibility of a disparate impact on females does not justify defendant's facially discriminatory policy, it is important to recognize that physical fitness tests holding males and females to a singular standard could well have a disparate impact on females,
Analysis of plaintiffs disparate treatment claim does not end with the conclusion that the PFT is facially discriminatory under § 2000e-2(a)(1) and § 2000e-2(l). It remains to consider whether the PFT might nonetheless be justified under the BFOQ defense.
The BFOQ defense has typically been applied in cases where either males or females were, as a group, excluded from a particular position of employment. For example, in Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), the Supreme Court held that an Alabama state penitentiary regulation that had the effect of excluding a large proportion of women
42 U.S.C. § 2000e-2(e). The phrase "on the basis of ... sex" clearly encompasses a wider range of situations than the outright exclusion of all males or all females from an employment position, and clearly includes any instance in which an employment practice passes the "simple test of whether the evidence shows treatment of a person in a manner which but for that person's sex would be different." Manhart, 435 U.S. at 711, 98 S.Ct. 1370. Thus, to justify the PFT's facially discriminatory treatment of men and women, defendant must establish that using different minimum physical fitness standards for males and females is a valid BFOQ.
This is not easily established. A successful BFOQ defense requires that "a job qualification ... relate to the essence, or to the central mission of the employer's business." Johnson Controls, 499 U.S. at 203, 111 S.Ct. 1196 (internal quotations omitted). And courts have made clear that the defense should be read narrowly. Id. at 201 ("The BFOQ defense is written narrowly, and this Court has read it narrowly."). In Johnson Controls, the Court made clear that two primary requirements must be met for a given policy to be considered a BFOQ: (i) a policy must be "an objective, verifiable requirement" that (ii) "concern[s] job-related skills and aptitudes." Id. Thus, given that the PFT is discriminatory in that it treats men and women differently on the basis of their sex, it may only be legally justified as a BFOQ if it is (i) an objective, verifiable test that measures (ii) "job-related skills and aptitudes." Id. (emphasis added).
In the instant case, defendant has proffered sufficient evidence on the development of the PFT to demonstrate that that the test provides an objective, verifiable measure of physical fitness. In support of the PFT methodology, defendant submitted the 2003 Grubb Report
Although defendant has successfully demonstrated that the PFT provides an objective, verifiable measure of physical fitness, defendant has failed to meet the second BFOQ requirement — that the PFT is properly focused on "job-related skills and aptitudes." Id. As the Supreme Court, interpreting the BFOQ defense, has made clear, "Congress narrowed the term [qualifications] to qualifications that affect an employee's ability to do the job." Id. Plaintiff's argument in this regard, distilled to its essence, is that because the FBI specifically designed each component of the PFT to measure a NAT's ability to perform discrete tasks — i.e. the push-up test measures the upper body strength required for tasks such as lifting and pushing, and the 1.5-mile run measures the aerobic capacity and endurance required for sustained pursuit of a subject or struggling with a resistant subject for a long period of time
Defendant provides two inconsistent justifications for implementing the PFT as designed. Specifically, defendant argues at some points that the PFT is designed to measure the skills required to succeed as an FBI Special Agent, stating, for example, that "[t]he FBI chose a four-event test battery as each event is related to the underlying fitness components needed to carry out essential tasks of the [Special Agent] position." Greathouse Decl. ¶ 11.
Presumably realizing this logical inconsistency, defendant argues alternatively that the rationale supporting the PFT is safety during training. In this respect, defendant asserts that "[FBI] management determined that a mandatory physical fitness test was needed to ensure that NATs arrived at the FBI Academy physically prepared for training" because "NATs that enter the NATP physically prepared are less likely to incur an injury requiring them to miss valuable training time, and they also tend to perform well during physically strenuous training events." Greathouse Decl. ¶¶ 10, 13 (emphasis added). Yet, this asserted justification is also inconsistent with the manner in which the FBI chose to implement the PFT and with the factual record in this case. Specifically, the PFT functions as an NATP graduation requirement rather than as an NATP admission requirement. In other words, as here, NATs may be permitted to complete the NATP without having passed the PFT, but then prevented from graduating due to failure to pass the PFT at the conclusion of the NATP. Indeed, plaintiff passed the PFT at the Milwaukee Field Office prior to commencing the NATP and then completed the NATP without injury before he was prevented from graduating after he failed the PFT in week 22 of training. Hence, according to defendant's assertion that the PFT is designed so that NATs arrive at the NATP prepared and complete the NATP without injury, plaintiff should have been permitted to graduate. Therefore, because defendant has not implemented the PFT in a manner consistent with either of its proffered justifications, defendant has failed to meet its burden to demonstrate that the PFT measures "qualifications that affect an employee's ability to do the job"
The decision reached here is not intended to make a broad statement on the use of gender-normed physical fitness tests generally or on their applicability to the field of law enforcement. It is obvious that law enforcement positions, such as that of an FBI Special Agent, include physical demands, and thus some types of physical tests may be closely related to a person's ability to perform the various duties of an FBI Special Agent. Gender-normed physical fitness tests present a challenge to Title VII jurisprudence because where, as here, female law enforcement officials perform the same physical job tasks as their male counterparts, gender-normed physical fitness standards cannot logically be used to measure an applicant's ability to perform discrete tasks, such as restraining or chasing a subject. This is so because if both males and females are expected to perform these tasks at the same level of performance, then testing males and females according to different standards cannot be an objective measure of ability to perform those tasks. On the other hand, because real physiological differences exist, on average, between males and females, gender norming may in some instances be appropriate for tests designed to measure overall physical fitness rather than the ability to perform specific discrete tasks.
Yet, the fact that gender norming may be appropriate in some instances does not
The result reached here is not reached easily or eagerly. It is undeniable that men and women, as distinct groups, have physiological differences. Under current law, however, these obvious physiological differences cannot support the differential treatment reflected in the FBI's gender-normed PFT absent a valid BFOQ, which is lacking here. Given this, the summary judgment record reflects that plaintiff has met his burden to demonstrate that there is "no genuine issue as to any material fact" and that he is "entitled to judgment as a matter of law." Rule 56(c), Fed. R.Civ.P. Accordingly, plaintiff's motion for summary judgment must be granted, and defendant's motion for summary judgment must be denied. The issue of an appropriate remedy has yet to be resolved.
An appropriate Order will issue.
