United States District Court for the District of Columbia
July 5, 2005.
AVA JOHNSON, et al., Plaintiffs,
UNITED STATES CAPITOL POLICE BOARD, Defendant.
The opinion of the court was delivered by: HENRY KENNEDY, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Ava Johnson and Peggy Wilson*fn1 allege that
their employer, the United States Capitol Police Board ("USCP")
discriminated against them on the basis of race in violation of
Title VII of the Civil Rights Act of 1964 ("Title VII"),
42 U.S.C. § 2000e et seq., and the Congressional Accountability
Act of 1995 ("CAA"), 2 U.S.C. §§ 1301 1438. Presently before
the court is defendant's motion to dismiss, or in the alternative
for summary judgment [#61]. Upon consideration of the motion, the
opposition thereto, and the record of this case, the court
concludes that the motion must be denied. I. BACKGROUND INFORMATION
USCP's Office of Financial Management ("OFM") has three
sections accounting, budget, and procurement. At the time of
their complaint, plaintiffs, both African-American women, worked
in the accounting section. They allege that they have
"consistently" suffered "disparate and discriminatory treatment
as compared to [OFM's] white employees" at the hands of Maryjean
Jablonicky, who became OFM's director in April 2001. Compl. ¶¶
11, 10. Plaintiffs' immediate supervisor was Carol Warren; both
Jablonicky and Warren are white women. Although plaintiffs
originally sought recovery for numerous alleged discriminatory
acts, their only claim still before the court is that USCP
improperly denied them a salary increase award in February
March 2002.*fn2 Although Warren advocated for plaintiffs to
receive the award, Jablonicky "refused to process the paperwork"
for the increases, while approving a similar award for plaintiffs' white
counterpart in OFM's procurement section. Id. ¶¶ 13-14.
More specifically, according to plaintiffs, Warren sought to
recognize their contributions with a merit pay award. She
discussed the matter with Jablonicky, both in person and via
e-mail. See Warren Dep. at 188. After seeking guidance from
USCP's personnel office and receiving Jablonicky's instructions
to do so, Warren consulted with USCP's Chief Administrative
Officer, John McWilliam. Warren then prepared a separate
nomination package for Johnson and for Wilson, consisting of a
pre-printed form entitled "United States Capitol Police Award Nomination," dated February 6, 2002,*fn3 as well as a cover
memo to McWilliam, dated February 26, 2002. Pls.' Opp'n, Exs. 11,
12. On March 5, 2002, McWilliam sent Jablonicky a memo indicating
that he was returning the award nominations for further
information because "[t]he recommendations for both requests
cover actions by the employees primarily in FY 2000," while
"[m]erit increases must include the employee's most recent
performance." Id., Ex. 13. Shortly afterward, on March 7 or 8,
2002, Jablonicky then summoned Warren into her office to discuss
the nominations. During this discussion, according to Warren,
Jablonicky "went into an irate and lengthy tirade," Warren Aff. ¶
18. She "told [Warren] that she would not approve the awards";
mentioned that Kay Benner, an employee with USCP's Human
Resources Division, had called Warren and her staff "worthless
people"; and stated by way of justification that Warren and
plaintiffs "did not work overtime as other divisions did during
the anthrax and the 9/11 incident." Warren Dep. at 210, 212, 214.
Jablonicky, however, "did not tell [Warren] that John was asking
for additional information to approve the awards." Warren Aff. ¶ 17.
Jablonicky, for her part, stated that "[d]uring the
conversation, both parties were frustrated, but neither party
raised a voice or was disrespectful." Def.'s Mot. for Summ. J.,
Ex. 2F at 6. She testified that she "asked [Warren] why the award
nomination memorandum did not come through me," a question for
which Warren "did not provide a clear explanation." Jablonicky
Aff. ¶¶ 47-48. She further stated that she would not authorize
merit increases for plaintiffs because of "performance issues"
she had with Wilson's work, and because she "wasn't sure that we
had enough work time for 2001, because Ava [Johnson] had been out
sick, to justify the merit increase over and above her salary. . . ." Jablonicky
Dep. (May 14, 2004) at 150-51. Around the time she denied
plaintiffs' award nominations, Jablonicky approved the same award
for Dewayne Chamberlain, a white man working in OFM's procurement
section. Jablonicky Aff. ¶¶ 59, 63. After completing their
required period of counseling with OFM's Office of Compliance,
plaintiffs brought this action on March 4, 2003.
A. Legal Standard/Analytical Framework
Under Fed.R.Civ.P. 56, summary judgment*fn4 shall be
granted if the pleadings, depositions, answers to
interrogatories, admissions on file and affidavits show that
there is no genuine issue of material fact in dispute and that
the moving party is entitled to judgment as a matter of law.
Material facts are those "that might affect the outcome of the
suit under the governing law." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In considering a summary judgment
motion, the "evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his favor." Id.
at 255. But the non-moving party's opposition must consist of
more than mere unsupported allegations or denials and must be
supported by affidavits or other competent evidence setting forth
specific facts showing that there is a genuine issue for trial.
Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317
(1986). The non-moving party is "required to provide evidence
that would permit a reasonable jury to find" in its favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir.
1987). If the evidence is "merely colorable" or "not
significantly probative," summary judgment may be granted.
Anderson, 477 U.S. at 249-50.
Title VII makes it unlawful for an employer to discriminate
against an individual on the basis of race or sex.
42 U.S.C. § 2000e-2(a). The CAA applies several anti-discrimination laws,
including Title VII, to the legislative branch of the federal
government. Reynolds v. U.S. Capitol Police Bd.,
357 F. Supp. 2d 2, 9 (D.D.C. 2004).
Where, as here, the record contains no direct evidence of
discrimination,*fn5 the court employs a burden-shifting
framework adapted from McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). First, to make a prima facie case of
racial discrimination under Title VII, plaintiffs must show that
(1) they belong to a protected class; (2) they suffered an
adverse employment action; and (3) the adverse action gives rise
to an inference of discrimination. Stella v. Mineta,
284 F.3d 135, 145 (D.C. Cir. 2002) (quoting Brown v. Brody,
199 F.3d 446, 452 (D.C. Cir. 1999)). Next, if plaintiffs successfully
establish a prima facie case of discrimination, the burden
shifts to USCP to assert a "legitimate, non-discriminatory
reason" for the adverse action. McDonnell Douglas,
411 U.S. at 802. Plaintiffs must then demonstrate that USCP's asserted
explanation is in reality "a pretext for discrimination." Texas
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).
In a case of alleged discrimination in violation of Title VII,
the court "must apply strictly the standards for summary judgment
because `discriminatory intent and proof of disparate treatment
are notoriously difficult to establish.'" Teneyck v. Omni Shoreham Hotel, 224 F. Supp. 2d 43, 47 (D.D.C. 2002) (quoting Ross v.
Runyon, 859 F. Supp. 15, 21-22 (D.D.C. 1994), aff'd per
curiam, No. 95-5080, 1995 WL 791567 (D.C. Cir. Dec. 7, 1995)).
B. Prima Facie Case
In this circuit, denial of a monetary award has been held to
constitute an adverse employment action for purposes of Title
VII. See Russell v. Principi, 257 F.3d 815, 819 (D.C. Cir.
2001) ("a bonus is a tangible, quantifiable award" with a
"direct, measurable, and immediate effect"). Since, as
African-American women, plaintiffs are members of a class of
persons protected by Title VII, it is undisputed that they have
made out the first two elements of their prima facie case. USCP
argues, however, that they fail to establish the third element of
their prima facie case, because they are not similarly situated
to Dewayne Chamberlain, their white co-worker who did receive the
merit increase.*fn6 Specifically, USCP argues that because
Chamberlain worked as a purchasing agent rather than as an
accountant, and because he reported to a different first-line
supervisor than plaintiffs, he cannot be a valid comparator for
purposes of plaintiffs' discrimination claim. See Def.'s Reply
at 3-4. Plaintiffs respond that like Chamberlain, plaintiffs were
nominated for a merit increase award; that the same supervisor
denied plaintiffs' nominations and approved Chamberlain's; that
while plaintiffs and Chamberlain "did not perform identical job
functions," they worked within the same office, "performing
financial support tasks" for USCP, and were all non-supervisory
employees under the same second-line supervisor. Pls.' Sur-reply at 5. Plaintiffs are correct that for purposes of
establishing a prima facie case, they "need not show identical
circumstances with [their] comparator in all pertinent respects.
It suffice[s] to show that the plaintiff[s] and the comparator
were `similarly situated in all material respects' not in all
respects." Willingham v. Ashcroft, 226 F.R.D. 57, 62 (D.D.C.
2005) (quoting McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d
Cir. 2001) (internal citation omitted)); see also Anderson v.
WBMG-42, 253 F.3d 561, (11th Cir. 2001) (plaintiffs similarly
situated to comparator when they "fell within the primary
responsibility of one middle manager and the same supervisory
chain of command.") Accordingly, plaintiffs have brought forward
a prima facie case of race-based discrimination.*fn7
USCP also asks the court to find that plaintiffs were not
similarly situated to Chamberlain on the basis of three
additional factors: chain of command issues, Chamberlain's
extraordinary contributions to USCP, and Jablonicky's stated
concerns with Wilson's performance. Although USCP raises these
issues for the purpose of showing that plaintiffs are not
similarly situated to Chamberlain, they are more properly
construed as the legitimate, non-discriminatory reasons USCP
proffers for denying plaintiffs the merit increases.
C. Legitimate, Non-Discriminatory Reasons
1. Chain of Command
USCP first argues that "unlike [p]laintiffs, the documentation
and paperwork in support of Mr. Chamberlain's award nomination
was submitted up the chain of command, and was properly supported." Def.'s Mot. for Summ. J. at 38. To support this
contention, USCP provides testimony that Chamberlain's first-line
supervisor, Mary Noll, submitted award nomination paperwork on
Chamberlain's behalf to Jablonicky, the second-line
supervisor.*fn8 In contrast, Warren submitted plaintiffs'
award nominations paperwork not to Jablonicky, but directly to
McWilliam. Some time after receiving plaintiffs' award
nominations from Warren, McWilliam drafted a memo on March 5,
2002 to Jablonicky, stating that the recommendations "are
returned for further justification," namely information on
plaintiffs' work performance from fiscal year 2001 and the
beginning of fiscal year 2002. Pls.' Opp'n, Ex. 13. McWilliam
testified that he "was returning [plaintiffs' award nominations]
so [they] would come back through the chain of command with
further justification if they felt it was necessary if they
felt it was justified." McWilliam Dep. at 41. In discussing why
plaintiffs were not recommended for merit increases, Jablonicky
[t]here were a couple one of the issues is the
chain of command issue. [Plaintiffs' award
nomination] documents were not submitted through the
appropriate chain of command, and the documents came
back to me with a memo from Mr. McWilliam that
requested further justification, and no further
justification was provided.
Jablonicky Dep. (May 14, 2004) at 80. Plaintiffs, however, assert that Jablonicky herself directed
Warren to bypass her and address the award nominations directly
Warren testified that she "talked with
Maryjean about the recommendation. I also e-mailed her notifying
her about the recommendation," and "Mrs. Jablonicky advised me
that she was not there during the time part of the time of this
recommendation and that she wanted me to send it to Mr.
McWilliam, who had the full authority to approve or disapprove
the recommendation . . . And she asked me to send it directly to
Mr. McWilliam for review," Warren Dep. at 186. Warren testified
that in providing the award nominations to McWilliam, she "did
exactly what [Jablonicky] told me to do." Id. at 196. If
plaintiffs are correct, USCP cannot rely on Warren's supposed
violation of the chain-of-command because in bypassing
Jablonicky, Warren was allegedly following Jablonicky's direct
USCP asserts that in urging Warren to consult with McWilliam,
Jablonicky had in mind a different award, see Jablonicky Dep.
(May 14, 2004) at 147, not a monetary merit increase but a
non-monetary recognition consisting of "a ribbon and a
certificate." Wilson Dep. at 82; see Def.'s Mot. for Summ. J.,
Ex. 13. Jablonicky testified that she had "asked [Warren] to
discuss the administrative services award, the content, with Mr.
McWilliam . . . what would apply to the chief administrative
officer offices would be an administrative services award."
Jablonicky Dep. (May 14, 2004) at 146. Warren, however, testified
that she "had discussed the awards with Maryjean prior to this memo. And I indicated that I wanted to give them
monetary awards." Warren Dep. at 188.
USCP further argues that Warren's apparent violation of the
chain of command, rather than unlawful discrimination, played a
role in Jablonicky's decision not to recommend them for the
awards. Plaintiffs, however, claim that Jablonicky never raised
the chain of command issue when she discussed the award
nominations with Warren. Pls.' Sur-reply at 1. Rather, when
Jablonicky called Warren in for a meeting to discuss plaintiffs'
award nominations on March 7 or 8, 2002,*fn10 Jablonicky
"began by telling [Warren] that she had received back [Warren's]
recommendation package from John, that she would not approve Ava
and Peggy for monetary awards, and that she had only approved
non-monetary awards for them." Warren Aff. ¶ 17.
Finally, Jablonicky justifies her refusal to consider
plaintiffs for the merit increases because on the grounds that
McWilliam stated he required more information about plaintiffs'
work accomplishments, "Ms. Warren never provided additional
information to me." Jablonicky Dep. (May 14, 2004) at 158.
Plaintiffs assert that in fact, Jablonicky failed to tell Warren
that McWilliam had sent the nominations back for additional
information, and actually obstructed Warren's inquiry into
McWilliam's decisionmaking; Warren testified that "I asked Mrs.
Jablonicky after her trance-like state if I could see Mr.
McWilliam's package. And she refused to give it to me. . . . Had
I known anything that was required, I would have been glad to add
it on." Warren Dep. at 215; see also Warren Aff. ¶¶ 17-19.
Jablonicky admitted that "I don't recall whether I gave her a copy of the package . . . I do recall that
in the end, I had the document and that Ms. Warren had asked for
it back at one point." Jablonicky Dep. (May 14, 2004) at 144.
Because plaintiffs contradict USCP's proffered chain of command
explanations, it thus remains in dispute whether the chain of
command issue was a legitimate ground for denial of the award
nominations or a pretextual explanation developed after-the-fact.
2. Chamberlain's `Extraordinary Effort'
USCP next argues that in contrast to plaintiffs, Chamberlain
expended "extraordinary effort" "during the aftermath of the
September 11, 2001 incident and the October 2001 anthrax
attacks." Def.'s Mot. for Summ. J. at 38. On February 15, 2002,
Jablonicky submitted a memo to McWilliam requesting a two-step
merit increase for Chamberlain on the basis of his "sustained,
exceptional performance," mentioning in particular his
willingness to work "12 hour days and 6 day weeks," and his role
as a "liason [sic] between the Incident Team and the Department."
Def.'s Mot. for Summ. J., Ex. 2H. McWilliam, who approved
Chamberlain's award, stated that while "I can't give a specific
incident that he did," Chamberlain "was performing at a much
higher level than he was graded at." McWilliam Dep. at 46, 73.
USCP contends that plaintiffs, in contrast, did nothing above
and beyond their regular job duties in the period of time
following the 9/11 terrorist attack. For example, Jablonicky
testified that "Kay Benner had talked to me regarding her
displeasure at the lack of helpfulness of my staff, particularly
Vonnie [Hattie Lucas], Peggy, Ava, and I believe Carol, in
providing assistance when it was needed."*fn11 Jablonicky
Dep. (May 14, 2004) at 116-17. Both Wilson and Johnson admitted that they did not work "12 hour days and 6 days a week"
in the period immediately after the 9/11 terrorist attack, see
Wilson Dep. at 225, Johnson Dep. at 186.
USCP argues that "based upon the criteria used by Ms.
Jablonicky usefulness in the wake of the 9/11 and anthrax
incidents [p]laintiffs did not make an `extraordinary'
contribution to the Department and they were entitled to a merit
increase award," Def.'s Reply at 8. The court is not aware of any
record evidence, however, which supports the first part of this
Plaintiffs claim that their award nominations were based on the
criteria outlined in a "Bulletin Board Notice" issued by USCP on
January 25, 2002. Pls.' Opp'n, Ex. 15. The notice calls for award
nominations, in eleven categories, for accomplishments from the
2001 calendar year, and outlines procedures for submitting
nominations. USCP asserts that the governing criteria for the
awards at issue are instead contained in a "Capitol Board
Resolution for Unified Schedules of Rates of Basic Pay for
Members and Civilian Employees of the United States Capitol
Police." Def.'s Mot. for Summ. J., Ex. 6. The relevant subsection
provides that "[u]pon approval of the Chief of Police or his or
her designee, a one-step increase may be provided to a civilian
employee for meritorious service and a two-step increase may be
awarded for extraordinary contributions or performance. The
criteria for meritorious service and extraordinary contributions
or performance will be determined by the Chief of Police or his
or her designee." Id. at 4. Although the record remains unclear
which criteria were applied, or should have been applied, to plaintiffs' award nominations, neither
standard provides that "usefulness in the wake of the 9/11 and
anthrax incidents" is the determinant of whether a USCP employee
should receive a monetary bonus. Likewise, there is no testimony
that has been brought to the court's attention indicating that
this is the standard Jablonicky subsequently devised or actually
applied. On the related question of overtime, although Jablonicky
testified that "[o]vertime and a significant amount of work time
was used to justify an increase for Mr. Chamberlain," Jablonicky
Dep. (May 14, 2004) at 166, she stated that she "didn't know" if
overtime or work schedules were "an issue with respect to the
recommended merit increases for plaintiffs," id. In the absence
of record evidence as to the criteria applied in making the award
decisions, plaintiffs have raised a dispute of material fact
sufficient to show pretext, precluding summary judgment.
3. Wilson's Performance/Johnson's Absence
USCP next attempts to distinguish Chamberlain from plaintiff
Wilson on the grounds that Jablonicky had "serious concerns
regarding [Wilson's] work performance." Def.'s Mot. for Summ. J.
at 42. Specifically, Jablonicky allegedly was dissatisfied with a
report that Wilson had been assigned to prepare (the "SEP
Report"), and she "indicated to Ms. Warren that [Jablonicky] had
performance issues, of which [Warren] was aware, with Ms.
Wilson's work." Jablonicky Dep. (May 14, 2004) at 150.
To bolster its claim that Jablonicky had legitimate,
non-discriminatory reasons for denying plaintiffs the merit
increases, USCP proffers a trio of memoranda which Jablonicky
allegedly wrote "to file" in February and March 2002. Def.'s Mot.
for Summ. J., Ex. 2F. In the first, dated February 15, 2002,
Jablonicky noted various deficiencies in Wilson's work on the SEP
report, and stated that she "informed Ms. Wilson that her work
was sloppy and unacceptable." Id. at 1. Jablonicky also wrote
that she spoke with Warren about Wilson's shortcomings on the report, and "indicated to Carol that I did not believe Peggy was
performing up to the level of her position." Id. at 2. In the
second memo, dated March 1, 2002, Jablonicky wrote that she met
with Warren and Wilson that same day to discuss the status of the
report. At the meeting, Jablonicky voiced her frustration on
various aspects of the report, including updates that Wilson had
not made and "[n]umbers which were still not balanced." Id. at
3. In regard to the latter issue, Jablonicky wrote that although
Wilson wanted to "write off the difference . . . Carol indicated
to me that she did not feel it appropriate to fudge the balance,"
id. In the final memo, dated March 8, 2002, Jablonicky wrote
that she met with Warren the previous day to discuss the award
nominations Warren had submitted for plaintiffs, and that among
other things Jablonicky told Warren "that I could not authorize
merit increases for individuals for whom I had current
performance issues." Id. at 5.
Plaintiffs vigorously dispute that Jablonicky raised any of
these concerns with either Wilson or Warren, arguing that "it was
not until after [plaintiffs] were recommended for the award
[that] Ms. Jablonicky beg[a]n to raise an issue regarding
[p]laintiff Wilson's performance with the SEP Report." Pls.'
Sur-reply at 9. Wilson admitted having a meeting with Jablonicky
and Warren about the SEP Report, but disputed Jablonicky's
characterization of that meeting. Specifically, she testified
that contrary to Jablonicky's memo "to file," Jablonicky did not
tell Wilson to pull procurement documents, and Wilson did not
"indicate that she had a lot of work to do and that [she] forgot"
to complete specific tasks Jablonicky directed her to perform.
Id. at 306. Wilson also contradicted other details of
Jablonicky's version of the meeting, testifying that "I don't
know how to fudge a number on the report," because "you cannot
write-off the difference . . . in order to write-off the
difference I have to be able to have the ability to extract
whatever the difference is out of the FMS so that the two can
agree. And I don't have the ability to do that." Wilson Dep. at 302, 304. Wilson admitted that Jablonicky "did
question the delays in the status of the projects." Id. at 308.
The fact that Jablonicky had "questions" for Wilson, though, does
not necessarily mean that Jablonicky had "performance issues"
Warren, for her part, disputes that Jablonicky ever called to
her attention any problems with Wilson's performance: "Maryjean
had not had prior discussions with me about work performance
issues concerning Ava or Peggy . . . I was always told by
Maryjean how happy she was with the work of accounting." Warren
Aff. ¶ 27.
Finally, as evidence of Jablonicky's concerns with Wilson's
performance, USCP offers an e-mail message from Jablonicky to
Wilson, dated March 12, 2002. Regarding the SEP Report,
Jablonicky mentions "delayed projects," and reminds Wilson that
"this is a time sensitive report" which "really needs to be
prioritized." Def.'s Reply, Ex. 6. This e-mail, however,
post-dates Jablonicky's decision to deny plaintiffs the merit
awards, and comes at least four days after the meeting Jablonicky
had with Warren to discuss the award nominations. While the
e-mail might simply memorialize long-standing concerns Jablonicky
had, a jury could instead find it to be an ex post facto
justification for a discriminatory act. Because the record is
sufficiently ambiguous as to what Jablonicky thought of Wilson's
work performance prior to the award denials, summary judgment
As to Johnson, USCP argues that she "only worked nine out of
twelve months" in 2001, and that McWilliam "considered the
information that was actually presented to him . . . and deemed
it lacking with respect to information about Ms. Johnson's recent
performance." Def.'s Reply at 12. According to plaintiffs,
however, even though McWilliam requested additional information,
Jablonicky never conveyed this fact to Warren, thus denying her
the opportunity to supplement plaintiffs' award nominations. D. Pretext
Once the defendant articulates legitimate, non-discriminatory
reasons for the adverse action, plaintiffs must rebut those
explanations, creating a genuine dispute of material fact as to
whether they are pretextual. Here, "the issue is not the
correctness or desirability of the reasons offered but whether
the employer honestly believes in the reason it offers."
Fischbach v. D.C. Dep't of Corrections, 86 F.3d 1180, 1183
(D.C. Cir. 1996) (quotation and alterations omitted). While "an
employer's reason need not be false to be proven pretextual," it
is also true that "proving that an employer's reason is false
will not always be sufficient to demonstrate pretext." George,
407 F.3d at 415.
There is no single formula plaintiffs must follow to proffer
evidence which tends to show that defendant's stated reasons are
pretextual. If they can produce evidence that defendant's
allegedly non-discriminatory reasons "were after-the-fact
justifications, provided subsequent to the beginning of legal
action," summary judgment is inappropriate. Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 56 (1st Cir. 2000).
Plaintiffs may also show pretext by "the ever-changing nature of
[defendant's] proffered reasons," Abramson v. William Paterson
College of New Jersey, 260 F.3d 265, 285 (3d Cir. 2001). While
additional evidence may certainly aid in such a showing, "a
plaintiff's discrediting of an employer's stated reason for its
employment decision is entitled to considerable weight," and she
cannot be required "to submit evidence over and above rebutting
the employer's stated explanation in order to avoid summary
judgment."*fn12 Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,
1289 (D.C. Cir. 1998). As described in Section C above, plaintiffs have pointed to record evidence which
contradicts each of USCP's stated legitimate, non-discriminatory
reasons for denying them the merit increase awards. "Although a
jury may ultimately decide to credit the version of the events
described by [USCP] over that offered by [plaintiffs], this is
not a basis upon which a court may rest in granting a motion for
summary judgment." George, 407 F.3d at 413.
For the foregoing reasons, the court concludes that USCP's
motion to dismiss, or in the alternative for summary judgment
must be denied.
Accordingly, it is this 5th day of July, 2005, hereby
ORDERED, that USCP's motion for summary judgment is DENIED.