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Diggs v. Potter

March 31, 2010

KEITH B. DIGGS, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiff Keith B. Diggs is an African-American male formerly employed by the United States Postal Service ("the Postal Service," "USPS," or "the agency"). He claims that his employer discriminated against him on the basis of his race, gender, age, and disability, retaliated against him for complaining about that discrimination, and subjected him to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Defendant has moved for summary judgment on all of plaintiff's claims. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, the Court GRANTS defendant's motion for summary judgment.

I. BACKGROUND*fn1

Plaintiff began working for the Postal Service on February 14, 1987. He was working as a Tractor-Trailer Operator, Full Time, Motor Vehicle Craft before he sustained an occupational injury that rendered him incapable of performing the duties of that position. From May 20, 1997 until April 20, 1998, plaintiff was on leave due to this injury, and he received workers' compensation through the U.S. Department of Labor Office of Workers' Compensation Programs ("OWCP"). (Pl. Opposing Facts ["Pl. Facts"] at 3.) In March, 2008, he provided USPS with documentation from his health care provider that he could return to work subject to certain limitations. As a result, on April 17, 1998 the USPS offered plaintiff a limited duty rehabilitation job offer.*fn2 (Pl. Att. 1, Ex. 7 (Memo from K. McGovern to K. Diggs.))

Plaintiff accepted the rehabilitation job offer. He returned to work on April 25, 1998 in the position of full-time Modified Mail Processor at the Curseen-Morris Processing and Distribution Facility ("P&DC") in Washington, D.C..

Plaintiff's second amended complaint alleges multiple claims arising from eight years of alleged discrimination and harassment by his superiors from 1998, when he returned to work at the Postal Service, until his employment was terminated in 2006. Pending before the Court are the events underlying five separate administrative complaints, two decisions from an EEO Administrative Judge, and three decisions from the EEO's Office of Federal Operations. This opinion considers, and resolves, all of plaintiff's underlying claims.

A. Plaintiff's Medical Conditions

As set forth above, plaintiff suffered an occupational injury in May 1997 that rendered him incapable of performing his duties as a motor vehicle operator. On March 13, 1998, plaintiff submitted to USPS a Duty Status Report (Form CA-17). This form is used by OWCP "to assess whether an employee who has suffered a work-related injury can be accommodated with limited duties that do not interfere with the employee's medical restrictions." Smith v. U.S. Postal Service, 36 Fed. Appx. 440, 444 (Fed. Cir. 2002). On or about March 27, 1998, he submitted a Work Restriction Evaluation Form (Form OWCP-5). Both forms were signed by Barbara A. Shaver, CRNP (Certified Registered Nurse Practitioner). Nurse Shaver diagnosed plaintiff with a herniated disc. (Pl. Att. 1, Ex. 19d (CA-17, Mar. 11, 1998).) She described her clinical findings as "pain in back radiating to right leg." (Id.) Nurse Shaver also diagnosed plaintiff with degenerative joint disease in his right knee. (Id.) She stated that plaintiff had been totally disabled until March 16, 1998, and that he was able to resume work, but would have a partial disability from March 16, 1998 to September 16, 1998. Nurse Shaver further determined that plaintiff could resume work for eight hours per day subject to, inter alia, the following work restrictions: intermittently sit and walk eight hours, squat, kneel and stand four hours, lift up to 20 pounds, climb and twist two hours, push and pull up to 30 pounds. Nurse Shaver concluded that plaintiff was permanently unable to drive a tractor trailer.

(Pl. Att. 1, Exs. 19d and 19o (Shaver Evals. Mar. 11, 1998 and Mar. 27, 1998).)

As a result of his workplace injury and the documentation plaintiff presented, the Postal Service offered plaintiff a limited duty assignment. Specifically, on April 17, 1998, the USPS extended plaintiff a Rehabilitation Job Offer with the following duties: "employee will be required to start equipment, clear jams that don't require hand tool, and notify maintenance of machinery malfunction. Employee will clear mail from bins, and place in trays, and load letter mail onto ledge to be processed through machinery." (Pl's Att. 1, Ex. 7.) This job offer was determined to be "within the following medical limitations: Employee is able to intermittently sit and walk eight hours, squat, kneel and stand four hours. Employee is able to lift up to 20 pounds, climb and twist two hours." (Id.)

Later in 1998, Dr. Steven Taub evaluated plaintiff following a flare-up of symptoms after he stooped to light fireworks on July 4, 1998. (1998 Report on Investigation ("1998 ROI") Exs. 19A-C (Taub Consult Oct. 6, 1998).)*fn3 He diagnosed plaintiff "with known . . . disc disease causing low back problems," and advised that "bending, stooping, lifting, twisting, and excessive sitting can exacerbate the condition." (Id.) Dr. Taub advised plaintiff to "try to change his posture frequently with sitting no longer than 15 minutes at a time and no excessive bending, twisting or lifting." (Id.) Dr. Taub did not evaluate plaintiff for specific functional capabilities. (Id.)

Plaintiff submitted a Duty Status Report (CA-17) to the USPS EEO Office in May 2003. (Pl. Att. 4, Ex. 6 (Form CA-17, Exam Date Mar. 25, 2003, signed May 20, 2003).) He was specifically evaluated for his ability to perform the qualifications of Automation Mail Processor. Form CA-17 lists the usual work requirements for the position, and requires the employee's medical provider to state whether the employee can perform these duties. Plaintiff could perform most, but not all, of the usual work requirements for Automation Mail Processor. He could (1) lift 20 pounds intermittently for eight hours; (2) stand intermittently for four hours; (3) walk intermittently for four hours; (4) perform simple grasping continuously for eight hours; and (5) perform fine manipulation, including keyboard skills, as required by the position. (Id.) He could only sit intermittently for four hours, however, while the position calls for eight, and he could not perform any above-the-shoulder work while the position calls for four hours of intermittent reaching above the shoulder. (Id.)

The 2003 CA-17 form also indicated that plaintiff could perform a number of tasks in addition to those required for the Automation Mail Processor position. Specifically, plaintiff could climb, kneel, bend/stoop, twist, pull/push, drive a vehicle, operate machinery, work in temperature extremes and high humidity, and work with chemicals, solvents, fumes, dust, and noise for some or all hours during the workday. (Id.)

Plaintiff submitted one additional Form CA-17 to USPS on December 1, 2005. (Pl. Att. 3, Aff A. p. 27 of 39 (Duty Status Report, signed Nov. 21, 2005, date-stamped Dec. 1, 2005).) The 2005 CA-17 indicates that plaintiff could return to work as of May 20, 2003. (Id.) The 2005 CA-17 also cleared plaintiff to lift 20 pounds intermittently for eight hours per day, to climb, perform simple grasping, fine manipulation, driving a vehicle, operate machinery, work in temperature extremes and high humidity, and work with chemicals, solvents, fumes, dust, and noise. (Id.) The form contains no information regarding plaintiff's ability to, inter alia, stand, sit, walk, kneel, twist, push, or pull.*fn4 (Id.)

B. Plaintiff's Workplace Complaints

1. Events of 1998: Sick leave or Leave Without Pay, the Snow Arbitration Award

From approximately April through December 1998, plaintiff was assigned to the position of a Modified Mail Processor at the PD&C. Plaintiff did not, however, work this entire time; he was absent from work from June 30 through July 20, 1998. During that time he received payment of $1,448.83 for work related injuries from OWCP. These payments were intended to cover plaintiff's entire absence in June and July. Both USPS and OWCP prohibit employees from receiving sick leave payments from the Postal Service while accepting payments from OWCP.

Plaintiff contacted USPS on at least two occasions during this period to notify the Agency he would be absent from work. On July 5, 1998, plaintiff called in and requested 40 hours of leave for the week of July 5 - 11, 2008. Plaintiff states that he requested leave without pay ("LWOP") for the week, however his request was noted as "sick leave" on the leave slip the Postal Service generated for his absence. (Pl. Att. 1, Ex. 1 (Form 3971, Request for or Notification of Absence, Jul. 5-11, 1998).) Several USPS employees signed the request and John Grier, an Attendance Control Supervisor at the P&DC, ultimately approved it. (1998 ROI p. 17, Aff. of John Grier.) Grier did not personally take plaintiff's July 5, 1998 phone call. (Id.) He believed that plaintiff had requested sick leave, and approved the request, "based on the information given on the Form 3971, leave slip, that was taken when [plaintiff] called in." (Id.)

Plaintiff contacted USPS again to request 48 hours of leave without pay for the following week -- July 12 - July 19, 1998. (Pl's. Att. 1. Ex. 1 (Form 3971 Jul. 12-19, 1998).) This time, because the USPS recorded his request as LWOP, it was routed to the Postal Service's Injury Compensation office instead of Attendance Control.*fn5 Injury Compensation Specialist Toni Grier approved plaintiff's July 12 - 19 application for LWOP. (Id.; see also 1998 ROI, p. 14, Aff. of Toni Grier.) Toni Grier has handled all of plaintiff's OWCP claims since 1997. (Pl. Facts at 4.)

Plaintiff returned to work on July 22, 1998. (Pl. Facts at 3.) Upon his return, plaintiff "saw the [July 5] slip[] was wrong, [and] indicated in his own handwriting 'comp injury' on the leave slip for July 5, 1998." (Id.) He did not, however, change the two instances on his Form 3971 which indicated that he had taken sick leave for that week. (Pl. Ex. 1 (Form 3971 Jul. 5-11, 1998).) Plaintiff signed the July 5 leave slip on July 22, 1998, and was paid for 40 hours of sick leave for that week. On December 10, 1998, the OWCP notified plaintiff that he had been overpaid because he had been compensated for sick leave during the week of July 5, 1998 while he was also being compensated by OWCP. (1998 ROI, Ex. 2, p. 26.) Accordingly OWCP sought return of its money.

Two days after returning to work, on July 24, 1998, USPS changed plaintiff's job status from full-time regular to part-time flexible, with an effective date retroactive to April 25, 1998. This change in status was the result of the settlement of an arbitration decision (the "Snow Arbitration Award") between the American Postal Workers Union ("APWU") and USPS management. The settlement agreement, dated July 18, 1998, provided that all employees who were reassigned when they were partially recovered from an on-the-job injury after 1994 would be converted to part-time flexible employees. Therefore, on July 24, 1998, plaintiff's status was changed to part-time flexible along with all other employees in this group.

A few months later, the APWU and the Postal Service agreed to amend their settlement agreement and remove the requirement converting full time employees to part-time flexible status. Accordingly, on December 1, 1998, plaintiff was returned to full-time status retroactive to April 25, 1998. Plaintiff was credited for any salary and leave diminutions while he was in part-time status.

Plaintiff requested EEO counseling on August 31, 1998. He alleged that the agency placed him on sick leave instead of LWOP from July 5 - 11, 1998 and changed his status from full-time to part-time flexible based on race, sex, age, retaliation, and disability discrimination.*fn6 He filed a formal EEO complaint on November 2, 1999. (1998 ROI p. 90 (Partial Acceptance/Partial Dismissal of a Formal Complaint, Mar. 28, 2000).)

2. The Events of 1999: Disputes over Sick Leave and Limited Duty Status

Plaintiff continued to work in a "limited duty" assignment in 1999, however, he was reassigned to work as a Mail Processor in the V Street Annex, Return to Sender Unit (a different facility than the P&DC). Plaintiff's new duties were described as manual distribution of letters within restrictions, including: "no bending, twisting or stooping, no sitting longer than 15 minutes. Needs to sit at a low case." (2000 ROI p. 11 (Aff. of Deborah Boston ("Boston Aff.")).)

Plaintiff's limited duty assignment stemmed from his on-thejob injury in 1997, which, as discussed above, was approved by OWCP and the USPS and assigned claim number 25-0514475. In August 1998, plaintiff filed an additional claim with OWCP seeking a determination that he sustained another compensable onthe-job injury: a mental and emotional injury caused by stress due to harassment at work. (1998 ROI, Ex. 12 p. 53 (Jun. 10, 1999 letter from OWCP to plaintiff.)) This claim was assigned number 25-50529977.

On June 10, 1999, the Department of Labor issued a ruling denying plaintiff's stress and harassment claim - number 25-50529977. (Id.) The USPS Injury Compensation office received a copy of OWCP's denial and, as it does with all denied claims, informed the appropriate operations managers of the denial. Specifically, on July 13, 1999, Senior Injury Compensation Specialist Natalia Goddard sent a memo to Operations Managers Darryl Martin and Edgar Gramblin entitled "Denied Claim by the Department of Labor". (Pl. Att. 11 (Jul. 13, 1999 Memorandum to D. Martin and E. Gramblin from N. Goddard.)) Goddard's memorandum stated "the attached ruling from the Department of Labor is provided for your information and or action . . . The following actions may be necessary: [...] Ensure that employee is not on limited duty. . . . If you have any questions please contact Toni Grier." (Id. (emphasis in original)) The memorandum contained no mention of plaintiff's existing worker's compensation claim for his back injury, claim number 25-0514475.

Upon notification that plaintiff's OWCP claim had been denied, Operations Manager Gramlin believed that plaintiff was able to perform his regular clerk duties and no longer needed limited duty assignment. (Pl. Att. 1, Aff. D (Aff. of Edgar Gramblin, Oct. 31, 2000 ("Gramblin Aff.")).) Gramblin did not know that plaintiff had more than one OWCP claim and plaintiff did not immediately inform him otherwise. Indeed, at that time Gramblin did not know plaintiff, nor was he aware of his previous EEO activity. (Id.)

Believing plaintiff was no longer eligible for limited duty, Gramblin reassigned plaintiff from his limited duty position at the V Street Annex to a regular duty assignment at the P&DC. (Id.) Plaintiff refused to perform his regular duty assignment. As a result, he was suspended and advised he could provide information to request a light duty assignment, which employees may receive for non-workplace injuries. (Id.) After approximately two days, plaintiff returned with documentation to show he had two OWCP claims, only one of which had been denied.

He was immediately returned to his limited duty job. Plaintiff filed a grievance with his union over his suspension. He prevailed in his grievance, and about a month after his suspension, the Agency paid him for the 19.42 hours he had been suspended.

Notwithstanding OWCP's June 10, 1999 denial of plaintiff's on-the-job injury related to stress (claim number 25-50529977), in August 1999 plaintiff submitted three requests for LWOP because of stress and cited the already-denied claim number -- 25-50529977. (Pl. Att. 1, Exs. 14, 15a, 15b (Forms 3971, Aug. 11, Aug. 12 and Aug. 13, 1999).) None of these requests were approved. (Id.)

On September 9, 1999, plaintiff submitted a request for three hours of sick leave (not LWOP, as he had in August) and cited his other OWCP claim number - 25-0514475 - which related to his back injury and had been approved in 1997. This leave request form was initially received, as all leave slips are, by the USPS office of absence control. (Pl. Att. 10 (T. Grier Dep. at 31.)) The absence control office routed the leave slip to the injury compensation office where it was handled by Toni Grier, who handles all injury compensation claims for employees whose last names begin with D through I. (Id.) Grier checked the "disapproved" box on the leave request, and wrote "no meds on file." (Pl. Att. 1, Ex. 15e (Form 3971, Sept. 12, 1999).)

However, because plaintiff requested sick leave, the Injury Compensation Office should not have processed the leave request in the first instance. "To request sick leave, an employee merely had to have the leave available and make the request on the appropriate form . . . . There is no requirement that any employee have any medical information on file in order to qualify for or request sick leave." (Pl. Opp. at 20.) Grier admitted her error, explaining: "I should never have signed the sick leave slip. Sick leave . . . should be approved or disapproved by the supervisor, not by injury comp . . . leave for an injury has to be either leave without pay, IOD, or COP. Those are the only [] forms of leave that the injury compensation office handles." (Def. Deps., T. Grier Dep. at 43-44; see also Pl. Ex. 1, p. 14 (T. Grier Aff. Oct. 11, 2000) ("I do not normally take action on leave requests of this nature; it was an oversight that I did in this instance.").)

Once Grier had processed her "batch" of leave slips, including the slip for plaintiff, she "put them back in the envelope and sent them to Time and Attendance [or] absence control. And then . . . someone else would disburse them to the supervisors." (Pl. Ex. 10, (Grier Dep. at 31-32).) Because Grier denied plaintiff's request for sick leave, the agency treated it as a request for annual leave. Plaintiff did not have any annual leave accrued, thus, the Agency placed him in LWOP status for three hours. As a result, he lost three hours' pay.

Plaintiff requested EEO counseling on September 28, 1999, alleging that both the two-day suspension in July and the sick leave denial in September constituted unlawful discrimination based on retaliation for his prior EEO activity and disability. He filed a formal complaint on December 14, 1999. (1998 ROI p. 96 (Partial Acceptance/Partial Dismissal of a Formal Complaint, Feb. 22, 2000).)

On June 3, 2003, the EEO consolidated plaintiff's two claims regarding the events of 1998, as set forth in Section A above, with his two claims regarding the events of 1999. On March 31, 2004, an EEO Administrative Judge ("AJ") granted the Agency's motion for summary judgment on all four of the claims, finding that plaintiff "failed to adduce any evidence that the conduct complained of was based on . . . his race, sex, age, disability or prior protected activity." (Def. Att. 2a.) The AJ further found that "the Agency articulated a legitimate, non-discriminatory reason for its action[s]," which plaintiff "failed to rebut [or] . . . proffer any evidence of pretext." (Id.) USPS issued its final agency decision on May 25, 2004 implementing the decision of the A. (Def. Att. 2b.) Plaintiff appealed to the EEO Office of Federal Operations ("OFO"). On December 5, 2005, the OFO issued a decision affirming the Agency's final action. The OFO found that no "reasonable fact finder could draw an inference of race, sex, age and disability determination or reprisal regarding the actions of the agency," and that plaintiff "failed to present evidence that any of the agency's actions were motivated by discriminatory animus toward [plaintiff's] protected classes." (Def. Att. 3, p. 6.)

3. The Events of 2000: May 3, 2000 Overtime Dispute

Plaintiff's complaint contains one allegation of unlawful treatment in 2000: denial of an overtime opportunity on May 3, 2000.

The Postal Service awards overtime "when employees are needed to work before or after their work schedule and also when employees are needed to work on the[ir] non-schedule[d] workdays based on the mail volume." (Pl. Att. 2, Aff. C (Aff. of William Darryl Martin ("Martin Aff.").) Employees desiring to work overtime put their names on a voluntary 'overtime desired' list. (Id.) When overtime is necessary, management reviews the overtime desired list and schedules overtime "among qualified employees doing similar work in the work location where the employees normally work." (2000 ROI Ex. 7b, p. 41 (Collective Bargaining Agreement Between the USPS and the American Postal Workers Union, AFL-CIO, Article 8.5).) In the Washington, D.C. area, employees may sign an overtime desired list to work on their non-scheduled workdays as well as their scheduled workdays.

(Martin Aff.; see also Pl. Att. 6 (Local Mem. of Understanding Between the Washington, D.C. Post Office, Air Mail Center, and American Postal Workers Union AFL-CIO).) However, "those absent or on leave shall be passed over." (2000 ROI Ex. 7b, p. 41.)

Limited duty employees such as plaintiff are not precluded from working overtime. (Martin Aff.) However, in order to be "qualified" to perform the overtime as set forth in the Collective Bargaining Agreement, "the employee must be able to perform the duties in the operation where the overtime is required. If the limited duty employee can work in automation he will be allowed to work any overtime called in automation . . . if he is on the overtime desired list for automation but he/she is physically unable to perform the duties on automation he would not be selected for overtime in automation." (Id.)

In the spring of 2000, plaintiff was still working in the return-to-sender unit under the direct supervision of Deborah Boston. William Darryl Martin was the Senior Manager for Distribution Operations. Plaintiff put his name on overtime desired lists for both his scheduled and non-scheduled days, to perform any work for which he was qualified in his location. (Def. Deps., Keith Diggs Dep. at 55.)

The return-to-sender unit moved from the V Street Annex to the P&DC during the first week in May, 2000. (2000 ROI Aff B. (Boston Aff.).) On Wednesday, May 3, 2000 plaintiff worked from 4:00 p.m. until 10:00 p.m. He took annual leave for the hours he did not work. Wednesdays were one of plaintiff's regularly scheduled workdays; his regularly scheduled hours were 4:00 p.m. to midnight. (2000 ROI Ex. 3, p. 19 (Limited Duty Job Offer Dec. 19, 1998); Ex. 1, p. 17 (Time Summary).) Plaintiff was not offered overtime on May 3, 2000, nor was overtime awarded in the return-to-sender unit on that day.

Plaintiff sought EEO counseling to complain that he was unlawfully denied overtime based on race and disability. (ROI 2000 p. 55 (EEO Counselor's Report Jun. 13, 2000).) He filed a formal complaint alleging race and disability discrimination on October 3, 2000 (2000 ROI p. 52 (EEO Complaint of Discrimination in the Postal Service, Oct. 3, 2000).) In the investigative affidavit he provided to the EEO, plaintiff alleges employees in Operations 030, 040 and 150 at the P&DC -- only 100 feet from his work location once the return-to-sender unit moved to the P&DC facility -- performed overtime work that "was within [his] physical restrictions . . . [he] could have performed the work in overtime status."*fn7 (2000 ROI Aff A., p. 8, (Diggs Aff. Mar. 1, 2001).) In response, manager Boston explained to the EEO Counselor that during the approximately five years she supervised the return-to-sender unit, "there was no overtime given to the employees [in the return to sender unit] . . . because of the low priority of the mail that was being worked . . . It did not warrant paying employees premium overtime pay to process it." (Boston Aff.) She also asserted that plaintiff would not have been able to work overtime outside the return to sender unit because "his physical limitations would not allow him to work in other sections." (Id.)

An EEO AJ heard plaintiff's formal complaint. She found that no discrimination occurred, and dismissed the claim on September 3, 2003. (Def. Att. 4.) On September 17, 2003, the Postal Service issued a final order implementing the AJ's decision, which plaintiff appealed to the EEO's OFO. (Def. Att. 5.) The OFO issued a decision on March 3, 2005, which found that there was no "overtime available within [plaintiff's] pay location" on May 3, 2000, and that "even if there was overtime available on the day in question, [plaintiff] was on annual leave, and therefore ineligible for overtime." (Id.) The OFO upheld the A's decision and the Postal Service's final order that "construing the evidence to be most favorable to [plaintiff] . . . [plaintiff] failed to present evidence" that his failure to receive overtime was "motivated by discriminatory animus toward [his] protected classes." (Id.)

4. The Events of January 2002 - February 2006: Plaintiff's Departure and Ultimate Removal from the Postal Service

In 2001, the P&DC (also known as "Brentwood") was targeted in an anthrax terrorist attack. As a result, the Post Office closed the P&DC in October 2001, and its employees were transferred to other postal facilities. (Pl. Att. 10, Grier Dep. 83.) Plaintiff was reassigned to the Calvert Development and Design Center for a short time following the anthrax attack. (Id. at 84.) There was no work, however, for plaintiff to perform. Plaintiff and at least 30 other relocated employees "sat in a room . . . [doing] nothing." (Id. 83-84.) In January 2002, Postal Service management decided that plaintiff and these other employees for whom the Agency had no work should be sent home.

On January 23, 2002, Julie E. Szarek, USPS Human Resources Manager, sent plaintiff a letter stating, in relevant part:

Due to the closure of the Brentwood facility and its relocation to other offices, Plant Operations has indicated it is no longer able to accommodate your restrictions. Effective Friday, January 25, 2002, you should no longer report to the Calvert worksite.

Since the agency cannot provide suitable duties within your restrictions, the injury compensation office is issuing CA-7 forms for your use. This form should be completed and submitted to this office to ensure that you are compensated through the Department of Labor, Office of Worker's Compensation Programs.

If you have further concerns please contact Toni Grier, Manager, Injury Compensation, at [phone number].

(Pl. Att. 3, p. 4 (Letter from J. Szarek to K. Diggs, Jan. 23, 2002).) As indicated by Szarek's letter, the CA-7 form is used by the Department of Labor OWCP to process Claims for Compensation due to, in this case, medical restrictions that precluded the USPS from finding suitable work for plaintiff. Plaintiff was among a group of "30 people or more . . . who were sent home and given CA-7s to complete and be compensated through the [OWCP] until the agency was able to provide them with work." (Pl. Att. 10 (Grier Dep. ...


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