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Silverstein v. Carter

United States District Court, D. Hawaii

August 11, 2016

ASHTON B. CARTER, in his capacity as the Secretary of Defense, Defendant.




         Plaintiff Jay Silverstein, a civilian employee with the Department of Defense, brings retaliation and hostile work environment claims under Title VII.

         Defendant Ashton Carter, in his capacity as Secretary of Defense, moves for dismissal of Silverstein’s First Amended Complaint, or alternatively for summary judgment on all claims.

         Silverstein concedes that, because he either failed to administratively exhaust or was untimely in doing so, any retaliation claim asserted in paragraphs 14, 17, 22, 24, 25, and 30 of the First Amended Complaint should be dismissed, the sole exception being any retaliation claim relating to a trip to Laos. See ECF No. 50, PageID # 604. Relying on the failure to properly exhaust, the court therefore dismisses any retaliation claim in any of these paragraphs other than the retaliation claim relating to the Laos trip.

         The court grants in substantial part and denies in part Defendant’s motion for summary judgment on the remaining claims. With respect to Silverstein’s retaliation claim, summary judgment is denied to the extent the claim relates to the selection of a Supervisory Historian. Summary judgment is granted in favor of Defendant on all other bases of his retaliation claim. With respect to Silverstein’s hostile work environment claim, summary judgment is granted to Defendant.


         Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The movants must support their position concerning whether a material fact is genuinely disputed by either “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials”; or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

         The burden initially falls on the moving party to identify for the court those “portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323). “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted).

         The nonmoving party may not rely on the mere allegations in the pleadings and instead must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec. Serv., 809 F.2d at 630. At least some “‘significant probative evidence tending to support the complaint’” must be produced. Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134 (“A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.”). “[I]f the factual context makes the non-moving party’s claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial.” Cal. Arch’l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). Accord Addisu, 198 F.3d at 1134 (“There must be enough doubt for a ‘reasonable trier of fact’ to find for plaintiffs in order to defeat the summary judgment motion.”).

         In adjudicating summary judgment motions, the court must view all evidence and inferences in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 631. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id. When “direct evidence” produced by the moving party conflicts with “direct evidence” produced by the party opposing summary judgment, “the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.” Id.


         Since July 2009, Jay Silverstein has been a Supervising Investigation Site Survey Manager for the Department of Defense, POW/MIA Accounting Agency. That agency, which acquired its present name in January 2015, was previously known as the Joint POW/MIA Accounting Command. The agency locates and returns the remains of American soldiers killed in the service of this country. For five years before becoming a Supervising Investigation Site Survey Manager, Silverstein was a Forensic Anthropologist with the agency’s Central Identification Laboratory. First Amended Complaint ¶¶ 4, 6, 9, ECF No. 14, PageID #s 39, 41; Answer to Amended Complaint ¶¶ 4, 6, 9, ECF No. 24, PageID #s 84-85 (admitting same).

         In 2012, the agency had about 400 employees. It now has more than 600 employees. See Declaration of Kelly Fletcher ¶ 1, ECF No. 42-4, PageID # 388.

         Silverstein claims to have suffered retaliation and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964 based on a number of events. Title VII forbids employment discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Title VII also has an anti-retaliation provision that forbids discrimination against an employee who has opposed any unlawful employment practice prohibited by Title VII or who has made a charge, testified, assisted, or participated in a Title VII proceeding or investigation. 42 U.S.C. § 2000e-3(a).

         Silverstein brings his claims under Title VII, see First Amended Complaint ¶¶ 1, 2, 3, ECF No. 14, PageID #s 38-39, but the connection between Title VII and any alleged retaliation or hostile work environment is often unclear. In fact, Silverstein himself concedes that he cannot proceed under Title VII with respect to some of what he claims. The court has no duty to scour the record for facts not identified by a party in the party’s concise statement. See Local Rule 56.1(f). Silverstein’s concise statement includes speculation and conclusions, but lacks evidentiary support with respect to many of his claims. The court does its best in this order to examine whether there is evidence that there was arguably retaliation or a hostile work environment related to any matter covered by Title VII, as well as to determine whether Silverstein raises any genuine issues of fact that preclude summary judgment.

         The court begins its analysis by examining Silverstein’s Title VII retaliation claim, determining that the Government is entitled to dismissal of the parts of the claim that were not properly exhausted and to summary judgment with respect to all but one basis of the remaining parts of the retaliation claim. The court then turns its attention to the Title VII hostile work environment claim, determining that the Government is entitled to summary judgment with respect to the hostile work environment claim.


         A. Law Applicable to Title VII Retaliation Claims.

         Title VII’s anti-retaliation provision generally forbids retaliation against an employee who has exercised rights under Title VII. See 42 U.S.C. § 2000e-3(a). “Title VII retaliation claims must be proved according to traditional principles of but-for causation . . . . This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013).

         For purposes of a summary judgment motion, a plaintiff may demonstrate a retaliation claim under Title VII by applying the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). Under the McDonnell Douglas framework, a plaintiff must establish a prima facie case of discrimination. 411 U.S. at 802. The degree of proof required to establish a prima facie case for summary judgment is minimal. See Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005).

         To make out a prima facie retaliation claim under Title VII, a plaintiff must show that “(1) the employee engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between the protected activity and the adverse employment action.” Davis v. Team Elec. Co., 520 F.3d 1080, 1093-94 (9th Cir. 2008).

         “Protected activity includes the filing of a charge or a complaint, or providing testimony regarding an employer’s alleged unlawful practices, as well as engaging in other activity intended to oppose an employer’s discriminatory practices. Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9thCir. 2003) (quotation marks and citation omitted); 42 U.S.C. § 2000e-3(a) (forbidding discrimination against employee who “opposed any unlawful employment practice prohibited by Title VII or who has made a charge, testified, assisted, or participated in a Title VII proceeding or investigation.”).

         For purposes of the second prong of the McDonnell Douglas framework, an “adverse employment action” is an action that is “materially adverse” to a reasonable employee or job applicant. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotations omitted). An “adverse employment action” is one that “materially affects the compensation, terms, conditions, or privileges of employment.” Davis, 520 F.3d at 1089. An “adverse employment action exists” when the employer’s actions are so harmful that they could dissuade a reasonable worker from making or supporting a charge of discrimination. White, 548 U.S. at 68. Normally, “petty slights, minor annoyances, and simple lack of good manners” will not deter a reasonable worker from making a charge of discrimination, id., while termination, dissemination of a negative employment reference, issuance of an undeserved performance review, and refusal to consider a plaintiff for a promotion may. See Brooks v. City of San Mateo, 229 F.3d 917, 928-29 (9th Cir. 2000).

         The Ninth Circuit has adopted the EEOC’s guidelines for what constitutes an adverse employment action in the Title VII context, ruling that an adverse employment action is any adverse treatment that “is reasonably likely to deter the charging party or others from engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000); accord Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 965 (9th Cir. 2004). Thus, the Ninth Circuit defines “adverse employment actions” broadly, not limiting them to actions such as discharges, transfers, or demotions. See Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002). While adverse employment actions may include lateral transfers, unfavorable job references, and changes in work schedules, not “every offensive utterance by co-workers” is an adverse employment action because “offensive statements by co-workers do not reasonably deter employees from engaging in protected activity.” Ray, 217 F.3d at 1243.

         Although the present order is divided into a retaliation section and a hostile work environment section, there is an overlap. The Ninth Circuit has recognized that actionable retaliation may occur in the form of a hostile work environment; that is, a hostile work environment may be considered an adverse employment action for purposes of a claim alleging retaliation resulting from an employee’s protected activity. See Ray, 217 F.3d at 1245. However, “a hostile work environment can form the basis for a retaliation claim only when the harassment is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Morgan v. Napolitano, 988 F.Supp.2d 1162, 1174 (E.D. Cal. 2013) (quoting Ray, 217 F.3d at 1245).

         With respect to the causation requirement in a prima facie case of retaliation, a court may infer causation when an adverse employment action occurs “fairly soon after the employee’s protected expression.” See Villiarimo, 281 F.3d at 1065. “Causation sufficient to establish the . . . [causal link] element of the prima facie case may be inferred from circumstantial evidence, such as the employer’s knowledge that the plaintiff engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision.” Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987).

         As this court has noted, a “temporal distance of several months makes a causal link more difficult to prove; a distance of five years severely undermines it.” Stucky v. State of Haw., Dept. of Educ., 2007 WL 602105, *5 (D. Haw. Feb. 15, 2007). Compare Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996) (four-month period between protected activity and layoff was sufficiently close to satisfy “causal link” prong), and Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (three-month period sufficient to infer causation), with Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir. 2003) (no causal inference possible when nine months separated protected activity from adverse employment action).

         Some years after the Ninth Circuit decided Nidds and Yartzoff, the Supreme Court observed in Clark County School District v. Breeden, 532 U.S. 268, 273 (2001), that the requisite “temporal proximity must be ‘very close.’” Breeden cites with approval cases from the Seventh and Tenth Circuits holding that three- and four-month periods do not support an inference of causation. Id. More recently, the Ninth Circuit has cautioned courts against engaging in a “mechanical inquiry into the amount of time between the speech and alleged retaliatory action.” Anthoine v. N. Central Counties Consortium, 605 F.3d 740, 751 (9th Cir. 2010). In short, there is no “bright line” rule providing that any particular period is always too long or always short enough to support an inference. See Coszalter v. City of Salem, 320 F.3d 968, 977-78 (9th Cir. 2003).

         Under the McDonnell Douglas framework, once a plaintiff succeeds in presenting a prima facie case, the burden then shifts to the defendant to articulate a “legitimate, nondiscriminatory reason” for its employment decision. Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007). “Should the defendant carry its burden, the burden then shifts back to the plaintiff to raise a triable issue of fact that the defendant’s proffered reason was a pretext for unlawful discrimination.” Id.

         Any Title VII retaliation claim must be timely. In National Railroad Passenger Corporation v. Morgan, the Supreme Court explained that a plaintiff may assert claims based on discrete acts only if the plaintiff timely exhausted his claim:

[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Because each discrete act starts a new clock for filing charges alleging that act, the charge must be filed within the [applicable] period after the act occurred. The existence of past acts and the employee’s prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence to support a timely claim. In addition, the time period for filing a charge remains subject to application of equitable doctrines such as waiver, estoppel, and tolling.

536 U.S. 101, 102 (2002).

         As a federal employee, Silverstein was required to initiate contact with an employment discrimination counselor within 45 days of an alleged discriminatory act. See 29 C.F.R. § 1614.105(a)(1). This counselor, referred to as an Equal Employment Opportunity (“EEO”) counselor, is part of the employer’s internal system, not part of the independent Equal Employment Opportunity Commission. When the EEO counselor does not resolve the matter, an aggrieved employee must then file a complaint with the agency that allegedly discriminated against him or her, assuming the matter does not go through the Merit Systems Protection Board process. 29 C.F.R. § 1614.106(a) and (b). If the agency dismisses the complaint and issues a final decision regarding such a complaint pursuant to § 1614.107, the decision must contain a “notice of the right to appeal the final action to the Equal Employment Opportunity Commission, the right to file a civil action in federal district court, the name of the proper defendant in any such lawsuit and the applicable time limits for appeals and lawsuits.” See 29 C.F.R. § 1614.110(b).

         B. Based on Silverstein’s Failure to Properly Exhaust, the Court Dismisses the Retaliation Claim (Except Insofar as It Relates to the Cancellation of Silverstein’s Trip to Laos) To the Extent the Claim is Based on Factual Allegations in Paragraphs 14, 17, 22, 24, 25, and 30 of the First Amended Complaint.

         The details of what occurred in administrative proceedings relating to Silverstein’s claims are largely missing from the record. Nor does this court have the final agency decision or any notice of right to sue. It is not even clear whether Silverstein pursued his claims with the Equal Employment Opportunity Commission. What is clear is that no party challenges Silverstein’s exhaustion of his administrative remedies, except as set forth in the next paragraph.

         Defendant argues that, except with respect to the cancellation of a trip to Laos, Silverstein did not exhaust his retaliation claim to the extent it is based on factual allegations in paragraphs 14, 17, 22, 24, 25, and 30 of the First Amended Complaint. In his Opposition, Silverstein agrees that, because he failed to administratively exhaust any retaliation claim based on those allegations, or untimely did so, the court should dismiss the retaliation claim arising out of the facts alleged in paragraphs 14 (2010 Tarawa Atoll mission), 17 (reprimand for abuse of Government property), 22 (discussion arising out of University of Hawaii proposal), 24 (October 2011 counseling regarding preparation of reports), 25 (April 2012 grievance), and 30 (2012 Tarawa Atoll mission) of the First Amended Complaint. See ECF No. 50, PageID # 604. Putting aside the allegations about the Laos trip, this court therefore dismisses as not properly exhausted Silverstein’s retaliation claim to the extent based on the facts alleged in the identified paragraphs. In dismissing what Silverstein concedes was not properly exhausted, the court treats Silverstein’s concession as akin to a voluntary dismissal of the affected matters pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. The dismissal does not rely on factual assertions outside the First Amended Complaint or on evidence.

         C. The Court Grants Summary Judgment in Favor of Defendants With Respect to the Remaining Parts of the Retaliation Claim, Except For the Portion of the Retaliation Claim Relating to the Failure to Promote Silverstein to the Supervisory Historian Position.

         The First Amended Complaint asserts retaliation in violation of Title VII, but it does not clearly link allegedly retaliatory events to the exercise of rights under Title VII. The court examines the remaining allegedly retaliatory events below, determining that the Government is entitled to summary judgment with respect to all but one event alleged to have been retaliatory.

         1. General Allegations that Silverstein Supported Women Co-Workers.

         Silverstein appears to be broadly asserting that he was retaliated against for having supported women co-workers who were allegedly discriminated against based on their gender. But Silverstein does not point to any evidence supporting a relationship between the allegedly retaliatory acts and that support. At the hearing on the present motion, Silverstein indicated that any associational discrimination claim he is bringing is tied to actual things Defendant knew he had said or done (i.e., to protected activity), not to having been discriminated against simply for having felt supportive of women or for having befriended them.

         With respect to his actions supporting women co-workers, Silverstein does not establish that any of the acts he complains of were close enough in time to the things that he said or did that causation can be inferred. For example, as discussed in more detail below, he says he was discriminated against because he supported Dr. Joan Baker’s 2009 gender discrimination complaint and because he protested the alleged harassment of Dr. Kristina Giannotta in May 2011. Not only has Silverstein conceded that his failure to administratively exhaust precludes any recovery of damages for direct discrimination based on his support for Dr. Baker and Dr. Giannotta, any retaliation he says he suffered occurred so long after that support that that causation cannot be inferred. Silverstein must instead point to some evidence of causation. This court discusses later in this order Silverstein’s EEO complaints, which alleged “reprisals” for his support of women co-workers. With respect to any alleged retaliation preceding October 2012, when Silverstein’s informal EEO complaint was filed, Silverstein presents no evidence of a causal connection between his actions in support of women co-workers and an adverse employment action.

         Moreover, his clarification that this particular broad claim of retaliation is based on things he himself said or did underscores the irrelevancy of anonymous survey responses that Silverstein earlier sought to have this court consider. See ECF No. 54. (Motion to File Publicly Exhibits 33, 34 and 35 to His Concise Statement of Facts to His Memorandum in Opposition to Defendant’s Motion to Dismiss and Summary Judgment). Silverstein contended that the anonymous survey responses showed general concern among agency employees about sex discrimination. This court denied that motion, noting that the court could not tell whether the survey responses related to matters Silverstein was suing over. The court also notes here that it has no way of knowing whether the responses might be from the very people whose declarations are already before the court (such as Silverstein himself). If the responses were from the same people, then they should not be used as evidence that sex discrimination was so rampant that it was noted even by those uninvolved with the present lawsuit.

         2. 2005 Support of Dr. Elliot Moore.

         Silverstein says that, in 2005, he complained about what he viewed as the Central Identification Laboratory’s publicly humiliating treatment of one of his colleagues, Dr. Elliot Moore. Silverstein says that Dr. Moore, who is deaf, was assigned a small desk in the middle of a well-traveled hallway, and that this location prevented Dr. Moore from having access to a TELEX machine that had been provided to accommodate his disability. See Decl. of Jay Silverstein ¶ 11(a), ECF No. 51-1, PageID # 625; see also Report of Investigation (Nov. 7, 2013), ECF No. 42-10, PageID # 413 (indicating that Silverstein “voiced opposition to the way management treated a disabled employee (in approximately 2005 or 2006)”). Silverstein also says that Moore and another employee, Dr. David Rankin, were investigated. Id.

         Even if the court assumes that Silverstein’s retaliation claim relating to the 2005 treatment of Dr. Moore and Dr. Rankin is timely, Silverstein does not indicate how his opposition to Moore’s or Rankin’s treatment constituted protected activity under Title VII. That is, Silverstein does not submit any evidence demonstrating that the treatment of Moore or Rankin, or, for that matter, Silverstein’s opposition to that treatment related to anyone’s race, color, religion, sex, or national origin, the classes protected by Title VII. 42 U.S.C. § 2000e-2(a)(1). Even if the First Amended Complaint included a claim relating to the Americans with Disabilities Act, Silverstein does not provide evidence that any investigation was tied to Moore’s hearing disability. In fact, the record contains no hint as to what the subject of the investigation was. At most, Moore says he was investigated and simply concludes that Silverstein was retaliated against for having supported him. See Decl. of Chester Elliott Moore, II ¶¶ 3, 6, ECF No. 51-2, PageID # 644-45. The court therefore grants summary judgment in favor of the Government with respect to any Title VII retaliation claim relating to Silverstein’s support of Moore and Rankin in or around 2005.

         3. Association with Dr. Joan Baker in 2009.

         On October 6, 2009, Dr. Joan Baker filed a Title VII gender discrimination complaint in this court. See Baker v. Mabus, Civ. No. 09-00470 SOM/LEK, ECF No. 1. Dr. Baker alleged that Dr. Thomas Holland, the Scientific Director of the Joint POW/MIA Accounting Command, had sexually harassed her. Id. Baker ultimately settled that suit. See Baker, Civ. No. 09-00470 SOM/LEK, ECF No. 33 (minute order indicating settlement); see also First Amended Complaint ¶ 18, PageID # 44; Answer ¶ 18 (admitting allegation). According to Baker, Silverstein’s association with her contributed to alleged hostility against Silverstein. See Decl. of Joan E. Baker, Ph.D ¶ 32, ECF No. 51-4, PageID # 669.

         Silverstein claims in the present lawsuit that he was retaliated against for having provided support to Baker in 2009, but it is unclear what form either his support or the alleged retaliation took or that the alleged retaliation was reasonably close in time to that support. See, e.g., Opposition at 24, ECF No. 50, PageID # 606 (“He has engaged in protected activity by way of objecting to discriminatory treatment of other JPAC/DPAA employees such as Baker, Giannotta and Moore, as well as filing his own grievance and EEO complaints for the harassment and retaliation by JPAC/DPAA managers. As a result of his protected activities, Plaintiff has been subjected to several adverse employment actions described in his declaration.”).

         Silverstein may be arguing that the alleged retaliation consisted of (1) pulling his team from a March 2010 deployment to Tarawa Atoll; (2) an August 2010 reprimand by his supervisor, Robert Richeson; and (3) a 2011 counseling by Richeson concerning a proposed University of Hawaii project. See Decl. of Jay Silverstein, ECF No. 50-1 (listing events without connecting them to any particular matter relevant to Title VII); Report of Investigation (Sept. 1, 2014) (indicating that Richeson is Silverstein’s “first level supervisor”). However, as discussed below, Silverstein did not administratively exhaust claims relating to the March 2010 Tarawa Atoll deployment, the August 2011 reprimand, or the 2011 counseling. Moreover, Silverstein provides no admissible evidence that the cancellation of the deployment, the reprimand, or ...

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