and physical handicap discrimination seriatim.
A. Racial Discrimination Claim
Plaintiff argues that she was the victim of disparate treatment by her employer due to her race.
"A disparate treatment violation is made out when an individual of a protected group is shown to have been singled out and treated less favorably than others similarly situated on the basis of an impermissible criterion under Title VII." EEOC v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir. 1990). The burden of proof in such a case depends on whether the case is a "pretext" case or a "mixed-motives" case. See Price Waterhouse v. Hopkins, 490 U.S. 228, 246-48, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) (plurality opinion); Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir.), cert. denied, 126 L. Ed. 2d 145, 114 S. Ct. 186 (1993). In a pretext case, the plaintiff's theory is that the "discriminatory motive was the sole cause of the employment action," id. at 472, with the burden of proof resting on the plaintiff throughout the case, see St. Mary's Honor Ctr. v. Hicks, U.S. $, , 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2749 (1993).
In contrast, a plaintiff in a mixed-motives case bears the initial burden of establishing that an impermissible motive was a motivating or significant factor in the employment decision. See Griffiths, 988 F.2d at 469. If she succeeds, the burden of proof then shifts to the defendant to prove that the adverse decision would have been made regardless of the impermissible motive. See id. ; Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1992), cert. denied, 126 L. Ed. 2d 56, 114 S. Ct. 88 (1993).
Plaintiff contends that her claim is of the mixed-motives type, since she contends that there is evidence that directly establishes that Mr. LeGar, the postmaster at the Pottstown P.O., was biased towards black employees. See, e.g., Pl.'s Mem. in Reply to Def.'s Mot. for Summ. J. at 2 (arguing that "the real model for this complaint can be seen in cases like Price Waterhouse v. Hopkins "). "Direct evidence is evidence which, if believed, proves the fact without inference or presumption." Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993); see, e.g., Maxfield v. Sinclair Int'l, 766 F.2d 788, 791 (3d Cir. 1985) (noting that "direct evidence would include statements by the employer to the employee that s/he was being fired because of" an impermissible reason), cert. denied, 474 U.S. 1057, 88 L. Ed. 2d 773, 106 S. Ct. 796 (1986). For instance, in EEOC v. Alton Packaging Corp., 901 F.2d 920 (11th Cir. 1990), a plant manager responsible for promotion decisions stated that "if it was his company, he wouldn't hire any black people." Id. at 922. This statement by a decisionmaker was held by the court to be direct evidence of discriminatory animus sufficient to carry plaintiff's burden. See id. at 924. As the Third Circuit Court of Appeals noted in Griffiths, "when a plaintiff has direct evidence of discrimination, the case is likely to be a mixed motives case for the employer will offer a different but legitimate basis for the adverse employment decision." Griffiths, 988 F.2d at 470 n.12. The Court will therefore accept plaintiff's characterization of her claim and will consider plaintiff's claim as a mixed-motives case.
At trial, plaintiff sought to establish the alleged discriminatory animus held by Mr. LeGar through a number of witnesses. The testimony of most of the witnesses, however, does not provide direct evidence of discriminatory bias. For example, Guy Carter, who was a window clerk at the Pottstown P.O. during the time plaintiff was an employee, testified that disciplinary rules were enforced more harshly against black employees than against white employees. And Bruce Griffith, a union representative during the pertinent time period, echoed Mr. Carter's testimony, noting that the number of complaints to the EEO had increased dramatically since Mr. LeGar began his term as postmaster. Evidence of this sort, however, is typical circumstantial evidence, syllogistic in kind, which requires an inferential leap to reach the ultimate conclusion (i.e., black employees are treated more harshly than white employees; plaintiff is a black employee; therefore, plaintiff was treated more harshly than white employees). While circumstantial evidence can, under some circumstances, establish discriminatory animus in a mixed-motive case, the anecdotal evidence proffered by Messrs. Carter and Griffith in this case, though perhaps probative of disparate treatment, does not rise to the level of proof that is needed. "At a bare minimum, a plaintiff . . . will have to adduce circumstantial evidence 'of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude.'" Griffiths, 988 F.2d at 470 (emphasis added) (quoting Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992)). At best, the events described by Messrs. Carter and Griffith, with the benefit of some inferences, are indirect evidence of a discriminatory attitude, insufficient to establish by the preponderance of the evidence that race was a motivating factor and, therefore, to cause the burden of proof to be shifted to the defendant.
Plaintiff's only evidence that was akin to direct evidence, indeed, plaintiff's "smoking gun", consisted of the testimony of Cynthia Bearden, an employee at the Pottstown P.O. at the time that Mr. LeGar became the postmaster. Ms. Bearden testified that Mr. LeGar called her into his office shortly after he became postmaster. When she entered the office, she saw that Mr. LeGar had a number of personnel folders on his desk, all of which appeared to be of black employees. He informed her that he wanted to terminate inefficient employees, that he believed that black workers were bad, and that he wanted to make Pottstown an all-white office.
Ms. Bearden, who is black, testified that, due to her fair complexion, she had previously been mistaken as being white. Based on this experience, she theorized that Mr. LeGar believed she was white when he made these comments. After leaving Mr. LeGar's office, Ms. Bearden claimed to have overheard a supervisor inform Mr. LeGar that Ms. Bearden was in fact black. Ms. Bearden also claimed to have overheard Mr. LeGar advising an insurance salesman with whom she had spoken concerning her insurance needs that the salesman should not insure her, since, in Mr. LeGar's opinion, "niggers" always let their policies lapse. Evidence of the type adduced by Ms. Bearden, i.e., derogatory remarks made by a person with decisionmaking authority, can provide a sufficient basis to find that a plaintiff has met her burden of proof. See, e.g., EEOC v. Beverage Canners, Inc., 897 F.2d 1067, 1068, 1071-72 (11th Cir. 1990) (finding that "flagrant, revolting, and insulting racially derogatory remarks" made towards black employees by a plant manager and supervisor were sufficient to show direct evidence of discrimination); Weatherspoon v. Andrews & Co., 33 Empl. Prac. Dec. (CCH) P 34,038, at 31,903 (D. Colo. 1983) (finding direct evidence of racially motivated discharge where plaintiff introduced evidence that her immediate supervisor called her a "'Goddamn black nigger--just like all the other goddamn black niggers--not worth a damn'").
Ms. Bearden's testimony concerning Mr. LeGar's statements, however, was flatly denied by Mr. LeGar on direct testimony. Mr. LeGar claimed he had no conversation with Ms. Bearden concerning the termination of employees. In addition to the denial by Mr. LeGar, defendant established that Ms. Bearden was plaintiff's first cousin, see 3A John H. Wigmore, Evidence § 949, at 784 (Chadbourn rev. 1970) (enumerating family relationship as one of the "commoner sorts of circumstances" from which bias may be inferred), that she was disciplined at two later assignments within the Postal Service, in Valley Forge and in Royersford, for stock shortages and attendance, and that she resigned while a NOR was pending at the Royersford Post Office. See United States v. Abel, 469 U.S. 45, 50-51, 83 L. Ed. 2d 450, 105 S. Ct. 465 (1984). In rebuttal to this implicit assertion of recent fabrication, the plaintiff offered the testimony of Mr. Carter, who testified that Ms. Bearden related the alleged incident in Mr. LeGar's office to him some time shortly after the incident occurred. In turn, the Postal Service impeached Mr. Carter by establishing that Mr. Carter had also been disciplined by the Postal Service at various times for work-related incidents.
Sitting as the trier of fact, the Court is called upon to assess the credibility of witnesses. See Fed. R. Civ. P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 575, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985). The testimony of Ms. Bearden and Mr. LeGar stand in stark contrast, with the latter challenging in toto the former's recollection. In addition to the statements themselves, other factors enter into the Court's calculus of credibility. See Miller v. Mercy Hosp., Inc., 720 F.2d 356, 365 (4th Cir. 1983) (noting that a credibility assessment must be made in light of the overall testimony in the case), cert. denied, 470 U.S. 1083, 85 L. Ed. 2d 141, 105 S. Ct. 1841 (1985). For instance, there is the relationship between Ms. Bearden and the plaintiff, as well as the difficulties Ms. Bearden has had with the United States Postal Service since her employment at the Pottstown P.O. The key assertion in plaintiff's theory of liability, that the Postmaster for no apparent rhyme or reason had called Ms. Bearden into his office to discuss the performance of black employees, does not have the ring of truth.
Rehabilitating Ms. Bearden's testimony is the testimony of Mr. Carter, which helps rebut any implication of recent fabrication, but which suffers from bias itself. Mr. LeGar's testimony is also subject to a charge of bias, given the personal interest he has in not being labeled a racist. See 27 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure: Evidence § 6095 (1990). The circumstantial evidence in the case is conflicted, with Messrs. Carter and Griffin claiming disparate treatment by Mr. LeGar of black and white workers, and Mr. John Mauger, a postal employee at the Pottstown P.O. who was also a union representative and was called as a witness by the plaintiff, testifying that there was no difference in the treatment of white and black employees by Mr. LeGar.
On the basis of the testimony offered, as well as the demeanor of the various witnesses, the Court finds that Ms. Bearden's and Mr. LeGar's versions of the facts stand in equipoise. The Court does not find Ms. Bearden credible, given her demeanor on the stand, her relationship to the plaintiff, and the axe she has to grind with the Postal Service. Neither is the Court entirely persuaded by Mr. LeGar's testimony. Both have a motive to embellish the truth, Mr. LeGar attempting to preserve his reputation, Ms. Bearden helping her cousin in her law suit and getting even with an employer that drove her to resign. Because neither has convinced this Court that the testimony given is credible and accurate, the Court will not credit either one's version of the facts.
Absent the testimony of Ms. Bearden, plaintiff has no evidence of intentional discrimination on the part of Mr. LeGar. A decrease in the number of blacks employed at the Pottstown P.O., an increase in the number of complaints to the EEO, selective enforcement of work rules, all of these are circumstantial evidence which, as already stated, are insufficient to establish discriminatory animus in a mixed-motive case. See Griffiths, 988 F.2d at 470. Given that the essential factual inquiry in any disparate treatment case is whether "the defendant intentionally discriminated against the plaintiff," Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), with the plaintiff bearing the burden of establishing such intentional discrimination by a preponderance of the evidence, see St. Mary's, 113 S. Ct. at 2749, the Court finds that the plaintiff has failed to meet her burden, under the mixed-motive type of analysis, of showing, by a preponderance of the evidence, that discriminatory intent was a motivating factor.
Even assuming that plaintiff had met her burden, the defendant, in response, has successfully shown by the preponderance of the evidence that it would have taken the same actions notwithstanding any bias on the part of Mr. LeGar. The establishment of this affirmative defense absolves defendant of any liability. See Price Waterhouse, 490 U.S. at 242-45; Griffiths, 988 F.2d at 469. In this case, defendant successfully explained every incident of racial discrimination suggested by the plaintiff. Plaintiff claimed that she was denied her step increases due to racial discrimination. Defendant countered that the step increases were deferred pursuant to the ELM due to the number of days she had spent on LWOP status prior to the consideration of the step increase. Plaintiff claimed she was not given the opportunity to perform light duty work at the Pottstown P.O., and that she was assigned to Southeastern to perform light duty work even though no one had theretofore been assigned to Southeastern. Defendant countered that plaintiff was given limited duty work at Pottstown while her workers' compensation claim was pending, and that she was offered the opportunity to request light duty work once her claim was denied. Defendant also argued that the assignment to Southeastern was done only after plaintiff complained that she was not able to do the limited duty assignment that she had been given on June 4, 1990, due to the seating available in the Pottstown P.O. As to plaintiff's eventual discharge, the defendant argued that her extended absence from work due to her physical condition, coupled with her failure to produce the necessary medical documentation requested by Mr. LeGar, were the grounds for her termination. To further rebut the charge of discrimination, defendant noted that Mr. LeGar was the postmaster who had hired plaintiff was hired, and that he had afforded her the use of a Postal Service vehicle for commuting to Southeastern.
The Court, as trier of fact, finds that defendant has carried its burden, and that plaintiff has failed to carry hers. See St. Mary's, 113 S. Ct. at 2747; Aikens, 460 U.S. at 714-16; Griffiths, 988 F.2d at 469. Though the circumstantial evidence does raise some question of bias on the part of the management at the Pottstown P.O., any possible inference was refuted by the evidence of plaintiff's physical incapacity and poor work attendance. Plaintiff was considered AWOL from her assignment for an extended period of time in 1990. She received a letter of warning on April 10, 1990, for "failure to meet the availability/dependability requirements of [her] position." See Def.'s Ex. 31. This letter was upheld by an arbitrator, who found just cause for its issuance. See Def.'s Ex. 32. Though plaintiff complains that the next level of discipline after the letter of warning should have been a suspension, rather than the NOR that she received, defendant correctly notes that the suspension of an AWOL employee would do little good. Plaintiff cannot complain of a lack of progressiveness in discipline if by her very actions she has rendered resort to progressive discipline futile. The cases of white employees who were suspended, some more than once, before they received a NOR are simply inapposite. The plaintiff was unable to meet the physical requirements of her position as a PTF letter carrier and she did not produce the medical documentation necessary for a light duty request. The Court finds that plaintiff has failed to establish by a preponderance of the evidence that her discharge from the Postal Service, and her treatment during her tenure, was the product of intentional discrimination, and also finds that the defendant has established by a preponderance of the evidence that it would have dismissed plaintiff notwithstanding any racial animus on the part of Mr. LeGar.
See Price Waterhouse, 490 U.S. at 242-45; Griffiths, 988 F.2d at 469.
B. Retaliation Claim
Plaintiff claims that she was discharged in retaliation for her meeting with an EEO counselor to discuss her allegations of racial discrimination. Defendant argues that this claim is precluded since plaintiff has failed to exhaust her administrative remedies due to the failure to include retaliation in the claims that she brought to the EEO counselor. See Def.'s Exs. 43 & 55; Brown v. General Servs. Admin., 425 U.S. 820, 832-33, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976); Hornsby v. United States Postal Serv., 787 F.2d 87, 90 (3d Cir. 1986) ("A complaint does not state a claim upon which relief may be granted unless it asserts the satisfaction of the precondition to suit specified by Title VII: prior submission of the claim to the EEOC . . . ."). A plaintiff may not normally litigate allegations that were not the subject of administrative investigation and fact-finding. See, e.g., Mackay v. United States Postal Serv., 607 F. Supp. 271, 276 (E.D. Pa. 1985) (noting that administrative exhaustion demands final administrative action or the opportunity for the same). However, an action can be pursued for claims that are within the scope of a reasonable investigation by the EEO, even if the investigation is not conducted. See Hicks v. ABT Assocs., Inc., 572 F.2d 960, 966-67 (3d Cir. 1978) (holding that claims within the scope of a reasonable EEOC investigation are adjudicable); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976) (same), cert. denied, 429 U.S. 1041, 50 L. Ed. 2d 753, 97 S. Ct. 741 (1977).
In Hicks v. ABT Associates, Inc., the Third Circuit held that "the scope of a resulting private civil action in the district court is 'defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Hicks, 572 F.2d at 966 (quoting Ostapowicz, 541 F.2d at 398-99). The plaintiff in that case had made a claim of race discrimination to the EEOC, and sought to press a claim of sex discrimination in his lawsuit. The Third Circuit held that, at the summary judgment stage, it was not able to determine whether a claim of sex discrimination was reasonably within the scope of a proper EEOC investigation, since the plaintiff was never interviewed by the EEOC. See id. at 966-67. The Court also held that the lower court would have to determine that the "sex discrimination claims which would have been uncovered were reasonably within the scope of the charge filed with the EEOC." See id. at 967.
Reviewing the EEO complaint filed by plaintiff, the Court finds no basis for concluding that a retaliation charge is within the scope of the complaint. Plaintiff stated that she was denied work and terminated on the basis of her "on the job knee injury," and pointed to possible "race, sex and/or handicap" discrimination. Def.'s Ex. 55. There is nothing in the complaint that even suggests a retaliatory discharge, which is linked to engagement in protected activity, rather than discrimination based on an immutable characteristic. See Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), cert. denied, 493 U.S. 1023, 107 L. Ed. 2d 745, 110 S. Ct. 725 (1990). By contrast, the activity alleged by the plaintiff in Hicks v. ABT Associates, Inc., could have given rise to both sex and race discrimination. See Hicks, 572 F.2d at 967 (noting that "there is a close nexus between the facts supporting the claims of race and sex discrimination").
Also noteworthy is the date the complaint was filed, April 16, 1991, which was over five months after plaintiff's termination. Notwithstanding the amount of time that passed between the two events, no mention is made in the complaint of any activity that can be construed as a retaliatory discharge. And plaintiff was on notice that Mr. LeGar had been contacted prior to her termination, since the EEO counselor reported such contact in his resolution of the plaintiff's informal complaint. See Def.'s Ex. 43. The Court concludes that a claim of retaliatory discharge is not within the scope of the EEO complaint filed by the plaintiff.
Furthermore, even if the Court were to find that the claim was justiciable, plaintiff's claim would still be denied. "In order to succeed on a claim of discriminatory retaliation, a plaintiff must demonstrate that: 1) she engaged in conduct protected by Title VII; 2) the employer took adverse action against her; and 3) a causal link exists between her protected conduct and the employer's adverse action." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 1994 U.S. App. LEXIS 12651 *22 (3d Cir. 1994) (internal quotation marks omitted). As to the first two elements, plaintiff has established a prima facie case. Her meeting with an EEO counselor was protected activity, and she was terminated from her employment. However, it is on the causation element that plaintiff's claim fails. Plaintiff based her claim on the relatively short period of time between her engaging in protected activity and the adverse employment action--she met with an EEO counselor in July of 1990 and she was given a NOR in November of 1990. Temporal proximity can give rise to an inference of causation. See, e.g., Jalil, 873 F.2d at 708 (finding evidence of a prima facie case of retaliatory discharge where plaintiff was discharged two days after filing EEOC claim); Weiss v. Parker Hannifan Corp., 747 F. Supp. 1118, 1129 (D.N.J. 1990) (finding causal link where discharge occurred three days after plaintiff engaged in protected activity). Here, however, there was a gap of approximately four months between the activity and the termination. And, more importantly, the defendant has come forward with a legitimate reason for the discharge, i.e., plaintiff's continuing inability to meet the physical requirements of her job and to report to her assigned work. As discussed supra, the defendant has demonstrated that plaintiff was discharged for legitimate business reasons. Therefore, assuming that the claim of retaliatory discharge was properly raised before the EEO and is properly before this Court, the Court finds that the plaintiff has failed to show by a preponderance of the evidence that her filing of a claim with the EEO caused her subsequent discharge by the defendant.
C. Handicap Discrimination
Plaintiff claims that she was the victim of impermissible handicap discrimination due to her knee injury. Under the Rehabilitation Act of 1973, an "otherwise qualified individual" who is handicapped cannot be discriminated against on the basis of that handicap by a federal employer. See 29 U.S.C. §§ 791, 794(a); Mackay, 607 F. Supp. at 274-78.
In order to establish a claim under the Rehabilitation Act, the plaintiff must "prove (1) that she is a 'handicapped individual' under the Act, (2) that she is 'otherwise qualified' for the position sought, (3) that she was excluded from [her] position . . . solely by reason of [her] handicap, and (4) that the program or activity in question receives federal financial assistance [or is a federal employer]." Strathie v. Department of Transp., 716 F.2d 227, 230 (3d Cir. 1983).
The Court's inquiry focuses on the "otherwise qualified" requirement. An otherwise qualified handicapped individual is "an individual with handicaps who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others." 29 C.F.R. § 1614.203(a)(6) (1993) (emphasis added); see Southeastern Community College v. Davis, 442 U.S. 397, 406, 412-13, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979). "An accommodation that eliminates an essential function of [a] job is not reasonable." Hall v. United States Postal Serv., 857 F.2d 1073, 1078 (6th Cir. 1988); see also School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987) ("Accommodation is not reasonable if it either imposes 'undue financial and administrative burdens' on [an employer] or requires 'a fundamental alteration in the nature of the program.'") (citations omitted). The burden is on the plaintiff to make the initial showing that she is otherwise qualified. See Taub v. Frank, 957 F.2d 8, 10 (1st Cir. 1992); Jasany v. United States Postal Serv., 755 F.2d 1244, 1249-50 (6th Cir. 1985); Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1385 (10th Cir. 1981).
In this case, plaintiff has failed to show that she is otherwise qualified for her position as a PTF city letter carrier. Essential functions of the letter carrier position included sorting mail for approximately two hours per day and carrying and delivering mail approximately six hours per day while carrying a mail satchel weighing up to thirty-five pounds. See Def.'s Ex. 11. The evidence showed, however, that plaintiff was unable to carry mail given her medical restrictions and was unable to sort mail due to physical discomfort. When defendant made attempts to accommodate plaintiff's condition by giving her light duty work at the Pottstown P.O. and at Southeastern, plaintiff was still unable to complete the duties assigned to her and failed to report to work. Cf. Carr v. Reno, 23 F.3d 525, 520, 1994 WL 194971, at *4 (D.C. Cir. 1994) ("We agree with the proposition that an essential function of any government job is an ability to appear for work (whether in the workplace or, in the unusual case, at home) . . . ."). It is difficult to conceive of a reasonable accommodation that can be made for a letter carrier who cannot sort or carry letters. Plaintiff did not indicate any possible reasonable accommodation defendant could have made, other than unspecified light duty work that allegedly could have been done by the plaintiff. Such is not the test under the Rehabilitation Act. An employer is "not required to find another job for an employee who is not qualified for the job he or she is doing." Arline, 480 U.S. at 289; see, e.g., Montgomery v. Frank, 796 F. Supp. 1062, 1069 (E.D. Mich. 1992). At the same time, the employer cannot "deny an employee alternative employment opportunities reasonably available under the employer's existing policies." Id. ; see Davis v. United States Postal Serv., 675 F. Supp. 225, 235 (M.D. Pa. 1987). Defendant offered plaintiff various light duty assignments in Pottstown and in Southeastern, going so far as to provide transportation to the Southeastern office. There is no indication that plaintiff was not given an opportunity to perform work other than carrying mail. Plaintiff has failed to meet her burden of showing that she was otherwise qualified for her position as a PTF city letter carrier.
III. CONCLUSIONS OF LAW
1. Plaintiff has failed to show by a preponderance of the evidence that she was discriminated against by defendant on the basis of her race. See 42 U.S.C. § 2000e-16(a).
2. Plaintiff has failed to exhaust her administrative remedies on her claim of retaliatory discharge. See Hornsby, 787 F.2d at 90.
3. Assuming administrative exhaustion, plaintiff has failed to show a causal link between her engagement in protected activities and the adverse employment actions taken against her. See id. § 2000e-3.
4. Plaintiff has not established that she was otherwise qualified for her position as a PTF city letter carrier. See 29 U.S.C. §§ 791, 794(a); 29 C.F.R. § 1614.203(a)(6) (1993).
Judgment in defendant's favor shall be entered.
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO, J.
AND NOW, this 30th day of June, 1994, for the reasons stated in the accompanying Findings of Fact, Discussion, and Conclusions of Law, JUDGMENT is hereby entered in favor of defendant and against plaintiff.
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO, J.