United States District Court, M.D. Pennsylvania
October 11, 2005.
JOAN MINCEVICH Plaintiff
BAVARIAN PRETZEL BAKERY Defendant.
The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge
On October 3, 2003, Plaintiff Joan Mincevich ("Plaintiff" or
"Mincevich") filed a complaint against her former employer,
Defendant Bavarian Pretzel Bakery ("Bavarian"). Mincevich alleges
that her termination by Bavarian violated the Age Discrimination
in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. (2000),
and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons.
Stat. §§ 951 et seq. (1991). Specifically, Mincevich alleges
that Bavarian's performance-based reasons for her discharge,
namely low sales volume and child labor law violations, were a
pretext for intentional age discrimination. (Pl.'s Br. in Opp. to
Summ. J. Mot., Dkt. Entry 28, at 13-16.) Mincevich further
alleges that age-related comments made by her superiors at
Bavarian constitute direct evidence of age discrimination. (Id.
Currently pending is Bavarian's motion for summary judgment.
(Dkt. Entry 21.) For the reasons stated below, Bavarian's motion
will be granted. I. BACKGROUND
From May of 1987 to February of 2002, Mincevich worked as the
Store Manager for a Bavarian pretzel kiosk in the Stroudsburg
Mall, Stroudsburg, Pennsylvania. (Mincevich Dep., Dkt. Entry 30,
at 9, 11.) Mincevich was born on January 11, 1941. (Id. at 9.)
Al Callucci, Regional Director for Bavarian, terminated
Mincevich's employment on February 22, 2002, replacing her with
fifty-one (51) year-old Linda Morley, the Assistant Manager.
(Callucci St., Dkt. Entry 31, at ¶ 12.) Mincevich was informed
that she had been discharged from her Store Manager position
because she failed to improve sales volume and failed to correct
child labor law violations, particularly during a ninety (90) day
probationary period following a November 15, 2001 performance
evaluation. (Id. at ¶¶ 14, 16.) Callucci claims that he had no
knowledge of and made no reference to anyone's age in relation to
Mincevich's discharge. (Id. at ¶¶ 15-16.) Plaintiff admits that
Callucci never treated Plaintiff differently because of her age
and never made any age-bias comments to Plaintiff or in her
presence. (Def.'s Statement of Material Facts ("SMF"), Dkt. Entry
22, at ¶¶ 34-35.)*fn1
As stated in Bavarian's Operations Manual, the Store Manager is
responsible for "optimizing profits" and "continually building
sales volume." (Mincevich Dep., Dkt. Entry 30, at Ex. 13). Over
the last few years Mincevich had served as Store Manager, sales
at her store had been decreasing considerably. (Id. at Ex. 23, 33, 37.) On
multiple occasions, dating back to 1996, Bavarian management
counseled Mincevich about poor sales performance. (Id.) A
January 1999 performance evaluation of Mincevich indicated that
her store's income was seventy-three (73) percent under budget.
(Mincevich Dep., Dkt. Entry 30, at Ex. 33.) A May 2000 letter to
Mincevich pointed out that her store's profit had dropped by
375%, representing the single worst profit decline in the entire
company over the previous year. (Id. at Ex. 37.) Mincevich
admitted in her deposition, as she had in response to past
performance appraisals by Bavarian management, that sales for her
store were indeed down. (Id. at 74, Ex. 36.)
In October of 2001, Regional Manager Callucci conducted a labor
audit of Mincevich's store and discovered multiple child labor
law violations. (Callucci St., Dkt. Entry 31, at ¶¶ 4-6.)
Mincevich posted at her store, and admits that she understood the
contents of, a Pennsylvania Child Labor Law notice which stated,
in part, that employees under the age of eighteen (18) must have
on file with their employer an employment certificate issued by
their high school and that they must take a thirty-minute meal
period after five (5) hours of work. (Mincevich Dep., Dkt. Entry
30, at 19-20, 25, Ex. 2.) Through his labor audit, Callucci found
that Mincevich had employed a high school student, Christina
Sinno, without having her employment certificate on file.
(Callucci St., Dkt. Entry 31, at ¶ 6.) Sinno worked at the store
from May through July of 2001 and again from September of 2001.
(Mincevich Dep., Dkt. Entry 30, at 204-07.) Callucci also found that, in September and October of 2001, sixteen (16)
year old Ashley Stumpp worked more than eight (8) hours without a
break on fourteen (14) instances, while Sinno worked over five
(5) hours without a break on (5) occasions. (Callucci St., Dkt.
Entry 31, at ¶ 4.)
On November 15, 2001, Callucci met with Mincevich and presented
her with a written performance evaluation. (Id. at ¶ 9.) In
this evaluation, Callucci expressed "serious concern" about
Mincevich's capabilities as Store Manager and indicated that
failure to improve might lead to her dismissal. (Mincevich Dep.,
Dkt. Entry 30, at Ex. 39.) Callucci placed Mincevich on a
probationary period of ninety (90) days and directed her to
submit by December 1, 2001 an action plan that would address such
issues as sales performance and labor law compliance on an
"immediate and sustained basis." (Id.) In his meeting with
Mincevich, Callucci particularly emphasized the importance of
addressing the areas of sales and labor law compliance. (Callucci
St. at ¶ 10.)
Mincevich failed to submit an action plan for
improvement.*fn2 (Id. at ¶ 11.) Moreover, Mincevich did
not demonstrate any improvement in areas such as sales and
profitability during the ninety (90) day probationary period.
(Id.). Sinno continued to work without her employment
certificate and Stumpp worked over eight hours without a break on
two occasions during this period. (Callucci St. at ¶ 11-12.) On February 22, 2002, Callucci fired Mincevich. (Id. at ¶
12). Callucci observed that Mincevich had displayed no sense of
urgency in addressing the matters set forth in his November 15,
2001 evaluation. In this regard, Mincevich took a three (3) week
vacation during the probationary period. (Def.'s SMF, Dkt. Entry
22, at ¶ 22.) Plaintiff admits that there were violations of work
hours restrictions during December, 2001 and January, 2002, and
that Sinno worked without proper working papers until January 6,
2002. (Id. At ¶¶ 20, 22.)
Mincevich reports that, over the course of her employment with
Bavarian, two District Managers made comments she perceived to
reflect age bias. On March 26, 1995, seven (7) years before
Plaintiff was fired, District Manager Pam Abrams asked Mincevich
in front of a group of people whether she was over fifty (50).
(Mincevich Dep., Dkt. Entry 30, at 108-109.) Some time later,
another District Manager, Karen Price, asked Mincevich when she
planned on retiring and, on another occasion, told her, "if you
don't like it, quit!" (Id. at 156-158, 163-164.) These were the
only instances of age-related comments made to Mincevich at
Bavarian. (Id. at 166). Neither Abrams nor Price worked for
Bavarian at the time of Mincevich's discharge, as Abrams had left
the company in 1997 and Price in the summer of 2001. (Def. Br. in
Supp. of Summ. J. Mot., Dkt. Entry 22, at 23.) Callucci did not
approach either of them in making his decision to terminate
Mincevich. (Callucci St. at ¶ 12). II. DISCUSSION
A. Summary Judgment Standard
Summary judgment should be granted when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). A fact is "material" if proof of its existence or
nonexistence might affect the outcome of the suit under
applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242,
248 (1986). "Facts that could alter the outcome are material
facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d
Cir.), cert. denied, 513 U.S. 1022 (1994). "Summary judgment
will not lie if the dispute about a material fact is `genuine,'
that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson,
477 U.S. at 248.
Initially, the moving party must show the absence of a genuine
issue concerning any material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 329 (1986). All doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party, and the entire record must be examined in the light
most favorable to the nonmoving party. White v. Westinghouse
Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988); Continental Ins. Co.
v. Bodie, 682 F.2d 436 (3d Cir. 1982). Once the moving party has
satisfied its burden, the nonmoving party "must present
affirmative evidence to defeat a properly supported motion for
summary judgment." Anderson, 477 U.S. at 256-57. Mere conclusory allegations or
denials taken from the pleadings are insufficient to withstand a
motion for summary judgment once the moving party has presented
evidentiary materials. Schoch v. First Fidelity Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990). Rule 56 requires the entry of
summary judgment, after adequate time for discovery, where a
party "fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial."
Celotex, 477 U.S. at 322.
B. The Age Discrimination Claim
Mincevich asserts that Bavarian terminated her employment on
the basis of her age in violation of the ADEA and PHRA.*fn3
The ADEA bans employment discrimination "because of an
individual's age," 29 U.S.C. § 623(a)(1), but limits protection
to those "who are at least forty years of age."
29 U.S.C. § 631(a). "This language does not ban discrimination against
employees because they are aged 40 or older; it bans
discrimination against employees because of their age, but limits
the protected class to those who are 40 or older." O'Connor v.
Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996).
The Third Circuit has applied a slightly modified version of
the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden shifting framework
to cases involving age discrimination. See, e.g., Keller v.
Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997)
(en banc); Waldron v. SL Indus. Inc., 56 F.3d 491, 494-95 (3d
Cir. 1995); Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d
Cir.), cert. denied, 515 U.S. 1159 (1995). The McDonnell
Douglas scheme has three steps. First, the plaintiff must
produce evidence that is sufficient to convince a reasonable
factfinder to find all of the elements of a prima facie case.
The prima facie elements of a claim for age discrimination
under the ADEA require proof that: (1) the plaintiff was a member
of a protected class (i.e., was over forty years old); (2) that
the plaintiff suffered an adverse employment action such as
discharge; (3) that the plaintiff was qualified for the job; and
(4) that the position remained vacant and/or was filled by
another individual. See Keller, 130 F.3d at 1108; Grabosky
v. Tammac Corp., 127 F. Supp. 2d 610, 622 (M.D. Pa.
If the plaintiff is able to show a prima facie case of age
discrimination, the burden of production shifts to the defendant.*fn5 The defendant must
then offer evidence that is sufficient, if believed, to support a
finding that it had a legitimate, non-discriminatory reason for
the discharge. If the defendant fails to do so, judgment must be
entered for the plaintiff.
If, however, the defendant offers evidence of a legitimate,
non-discriminatory reason for the plaintiff's discharge, the
burden shifts back to the plaintiff. To survive summary judgment,
the plaintiff must produce evidence "from which a factfinder
could reasonably either (1) disbelieve the employer's articulated
legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer's action." Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
1. Prima Facie Showing of Age Discrimination
Mincevich has presented sufficient evidence to satisfy all four
prongs of a prima facie case. She was a member of a protected
class, as she was sixty-one (61) years old at the time of her
discharge. She was qualified for the job, as she had worked for
Bavarian as a Store Manager for fifteen (15) years. She suffered
an adverse employment action, as she was discharged from her
position as a Store Manager. Lastly, the position of Store
Manager was filled by a younger person, Ms. Morley.
While Bavarian contends that the ten (10) year age difference
between Mincevich and Morley does not warrant an inference of age
discrimination, it chooses not to address the prima facie elements, asserting that it need not do so because
Mincevich's pretext argument is fatally deficient. (Def. Br. in
Supp. of Summ. J. Mot., Dkt. Entry 22, at 15.)
2. Mincevich Has Not Shown "Falsity" or "Pretext"
Bavarian has articulated a legitimate, non-discriminatory
reason for terminating Mincevich's employment. Namely, Bavarian
asserts that Mincevich was terminated because she failed to
improve sales volume and continued to violate child labor laws,
particularly during the ninety (90) day probationary period
following the November 15 meeting with Callucci. (Def. Br. in
Supp. of Summ. J. Mot., Dkt. Entry 22, at 15.)
The burden on Bavarian is merely to produce evidence that such
a legitimate reason existed, not to persuade. It is Mincevich's
obligation to produce evidence from which a factfinder could
reasonably believe either (i) that Bavarian's articulated
reasons are false or unworthy of credence; or (ii) that
discrimination was more likely than not a motivating or
determinative cause of Bavarian's actions. Fuentes,
32 F.3d at 764.
Our Court of Appeals has stated that a plaintiff cannot
discredit an employer's proffered reasons by simply showing that
the "employer's decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent, or
competent." Id. at 765. Specifically, "the non-moving plaintiff
must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them `unworthy of
credence.'" Id. (citing Ezold v. Wolf, Block, Schorr &
Solis-Cohen, 983 F.2d 509, 533 (3d Cir. 1992)); see also id.
at 766 (criticisms of the defendants' assertions were "little
more than the schoolground retort, `Not so,' an approach which . . .
does not create a material issue of fact."). To demonstrate
that a defendant's asserted reason for the adverse employment
action was a pretext, the plaintiff "must show, not merely that
the employer's proffered reason was wrong, but that it was so
plainly wrong that it cannot have been the employer's real
reason." Keller, 130 F.3d at 1109.
In failing to increase sales and in violating child labor laws,
prior to and particularly following the November 15 performance
evaluation, Mincevich failed to satisfy important
responsibilities of a Store Manager. Failure to successfully
fulfill one's job responsibilities is certainly a legitimate
ground for termination. Indeed, Mincevich admitted, both in her
deposition and upon her superiors' appraisals of her store's poor
performance, that sales were low. (Id. at 74, Ex. 36.)
Moreover, she acknowledged that there were violations of child
labor laws under her management. (Id. at 19-20, 25.) Mincevich
nonetheless argues that the low sales volume and child labor law
violations were not the real reasons for her termination, and
that they are pretexts for the true reason age discrimination.
(Pl.'s Br. in Opp. to Summ. J. Mot., Dkt. Entry 28, at 13-16.)
Mincevich contends that the poor sales record could not be an
actual reason for her discharge because it was largely beyond her
control. As to the child labor law violations, she claims that they were not solely her responsibility. (Id.)
In arguing that low sales performance was not a true factor in
her dismissal, Mincevich points to evidence that, on occasion,
her store realized substantial increases in income. Specifically,
Mincevich notes that between December of 2000 and December of
2001, her store was placed on seven (7) weekly top ten (10)
lists, out of eighty (80) stores, for sales percentage increase.
There is no disputing the fact, however, that her store's sales
volume had significantly decreased over the last several years of
Mincevich's employment. (Mincevich Dep., Dkt. Entry 30, at 79,
81.) A temporary increase in sales by percentage would reflect a
low starting point, and Plaintiff does not point to evidence that
she had reversed the decline in sales. A plaintiff must "present
evidence contradicting the core facts put forward by the employer
as the legitimate reason for its decision." Kautz v. Met-Pro
Corp., 412 F.3d 463, 467 (3d Cir. 2005). Mincevich has not done
Mincevich attributes low sales volume to a decrease in mall
traffic. (Id. at 74.) Nonetheless, the poor performance of
Mincevich's store, which included registering the worst profit
decline in the entire company, was significant and understandably
of concern to Bavarian. (Id. at Ex. 23, 33, 37, 39.) Moreover,
as Bavarian has pointed out, there is in fact no record evidence
of the mall's sales volume between 1999 and 2002. (Def.'s Rep.
Br. in Supp. of Mot. for Summ. J., Dkt. Entry 35, at 9.) In
addition, Mincevich's failure to respond to the November 15
evaluation, on which Bavarian based its termination, demonstrated
a lack of urgency and seriousness expected of a Store Manager. The question, as our
Court of Appeals has explained, is not whether Mincevich "could
have done better; instead, the relevant question is whether the
evidence shows that it was so clear that [Mincevich] could not
have done better that [Bavarian] could not have believed
otherwise." Keller, 130 F.3d at 1110. Mincevich has produced no
evidence to support a conclusion that Bavarian could not have
believed that sales performance was within her ability to
Furthermore, there is no evidence that younger Store Managers
were treated more favorably despite similarly poor sales
performances. Thus, there is no basis for concluding that
Plaintiff's indisputably poor sales record was a pretext for a
decision to fire her based on her age.
There were also ample grounds for finding Mincevich responsible
for failing to enforce child labor law requirements. Throughout
Sinno's employment, Mincevich knew that Sinno was working without
proper documentation. (Mincevich Dep., Dkt. Entry 30, 56-57.)
When Mincevich hired Sinno in May of 2001, Sinno submitted
working papers that were incomplete. (Id. at 55-56.) While
Mincevich returned them to Sinno to have them properly filled
out, Sinno worked without submitting her employment certificate
until Mincevich fired her on January 6, 2002. (Id. at 56.) In
her deposition, Mincevich claims that she asked Sinno for the
completed employment certificates "many times over and over
again. Every time I worked with her I'd ask her for it." (Id.
at 57.) Though Mincevich states that she made a concerted effort
to have Sinno bring in the employment certificate, it does not change the fact
that she employed Sinno for several months without having her
documents on file.
Mincevich alleges, however, that Bavarian was "complicit" in
keeping Sinno employed and argues this to be a "genuine issue of
material fact to be decided by a trier of fact."*fn6 (Pl.'s
Br. in Opp. of Summ. J. Mot., Dkt. Entry 28, at 13.) Mincevich
asserts in her deposition that while she notified Callucci of
Sinno's poor work habits in November of 2001, Callucci instructed
her to keep Sinno through Christmas and to then let her go.
(Mincevich Dep., Dkt. Entry 30, at 51.) Mincevich does not
indicate whether there was any mention of Sinno's employment
documentation in this conversation, nor does she indicate whether
this conversation took place before or after the November 15
meeting. In any event, Callucci would have been aware of Sinno's
employment situation as he had learned of it by October of 2001.
(Callucci St., Dkt. Entry 31, at ¶ 6.) It is unclear, then, as to
whether Callucci's comments should be interpreted as an implicit
approval of employing Sinno without an employment certificate or
as a statement made on the assumption that Mincevich would
address Sinno's situation. Moreover, its significance would vary
greatly depending on whether the comments were made before or
after the November 15 meeting. Regardless of what was said or
meant in the conversation in question and when it may have taken place, however, Callucci did
remind Mincevich in a December 2001 phone conversation to act
immediately on Sinno's employment situation. (Id. at ¶ 11.)
Taken in the context of the November 15 performance evaluation,
Mincevich was plainly responsible for addressing Sinno's
situation, particularly after the December phone conversation
with Callucci. If Callucci's comments to keep Sinno through
Christmas were made after the November 15 meeting and were meant
to indicate that Sinno could work without an employment
certificate, then Mincevich would not be responsible for having
violated child labor laws from then through the December phone
conversation. Nonetheless, Mincevich would still be responsible
for having employed Sinno without an employment certificate from
the December conversation until she fired her in January of 2002.
Thus, Callucci's comments to keep Sinno through Christmas are not
sufficient to support a reasonable inference that Callucci
condoned child labor violations.
Mincevich suggests that the child labor law violation in
relation to Sinno could not have been a reason for her discharge
because she was not responsible for the rehiring of Sinno in
September of 2001, as she was on vacation at the time. (Mincevich
Dep., Dkt. Entry 30, at 56.) She alleges that it was instead the
responsibility of Callucci and Morley, who hired Sinno, to take
care of Sinno's paperwork at the time of her rehiring. (Id.)
This assertion is belied by Mincevich's statement that she was
constantly reminding Sinno of the certificate every time they
worked together. It is also irrelevant as Mincevich acknowledges
that Callucci instructed Plaintiff on November 15, 2001 to obtain Sinno's working papers immediately.
(Def.'s SMF, Dkt. Entry 22, at ¶ 17.)
There is also no dispute that Mincevich scheduled high school
students to work over eight (8) hours a day and more than five
(5) hours without a break. Mincevich cites one instance in which
Morley was scheduled to replace Stumpp and yet failed to show up.
(Id. at 266-267.) Moreover, Mincevich asserts that she was away
for some of the alleged violations. (Pl.'s Br. in Opp. of Summ.
J. Mot., Dkt. Entry 28, at 14.) Mincevich admits, however, that
she too scheduled teenagers to work shifts in violation of child
labor restrictions. (Id. at 218.)
Lastly, Mincevich contends in her deposition that Callucci
asked her at the November 15 meeting as to whether she felt she
was being set up, to which she responded, "absolutely." (Id. at
225.) This perception by Mincevich has no evidentiary
significance. See Waldron, 56 F.3d at 498. Even if it had
some relevance, Mincevich cannot dispute that she failed to
rectify problems identified in the November 15 performance
In short, the low sales volume and child labor law violations
were legitimate factors in evaluating Mincevich's employment
status. Mincevich's failure to address Bavarian's concerns
regarding sales volume and child labor law violations raised in
the November 15 performance evaluation, coupled with her poor
performance prior to the evaluation, are legitimate reasons for
termination. Mincevich has not produced evidence that either
factor could be considered as "so plainly wrong that it cannot
have been the employer's real reason." Keller,
130 F.3d at 1109. 3. Mincevich Has Not Shown "Evidence" Of Discrimination
In addition to the pretext argument, Mincevich asserts that
there is direct evidence of age discrimination in the form of
age-related comments made to Mincevich by two former District
Managers, Abrams and Price. (Pl.'s Br. in Opp. of Summ. J. Mot.,
Dkt. Entry 28, at 16-19.) Yet, neither Abrams nor Price worked
for Bavarian at the time of Mincevich's termination, and Callucci
did not consult either of them in deciding to terminate
Mincevich. (Callucci St. at ¶ 12). These statements attributed to
low-level supervisors years before Plaintiff was fired cannot
support a reasonable inference that age played a role in
Callucci's decision. See, e.g., Evans v. Pennsylvania Power
& Light Co., 98 Fed. Appx. 151, 156 (3d Cir. 2004); Ezold v.
Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 545 (3d Cir.
1992) ("[s]tray remarks by nondecisionmakers or by decisionmakers
unrelated to the decision process are rarely given great weight,
particularly if they were made temporally remote from the date of
In order to satisfy the second prong under the Fuentes test,
the plaintiff must establish that discrimination was a motivating
or determinative factor in the defendant's action. Fuentes,
32 F.3d at 764. Our Court of Appeals has stated that the plaintiff
"must point to evidence that proves age discrimination in the
same way that critical facts are generally proved based solely
on the natural probative force of the evidence." Keller,
130 F.3d at 1111. Mincevich has not done so. Mincevich has not
connected the purported age-related comments to her discharge.
There simply is no evidence, direct or circumstantial, that
demonstrates that age was a motivating or determinative factor in Bavarian's decision. Thus,
a reasonable factfinder could not find that Mincevich's proof is
sufficient to establish by a preponderance of the evidence that
age was a motivating or determinative factor in her termination.
Our Court of Appeals has stated that mere conclusory
allegations are insufficient to withstand a motion for summary
judgment. Schoch, 912 F.2d at 657. Mincevich has failed to
produce evidence beyond mere conclusory allegations that tends to
show that Bavarian's asserted legitimate reason for terminating
Mincevich's employment lacked credulity or was merely a pretext.
Therefore, summary judgment will be granted to defendant Bavarian
on both the ADEA and PHRA claims. An appropriate Order follows. ORDER
NOW, THIS 11th DAY OF OCTOBER, 2005, for the reasons set
forth in the foregoing memorandum, IT IS HEREBY ORDERED THAT:
1. Defendant Bavarian's Motion for Summary Judgment,
(Dkt. Entry 21), is GRANTED.
2. The Clerk of Court is directed to enter judgment
in favor of Bavarian and to mark this action
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