Opinion
Case No. 4:98CV1544 JCH
March 6, 2003
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion for Summary Judgment, filed February 3, 2003. (Doc. No. 73). The matter is fully briefed and ready for disposition.
BACKGROUND
By way of background, Plaintiff Harry Grey ("Plaintiff or "Grey") began working as a licensed securities agent in 1985. (Plaintiffs Statement of Material Facts in Opposition to Defendants' Motion for Summary Judgment ("Plaintiffs Facts"), ¶ A). From 1988 through March, 1996, Grey worked as a licensed securities agent in Missouri. (Id., citing Plaintiffs Second Amended Complaint, ¶ 9).
From approximately May, 1995, through June, 1996, Plaintiff maintains that due to a mental impairment, he was substantially impaired in his ability to make decisions and judgments, and further was unable to care for himself about 80% of the time. (Plaintiffs Facts, ¶ B, citing Deposition of Dr. Patricia Berne ("Berne Depo,"), PP. 41-42; Report of Dr. Patricia Berne ("Berne Report"), P. 3). At some point during this time period, Plaintiff was diagnosed with bipolar disorder. (Plaintiffs Facts, ¶ B). According to Plaintiff, following this initial diagnosis it took a number of months for his condition to stabilize, as he was subsequently found to have an underactive thyroid, and his medications had to be adjusted accordingly. (Id., citing Berne Report, P. 2).
From 1994 to 1996, Plaintiff was employed as a stockbroker with the firm Burns, Pauli and Mahoney ("Burns, Pauli"). (Defendants' Statement of Uncontroverted Facts ("Defendants' Facts"), ¶ 4, citing Deposition of Harry Grey ("Grey Depo."), PP-25, 28 and Exh. 1). Plaintiff eventually sought to leave Burns, Pauli, in order to work with another firm, Kirkpatrick Pettis, in Denver, Colorado. (Defendants' Facts, ¶ 8, citing Grey Depo., P. 24).
In order to be registered by a state to trade securities, a stockbroker or agent must fill out a form known as a U-4, which the state then reviews in determining whether to grant a license to the broker. (Defendants' Facts, ¶ 9). The U-4 contains information regarding the applicant's past history and experience, and includes any previous customer complaints against the broker. (Id., citing Deposition of Stacy Tellman ("Tellman Depo."), PP. 9-10). Kirkpatrick Pettis filed an application on Plaintiffs behalf, but then withdrew the registration application when two customer complaints were revealed thereon. (Defendants' Facts, ¶ 10, citing Grey Depo., PP. 24-25).
During the summer of 1996, following the withdrawal by Kirkpatrick Pettis, Plaintiff sought to be re-registered in Missouri with Burns, Pauli. (Plaintiffs Facts, ¶ D; Defendants' Facts, ¶ 11). Plaintiff initially intended to work as an independent contractor for Burns, Pauli in Denver, as at that time Burns, Pauli did not have an office in Denver, Colorado. (Defendants' Facts, ¶ 11, citing Grey Depo., P. 27). On his securities registration application, Plaintiff reported he had engaged in two instances of high stock trading activity in late 1995. (Plaintiffs Facts, ¶ C). Plaintiff explained that the churning activities occurred during a period when his judgment was adversely affected by medication prescribed through a misdiagnosis of his condition. (Id., citing Grey Depo., PP. 42-45; Plaintiffs Depo. Exh. 3, # 00026). Plaintiff maintains he was functioning at normal capacity at the time he submitted his registration application. (Plaintiff's Facts, ¶ D, citing Berne Depo., P. 41; Plaintiff's Exh. 5, # 00016).
Although Plaintiff had worked as a licensed securities agent in Missouri previously, he was required to seek re-registration because he lived out of state in the interim. (Plaintiffs Facts, ¶ D, citing Plaintiffs Second Amended Complaint, ¶ 9)
This type of activity, known as "churning," is unethical, and is considered a serious violation of the securities laws. (Defendants' Facts, ¶ 13, citing Tellman Depo., PP, 20-21, 38, 58, 63-64). Further, under Missouri law, unethical activity is sufficient grounds to "deny, suspend, or revoke" an application. (Defendants' Facts, ¶ 14, quoting Mo. Rev Stat. § 409.204(a)(2)(G)). According to Plaintiff, however, a Licensing Coordinator has the discretion to grant a license to a broker who has a proven or admitted ethical violation. (Plaintiffs Facts, ¶ J, citing Tellman Depo., P. 54).
In 1996, Stacy Tellman ("Tellman") was a Licensing Coordinator or Supervisor with the Division of Securities (the "Division"). (Defendants' Facts, ¶ 7, citing Tellman Depo., PP. 5-6). It was Tellman's role to make the initial determination for the Division as to whether Grey's application to be registered again in Missouri should be granted, or whether additional information was needed in order to make such a determination. (Defendants' Facts, ¶ 12, citing Tellman Depo., PP. 18-19). Upon reviewing the information contained in Grey's U-4, Tellman learned there were two recent customer complaints against Grey regarding churning in the customers' accounts, both of which resulted in settlements with the clients. (Defendants' Facts, ¶ 13; Plaintiffs Facts, ¶ C). The U-4 further reflected other customer complaints against Grey dating back to the 1980's, one of which also resulted in a settlement with the customer. (Defendants' Facts, ¶ 15, citing Tellman Depo., PP. 21-23, 27; Grey Depo., Exh. 1).
Tellman held that position until approximately 2000, when she became a Securities Licensing Examiner with the Division, the position she currently occupies. (Defendants' Facts, ¶ 7)
As noted above, Grey's U-4 also contained his explanation for the recent customer complaints regarding churning, i.e., that his judgment had been adversely affected by the medication he was taking through a misdiagnosis. (Defendants' Facts, ¶ 16, citing Tellman Depo., PP. 22-23 and Exh. 3).
As a result of the information revealed on Plaintiffs U-4, Tellman decided to issue a Summary Postponement of Grey's application. (Plaintiffs Facts, ¶ G, citing Tellman Depo., PP. 30-31). The Summary Postponement advised Plaintiff and Burns, Pauli that Grey was not yet registered to sell securities in the State of Missouri, and further contained a request for additional information. (Defendants' Facts, ¶¶ 17, 18, citing Tellman Depo., PP. 27-28, 30-32, 38 and Exh. 4). By way of response, Burns, Pauli submitted statements from Grey's doctors regarding his bipolar disorder, (Defendants' Facts, ¶ 19, citing Tellman Depo., PP. 33-35 and Exh. 8). Upon further inquiry from Tellman, Burns, Pauli also submitted information regarding their proposed supervisory procedures for Grey. (Defendants' Facts, ¶ 20, citing Tellman Depo., PP. 59-61 and Exhs. 7, 8).
The information from Grey's health care providers, Dr. Berne and Dr. Isenberg, described Grey's medical problems in 1995 and 1996, and indicated that as of June, 1996, he was functioning at normal capacity. (Plaintiffs Facts, ¶ H, citing Plaintiffs Exh. 5, # 00016; Plaintiffs Exh. 6).
Tellman discussed Plaintiffs application with Mary Hosmer ("Hosmer"), then an attorney and Chief of Enforcement for the Division. (Defendants' Facts, ¶¶ 6.21, citing Deposition of Mary Hosmer ("Hosmer Depo."), PP. 6-7, 10, 19, 23; Tellman Depo., PP. 34-36). Hosmer assumed, based on both Plaintiffs application and the supervisory procedures initially submitted by Burns, Pauli, that Grey would be working in Denver Colorado. (Defendants' Facts, f 22, citing Hosmer Depo., PP. 26-27). In November, 1996, Hosmer and Tellman suggested to Burns, Pauli that Grey withdraw his application, and wait a year before reapplying to see if he could practice elsewhere successfully, (Defendants' Facts, ¶ 23, citing Tellman Depo., PP. 66-68; Hosmer Depo., P. 28; Plaintiffs Facts, ¶ N, citing Tellman Depo., PP. 75-78; Plaintiffs Exh. 12).
In approximately 1998, Hosmer became the Assistant Commissioner of Enforcement for the Division. (Defendants' Facts, ¶ 6).
Defendants maintain Hosmer and Tellman made their suggestion based on Plaintiffs past history of customer complaints. (Defendants' Facts, ¶ 23). Plaintiff conversely asserts that while Tellman testified she was concerned about Grey's churning activities, she admitted she had no problem with the supervisory procedures proposed by Burns, Pauli. (Plaintiffs Facts, ¶ K, citing Tellman Depo., PP. 61-62, 65-66). Plaintiff further asserts that although Hosmer testified her concern with Grey's license application was its proposal that Grey work out of a one-person office in Colorado, she had in fact previously received a letter from Burns, Pauli's attorney stating that Grey would work in Burns, Pauli's Clayton office. (Plaintiff's Facts, ¶¶ M, N, citing Hosmer Depo. PP. 26-27, 28-29; Plaintiffs Exh. 10).
Plaintiff did not withdraw his application, but instead retained an attorney, Martin Green ("Green"), who contacted the Securities Division on Grey's behalf. (Defendants' Facts, ¶ 24, citing Tellman Depo., PP. 43, 70, 75). During a telephone conversation in approximately November, 1996, Hosmer told Green that, "[t]he last thing we need is having someone who is mentally impaired selling securities in the State of Missouri." (Plaintiffs Facts, ¶ Q, quoting Deposition of Martin Green ("Green Depo."), PP. 56-57). After further conversations with Hosmer, Tellman, and Douglas Wilburn ("Wilburn"), then Commissioner of Securities with the Division, in which all three indicated Grey would not be licensed. Green called then Secretary of State Rebecca Cook ("Cook"). (Plaintiffs Facts, ¶ R, citing Green Depo., PP. 23-26; Defendants' Facts, ¶¶ 5, 25, 26, citing Deposition of Doug Wilburn ("Wilburn Depo."), P. 9; Tellman Depo., P. 76; Green Depo., P. 25). Green informed Cook there seemed to be discrimination in the decision to deny Plaintiffs application, and Cook said she'd investigate. (Plaintiff's Facts, ¶ R, citing Green Depo., PP. 23-26). At some point subsequent to this discussion, Hosmer decided to grant Grey's application upon the signing of a consent agreement. (Defendants' Facts, ¶ 28, citing Hosmer Depo., PP. 36-38, 40).
Plaintiff maintains Wilburn expressed reservation about registering Grey because of his mental disability as well. (Plaintiffs Facts, ¶ Q, citing Green Depo., PP. 30-31).
On December 10, 1996, Green wrote Plaintiff a letter, stating as follows:
As you know, this morning I conferred with Doug Wilburn, the Commissioner of Securities, who informed me in general terms that your license would be issued. Following that call, I heard from Mary Hosmer, who indicated that for two years following the issuance of your license they would require the following:
1. Your employment must be with a firm that has supervision.
2. You must undergo periodic medical examinations and they may require a report from a physician from time to time,
3. They will require quarterly reports from the Director of Compliance at your firm that you have complied with all of the rules and regulations of the Commissioner of Securities.
4. They will require an Affidavit from you several times a year that you have not engaged in any unauthorized trades.
They will require that these requirements are to be embodied in a Consent Agreement signed by you and the Division of Securities. It will recite, among other things, that in the past you engaged in two unauthorized trades, but that you neither admit nor deny those claims. The Agreement will be public in the sense that anyone can make an inquiry concerning its terms, and it will appear on the CRD System which means that a copy will be provided to the Commissioners of Securities nationally. Mary Hosmer has agreed that if these concepts are acceptable, she will provide us with a draft of a proposed Consent Agreement, We will have the right to comment and make whatever changes we consider necessary.
(Plaintiff's Tab 11). Hosmer sent attorney Green the proposed consent agreement in January, 1997. (Defendants' Facts, ¶ 29, citing Hosmer Depo., P. 40; Green Depo., P. 34). Plaintiff maintains he believed he was registered as a broker in Missouri sometime in late December, 1996, or early January, 1997, despite the fact that he admittedly did not sign the consent agreement until February 19, 1997. (Plaintiff's Facts, ¶ U, citing Grey Depo., PP. 85-86; Plaintiff's Response to Defendants' Facts, ¶ 30, citing Plaintiffs Tab 16). Based on this erroneous assumption, Plaintiff transacted business as a securities broker during the month of January, 1997, on behalf of four clients. (Plaintiffs Facts, ¶ V).
According to the terms of Green's letter, the parties' execution of the Consent Agreement was a clear condition precedent to Grey's being licensed as a broker in Missouri.
In late January, 1997, the Division received an anonymous phone call indicating that Plaintiff was making trades. (Defendants' Facts, (second) ¶ 32, citing Deposition of C. Frederick Holloway, (Pl. 12 and Exh. 1). As a result, Wilburn called for an audit of Plaintiff's activities. (Defendants' Facts, ¶ 33, citing Wilburn Depo., P. 64). The results of the audit confirmed Grey's unauthorized trading in January, 1997. (Defendants' Facts, ¶ 34, citing Deposition of Theresa Dunn ("Dunn Depo."), PP. 23, 38-39 and Exhs. 16, 34). The February, 1997 audit further revealed that Burns, Pauli broker Rob Norman ("Norman"), was utilizing another agent's number to transact out-of state trades in a state in which he was not licensed. (Plaintiffs Facts, ¶ X, citing Dunn Depo., P. 17; Plaintiff's Exh. 15, P. 3).
In February, 1997, Green again spoke with Hosmer regarding Grey's application. At that time, Hosmer repeated her comment that, "[t]he last thing we need is having someone who is mentally impaired selling securities in the State of Missouri," (Plaintiffs Facts, ¶ Y, citing Green Depo., PP. 52-54, 56-57). Plaintiffs application to be registered in the State of Missouri was denied in April, 1997, and a Cease and Desist Order was later entered by the Division. (Defendants' Facts, ¶¶ 37, 38, citing Wilbum Depo., PP. 79,83-84 and Exhs. 17, 20). Auditor Theresa Dunn is unaware of any disciplinary action taken against Norman by the Division. (Plaintiffs Facts, ¶ X, citing Dunn Depo. P. 18).
Plaintiff submitted a petition to appeal the denial of his license application to the Administrative Hearing Commissioner. (Defendants' Facts, ¶ 39). The parties eventually settled the matter by entering into a Consent Order in which Grey waived his right to a hearing before the Commissioner, in exchange for the vacating of the denial of his application. (Id.). The Order further stated that Plaintiff would not seek to reapply for registration in Missouri for a period often years. (Id.). The Consent Order contained neither a general nor a specific release of any claims Grey might later have under the ADA, the Rehabilitation Act, or any other state or federal antidiscrimination statute. (Plaintiffs Response to Defendants' Facts, ¶ 39, citing Plaintiffs Exh. 21).
SUMMARY JUDGMENT STANDARD
The Court may grant a motion for summary judgment if "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 that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The substantive law determines which facts are critical and which are irrelevant. Only disputes over facts that might affect the outcome will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,Id.A moving party always bears the burden of informing the Court of the basis of its motion. Celotex, 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not the "mere existence of some alleged factual dispute." Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 247. The nonmoving party may not rest upon mere allegations or denials of its pleadings.Anderson, 477 U.S. at 256.
In passing on a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor. Id. at 255. "[S]ummary judgment should seldom be granted in the context of employment actions, as such actions are inherently fact based."Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 830 (8th Cir. 2000), quoting Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir. 1998). "When the evidence would support conflicting conclusions, summary judgment should be denied." Kells, 210 F.3d at 830, citing Johnson v. Minnesota Historical Soc'y 931 F.2d 1239, 1244 (8th Cir. 1991) ("A the evidence must point one way and be susceptible of no reasonable inferences sustaining the position of the nonmoving party [before summary judgment is appropriate].").
DISCUSSION
I. Plaintiffs Rehabilitation Act Claim
The Eighth Circuit has held that, "[t]he framework for evaluating [a Rehabilitation Act] discrimination claim depends on the type of evidence presented in support of the claim." Mohr v. Dustrol. Inc., 306 F.3d 636, 639 (8th Cir. 2002). "If a plaintiff only has circumstantial evidence of discrimination, he must establish a case under the burden shifting McDonnell Douglas [v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)] framework," Bedwell v. Jefferson Smurfit Corp., 947 F. Supp. 1322, 1325 (E.D.Mo. 1996) (citations omitted). "On the other hand, if a plaintiff has direct evidence that [disability] discrimination played a "motivating part" in the employment action, he litigates under the "mixed-motives test" of Price Waterhouse [v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)]." Bedwell 947 F. Supp. at 1325 (citations omitted).
The Eighth Circuit further has held that, in general, cases interpreting the Rehabilitation Act and the Americans with Disabilities Act ("ADA") are, "applicable and interchangeable." Stern v. University of Osteopathic Medicine and Health Sciences, 220 F.3d 906, 908 (8th Cir. 2000).
In those cases, the plaintiff is relieved of the ultimate burden of persuasion . . . Under the mixed motive analysis, once the plaintiff persuades a factfinder that, more likely than not, discrimination was a motivating part in an employment decision, the burden shifts to the employer to prove that the employment decision would nevertheless have been made for legitimate, nondiscriminatory reasons.Mohr, 306 F.3d at 640 (internal quotations and citations omitted).
The Eighth Circuit defines "direct evidence" as, "that which demonstrates a specific link between the alleged discriminatory animus and the challenged [employment] decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated [the employer's] decision to take the adverse employment action."Mohr, 306 F.3d at 640 (internal quotations and citations omitted).
Not every prejudiced remark made at work supports an inference of discrimination. Thus, we have carefully distinguished between comments which demonstrate a discriminatory animus in the decisional process or those uttered by individuals closely involved in employment decisions, from stray remarks in the workplace, statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process.Mohr, 306 F.3d at 640-41 (internal quotations and citations omitted).
In the instant case, Plaintiff offers direct evidence of discrimination. Specifically, Plaintiffs attorney, Martin Green, testified he was twice told by Hosmer that, "[t]he last thing we need is having someone who is mentally impaired selling securities in the State of Missouri." (Plaintiffs Tab 11, PP. 56-57). Green further indicated the comments were made both before and after Plaintiff allegedly engaged in unauthorized trading. (Id.), In response, Defendants state they, "will not try and create a disputed fact as to what Hosmer said or did not say." (Defendants' Reply Memorandum in Support of Motion for Summary Judgment ("Defendants' Reply"), P. 6). The Court thus finds it is undisputed for purposes of this motion that comments tending to demonstrate a discriminatory animus were uttered by one closely involved in the employment decision. Mohr, 306 F.3d at 640-41.
Having concluded that Plaintiff is entitled to the mixed motive analysis, the Court's review turns to whether Defendants have proved that absent consideration of any illegal criterion, they would have taken the same employment action. Mohr, 306 F.3d at 642. In their reply brief, Defendants maintain they would have denied the license application in any event, as the results of the audit confirmed Grey had been trading without a license. (Defendants' Reply, P. 6). Plaintiff challenges this assertion, however, noting that at least one other broker who traded in a state where he was not licensed during the same time frame as Plaintiff was not sanctioned in any way by Defendants. (Plaintiffs Memorandum in Opposition to Defendants' Motion for Summary Judgment ("Plaintiffs Memo in Opp."), P. 13, citing Plaintiffs Facts, ¶ X). The Court finds Plaintiffs allegation sufficient to create a genuine issue of material fact as to whether Defendants would have taken the same action absent their consideration of an illegal criterion, and so Defendants' motion for summary judgment on Plaintiffs Rehabilitation Act claim will be denied.
Upon careful review of the record, the Court holds that Plaintiff's Rehabilitation Act claim survives summary judgment under the more stringent standards of McDonnell Douglas as well.
II. Plaintiffs ADA Claim
Defendants next assert that, even assuming Plaintiff could establish a violation under the ADA, he is not entitled to the injunctive relief he seeks in his Complaint. (Defendants' Memo in Support, P. 9). Specifically, Defendants maintain Plaintiffs conviction for a felony in 1999 precludes the award of the only injunctive relief Plaintiff seeks in his Complaint, i.e., the issuance of a securities license by the State of Missouri. (Id.).
In response, Plaintiff notes that in his Second Amended Complaint, he seeks all, "appropriate prospective injunctive relief, . . . . including issuance of a securities license, attorneys' fees and costs and . . . such additional relief as may be just and proper in the circumstances." (Plaintiffs Memo in Opp., P. 15). Upon consideration, the Court agrees with Plaintiff that relief for his ADA claim may yet be available, and so Defendants' motion for summary judgment on this claim is denied.
III. Estoppel
Defendants finally assert summary judgment on Plaintiffs claims is warranted, as Plaintiff is estopped from pursuing his claims in this Court. (Defendants' Memo in Support, P. 9). By way of explanation, Defendants note that Grey filed an appeal with the Administrative Hearing Commission (the "Commission"), regarding both the denial of his application and the Cease and Desist Order entered by the Division. (Id). Through his counsel, Plaintiff eventually entered into a Consent Agreement, in which Plaintiff waived his right to a hearing before the Commission in exchange for the vacation of the denial of his registration application. (Id., PP. 9-10). As part of the Consent Agreement, Plaintiff further agreed not to seek registration in the State of Missouri for a period often years. (Id.). Defendants maintain Plaintiffs claims in the instant suit are thus barred by the doctrines of collateral estoppel and/or res judicata.
"The doctrine of res judicata, or claim preclusion, operates as a bar to the reassertion of a cause of action that has been previously adjudicated in a proceeding between the same litigants or those in privity with them." Norwine v. Norwine, 75 S.W.3d 340, 343 (Mo.App. 2002), citing Robin Farms. Inc. v. Beeler. 991 S.W.2d 182, 185 (Mo.App. 1999). "In order to have estoppel by a former judgment [res judicata], there must be: 1) identity of the thing sued for; 2) identity of the cause of action; 3) identity of the persons and parties to the action; and 4) identity of the quality of the person for or against whom the claim is made." State of Missouri v. White, 952 S.W.2d 716, 718 (Mo.App. 1997) (internal quotations and citation omitted).
The "identity of cause of action" is defined as, "the underlying facts combined with the law, giving a party a right to a remedy of one form or another based thereon." Williams v. Finance Plaza, Inc., 78 S.W.3d 175, 183 (Mo.App. 2002) (internal quotations and citation omitted).
"Collateral estoppel, or issue preclusion, precludes the same parties, or those in privity, from relitigating issues which were necessarily and unambiguously decided in the previous final judgment." Norwine, 75 S.W.3d at 343, citing Shores v. Express Lending Services. Inc., 998 S.W.2d 122, 126 (Mo.App. 1999). "To determine whether collateral estoppel applies, the court must examine four factors: 1) whether the issue decided in the prior adjudication was identical to the issue presented in the present action; 2) whether the prior adjudication resulted in a judgment on the merits; 3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and 4) whether the party against whom collateral estoppel is asserted had full and fair opportunity to litigate the issue in the prior suit." State v. Polley, 2 S.W.3d 887, 893-94 (Mo.App. 1999) (citation omitted).
Upon careful consideration of the parties' submissions, this Court finds neither res judicata nor collateral estoppel acts as a bar to Plaintiffs claims in the instant suit. See Norwine, 75 S.W.3d at 343 (internal quotations and citation omitted) ("For either doctrine to apply, a final judgment on the merits must have been rendered involving the same claim or issue sought to be precluded in the cause in question"). The Court will therefore deny Defendants' motion for summary judgment based on estoppel.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (Doc. No. 73) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs Motion to Strike (Doc. No. 79) is DENIED as moot.