United States District Court, District of New Jersey
October 17, 2001
EMBLEZ LONGORIA, PLAINTIFF,
STATE OF NEW JERSEY; STATE OF NEW JERSEY &MDASH; DIVISION OF STATE POLICE; JOHN J. FARMER, ATTORNEY GENERAL FOR THE STATE OF NEW JERSEY; CARSON J. DUNBAR, SUPERINTENDENT, STATE OF NEW JERSEY &MDASH; DIVISION OF STATE POLICE; PETER G. VERNIERO; CARL A. WILLIAMS, JR.; CAPTAIN JOSEPH SARNECKY; LIEUTENANT JOSEPH WATTAI; JOHN DOES 1 THROUGH 10, DEFENDANTS.
The opinion of the court was delivered by: Stephen M. Orlofsky, United States District Judge
This matter having come before the Court on Defendants's motion for
summary judgment and Plaintiff's Cross-Motion for Summary Judgment,
pursuant to Fed.R.Civ.P. 56, Benjamin Clarke, Esq., R. Brian McLaughlin,
Esq., Robert A. Tandy, Esq., DeCotiis, Fitzpatrick, Gluck, & Cole, LLP,
appearing on behalf of Defendants, and Philip J. Moran, Esq., appearing on
behalf of Plaintiff, Emblez Longoria; and,
The Court having considered the papers submitted by counsel for
Plaintiff and Defendants in support of their respective motions;
For the reasons stated in the Opinion issued herewith, IT IS, on this
17th day of October, 2001, hereby ORDERED that:
1. Defendants's Motion for Summary Judgment is GRANTED on all of
Plaintiff's claims under federal law, as set out in Count One of the
2. This Court shall decline to exercise supplemental jurisdiction
under 28 U.S.C. § 1367(c) over Plaintiff's claims under the laws of
New Jersey, as set forth in Count Two of the Complaint, without prejudice
to his ability to pursue them in the courts of New Jersey; and,
3. Plaintiff's Cross-Motion for Summary Judgment is DENIED; and,
4. All of Plaintiff's claims asserted under federal law, as set forth
in Count One of the Complaint, are DISMISSED WITH PREJUDICE; and,
5. Plaintiff's claims asserted under the laws of New Jersey, set forth
in Count Two, are DISMISSED WITHOUT PREJUDICE.
This case presents a footnote to the ongoing public scrutiny of the
operations and employment practices of the New Jersey State Police.
Plaintiff, a long-time New Jersey State Trooper, alleges that his
employment prospects have been dimmed by a long-standing aura of racial
hostility in the ranks of the State Police, as well as by antagonism
directed at him as a result of his personal ties to a previous,
successful, critic of the institution. He now seeks money damages and
injunctive relief. His claims, if true, reflect badly on the character of
the New Jersey State Police; ultimately, however, they do not constitute
wrongs cognizable in this Court. The Defendants have moved for summary
judgment, pursuant to Fed.R.Civ.P. 56. The Plaintiff has filed a
cross-motion for summary judgment. For the reasons set forth more fully
below, I shall shall grant the Defendants's motion on Plaintiff's federal
claims, and, in the exercise of my discretionary power under
28 U.S.C. § 1367, dismiss the supplemental state law claims without
prejudice. I shall also deny Plaintiff's cross-motion for summary
FACTS AND PROCEDURAL HISTORY
The Plaintiff, Emblez Longoria ("Longoria"), an Hispanic male, has been
a member of the New Jersey State Police since July 28, 1988. Def.'s R.
56.1 Statement ¶ 1.*fn1 During portions of 1997, Longoria was
stationed at the State Police barracks in Hightstown, New Jersey.
Longoria Depo. at 219.*fn2 While at Hightstown, Longoria was
temporarily assigned to the Narcotics and Organized Crime Bureau
("NOCB"), another unit within the New Jersey State Police. Id. at
219-36. Longoria worked at the NOCB for approximately two months, id. at
246, garnering positive reviews. Id. at 238.
During Longoria's stay at the NOCB, the State Police posted a notice
for a permanent position, essentially identical to the temporary position
Longoria was then occupying. Id. at 236. Longoria applied for, but did
not receive, that appointment. Id. at 237, 248. Instead, Longoria was
given another temporary assignment with the NOCB. Id. at 247, 254-55.
The assignment lasted "a few months." Id. at 262. Longoria was told his
work during the second NOCB stint was "excellent." Id. at 270. Shortly
thereafter, Longoria applied for a "very similar" permanent position in
the Intelligence Unit, but was not hired.
Id. at 263-67. He was sent
back to Hightstown. Id. at 269.
On February 14, 1998, Longoria was transferred to Cranbury Station, a
unit of the New Jersey State Police responsible for patrolling the New
Jersey Turnpike. Id. at 217-18; Def.'s R. 56.1 Statement ¶ 2. On
Longoria's first night at Cranbury, he accompanied another trooper,
Daniel Borowick, on patrol. Longoria Depo. at 522. According to
Longoria, Borowick twice stopped motorists for no obvious reason other
than that they were "driving while black." Id. at 529-45. Longoria and
Borowick also stopped to question a third motorist, whom Borowick
referred to with a racial slur. Id. at 543.
Longoria also testified at his deposition that, during his time at
Cranbury, other state troopers stopped primarily black and Hispanic
motorists. Id. at 677-83, 704-05, 709-10. He claimed that in "locker
room" conversations and elsewhere the other troopers often used ethnic
slurs to describe the suspects they detained. Id. at 736.
Disturbed by what he perceived to be the cloud of racism surrounding
the Cranbury barracks, Longoria requested a transfer to the Diesel
Emissions Unit ("DEU"). Compl. ¶ 15. Longoria's transfer was
granted on April 11, 1998. Def.'s R. 56.1 Statement ¶ 3. The main
responsibility of the DEU is to inspect trucks for compliance with safety
and emissions standards.
Longoria's hours at the DEU were, officially, 6:00 a.m. to 2:00 p.m.
During the time Longoria was assigned to the DEU, he was also attending
classes at a community college in pursuit of an associate's degree. In
order to juggle both his work and class schedules, Longoria sought and
received permission from his supervisor, Lieutenant Flynn, to work a
modified shift, from 5:00 a.m. to 1:00 p.m. Bellaran Depo. at 80-81.
During the beginning of Lieutenant Flynn's tenure as Longoria's
supervisor, these hours included so-called "portal to portal" time
— in other words, a trooper was considered to be on duty during the
time he was driving to or from work. Id. at 89-90.
On July 18, 1998, Captain Joseph Sarnecky ("Sarnecky") assumed command
of the Traffic Bureau, including the DEU. At about the same time,
Lieutenant Joseph Wattai ("Wattai") was also transferred to the Traffic
Bureau. At some point after taking over the Traffic Bureau, Sarnecky
changed the "portal to portal" policy, so that troopers did not receive
credit for time spent commuting to their job site.
Sarnecky and Wattai made an unannounced visit to Longoria's post on
September 15, 1998. Def.'s R. 56.1 Statement ¶ 8. Longoria was not
there; his "patrol log" for that date indicated that he had signed off
duty at 12:53 p.m. Id.; McLaughlin Aff. Exh. Q. Several days later, on
September 21, 1998, Longoria met with his local supervisors to discuss
the modified shift arrangement. Longoria Depo. at 974. While he was
told that the Division was unhappy with his schedule, he was not actually
ordered to change it. McLaughlin Aff. Exh. L. However, on October 15,
1998, Sarnecky and Wattai made another unannounced visit to Longoria's
post, and again found him absent. Def.'s R. 56.1 Statement ¶ 10. His
"patrol log" for that day indicated that he had signed off at 1:04 p.m.
Id.; McLaughin Aff. Exh. V. On October 19, 1998, Longoria met with
Sarnecky, who ordered him either to submit a special report explaining
the cause for his absences, or to request a transfer out of the DEU.
Longoria requested a transfer to the Fort Dix Station the same day.
After just two months at Fort Dix, Longoria was told that he was to be
transferred back to Cranbury Station.
On February 4, 1999, Longoria filed this suit, seeking money damages,
an injunction barring his latest transfer, and retroactive promotion to
Sergeant, pursuant to 42 U.S.C. § 2000(e) ("Title VII"),
42 U.S.C. § 1981 and 1983, and the New Jersey Law Against
Discrimination, N.J. Stat. Ann. §§ 10:5-1 to — 42 ("NJLAD").
Some four months later, on June 15, 1999, Longoria filed a Charge with
the EEOC, alleging substantially the same incidents that form the basis
for this action. McLaughlin Aff. Exh. F. On September 12, 2000, the
Defendants filed a motion for summary judgment pursuant to Rule 56.
Longoria then made an application to Magistrate Judge Rosen to reopen
discovery. At a November 22, 2000 status conference, Judge Rosen granted
a limited reopening of discovery, at which point Defendants withdrew
their summary judgment motion without prejudice. On March 19, 2001,
Defendants renewed their summary judgment motion, relying upon their
original papers. Longoria filed a cross-motion for summary judgment on
April 10, 2001. As the state-officer defendants have been sued in their
official as well as individual capacities, the present holders of the
relevant offices have been substituted pursuant to Fed.R.Civ.P. 25(d).
I have jurisdiction over Longoria's federal claims pursuant to
28 U.S.C. § 1343, and supplemental jurisdiction over his New Jersey
claims pursuant to 28 U.S.C. § 1367.
A. Summary Judgment Standard
"On a motion for summary judgment, the court must determine whether the
evidence shows 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.'"
Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999) (citing Fed.R.Civ.P.
56(c)). "[T]he judge's function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is a
genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986); see also Abraham, 183 F.3d at 287. "Thus, while the
nonmoving party must present enough evidence to demonstrate a dispute is
genuine, all inferences in interpreting the evidence presented by the
parties should be drawn in favor of the nonmoving party." Abraham, 183
F.3d at 287 (citing Boyle v. County of Allegheny Pa., 139 F.3d 386, 393
(3d Cir. 1998)). "Cases that turn crucially on the credibility of
witnesses' testimony in particular should not be resolved on summary
1. Title VII
The Defendants argue that Longoria's claims under Title VII are barred
because he failed to exhaust his administrative remedies prior to filing
suit in federal court. Def.'s Br. at 13-14. Title VII plaintiffs may
not seek relief or redress in federal court for any claim that has not
first been presented to the United States Equal Employment Opportunity
Commission. See 42 U.S.C. § 2000e-5(b), (f) (2000); Alexander v.
Gardner-Denver Co., 415 U.S. 36, 47 (1974); Seredinsky v. Clifton
Precision Prods. Co., 776 F.2d 56, 61 (3d Cir. 1985) ("To bring a civil
action under Title VII, an aggrieved party must first file a complaint
with EEOC and, if the complaint is not resolved at the administrative
level, obtain a "right-to-sue" letter from EEOC."). "The purpose of
requiring exhaustion is to afford the EEOC the opportunity to settle
disputes through conference, conciliation, and persuasion. . . ." Antol
v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996). Longoria
filed his EEOC
Charge four months after the initiation of this suit. See McLaughlin
Aff. Exh. F. Plainly, the EEOC was not given an opportunity to settle
the dispute between Longoria and the Defendants before it reached this
Court. In addition, there is no evidence in the summary judgment record
that Longoria has ever received a right to sue letter from the EEOC.
Accordingly, I must conclude that his claims under Title VII cannot
2. Claims Under Sections 1981 and 1983
Longoria asserts, albeit with no great clarity or particularity, a
variety of potential violations of his rights under 42 U.S.C. § 1981
and 1983. Taken at its broadest, the Complaint appears to make out
discrimination claims based upon two distinct failures to promote, an
involuntary transfer, and a generally hostile, racially charged
environment at the New Jersey State Police. In addition, the Complaint
suggests strongly that Longoria suffered harassment, and perhaps the
involuntary transfer, in retaliation for his association with a fellow
trooper, Sergeant Vincent Bellaran III ("Bellaran"), who had won a Title
VII suit against a New Jersey State Police Captain. While Longoria does
not appear actually to argue the legal basis for most of these claims, he
might, construing his briefs generously, be said to have come forward
with at least some evidence supporting many of them. Thus, I shall give
due consideration to each of the claims fairly presented in the
a. The State Defendants — All Claims
Defendants, State of New Jersey and Division of State Police, assert
that they cannot be sued under 42 U.S.C. § 1983 because they are not
"persons" for purposes of the statute. Def.'s Br. at 22.*fn3
It is well
settled that the States are not "persons" within the meaning of §
1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58
(1989). A subdivision of the state itself is also not a "person" if it
is merely an alter ego or "arm" of the state. Fitchik v. New Jersey
Transit Rail Operations, Inc., 873 F.2d 655
, 658-59 (3d Cir.), cert.
denied, 493 U.S. 850
(1989); see also Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89
, 101-02 (1984); Christy v. Pennsylvania Turnpike
Comm'n, 54 F.3d 1140
, 1144 (3d Cir.), cert. denied, 516 U.S. 932 (1995).
Whether or not a governmental entity is an arm of the state turns on:
(1) whether payment for any judgment would come from the state; (2) the
status of the entity under state law; and (3) what degree of autonomy the
entity has. Fitchik, 873 F.2d at 659. Two of my colleagues have
previously concluded that the Division of State Police is an arm of the
State of New Jersey, although without elaborate consideration of the
Fitchik factors. See Nannay v. Rowan College, 101 F. Supp.2d 272, 283
(D.N.J. 2000); Simmerman v. Corino, 804 F. Supp. 644, 650 (D.N.J. 1992),
aff'd, 16 F.3d 405
(3d Cir. 1993).
The Division of State Police is plainly an arm of the State of New
Jersey under this analysis. The New Jersey Code does not provide for any
means of independent funding of the Division of
State Police. This
year, the legislature appropriated funds for the Division directly from
the state budget, in the amount of $215,579,000. See 2001 N.J. Laws c.
130, § 66. The Division is a subsidiary of the Department of Law and
Public Safety, a principal department of the State Executive Branch.
See N.J. Stat. Ann. §§ 52:17B-1 to -3 (2001). The head of the
Division is appointed by the Governor, with the advice and consent of the
Senate, although he or she may only be removed for good cause. Id. at
52:17B-7, 53:1-2. It does not appear that the Division is separately
incorporated, or invested with the power to sue or be sued on its own
behalf. As a unit within the Executive Branch, the Division enjoys
relatively little autonomy. In short, all of the Fitchik factors suggest
strongly that the Division of State Police is an arm of the state, and,
as such, I conclude that it is not subject to suit under § 1983.
b. Sarnecky and Wattai — Involuntary Transfer
Longoria alleges that his transfer from the Diesel Emissions Unit back
to the Fort Dix Station, although voluntary, was the result of a design
by Captain Sarnecky to discriminate against Longoria and punish him for
his association with Bellaran. See Compl. ¶¶ 24-25. Longoria also
claims that a proposed subsequent transfer, from Fort Dix to Turnpike
duty, was also arranged by Sarnecky for the same reasons. Id. ¶
39. While Wattai's role in the transfers is unclear from the summary
judgment record, Longoria claims that Wattai made statements indicating
hostility towards Bellaran and associates of Bellaran. Id. ¶ 21;
Longoria Depo. at 1076-77.
The essential prima facie case for discriminatory transfer is
familiar, whether in a Title VII or a § 1983 context. To make out a
claim, the plaintiff must show that he or she was: (1) a member of the
protected class; (2) qualified for the position he or she sought; and (3)
that nonmembers of the protected class were treated more favorably
— in the case of transfer, that comparably situated employees were
not transferred. See Goosby v. Johnson & Johnson Medical, Inc,
228 F.3d 313, 318-19 (3d Cir. 2000) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)). Longoria points to nothing in the summary
judgment record, and my own independent review of the record reveals
nothing, to demonstrate any differential treatment of Hispanic and
non-Hispanic officers in the transfer process. Since, arguably,
Longoria's transfer was the result of a close scrutiny of his work hours
by his superiors, I also examined the summary judgment record for
evidence that other officers in the Diesel Emissions Unit were not also
held to very strict compliance with their assigned work hours. I found
no such evidence. Having failed to carry his initial burden, Longoria
cannot proceed with this aspect of his claims against Sarnecky and
Similarly, Longoria also has failed to come forward with any evidence
establishing a prima facie case of retaliation by Sarnecky or Wattai. In
a typical retaliation case, be it under Title VII or the First
Amendment, a plaintiff must show that: (1) he or she engaged in a
protected activity; (2) the employer took an adverse employment action
against him or her after or contemporaneous with the protected activity;
and (3) that there is a causal link between his or her participation in
the protected activity and the adverse employment action. See Abramson
v. William Patterson Coll. of N.J., 260 F.3d 265, 286 (3d Cir. 2001);
Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999).
The scope of the "protected activity" is defined by the law or
constitutional provision the plaintiff alleges is violated by the
retaliation. In this case, Longoria has not identified any particular
such statute or constitutional proviso, other than Title VII. Title VII
protects those who "opposed any practice made an unlawful employment
practice by [Title VII]," or those who "made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding,
or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a) (2000).
Longoria's evidence establishes, at best, that Sarnecky and Wattai
scrutinized him and transferred him because of Longoria's association
with Vincent Bellaran. While that motive, if true, does no honor to the
Division of State Police, and is certainly undesirable as a matter of
public policy, it does not represent a violation of Title VII. Mere
friendship or relation to one who has made a charge or brought suit is
not "opposing," an unlawful practice, nor is it "assist[ing]," or
"participat[ing]" in an investigation or proceeding. See Fogleman v.
Mercy Hosp., Inc., 91 F. Supp.2d 788, 792-93 (M.D.Pa. 2000) (citing Holt
v. JTM Industries, Inc., 89 F.3d 1224, 1225-27 (5th Cir. 1996), cert.
denied, 520 U.S. 1229 (1997)). Longoria points to no other evidence in
the summary judgment record that he has engaged in any sort of protected
activity.*fn4 As a result, I must grant the Defendants' motion on these
c. Verniero and Williams — Individual Capacities — All
Longoria has asserted claims against Peter Verniero, the Attorney
General of New Jersey at the time this suit was initiated ("Verniero"),
and Carl A. Williams ("Williams"), who at that time was Superintendent of
the New Jersey State Police, in both their individual and official
capacities. As noted, supra, the current holders of each of those
respective offices have been substituted for Verniero and Williams in
their official capacities. See Fed.R.Civ.P. 25(d). I have previously
determined that supervisory officials acting under color of state law may
only be sued in their individual capacities under §§ 1981 and 1983
where the individual defendant is "personally involved in the alleged
wrongs." Santiago v. City of Vineland, 107 F. Supp.2d 512, 540 (D.N.J.
2000) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988)). "Personal knowledge can be shown through allegations of personal
direction or of actual knowledge and acquiescence." Id.
There is absolutely no evidence in the summary judgment record that
either Verniero or Williams personally directed or had actual knowledge
of any discrimination against Longoria. Instead, Longoria has submitted
lengthy, unabridged transcripts of the New Jersey Legislature's hearings
pertaining to racial profiling. The debate about the practice of racial
profiling is simply irrelevant to Longoria's claim. That Verniero and/or
Williams knew of some discriminatory law enforcement practices by New
Jersey State Troopers during the period of Longoria's employment —
even assuming that is established by the transcripts — proves
nothing about their actual knowledge of any discriminatory work
practices related to Longoria, or indeed with regard to
the Division of State Police more generally. As the Third Circuit's
discussion in Rode makes clear, "actual knowledge" means just that the
defendants must have actually known of, and acquiesced in, the unlawful
conduct against the plaintiff. See Rode, 845 F.2d at 1207-08 (citing
Parratt v. Taylor, 451 U.S. 527, 537 n. 3 (1981)). Longoria points to
nothing to indicate that his name, and his allegations, would come as
anything other than a complete surprise to Verniero and Williams. Thus,
neither can be liable in their individual capacities.
d. Farmer, Dunbar, Sarnecky, and Wattai — Official
Capacities — All Claims
Longoria's remaining claims are against individual state officers
acting in their official capacities. Because a suit against an officer
in his or her official capacity is effectively a suit against the state
itself, only prospective injunctive relief is available against such
defendants, absent a waiver by the state of its sovereign immunity. See
Edelman v. Jordan, 415 U.S. 651, 664-68 (1974) (citing Ex parte Young,
209 U.S. 123 (1908)). Relief may only be had when there is an ongoing
violation of federal law extant at the outset of the suit. See B.H.
Papasan v. Allain, 478 U.S. 265, 278 (1986) (holding that Ex parte Young
exception to state's sovereign immunity applies only where violation of
federal law is ongoing, not where federal law was violated only in the
past); Milliken v. Bradley, 433 U.S. 267, 289-90 (1977) (Ex parte Young
applies to official-capacity defendants who were in violation of federal
law at the time suit was filed). In order to obtain permanent injunctive
relief, the movant must: (1) demonstrate that exercise of equity
jurisdiction is proper; (2) actually succeed on the merits of his or her
claim; and (3) demonstrate that the balance of equities tips in his or
her favor. See Roe v. Operation Rescue, 919 F.2d 857, 867 n. 8 (3d Cir.
Longoria's hostile work environment claim fails the test of Papasan and
Milliken. Longoria alleges a long series of racially charged remarks by
supervisors and fellow troopers, stretching from his days at the State
Police Academy through his posting at the time of suit, at Fort Dix.
Pl.'s Br. at 8-10, 14-20, 31. For instance, he claims that a sergeant at
Fort Dix made a distasteful remark about "niggers" in his presence.
Longoria Depo. at 1188. However, Longoria does not even allege, let alone
point to any evidence of, discrimination at Fort Dix against members of
his own race. To the extent that there was any violation of federal law
at the time of his suit, then, he lacks standing to assert it.*fn5
The involuntary transfer and failure to promote claims, while arguably
still continuing at the time of Longoria's suit, simply fail on their
merits. I have already analyzed the transfer from the DEU to Fort Dix.
See III.B.2.b., supra. For similar reasons, I find that Longoria has not
carried his burden on the claims stemming from his failure to obtain a
pair of specialist positions. See Compl. ¶ 8. Although Longoria has
presented a prima facie case, see McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973), the Defendants assert that those hired for the
sought were scored higher by the interviewing
committees. Def.'s Br. at 6; McLaughin Aff. Exhs. C-D, DD. Longoria has
not come forward with any admissible evidence to demonstrate that the
scoring list was merely a pretext for discrimination. In his
deposition, he asserts his personal conviction, based not on personal
knowledge but rather on hearsay, that other applicants were selected over
him because of their superior political connections. See Longoria Depo.
at 249-50. Even if I were permitted to consider this statement, it still
would not establish that the scoring list was a pretext for
Since Longoria's claims fail on the merits, injunctive relief is not
appropriate. Accordingly, I must grant summary judgment on the official
C. SUPPLEMENTAL JURISDICTION
Since I have dismissed all claims under which Longoria can claim
federal jurisdiction, I shall exercise my discretion to dismiss the
remaining claims pursuant to 28 U.S.C. § 1367(c)(3).*fn6
claims will be dismissed without prejudice to Longoria's right to pursue
them in the courts of New Jersey. See United Mine Workers v. Gibbs,
383 U.S. 715
, 726 (1966); Tully v. Mott Supermarkets, 540 F.2d 187
(3d Cir. 1976) (holding that only "exceptional circumstances" on the
level of the "invocation of a significant federal policy" or severe
prejudice or unfairness to the parties should be considered as a basis for
exercising supplemental jurisdiction when state law predominates);
Kadetsky v. Egg Harbor Township Bd. of Educ., ___ F. Supp.2d ___,
No. Civ. A. 99cv00842, 2001 WL 1029371, at *7-*8 (D.N.J. Sept. 10, 2001)
For the reasons set forth above, I shall grant the Defendants's motion
for summary judgment on Longoria's federal claims, and, in the exercise
of my discretionary power under 28 U.S.C. § 1367, dismiss the
supplemental state law claims without prejudice. I shall also deny
Plaintiff's cross-motion for summary judgment. The Court will enter an
appropriate form of order.