Opinion
No. CIV 00-1265 PHX LOA
April 24, 2002
ORDER
This matter arises on Defendant Atrium, Inc.'s Motion For Summary Judgment etc. (doc. #27), filed on January 10, 2002. The Court has reviewed and considered the subject motion; Defendant's Statement of Facts and supporting documents; Plaintiff Jose B. Vasquez' Response, Statement of Facts and supporting documents in opposition thereto; and Defendant's Reply. The Court concludes that because genuine issues of material fact exist for jury determination, Defendant is not entitled to summary judgment.
The Court notes that the parties are now using a different name for Defendant. The caption may be changed by stipulation or formal motion. If the parties agree, the correct name for Defendant and the caption herein may be amended and addressed at the Final Pretrial Conference.
BACKGROUND
In the Complaint, Plaintiff claims that Defendant, his former employer, engaged in racial and national origin discrimination which created a racially hostile work environment and led to Plaintiff's constructive discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (a)(1), and the Civil Rights Act of 1991, 42 U.S.C. § 1981 . Defendant denies any wrongdoing and asserts that Plaintiff voluntarily resigned for reasons totally unrelated to his claims of discrimination. Alternatively, Defendant urges the Court to grant summary judgment on Plaintiff's claim for punitive damages.
2000e-2. Unlawful employment practices
(a) Employer practices
It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin;
Where there are allegations that discrimination against Hispanics is of a racial character, a cause of action under § 1981 has been recognized. Gonzalez v. Stanford Applied Engineering, Inc., 597 F.2d 1298, 1300 (9th Cir. 1979) (dismissal of § 1981 claim brought by a Mexican-American was improper because "prejudice towards those of Mexican descent having a skin color not characteristically Caucasian must be said to be racial prejudice under § 1981").
Plaintiff, a native of Mexico lawfully living in the United States as a permanent resident alien, claims that his former supervisor and the plant manager, Don Dezonia, a Caucasian, frequently called Plaintiff and other Hispanic employees "wet backs," "spies," "beaners," or "braceros" in their workplace from August, 1998 to July, 1999. Plaintiff testified he asked Dezonia many times not to use this offensive language in addressing Plaintiff but that Dezonia continued to use the racial slurs in discussing the business of the company. Moreover, Plaintiff avers that on December 14, 1998, he complained of the offensive and "not-funny" language directly to Defendant's general manager, Fred Bengtson, after threatening to quit because of it. Bengtson confronted Dezonia with Plaintiff's allegations but Dezonia denied them and claimed Plaintiff was lying. According to Plaintiff, Bengtson, a personal friend and neighbor of Dezonia, did not investigate the allegations, did not intervene to stop the name-calling, did not direct Dezonia to discontinue the name-calling, and issued no oral or written warning or business policy that, if there were any racial slurs and name-calling in the future, there would be disciplinary consequences to the offending employee. Per Plaintiff, the only comments made by Bengtson were that he told the two employees that they need to work together and that he hates people who claim they are going to quit. After a two week lull in the name-calling after Plaintiff complained to the Defendant's general manager, Plaintiff contends that Dezonia continued to call him a "spic" in the workplace. Plaintiff testified that upon the realization that Dezonia had not changed, on July 29, 1999 Plaintiff resigned from his $70,000.00-a-year job as plant foreman for the sole reason that Dezonia called him a "spic."
See, pages 87, 92, Plaintiff's deposition taken on July 9, 2001, Exhibit A to Plaintiff's Statement of Facts (doc. #53).
Defendant, however, contends there was neither a constructive discharge nor is there sufficient evidence to justify a claim for punitive damages. Specifically, Defendant asserts that Plaintiff resigned because he was going through many personal problems unrelated to his job or any alleged discrimination, i.e., he had separated from his wife and was having issues with his two sons, coupled with his long work hours and a personality conflict with his immediate supervisor, Dezonia. Defendant alleges that Plaintiff quit because these issues collectively became too great a burden for Plaintiff. Regarding the personality conflict, Defendant claims that Plaintiff did not like Dezonia because he was a stem taskmaster who expected each employee to produce and carry his own weight Plaintiff's former supervisor, Bud Stots, had been less stern. Dezonia became the plant manager in August, 1998. Additionally, while Defendant admits that there were occasionally jokingly-made references in the workplace to Hispanics as "wetbacks," it contends that Plaintiff called Caucasians "white trash" and "gringos." Furthermore, it alleges that no one, including Plaintiff or the other minority employees, took personal offense to these comments or considered them insulting. Defendant argues that Plaintiff's use of racial slurs supports its position that Plaintiff did not consider this kind of name-calling offensive or abusive. The Court is also provided the affidavit of Fred Bengtson, which indicates, among other things, that at no time did Plaintiff ever relate to him any ethnic or racial comments that Dezonia ever made to or about Plaintiff. Defendant argues, therefore, that the facts do not support intolerable working conditions due to an absence of aggravating factors to create a factual question for the jury. Finally, Defendant contends that Plaintiff cannot show either malice or reckless indifference to his federally-protected rights and, thus, Defendant is entitled to judgment as a matter of law on Plaintiff's claim for punitive damages. Other than a poster that encouraged employees to communicate to management if a working condition exists that the employee believes is objectively intolerable, the Court has been provided no evidence of any written policies prohibiting discrimination in the workplace.
See, Exhibit C to witness Elizabeth Laytong's affidavit filed on January 10, 2002.
LAW ON SUMMARY JUDGMENT
A Court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, "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." Rule 56(c), FRCvP; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines which facts are material.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); jesinger, 24 F.3d. at 1130. In addition, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The dispute must be genuine, that is, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2553. Summary judgment is appropriate against a party who "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." Id. at 322, 106 S.Ct. at 2553; Citadel Holding Corp. v. Roven, 26 F.3d 960. 964 (9th Cir. 1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial.Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.
The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), FRCvP; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356 (1986). Brinson v. Lind Rose Joint venture, 53 F.3d 1044, 1049 (9th Cir. 1995). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511. However, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his [or her] favor." Id. at 255, 106 S.Ct. at 2513 [citing Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-1609 (1970)].
Whatever facts which may establish a genuine issue of fact must both be in the district court's file and set forth in the response. Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1029 (9th Cir. 2001). The trial court:
"may determine whether there is a genuine issue of fact, on summary judgment, based on the papers submitted on the motion and such other papers as may be on file and specifically referred to and facts therein set forth in the motion papers. Though the court has discretion in appropriate circumstances to consider other materials, it need not do so. The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found."Id. at 1031.
The Ninth Circuit has set a high standard for the granting of summary judgment in employment discrimination cases.
"[W]e require very little evidence to survive summary judgment" in a discrimination case, "because the ultimate question is one that can only be resolved through a `searching inquiry' — one that is most appropriately conducted by the factfinder, upon a full record. Lam v. University of Hawaii, 40 F.3d 1551, 1563 (9th Cir. 1994) (quoting Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991)).Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir. 1996),cert. denied, 519 U.S. 927, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996).
HOSTILE WORK ENVIRONMENT AND CONSTRUCTIVE DISCHARGE
Title VII prohibits employment discrimination based on "race, color, religion, sex, or national origin." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting 42 U.S.C. § 2000e-2(a)(1)). Harassing an employee on account of race is, conceptually, the same as refusing to hire on account of race, or paying less for the same work, or imposing more onerous duties for the same pay. In each such case, the employer violates Title VII by offering terms and conditions to employees of one race that are less favorable than those it offers to employees of any other race. Racial slurs in the workplace, if committed or tolerated by the employer, becomes a new and onerous term of employment and may constitute a hostile work environment. Erebia v. Chrysler Plastic Products Corporation, 772 F.2d 1250 (6th Cir. 1985), cert. denied, 475 U.S. 1015, 106 S.Ct. 1197, 89 L.Ed.2d 311 (1986) (substantial evidence supported jury verdict of hostile work environment due to racial slurs against Mexican-American employee).
The cause of action for hostile work environment was first recognized in Rogers v. EEQC, 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972). That case, like many cases following it, was decided under Section 703 of Title VII, 42 U.S.C. § 2000e-2 (a), which makes it unlawful to discriminate with respect to terms, conditions, or privileges of employment.
In order to prevail on his hostile work environment claim, Plaintiff must show that his "workplace [was] permeated with discriminatory intimidation . . . that [was] sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment." Harris, 510 U.S. at 21, 114 S.Ct. 367 (internal quotation marks and citations omitted); Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000). The working environment must both subjectively and objectively be perceived as abusive." Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995) (citing Harris, 510 U.S. at 21-22, 114 S.Ct. 367). Harris lists frequency, severity and level of interference with work performance among the factors particularly relevant to the inquiry. When assessing the objective portion of a Plaintiff's claim, the Court assumes the perspective of the reasonable victim.
The law in the Ninth Circuit is well settled on a claim of constructive discharge.
A constructive discharge occurs when, looking at the totality of circumstances, "a reasonable person in (the employee's] position would have felt that he was forced to quit because of intolerable and discriminatory working conditions." Satterwhite v. Smith, 744 F.2d 1380, 1381 (9th Cir. 1984); Nolan v. Cleland, 686 F.2d 806, 812 (9th Cir. 1982). This test establishes an objective standard; the plaintiff need not show that the employer subjectively intended to force the employee to resign. See Satterwhite, 744 F.2d at 1383; Nolan, 686 F.2d at 814 n. 17. "As a result, the answer turns on the facts of each case." Satterwhite, 744 F.2d at 1382.
The determination whether conditions were so intolerable and discriminatory as to justify a reasonable employee's decision to resign is normally a factual question left to the trier of fact See Lojek v. Thomas, 716 F.2d 675, 677, 680 (9th Cir. 1983). However, we have noted that, in general, a "single isolated instance" of employment discrimination is insufficient as a matter of law to support a finding of constructive discharge. Nolan, 686 F.2d at 813; see Satterwhite, 744 F.2d at 1381-82; Heagney v. University of Wash., 642 F.2d 1157, 1166 (9th Cir. 1981). This lower limit is predicated on the notion that Title VII policies are best served when the parties, if possible, attack discrimination within the context of their existing employment relationships. Thorne v. City of El Segundo, 802 F.2d 1131, 1134 (9th Cir. 1986); Heagney, 642F.2d at 1166.
Hence, a plaintiff alleging a constructive discharge must show some aggravating factors, such as a "continuous pattern of discriminatory treatment." Satterwhite, 744 F.2d at 1382 (emphasis added) (quoting Clark v. Marsh, 665 F.2d 1168, 1174 (D.C. Cir. 1981)). We have upheld factual findings of constructive discharge when the plaintiff was subjected to incidents of differential treatment over a period of months or years. See Wakefield v. NLRB, 779 F.2d 1437, 1439 (9th Cir. 1986); Satterwhite, 744 F.2d at 1383; see also Goss v. Exxon office Sys. Co., 747 F.2d 885, 887-89 (3d Cir. 1984); Real v. Continental Group, Inc., 627 F. Supp. 434, 443-44 (N.D.Cal. 1986). Similarly, in Nolan, we held that a showing of four incidents of differential treatment over a period of two years was sufficient to create a genuine issue of fact for trial. Nolan, 686 F.2d at 813-14.Watson v. Nationwide Insurance Co., 823 F.2d 360, 361 (9th Cir. 1987).
THE STANDARD FOR PUNITIVE DAMAGES UNDER TITLE VII
In 1999, the Supreme Court resolved a circuit split over the appropriate standard for determining the availability of punitive damages under Title VII by establishing a three-part inquiry to address when the evidence supports a punitive damages verdict. Kolstand v. American Dental Association, 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999).
In the first step, the Supreme Court clarified the requisite mental state of employers, the only step of the standard upon which Defendant seeks summary judgment Under Title VII, the jury may award punitive damages if the moving party demonstrates that "the [defendant] engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federal protected rights of an aggrieved individual." 42 U.S.C. § 1981 a(b)(1). Interpreting this section, the Supreme Court concluded that Congress intended to impose a heightened standard of liability for the award of punitive damages, but rejected the argument that the heightened standard requires that an employer's behavior be "egregious." Kolstad, 527 U.S. at 534-35. Instead, the Court concluded that Congress intended for punitive damages to apply in intentional discrimination cases where the plaintiff can show that the employer knowingly or recklessly acted in violation of federal law. Id. at 535; Hemmings v. Tidyman's Inc. ___ F.3d ___, 2002 WL 537689 (9th Cir., April 11, 2002). The Supreme Court found that the questions of malice and reckless indifference are subjective questions concerning the employer's motive or intent, rather than an objective inquiry into whether the employer's behavior is "egregious." A defendant is appropriately subject to punitive damages if it acts "in the face of a perceived risk that its actions will violate federal law." Kolstad, 527 U.S. at 536. The Supreme Court explained that although egregious conduct could be evidence of an intentional violation of the law, it was not a necessary element or required to establish punitive damages liability.Id. at 535 (holding that egregious behavior provides "one means" of satisfying plaintiffs burden of proof for punitive damages). Thus, in general, intentional discrimination is enough to establish punitive damages. Passantino v. Johnson Johnson Consumer Products, Inc., 212 F.3d 493, 515 (9th Cir. 2000).
In the second step, the Supreme Court also held that the plaintiff must "impute liability for punitive damages to [defendant]" Id. at 539. Under this step, the plaintiff must show that the intentional discrimination by an employee is attributable to the employer by using traditional agency principles, i.e., that a managerial employee acted within the scope of his or her employment. Id. at 540-41. The third step is that the defendant employer may raise as an affirmative defense its good faith efforts to comply with Title VII, if such efforts were contrary to the actions of its managerial agents. Id. at 545-46.
ANALYSIS
Viewing the facts and their justifiable inferences in a light favorable to Plaintiff and considering that Plaintiff's testimony is to be believed, as the Court must when ruling on a motion for summary judgment, the Court denies Defendant's motion. Defendant now acknowledges, and Plaintiff's testimony supports, that racial slurs were frequently used in the workplace ("once a week, twice a week, at times it would be the whole week"). Defendant's argument that other Hispanic employees were not offended by the racial slurs because others did not complain to the Defendant's Human Resource Manager is marginally relevant. The keys are whether Plaintiff subjectively found them offensive and whether they were objectively abusive. The evidence clearly support's Plaintiff's claim that the name-calling was offensive to him. Plaintiff repeatedly asked Dezonia to stop the name-calling, threatened to quit his high-paying job if he did not do so, had the courage to complain directly to the general manager of the company, and seven months later quit "solely" because of the name-calling. The absence of complaints by other Hispanic employees may be easily explained away in the mind of a reasonable juror by the employee's fear of losing their employment if they complained or by their sense that, as demonstrated by Plaintiff's futile effort, it would not do any good anyway. Moreover, can any objective person seriously contend that in the 21st century working environment the frequent use of the term "spic," "wetback," or "beaner," or equally derogatory names like "nigger," "white trash," "tootsie," "Polock," "faggot," or "cripple," by a supervisor to an employee for nearly a year would not be considered offensive and intolerable to a reasonable victim? The Court thinks not and neither may a reasonable juror.
See, p. 93, lines 12-22, Plaintiff's deposition.
Little discussion by the Court is necessary on Defendant's argument that Plaintiff cannot show a nexus between the purportedly disparaging remarks and Plaintiff's resignation. While it may be true that the only or primary reason Plaintiff resigned from his employment was for personal reasons other than the name-calling by his boss, this is a issue for a jury, not a judge, to decide. Plaintiffs testimony is that "the sole and only reason" that he quit was because Dezonia called him a "spic." Moreover, questions of causation are usually reserved for the trier of fact. Leaf v. United States, 588 F.2d 733, 736 (9th Cir. 1978) ("The district court erred in deciding the proximate-cause question on a motion for summary judgment. Generally, proximate cause is a question of fact."). On his constructive discharge claim, Plaintiff has created a jury question whether a reasonable person in the employee's position would have felt that he was forced to quit because of intolerable and discriminatory working conditions.
Q. So you quit because he [Dezonia] used profanity with you; is that your testimony?
A. He forced me to. He forced me to, to quit.
Q. How did he force you to quit?
A. Speaking to me with racial words.
Q. Well, did you interpret the word "fuck" to be a racial word?
A. No. "Spic."
Q. So the sole and only reason you left was that he used the word "spic" again? That's why you decided to quit?
A. Well, yes. He used it for a long time.
See, pages 97-98 to Plaintiff's deposition taken on July 9, 2001.
Contrary to Defendant's argument, aggravating factors do exist to create a jury question on Plaintiff's claim of constructive discharge. The name-calling was not a single isolated event nor even a frequent occurrence that suddenly ended in the workplace when the employee asked his boss to stop it. It persisted for seven more months after the employee, following the recommended procedure of the Defendant's constructive discharge poster, complained to the company's highest management person, its general manager. Additionally, the general manager, a personal friend who socialized with Dezonia, did literally nothing to investigate the merits of the complaint, did not reprimand Dezonia or initiate efforts to ensure that name-calling in the workplace would not occur in the future. While it may be true that Defendant was an "equal opportunity" employer which did not discriminate against qualified minorities, like Plaintiff and others, in other areas from climbing the corporate ladder to higher paying jobs like Plaintiff's, partial compliance with federal anti-discrimination laws does not, and should not, license an employer to engage in racial name-calling with impunity. For summary judgment purposes, a genuine dispute has been established that aggravating circumstances do exist, i.e., a continuous pattern of discriminatory treatment due to racial slurs, which created a hostile work environment. Viewing the totality of the circumstances, including the frequency, severity and level of interference the name-calling played in altering Plaintiff's conditions of employment, issues of material fact exist for jury resolution on Plaintiff's claims of hostile work environment.
The issue of Defendant's entitlement to summary judgment on the issue of Plaintiff's claim for an award punitive damages is a closer question. Since Defendant limits it argument to only the dearth of evidence on malice or reckless indifference to Plaintiff's federally-protected rights, the first step in Kolstad's three-part analysis, the Court will not address steps two and three. Furthermore, Defendant provides the Court with conclusory arguments, and no case law whatsoever, that the discovered "facts are insufficient for an award of punitive damages." Defendant's argument that since Plaintiff cannot show any aggravating circumstances or a continuous pattern of discrimination, the Court can not permit the jury to award punitive damages, provides the Court with nothing of substance. Obviously, if summary judgment were granted on Plaintiff's claims of racially hostile work environment and constructive discharge, the issue of punitive damages would be moot because the case would be over. The Court's findings, however, that jury questions do exist on Plaintiff's underlying claims requires a deeper analysis of the issue of punitive damages.
Local Rule 1.10(b) requires counsel to set forth in the memorandum the authorities relied upon in the motion.
The Supreme Court and subsequent Ninth Circuit cases have clarified that the questions of malice and reckless indifference are subjective questions concerning the employer's motive or intent, rather than an objective inquiry into whether the employers's behavior is "egregious." It is a rare case if direct evidence existed of the employer's intent to violate an employee's civil rights and none appears in the record before the Court in this case. Therefore, as in most cases, Plaintiff must rely on circumstantial evidence, if any, to prove motive or intent.
The Court concludes that circumstantial evidence does exist to show that Defendant's supervisory employees, Dezonia and Bengtson, were recklessly indifferent to Plaintiff's federally-protected rights. In addition to the facts as previously set forth in the Court's discussion of the underlying claims, Dezonia was not merely indifferent, he had no concerns at all for Plaintiff's right to be free from racial name-calling in the workplace. Fairly read, the evidence is that after the December 14, 1998 meeting with the company general manager wherein Plaintiff allegedly complained of the name-calling, Dezonia continued to frequently call Plaintiff and other Hispnics a "spic" In late July, 1999, over seven months later, Plaintiff gave the following scenario that may best describe Dezonia's attitude towards Plaintiff's rights;
See, pages 93-98, Plaintiff's deposition.
Q. So you decided after those comments [by Dezonia] that you were quitting?
A. Yes.
Q. Because you thought he was imposing too many hours of work upon you? [Objections and comments of both counsel omitted]
Q. Give me an answer to my question, please.
A. Well, that's why I left, because I saw that he had not changed. He told me, "It's your problem, spic. It's your fucking problem."
See, pages 97-98, Plaintiff's deposition.
Additionally, the Court must presume under summary judgment's rules of construction that Dezonia lied to Bengtson, and that Bengtson has now lied in his affidavit, when they denied Dezonia had used racial slurs prior to the December 14, 1998 meeting with Plaintiff and, instead of admitting it, Dezonia accused Plaintiff of lying. Lying to cover up a supervisor's discriminatory conduct, however, was found to be a relevant factor to justify, among others, an award of punitive damages inPassantino v. Johnson Johnson Consumer Products, Inc., 212 F.3d 493, 516 (9th Cir. 2000) ("These actions [lying and others] are sufficient to permit a jury to conclude that [the employer] could not have reasonably believed that its conduct was lawful.").
This is also a company which apparently had no written anti-discrimination policies or directives other than the aforementioned poster either before or after Plaintiff's complaint of racial slurs to the general manager. If Plaintiff's testimony is to be believed, Bengtson's failure to initiate written policies and directives designed to eliminate or curb racial name-calling at the Defendant's workplace and his failure to reprimand Dezonia for his verbal misconduct raises the inference that Defendant had little or no regard for Plaintiff's civil rights. The Court concludes that, for purposes of summary judgment only and considering the totality of circumstances, Plaintiff has created a question of fact for jury resolution whether Defendant engaged in a discriminatory practice with reckless indifference to Plaintiff's federally-protected rights. Defendant's motion as to punitive damages is denied.
Accordingly,
IT IS ORDERED that Defendant Atrium, Inc.'s Motion For Summary Judgment etc. (doc. #27) is DENIED.
IT IS FURTHER ORDERED that Plaintiff's Motion to Strike Paragraphs Forty and Forty-one etc. (doc. #57) is DENIED as moot.