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King v. Board of County Commissioners

United States District Court, M.D. Florida, Tampa Division

December 6, 2017




         This matter comes before the Court pursuant to Defendants Board of County Commissioners, Polk County, Florida's Motion for Summary Judgment (Doc. # 106), Jim Freeman's Motion for Summary Judgment (Doc. # 103), Kandis Baker-Buford's Motion for Summary Judgment (Doc. # 105), and Lea Ann Thomas's Motion for Summary Judgment (Doc. # 104). Plaintiffs Dr. Nancy King, the Occupational Health Center, Inc., and Work Loss Management, Inc., filed responses on November 6 and 7, 2017. (Doc. ## 117-119, 122). Defendants replied on November 20, 2017. (Doc. ## 130-133). For the reasons that follow, the Motions are granted to the extent judgment is entered for Defendants on the First Amendment retaliation claims and the remaining state law claims are dismissed without prejudice.

         I. Background

         A. The Saga of Mr. J

         The facts are these. King worked as the occupational health director for Polk County, Florida, from October 2000, to March 31, 2016. (King Aff. Doc. # 116-4 at ¶¶ 3, 67). Plaintiff entities, The Occupational Health Center, Inc., and Work Loss Management, Inc., are two companies owned and operated by King, with drug testing done through Work Loss Management and physicals done through Occupational Health Center. (King Dep. Doc. # 100 at 7:7-19, 16:4-14). Although these entities provided, and were paid for, services to the County, the contract at issue was between only King and the County. (Id. at 21:9-22:5; Craig Aff. Doc. # 112 at 11, ¶ 6).

         As the occupational health director, King, among other things, “was tasked with examining both applicants and incumbents of Fire Rescue Services and rendering an opinion as to whether these individuals were medically qualified or not medically qualified to perform the essential functions of their positions.” (King Aff. Doc. # 116-4 at ¶ 5). In making these determinations, King utilized the “nationally recognized medical standard known as NFPA [] 1582, ” which “provides information for physicians and other health care providers responsible for fire department occupational medical programs.” (Id. at ¶¶ 5-6). Although a Florida Statute mentions NFPA 1582 as a standard that may be used in determining whether a firefighter is physically fit, it is not required and the County never formally adopted NFPA 1582 as a mandatory requirement. (Id.; Freeman Dep. Doc. # 85 at 71:15-72:23).

         King would provide her recommendation to one of two employees of the County's Risk Management Department, the director Mike Kushner or the Employee Health Services clinic's manager Diane Mulloney. (King Dep. Doc. # 100 at 20:16-25, 24:4-25:20). After King made her recommendation, Risk Management passed it along to HR and the County then decided whether or not to hire the applicant. (Id. at 24:11-25:3). The County was free to reject King's recommendation and hire an applicant, even if King did not recommend the applicant as medically cleared. (Id. at 112:18-113:7).

         King and her employees were not the only ones working in the County's Employee Health Services clinic. Wellness services for County employees, such as treatment for colds or other acute illnesses, were provided by Dr. Aguilera and his staff, including nurses and physician assistants. (Aguilera Dep. Doc. # 84 at 8:14-9:18). But Dr. Aguilera or the nurses at the Employee Health Services clinic also performed some of the pre-employment physicals. (Id. at 12:1-15; Mulloney Dep. Doc. # 96 at 23:10-24:4).

         In December of 2013, a physician assistant employed by King, Kelly Manion, performed a pre-employment fitness exam on a man who was about to begin training to be a Polk County firefighter - a man whom the Court will refer to as Mr. J. During that examination, Manion noticed that Mr. J, who is African-American, “had a very abnormal pulmonary function test” and an abnormal chest X-ray of his lungs, which prevented her from completing the examination. (Manion Dep. Doc. # 91 at 26:9-28:12).

         Instead, Manion informed Mr. J and entered into her notes that “Candidate will need medical clearance from his personal physician and in the interim is not medically qualified for entrance into the firefighter academy.” (Id. at 28:13-31:17, 74). Mr. J would be expected to send the results of the further testing with his personal physician back to Employee Health Services so that King could make the final pre-employment clearance determination. (Id. at 29:12-30:7). But, Mr. J was under the impression that he only needed to get clearance from his personal physician or a pulmonologist. (Mr. J Dep. Doc. # 92 at 143:18-146:7).

         In late December of 2013 or early January of 2014, Baker-Buford, the Equal Opportunity Administrator who subsequently became Human Resources Director, called Mulloney and asked whether Risk Management would permit Mr. J to begin classroom training pending final medical clearance. (Mulloney Dep. Doc. # 96 at 45:2-47:7, 113-14). Mulloney gave permission for Mr. J to begin classroom training, and discussed having Mr. J sign a letter acknowledging that he must be medically cleared before he could be hired as a firefighter. (Id.). Although she testified that other employees have been provisionally hired pending medical clearance in the past, Mulloney did not realize that Mr. J would become a County employee by attending classroom training. (Id. at 47:6-49:7). Regardless, in the County's eyes, Mr. J became a County employee when he was cleared by Risk Management to participate in classroom training. (Freeman Dep. Doc. # 85 at 47:12-18).

         Apparently, the confusion about Mr. J's pre-employment clearance arose because Mr. J participated in a special County diversity program, the Proactive Diversity Recruitment and Training Program (PDRTP), which put firefighter and EMT trainees on the County's payroll. (Baker-Buford Aff. Doc. # 109 at ¶¶ 10, 16-17). Ordinarily, trainees are not employees - only after a trainee successfully completes the firefighter or EMT training program is he hired by the County. (Id. at ¶ 16). Because trainees are not usually employees, they ordinarily do not need to complete the County's pre-employment fitness exam before beginning their training.

         The diversity program changed this dynamic for its six yearly participants because it sought to increase the number of diverse firefighters and EMTs in Polk County. (Baker-Buford Aff. Doc. # 109 at ¶ 12; Mathis Aff. Doc. # 111 at ¶¶ 5-6, 10). In this context, “diverse” had a wide definition - anyone, regardless of gender or race, was eligible for the program so long as they have resided in Polk County for at least six months and are “economically disadvantaged, as defined by the HUD guidelines.” (Baker-Buford Aff. Doc. # 109 at ¶ 12). The program's solution was to hire the selected applicants as County employees for the entirety of their training, and have the County cover the training expenses. (Id. at ¶¶ 15-16). The Equal Opportunity Center (EOC), within the Equity and Human Resources Department, was in charge of recruiting and hiring the diversity program participants, whereas Risk Management, under which Employee Health Services fell, was the department involved in providing medical clearance for new employees to HR before they were hired. (Id. at ¶¶ 3, 6, 9, 16; Mulloney Dep. Doc. # 96 at 15:17-18:7).

         Pursuant to her conversation with Mulloney, Baker-Buford wrote Mr. J a letter, which she had Mr. J sign on January 10, 2014. (Mr. J Dep. Doc. # 92 at 97; Baker-Buford Aff. Doc. # 109 at ¶ 17). The letter stated that Mr. J had to meet the requirements imposed by Employee Health Services and that his “continued employment is based on a successful medical clearance.” (Mr. J Dep. Doc. # 92 at 97). Later, on April 18, 2014, Baker-Buford called Mulloney and informed her that Baker-Buford had given Mr. J a May 1, 2014, deadline to get medical clearance. (Id. at 101; Mulloney Dep. Doc. # 96 at 52:19-53:11, 115).

         In April of 2014, Mr. J went to a pulmonologist, Dr. Shah. (Manion Dep. Doc. # 91 at 79). On April 23, 2014, Dr. Shah wrote a letter stating that he was treating Mr. J for a rare type of pneumonia and stated that Mr. J was “cleared to join Polk County fire [rescue], with the limitations that he may not do any major physical activity.” (Manion Dep. Doc. # 91 at 79). Dr. Shah further stated that Mr. J would “be re-evaluated in 2-3 months to reassess his condition.” (Id.).

         For whatever reason, King was not provided a copy of this clearance and would not become involved in reviewing Mr. J's records for months to come. (King Dep. Doc. # 100 at 38:7-39:11). Dr. Aguilera, however, was provided the letter and determined that Mr. J was not medically qualified to be a firefighter on April 29, 2014. (Mulloney Dep. Doc. # 96 at 116).

         On May 14, 2014, a nurse practitioner, Nurse Albano, wrote a letter stating that Mr. J was under her care and was “cleared to attend EMT classes and ride [alongs]” but would need clearance from a pulmonologist for physical training or exercises. (Manion Dep. Doc. # 91 at 80). A few days later, on May 20, 2014, Nurse Albano wrote a letter “releas[ing] [Mr. J] to perform all duties as an EMT trainee.” (Id. at 81). Someone from the EOC office sent Nurse Albano's letter to Mulloney at the Employee Health Services clinic. (King Dep. Doc. # 100 at 277). Still, Mulloney did not recall receiving this clearance letter. (Mulloney Dep. Doc. # 96 at 57:23-58:18). A few days later, on June 3, 2014, Nurse Albano wrote a letter clarifying that a pulmonologist must clear Mr. J for physical training. (Id. at 122; Albano Dep. Doc. # 88 at 33:11-35:11).

         Mr. J then went to see another pulmonologist, Dr. Ackerman, in August of 2014. Dr. Ackerman stated that Mr. J was “cleared for work (firefighter school) but will have another [pulmonary function test] and ct [scan] done in 3 [months].” (King Dep. Doc. # 100 at 280). After Dr. Ackerman's findings, on October 14, 2014, Nurse Albano filled out an official form titled “Medical Examination to Determine Fitness for Firefighter Training, Bureau of Fire Standards and Training, ” giving Mr. J full clearance to engage in firefighter training. (Albano Dep. Doc. # 88 at 37:1-40:23, 132). But someone from the Employee Health Services clinic contacted Nurse Albano and, on November 18, 2014, Nurse Albano rescinded the clearance she had given Mr. J the previous month. (Mulloney Dep. Doc. # 96 at 62:18-67:9, 134).

         Meanwhile, Mr. J had continued his treatment with Dr. Ackerman. And Dr. Ackerman, after monitoring Mr. J's condition and performing additional tests, issued another clearance for Mr. J on November 24, 2014. (King Dep. Doc. # 100 at 286; Mulloney Dep. Doc. # 96 at 130). That letter states: “After the physical evaluation of [Mr.] J's health and reviewing the job description for Firefighter, [Mr.] J is released to perform all duties as a Firefighter.” (Id.). As Dr. Ackerman continued treating Mr. J, he sent further letters clearing Mr. J in February and March of 2015. (Mulloney Dep. Doc. # 96 at 137, 139).

         Also in November of 2014, the then-director of Risk Management, Mike Kushner, became involved after Mulloney explained Mr. J's situation to him. (Mulloney Dep. Doc. # 96 at 69:19-25). He emailed Mulloney and King asking them to prepare “a detailed chronology with medical records and notes of [their] conversations with HR” and stating that he needed “to discuss the pre placement physical examination process with [Baker-Buford].” (King. Dep. Doc. # 100 at 309). Kushner emphasized that Employee Health Services should maintain control throughout the medical clearance process. (Id.; Kushner Dep. Doc. # 89 at 17:6-19:9). He insisted that candidates for employment should send their medical records directly to Employee Health Services, rather than to the EOC, and that HR should not hire a candidate until medical clearance is received from Employee Health. (King. Dep. Doc. # 100 at 309).

         Kushner asked King to make a fitness for duty determination for Mr. J based on his records but King explained that she needed to see him personally to make that determination. (King Dep. Doc. # 100 at 338). On November 14, 2014, King called Baker-Buford to notify her that King would be performing a fitness for duty evaluation for Mr. J. (Id.). Baker-Buford refused, stating that “it would be inappropriate for [King] to see Mr. J as he had already received medical clearance from his treating physician and that he would not be [undergoing] any further evaluation by [King].” (Id.). King was “dumbfounded” by Baker-Buford's refusal because “[i]n fifteen years, the County had never prevented [King] from performing [her] job responsibilities.” (King Aff. Doc. # 116-4 at ¶ 15).

         After that, in a December 1, 2014 email, Kushner asked King to “review the medical records regarding Mr. J and render an opinion on whether or not he may perform the duties of a firefighter” and to provide her “medical opinion as to whether Mr. J completed his physical intake questionnaire accurately given the medical history he provided” to other providers. (King Dep. Doc. # 100 at 310). King had never before been “asked to review an applicant's medical records for potentially false information.” (King Aff. Doc. # 116-4 at ¶ 16). Still, King acknowledged that she needed to have “a comfort level” with the accuracy of an applicant's medical history to make her fitness for duty determinations and that an inaccurate history is “certainly something [she] take[s] into consideration.” (King Dep. Doc. # 100 at 129:24-130:9). King also stated that, if she discovered inconsistencies or falsification of medical records while making a fitness for duty determination for another applicant, she “would certainly notify the employer.” (Id. at 130:18-25).

         On December 10, 2014, King completed her records review and told Kushner that a different occupational health specialist or pulmonologist should give a second opinion, “given the contentious nature of this case.” (King Dep. Doc. # 100 at 338). King noted “multiple inconsistencies reported to various medical providers by [Mr.] J, specifically false information regarding past pulmonary conditions.” (King Aff. Doc. # 116-4 at ¶ 18).

         Kushner then told Baker-Buford that he wanted a second opinion from another pulmonologist, Dr. McCluskey, about Mr. J. (King Dep. Doc. # 100 at 291). Baker-Buford wrote back that she was “fine with it, if [the County had] done so with other employees” but was concerned because Mr. J had already gone to a pulmonologist and been cleared, so the County “shouldn't keep making him jump through hoops.” (Id.). After the appointment with Dr. McCluskey was scheduled by Risk Management, Baker-Buford emailed Mulloney asking to reschedule the appointment so that Mr. J would not have to miss class, as trainees are only allowed to miss three days of class total. (King Aff. Doc. # 116-4 at ¶ 27; Baker-Buford Aff. Doc. # 109 at ¶ 19). The appointment was rescheduled for February 6. (Baker-Buford Aff. Doc. # 109 at ¶ 19).

         In February of 2015, County Manager Freeman and Deputy County Manager Thomas had a meeting with Kushner and Baker-Buford about the confusion regarding the medical clearance process raised by Mr. J's situation. (Freeman Aff. Doc. # 107 at ¶ 8). Freeman learned that Mr. J had been an employee for over a year, had medical clearance to enter the EMT training program, and had some clearances from outside medical providers, but had never been cleared by King. (Id.). Kushner and Baker-Buford explained their disagreement about the medical clearance process - i.e. whether an outside specialist's clearance is sufficient and whether an individual should be able to choose which specialist he sees if King decided a second opinion was needed. (Id.; Freeman Dep. Doc. # 85 at 88:4-91:13; Kushner Dep. Doc. # 89 at 18:8-20:3). Freeman was frustrated that the issue was being brought to him a year later and “directed [Kushner] and [Baker-Buford] to work together and propose a better practice for both of their departments to follow, so that this situation would not repeat itself.” (Freeman Aff. Doc. # 107 at ¶ 8; Freeman Dep. Doc. # 85 at 89:11-90:14).

         Kushner and Baker-Buford continued to disagree over whether an outside physician or specialist's fitness determination was sufficient to medically clear a candidate for employment. In a March 2, 2015 email, Kushner emphasized that King had discretion in choosing the specialist to which a candidate was referred for further testing, rather than letting the candidate choose from a panel of options. (King Dep. Doc. # 100 at 312). Even if the candidate's personal physician or the specialist to whom King referred him disagreed, Kushner insisted King or another examining physician for Employee Health Services should make the final “determin[ation] whether or not the candidate or employee may perform the essential functions of the job with or without restrictions.” (Id.).

         In response, Baker-Buford stated that she knew King did not currently give employees or job candidates a panel of three specialists to choose from, if King required a second opinion because of a disagreement with the candidate's personal physician or specialist. (King Aff. Doc. # 116-4 at 76). Rather, Baker-Buford asked Kushner to have King “implement [those] changes to the process, ” which Kushner did not do. (Id.). Furthermore, Baker-Buford told Kushner that “County Management” notified her that “once the employee is cleared by his/her [personal care physician] or specialist, that is it” and the employee would not be seen by “any other physician at the County's expense, ” and the County would hire the applicant. (Id. at 76, ¶ 31). Kushner responded that he disagreed with the County “hir[ing] an employee based upon the recommendation of a personal physician rather than the county's assigned occupational medicine doctor” and that the County management was “making an error in judgment.” (Id. at 75).

         Around this time, in the middle of March, King was told by Dr. McCluskey that the February appointment with Mr. J had been cancelled by a woman who referred to Mr. J as “her client, ” leading Dr. McCluskey to believe Mr. J was represented by an attorney. (King Aff. Doc. # 116-4 at ¶ 39). With Risk Management's help, King did a public records search to determine who called Dr. McCluskey. (Id.). The search revealed that Dr. McCluskey had been called by Sharon Mathis's office phone - Mathis is an employee of Baker-Buford in the County's EOC. (Id.). King “[found] it very unusual that someone from the County would be calling on behalf of an employee to make determinations about whether or not he's going to be at an appointment or not” and another example of the high involvement the EOC and HR departments had displayed in Mr. J's case. (King Dep. Doc. # 100 at 107:23-108:8).

         As Mathis later explained to Freeman and testified in her deposition, she had not cancelled Mr. J's appointment at all, nor had she represented herself to Dr. McCluskey as Mr. J's attorney. (Mathis Aff. Doc. # 111 at ¶¶ 20-21; Freeman Aff. Doc. # 107 at ¶¶ 13-14). Rather, Mathis had called Mr. J to remind him of the appointment scheduled for the next day, but was told by Mr. J that he was in the hospital with food poisoning. (Mathis Aff. Doc. # 111 at ¶ 18). In order to give Mr. J a telephone number so he could rearrange the appointment, Mathis searched the internet for Dr. McCluskey's office number. (Id. at ¶¶ 19, 22). Apparently Dr. McCluskey had changed offices numerous times and different telephone numbers were listed for him. (Id. at ¶ 19). Mathis called various incorrect numbers for Dr. McCluskey's office, and, after eventually reaching Dr. McCluskey himself, told him only that she “was calling on behalf of Mr. J and was confirming Dr. McCluskey's number.” (Id.). Freeman “concluded that [Mathis] had not represented herself as Mr. J's attorney and that the records corroborated her story.” (Freeman Aff. Doc. # 107 at ¶ 14).

         On March 12, 2015, just two days after Mr. J's pulmonologist Dr. Ackerman issued another clearance for Mr. J, King faxed Dr. Ackerman a letter “outlining [her] position with the [County] as well as [her] concerns regarding [Mr. J]” and “inform[ing] him of the NFPA 1582 medical guidelines for physicians evaluating firefighters.” (King Dep. Doc. # 100 at 339). Dr. Ackerman called King that day, admitted that he was unaware of the NFPA 1582 guidelines, and “concurred immediately that Mr. J did not meet” those guidelines. (Id.). But Dr. Ackerman did not issue a revocation of his previous clearance at that time. The next day, King sent a certified letter to Mr. J “apprising him of [her] conversation with Dr. Ackerman and advising him that it was [her] medical determination that he was not qualified to perform the essential functions of the job of a firefighter.” (Id.).

         After her conversation with Dr. Ackerman, King emailed Baker-Buford to tell her about Dr. Ackerman's change in opinion and that Dr. Ackerman “would provide a final recommendation regarding [Mr. J]” soon. (Id. at 316). Baker-Buford responded that it was important for King to treat Mr. J the same as other employees and that the County should not subject him “to additional requirements or barriers.” (Id.). Baker-Buford attached a copy of Dr. Ackerman's March 10, 2015 clearance letter - the last written opinion of Dr. Ackerman's on file. (Id.). King was “once again astonished” and “shocked” by Baker-Buford's conduct, specifically her possession of “an employee's medical records, circumventing the Employee Health Services” and her “question[ing] [King's] consistency of treatment and fairness when [Baker-Buford] herself had stepped outside the boundaries of her duties on multiple occasions.” (King Aff. Doc. # 116-4 at ¶ 38). King “notified [] Kushner of [] Baker-Buford's email and [her] frustration with what [King] perceived was gross interference with [her] job responsibilities.” (Id.).

         On March 31, 2015, King had a meeting with Thomas. During the meeting, King communicated her public safety concerns regarding Mr. J potentially working as a firefighter, as well as her concern that “the County could face exposure for possible ‘reverse' discrimination [lawsuits] given the favoritism afforded to [Mr.] J and [] Baker-Buford's unprecedented involvement in the medical clearance process.” (Id. at ¶ 40). King “also reported to [] Thomas that Dr. McCluskey received a call from [] Mathis' desk during which the caller indicated that [Mr.] J was her client.” (Id.).

         Subsequently, King sent a follow-up letter to Dr. Ackerman on April 1, 2015, to which she attached an official medical clearance form for Dr. Ackerman's signature. (King Dep. Doc. # 100 at 339). Dr. Ackerman signed the form the next day, noting that Mr. J was not medically qualified for firefighter training. (Id.; Mulloney Dep. Doc. # 96 at 141). King sent the form to Mulloney and had Mulloney forward it to the firefighter academy. (Mulloney Dep. Doc. # 96 at 142-143). Mr. J was dismissed from firefighter training on April 6, 2015, as a result. (King Aff. Doc. # 116-4 at ¶ 41).

         Although he had been removed from firefighter training, King was asked her opinion “as to whether or not [Mr.] J could work as an EMT without firefighting responsibilities” on April 21, 2015. (King Aff. Doc. # 116-4 at ¶ 44). King determined that an outside physician, Dr. Gupta, should make that determination, given the contentiousness of the situation. (Id.). Mr. J had his appointment with Dr. Gupta on June 24, 2015. (Id. at ¶ 46). Based on Mr. J's results, Dr. Gupta recommended that Mr. J “complete a physical agility test with a pulse oximeter in place” before a final fitness determination be made. (Id.).

         On June 25, 2015, King provided a letter to Kushner outlining her recommendation that Mr. J undergo the physical agility test again. (King Dep. Doc. # 100 at 324, 341). She also conveyed her “concerns regarding his credibility as a patient and ability to provide a truthful account of his current medical condition and symptoms, ” based on additional inconsistencies with the medical history Mr. J reported to Dr. Gupta. (Id.). She wrote:

If it is the determination of County officials that in spite of multiple self-reported medical history inconsistencies as well as untruthful information provided to . . . Dr. Gupta, they wish to continue with further testing, then it is my recommendation to proceed with the requirements set forth in Dr. Gupta's addendum.

(Id. at 324). She concluded that she was “unable to provide medical clearance without this additional testing, therefore, the patient continues to remain medically unqualified for this position pending successful completion of same.” (Id.).

         Shortly after issuing her letter, King was contacted by another Deputy County Manager, Gary Hester, who told her “that under no circumstances was the County going to require any additional testing of [Mr.] J” and that she “was putting the County at risk for a disability action by [Mr.] J.” (Id. at 341; King Aff. Doc. # 116-4 at ¶ 49). King felt that Hester “was trying to intimidate [her]” and became hostile when she “refused to acquiesce.” (King Aff. Doc. # 116-4 at ¶ 49).

         Freeman ultimately decided to place Mr. J in a non-firefighter EMT position with the County. (Freeman Aff. Doc. # 107 at ¶ 10). At this time, Mr. J was already a state and nationally certified EMT, and had “been medically cleared to enter the Polk State College EMT program.” (Hester Aff. Doc. # 110 at ¶ 7; Freeman Aff. Doc. # 107 at ¶ 10). Hester had spoken with “the training academy director, who confirmed [] that Mr. J was fully capable of performing the job duties and requirements of an EMT, and that he had witnessed him successfully perform strenuous tasks during his fire training.” (Hester Aff. Doc. # 110 at ¶ 7). Hester also related to Freeman that EMTs are never required to take the physical agility test with a pulse oximeter on their finger, as suggested by Dr. Gupta, and that such test likely could not even be taken while wearing a pulse oximeter. (Id. at ¶ 6; Freeman Aff. Doc. # 107 at ¶ 11). Hester and the County's labor attorney were also concerned about requiring Mr. J to retake the physical agility test because they “had never required any candidate to retake a test that had been previously passed.” (Hester Aff. Doc. # 110 at ¶ 5).

         According to Freeman, the irregularities with Mr. J's medical-clearance and records were not his sole concern in deciding whether Mr. J should work as an EMT. The County Attorney and County's outside labor lawyer had advised Freeman that Mr. J, as a County employee, was entitled to a reasonable accommodation under the Americans with Disabilities Act. (Freeman Aff. Doc. # 107 at ¶¶ 9-12; King Dep. Doc. # 100 at 151:23-153:8). Essentially, although Mr. J had never been approved for employment by King, Mr. J had been an employee for almost a year and was owed all the privileges and protections enjoyed by other County employees, including reasonable accommodations. (Craig Aff. Doc. ...

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