Sullivan v. Neiman Marcus

358 F.3d 110, 15 A.D. Cases 321, 27 NDLR P 195

Briefs and Other Related Documents

United States Court of Appeals,First Circuit. John F. SULLIVAN, Plaintiff, Appellant,
v.
The NEIMAN MARCUS GROUP, INC., Defendant, Appellee.
No. 03-1606.
Heard Oct. 8, 2003.
Decided Feb. 13, 2004.

Background: Terminated employee sued former employer under Americans with Disabilities Act (ADA), alleging that employer had discriminated against him because of his alcoholism. The United States District Court for the District of Massachusetts, Patti B. Saris, J., granted summary judgment for employer, and employee appealed.

Holdings: The Court of Appeals, Lipez, Circuit Judge, held that:
(1) employee's alcoholism did not amount to actual impairment of employee's ability to work, precluding finding of disability, given evidence of successful work at other jobs as well as job in question, and
(2) termination, even if due to employer's unwillingness to employ alcoholic, fell short of “being regarded as having such an impairment” prong of ADA's disability definition.

Affirmed.

West Headnotes
[1] KeyCite Notes

78 Civil Rights
78I Rights Protected and Discrimination Prohibited in General
78k1016 Handicap, Disability, or Illness
78k1022 k. Alcohol or Drug Use. Most Cited Cases

Alcoholism is an impairment under ADA. Americans with Disabilities Act of 1990, § 3(2), 42 U.S.C.A. § 12102(2).

[2] KeyCite Notes

78 Civil Rights
78II Employment Practices
78k1215 Discrimination by Reason of Handicap, Disability, or Illness
78k1226 k. Alcohol or Drug Use. Most Cited Cases

Assuming that work qualified as major life activity within meaning of ADA, terminated employee's alcoholism did not amount to actual impairment of employee's ability to work, so as to render him disabled under Act; employee testified to having worked successfully at other jobs before and after terminated job, and further testified that, while alcoholism would affect his work if left untreated, he had performed satisfactorily at terminated job before entering treatment. Americans with Disabilities Act of 1990, § 3(2)(a), 42 U.S.C.A. § 12102(2)(a); 29 C.F.R. § 1630.2(j)(3).

[3] KeyCite Notes

78 Civil Rights
78II Employment Practices
78k1215 Discrimination by Reason of Handicap, Disability, or Illness
78k1218 Who Is Disabled; What Is Disability
78k1218(6) k. Perceived Disability; “Regarded As” Claims. Most Cited Cases

Where ADA plaintiff proceeds under “regarded as” prong of statute, and further claims working as major life activity regarded as substantially impaired, plaintiff must demonstrate not only that employer thought that he was impaired in his ability to do job that he held, but also that employer regarded him as substantially impaired in either class of jobs or broad range of jobs in various classes as compared with average person having comparable training, skills and abilities. Americans with Disabilities Act of 1990, § 3(2)(c), 42 U.S.C.A. § 12102(2)(c); 29 C.F.R. § 1630.2(j)(3)(i, l).

[4] KeyCite Notes

78 Civil Rights
78II Employment Practices
78k1215 Discrimination by Reason of Handicap, Disability, or Illness
78k1226 k. Alcohol or Drug Use. Most Cited Cases

Alcoholic employee's termination, even if due to employer's unwillingness to employ alcoholic rather than employer's claimed reason of job misconduct, fell short of “being regarded as having such an impairment” prong of ADA's disability definition; termination, by itself, did not demonstrate that employer believed employee could not perform essential functions of either class of jobs or broad range of jobs in various classes. Americans with Disabilities Act of 1990, § 3(2)(c), 42 U.S.C.A. § 12102(2)(c); 29 C.F.R. § 1630.2(j)(3)(i, l).

*111 Andrew Kisseloff with whom Mitchell Notis, Annenberg & Levine and The Hale and Dorr Legal Services Center of Harvard Law School were on the brief, for appellant.
John M. Simon with whom Carol Chandler and Stoneman, Chandler & Miller LLP were on brief, for appellee.

Before LIPEZ, Circuit Judge, CAMPBELL, Senior Circuit Judge, and HOWARD, Circuit Judge.


*112 LIPEZ, Circuit Judge.
This case, which requires us to assess whether an employee's alcoholism constituted a disability under the Americans with Disabilities Act (“ADA”), illustrates the difficulties of invoking work as the major life activity substantially limited by an impairment such as alcoholism. The case comes to us on an appeal from a summary judgment ruling against the plaintiff.


I.
We begin our analysis by presenting a brief overview of the relevant facts, which are drawn primarily from the district court opinion, the briefs, and the joint appendix. In reviewing the entry of summary judgment, we are mindful that we must view the record evidence “in the light most favorable to, and draw [ ] all reasonable inferences in favor of, the nonmoving party.” Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir.2000).

Plaintiff-Appellant John F. Sullivan has had a history of problems with alcohol. In the mid 1980s, he enrolled in treatment at the Long Island Shelter Detox Center in Boston. He joined the Alcoholics Anonymous program in 1988 and has subsequently undergone other forms of treatment. Still, his problems with alcohol have persisted.

Sullivan also has a long and seemingly successful employment history in the retail sector. During the mid 1980s, at approximately the same time that he was dealing with his alcoholism, he was working in the Infant-Toddler Department at Jordan Marsh in Boston. After being laid off from that position when the economy slowed in the late 1980s, he took a series of retail jobs over the next five to seven years. Those positions ranged from selling office supplies and jewelry to planning and stocking the opening of a new health and nutrition store. While he did not stay at any of these jobs for an extended period of time, he did not leave them for disciplinary reasons. Around 1994 Sullivan took a sales job with Brooks Brothers in Boston, where he excelled and was eventually promoted to a low-level management position. However, he resigned that position in July 1998 because he grew unhappy with the work environment and because he wanted to advance his sales career.

Sullivan was hired by Neiman Marcus as a sales associate in its Boston store in March, 1999. By June of that year he had been promoted to Assistant Manager of the store's Gift Gallery, where he was responsible for supervising one employee, Ramon Lora. Sullivan remained in this position until Susan Parker, Neiman Marcus's Human Resources Manager, sent him a letter on September 10, 1999, informing him that he had been terminated effective August 25, 1999.

Neiman Marcus claims that it made the actual decision to terminate Sullivan on August 12, 1999 in response to his behavior on the previous day, when he left work to go to lunch with a number of his co-workers at a local Mexican restaurant. Laura Lane, Neiman Marcus's Human Resource Coordinator in Boston, was among the co-workers who attended that lunch, and she later wrote a memorandum to Susan Parker detailing Sullivan's behavior at the bar and after lunch. According to Lane, Sullivan ordered a vodka and cranberry juice with lunch. He did not consume that drink during lunch, but she claimed that he was “acting kind of strange,” “was talking more boisterous than normal,” “didn't seem himself,” and “sounded intoxicated.” Sullivan remained in the bar area of the restaurant after his co-workers returned to the store. According*113 to Neiman Marcus, Lane reported these observations to Parker later that afternoon, but by the time the two spoke, Sullivan had called Parker, told her that his father had medical problems, and requested to leave early. Parker granted his request.

Later that same afternoon, Ramon Lora supposedly informed Parker that he was resigning his position because he did not respect Sullivan and could no longer work for a person he did not respect. He said that Sullivan frequently drank at work and was drunk during the day and that Sullivan abused Lora when he drank. Lora also gave this information to Neiman Marcus's Loss Prevention Manager, Paul Karbowski, and said that Sullivan had been drinking vodka out of a soda bottle in the Gift Gallery stock room. Karbowski searched the desk that Sullivan used and found an empty bottle of Absolut vodka and a bottle of Mountain Dew in one of the drawers. Based on this information, Parker concluded that Sullivan had been drinking during work hours.

Sullivan did not report to work on August 12 or 13 and did not call the store. Parker called Neiman Marcus's corporate headquarters on August 12 and supposedly decided to terminate him on that day. Sullivan called Parker on August 16 and informed her that he had a problem with alcohol and was entering an alcohol rehabilitation program. According to Sullivan, Parker informed him that he could have the time off from work to attend the rehabilitation program, and that he should speak with her when the program ended. After being discharged from the rehabilitation program on August 24, Sullivan contacted Parker by telephone, and she informed him that she needed to talk with him concerning the termination of his employment. Although they agreed to meet the next day, Sullivan did not attend the meeting. Neiman Marcus sent Sullivan a letter on September 10, 1999, informing him that his employment had been terminated on August 25, 1999, for violation of company policies concerning the use of alcohol on the job.

Sullivan filed a complaint with the Equal Employment Opportunity Commission (EEOC) on April 18, 2000 and received a right to sue letter on May 31, 2001. He then filed suit against Neiman Marcus in the United States District Court, alleging that Neiman Marcus failed to make a reasonable accommodation to his disability or, in the alternative, that it illegally discriminated against him in response to his disability. Neiman Marcus claimed that he had been fired because he had consumed alcohol during the work day in violation of company rules and not because he was an alcoholic. It also claimed that the decision to terminate him had been made before he notified the company that he was entering the rehabilitation program to address an alcohol problem. On this basis, with appropriate supporting documentation, Neiman Marcus sought summary judgment.

In response, submitting his own documentation, Sullivan denied drinking on the job and denied the misconduct attributed to him by co-workers on August 11 during and after the lunch at the Mexican restaurant. For a variety of reasons set forth in the summary judgment record, he insisted that the Neiman Marcus investigation into his misconduct was inadequate. Although he did not dispute that he put the vodka bottle in his desk found by Neiman Marcus's Loss Prevention Manager, Paul Karbowski, he said that his brother borrowed his suit jacket and put the bottle in the inside pocket of the jacket when he was done. Sullivan then put the vodka bottle in the desk but insists that he did not drink the alcohol. More generally, Sullivan claimed that Neiman Marcus did not *114 decide to terminate him for misconduct on August 12. Instead, they decided to terminate him after he informed the company on August 16 that he had to undergo treatment for alcoholism. In his view, the company made that decision because of its concerns about his alcoholism rather than misconduct on the job.

After reviewing the summary judgment record, the district court granted summary judgment in favor of Neiman Marcus, concluding that “[t]here is no evidence from which a reasonable factfinder could infer that plaintiff was fired for a disability (i.e., alcoholism) rather than his employer's rational belief, even if mistaken, ... that he engaged in on-the-job possession of alcohol and intoxication in violation of company policy.” This appeal followed.


II.
Although Neiman Marcus defends the ground for the district court decision on appeal, it focuses initially on a different ground for affirmance-the absence of evidence in the summary judgment record that Sullivan was disabled within the meaning of the ADA.^FN1 We may affirm the “district court's grant of summary judgment on any basis that is manifest in the record.” John G. Danielson, Inc. v. Winchester-Conant Props., Inc., 322 F.3d 26, 37 (1st Cir.2003). “Further, it is well settled that [t]he mere existence of a scintilla of evidence is insufficient to defeat a properly supported motion for summary judgment. Consequently, a party opposing summary judgment must present definite, competent evidence to rebut the motion.” Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 18 (1st Cir.2000) (internal quotations and citations omitted). We choose to focus on the disability issue, which is largely unencumbered by the dispute over historical facts in the summary judgment record. In so doing, we do not necessarily mean to express disagreement with the district court's alternative rationale.

FN1. Unfortunately, Sullivan did not address this issue in his opening appellate brief and did not file a reply brief. He also failed to raise his “failure to accommodate” claim on appeal; therefore, we consider that issue to be waived. See Cashmere & Camel Hair Mfrs. Inst. v. Saks Fifth Ave., 284 F.3d 302, 309 (1st Cir.2002).

Title I of the Americans With Disabilities Act (codified at 42 U.S.C. § 12112) prohibits covered employers from “discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The ADA defines “disability” as: “a) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; b) a record of such an impairment; or c) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). Sullivan did not allege that he had a record of disability as defined under the ADA; therefore, we will only consider whether the summary judgment record established that he had an actual impairment or whether the company regarded him as being impaired.


A. Actual Impairment
[1] As we have previously held, “[t]here is no question that alcoholism is an impairment ... under the ADA.” Bailey v. Georgia-Pacific Corp., 306 F.3d 1162, 1167 (1st Cir.2002). However, mere impairment without more is insufficient to establish that a claimant is disabled under the ADA. In order to have a viable claim, a plaintiff must demonstrate that his impairment*115 substantially limits one or more of his major life activities. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615, (2002); Lessard v. Osram Sylvania, Inc., 175 F.3d 193, 197 (1st Cir.1999) (“Under the ADA, not all impairments lead to protection. Only those impairments which substantially limit a major life activity do so.”) (citation omitted). Major life activities are those activities that are of “central importance to daily life.” Toyota Motor Mfg., 534 U.S. at 197, 122 S.Ct. 681. These include, inter alia, basic actions such as seeing, hearing, speaking, breathing, performing manual tasks, lifting, and reaching. 29 C.F.R. Pt. 1630, App. (2004).

Sullivan claims that work was the major life activity that was substantially impaired by his alcoholism. We will, as we have done in the past, assume without deciding that work may constitute a major life activity. See, e.g., Whitlock v. Mac-Gray, Inc., 345 F.3d 44, 46 n. 1 (1st Cir.2003); Bailey, 306 F.3d at 1168 n. 5; Carroll v. Xerox Corp., 294 F.3d 231, 239 n. 7 (1st Cir.2002); Gelabert-Ladenheim v. American Airlines, Inc., 252 F.3d 54, 58 (1st Cir.2001). We take this approach because the Supreme Court has not yet accepted work as a major life activity within the meaning of the ADA. See, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (“[a]ssuming without deciding that working is a major life activity” because both parties accepted that it was and because that determination was not essential to the case). Indeed, the Supreme Court has observed that there are “conceptual difficulties inherent in the argument that working could be a major life activity” under the ADA. Toyota Motor Mfg., 534 U.S. at 200, 122 S.Ct. 681.^FN2 In our view, one of these difficulties poses a significant Catch-22 dilemma for an ADA claimant such as Sullivan. To be eligible for ADA protection, he must demonstrate that he is a “qualified individual” for the position at issue. See 42 U.S.C. § 12112(a) (“No covered entity shall discriminate against a qualified individual with a disability ....”) (emphasis added); see generally id. at § 12111(8) (defining “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires”). By demonstrating that his ability to work is substantially impaired, he may demonstrate that he is unqualified for the job and, therefore, excluded from ADA protection. If he does not introduce such evidence, however, he may fail to show that he was substantially impaired.^FN3

FN2. In Toyota Motor Mfg., the Court did not elaborate on these difficulties, but it referenced its Sutton opinion in which it observed that “it seems ‘to argue in a circle to say that if one is excluded ... by reason of [an impairment, from working with others] ... then that exclusion constitutes an impairment, when the question you're asking is, whether the exclusion itself is by reason of handicap.’ ” Sutton, 527 U.S. at 492, 119 S.Ct. 2139 (quoting Tr. of Oral Arg. in School Bd. v. Arline, O.T. 1986, No. 85-1277, at 15 (argument of Solicitor General)).

FN3. We recently made the same point in Calero-Cerezo v. United States Dep't Justice, 355 F.3d 6, 22-23 (1st Cir.2004); see also Steven S. Locke, The Incredible Shrinking Protected Class: Redefining the Scope of Disability under the Americans with Disabilities Act, 68 U. Colo. L. Rev. 107, 127 (1997) (“Employers are more frequently using this dilemma to their advantage, arguing both that a plaintiff is not disabled, and that she is so disabled that she is not qualified.”).

An employee who claims that alcoholism impairs his ability to work faces this conundrum in statutory form. The ADA explicitly allows an employer to “hold an *116 employee who ... is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the ... alcoholism of such employee.” 42 U.S.C. § 12114(c). This statutory provision means that an employee who tries to use deficiencies in his job performance as evidence that alcoholism substantially impairs his ability to work is likely to establish the unhelpful proposition, for ADA coverage, that he cannot meet the legitimate requirements of the job.

Even if Sullivan could navigate these conceptual hurdles, he still must make a “weighty showing” to prove that his impairment substantially interferes with his ability to work. Bailey, 306 F.3d at 1168. “Proof that an individual cannot ‘perform a single, particular job does not constitute [proof of] a substantial limitation in the major life activity of working.’ ” Id. (quoting Lebrón-Torres v. Whitehall Labs., 251 F.3d 236, 240 (1st Cir.2001)). Instead, the claimant must demonstrate that he is “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” Bailey, 306 F.3d at 1168 (quoting 29 C.F.R. § 1630.2(j)(3)(i)) (emphasis in original). This demonstration generally requires the introduction of evidence on the “accessible geographic area, the numbers and types of jobs in the area foreclosed due to the impairment, and the types of training, skills, and abilities required by the jobs.” Bailey, 306 F.3d at 1168 (citing 29 C.F.R. § 1630.2(j)(3)(ii)(A)-(C)). Accordingly, if “jobs utilizing [his] skills (but perhaps not his ... unique talents) are available, [he] is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, [he] is not precluded from a broad range of jobs.” Sutton, 527 U.S. at 492, 119 S.Ct. 2139. Finally, he must also show that he is not just temporarily precluded from those jobs; he must show that the impact of his impairment is permanent or at least that it is long term. Toyota Motor Mfg., 534 U.S. at 198, 122 S.Ct. 681 (citing 29 CFR §§ 1630.2(j)(2)(ii)-(iii)).

[2] Sullivan has not come close to presenting such evidence. Indeed, perhaps aware of the danger that his evidence might establish that he was unqualified for the job at Neiman Marcus, he presented virtually no evidence demonstrating that his alcoholism had a deleterious effect on his ability to work at Neiman Marcus or elsewhere. In fact, Sullivan presented significant evidence demonstrating that his alcoholism has not interfered with his ability to work. In response to a deposition question, he insisted that “I was doing a satisfactory job [at Neiman Marcus] before I went into treatment. I felt I would be a much better employee after going to treatment.” When he was asked to elaborate, Sullivan added: “I believe that I gained some spiritual growth while I was in treatment and I was going to take that to help perform my job better.” When asked whether his “alcoholism limit[s][him] in any way from doing just things in life generally,” Sullivan replied that “if it was untreated ... it could begin to affect my professional life” and that “I wouldn't be at my peak performance levels.”

Sullivan also testified that he worked successfully at other jobs both before and after his time at Neiman Marcus. At Brooks Brothers, he was one of the top two sellers in Boston and among the top thirty-eight in the nation. After he left Neiman Marcus, he worked thirty hours per week as a bus driver and occasionally as a server with a catering company. He *117 further testified at his deposition that he expected his bus job to turn into a full-time position. Considering all of this evidence in the light most favorable to Sullivan, there is simply no showing here that his alcoholism has substantially interfered with his ability to work.


B. Regarded As Being Impaired
We also cannot conclude that Neiman Marcus regarded Sullivan as being substantially impaired within the meaning of the ADA. By protecting employees from discrimination based on their employer's mistaken impression that they are disabled, Congress recognized that “ ‘society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.’ ” Sutton, 527 U.S. at 489, 119 S.Ct. 2139 (quoting School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 284, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987)). See also Sutton, 527 U.S. at 484-90, 119 S.Ct. 2139 (stating that the “purpose of the regarded as prong is to cover individuals ‘rejected from a job because of the myths, fears and stereotypes associated with disabilities' ”) (quoting 29 C.F.R. § 1630, App. & § 1630.2( l)). Accordingly, there are two ways in which an employee can demonstrate that his employer regarded him as disabled:

(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or

(2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.

Sutton, 527 U.S. at 489, 119 S.Ct. 2139.

Alcoholics can be fully-functioning and productive employees who do not experience any substantial limitation in their ability to work. Employers who harbor misperceptions and prejudice about alcoholics may not recognize the abilities of these employees and may regard them as being substantially impaired even though they are not. Theoretically, an employee subject to this mistaken belief could qualify as disabled under the “regarded as” prong of the ADA, as elaborated in Sutton, without confronting the Catch-22 dilemma posed by proof of actual impairment, which runs the risk of establishing that the employee is unqualified for the job. That is, Sullivan could argue, as he essentially did, that his alcoholism did not affect his ability to do his job at Neiman Marcus. Rather, the company unfairly believed that, as an alcoholic, he could not do the job.

[3] However, this theoretical possibility can founder because of the proof requirements when working is the major life activity at issue under the “regarded as” prong. According to the precedents, the employee must demonstrate not only that the employer thought that he was impaired in his ability to do the job that he held, but also that the employer regarded him as substantially impaired in “either a class of jobs or a broad range of jobs in various classes as compared with the average person having comparable training, skills, and abilities.” Murphy v. United Parcel Service, Inc., 527 U.S. 516, 523, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999) (quoting 29 C.F.R. § 1630.2(j)(3)(i)); Bailey, 306 F.3d at 1170 (affirming summary judgment based on the plaintiff's failure to demonstrate that the employer regarded him as “unfit for either a class or a broad range of jobs”).

[4] In an answer to an interrogatory, Sullivan claimed that Neiman Marcus either “believed that a person who had previously suffered from alcoholism could not satisfactorily perform his or her job, or ... it simply was not willing to employ *118 someone who had the stigma of having either suffered from the disease of alcoholism or who had the stigma or having been treated in an alcohol rehabilitation/detoxification facility for alcoholism.” When he was pressed to explain how he knew that Neiman Marcus thought that alcoholics could not satisfactorily perform their jobs, he said it was “[b]ecause of the actions they took [against him].”

We rejected a similar argument in Bailey, where we observed that “[a] plaintiff claiming that he is ‘regarded’ as disabled cannot merely show that his employer perceived him as somehow disabled; rather, he must prove that the employer regarded him as disabled within the meaning of the ADA.” Bailey, 306 F.3d at 1169 (emphasis in original). We concluded that nothing in that record, including Bailey's termination, demonstrated that the plaintiff's employer considered him to be “unfit for either a class or a broad range of jobs....” Bailey, 306 F.3d at 1170.

Similarly, Sullivan failed to present any evidence beyond his own termination demonstrating that Neiman Marcus may have believed that he could not perform the essential functions of either a class of jobs or a broad range of jobs in various classes. In both Bailey and this case, the employers were aware of the plaintiff's “problems with alcohol” but claimed that they terminated the plaintiffs for job performance reasons rather than their status as alcoholics. Even if, for purposes of summary judgment, we accept Sullivan's contention that Neiman Marcus terminated him because of their concern that alcoholism impaired his ability to do his job rather than the job misconduct cited by the company, Sullivan has not demonstrated that Neiman Marcus considered him to be limited in his ability to work in a broad range of jobs required by the rigorous standards of the ADA.^FN4 In fact, he did not even mention the broad range of jobs requirement in his brief. Accordingly, we conclude that Sullivan did not establish that the company regarded him as “disabled” within the meaning of the ADA.

FN4. The approach to the “regarded as” prong that the Supreme Court took in Murphy has been subjected to a significant amount of academic criticism. See, e.g., Claudia Center & Andrew J. Imparato, Redefining “Disability” Discrimination: A Proposal to Restore Civil Rights Protections for All Workers, 14 Stan. L. & Pol'y Rev. 321, 328 (2003) (claiming that the “class of jobs” approach has made it “virtually impossible” for a claimant to establish a “regarded as” claim); Miranda Oshige McGowan, Reconsidering the Americans with Disabilities Act, 35 Ga. L. Rev. 27, 123 (2000) (claiming that the potential class of employees who could state a valid “regarded as” claim is “vanishingly small” because, inter alia, “[n]o employer evaluates an applicant's fitness to do some other employer's work”). However, the Supreme Court has not altered the Murphy precedent.

Affirmed.

C.A.1 (Mass.),2004.
Sullivan v. Neiman Marcus Group, Inc.
358 F.3d 110, 15 A.D. Cases 321, 27 NDLR P 195


Briefs and Other Related Documents (Back to top)

• 2003 WL 23940350 (Appellate Brief) Appellee's Brief (Jul. 30, 2003)
• 2003 WL 23940349 (Appellate Brief) Brief for the Plaintiff-Appellant (Jun. 30, 2003) Original Image of this Document with Appendix (PDF)
• 03-1606 (Docket) (May. 01, 2003)
END OF DOCUMENT

U.S. v. Billups excerpt

In conducting the inventory search Trooper Schneider observed a case of Red Bull and a case of Mountain Dew, both high caffeine beverages. He also noticed two pairs of high value sunglasses, a presumed indicator of criminal activity. The trooper concluded that the highly caffeinated beverages were evidence of extended periods of driving, a presumed practice of drug transporters who wished to avoid motels and thereby leave the vehicle unattended. The trooper also observed five pieces of luggage in the rear cargo space, an amount of baggage that appeared excessive to him. He further determined that the totality of circumstances established reasonable suspicion that drugs would be found in the vehicle, thereby *705 justifying a canine search for drugs. ^FN4 Trooper Schneider retrieved his certified drug dog Xena from the back seat of his squad car and walked the dog around the Pacifica.

U.S. v. Billups 442 F.Supp.2d 697, *704 -705 (D.Minn.,2006)

Kemmer v. Beltrami County/Beltrami County Sheriff's Dept.

Not Reported in F.Supp.2d, 2002 WL 1348007 (D.Minn.)

Motions, Pleadings and Filings

Only the Westlaw citation is currently available. United States District Court, D. Minnesota. Jerrold Ryan KEMMER, Plaintiff,
v.
BELTRAMI COUNTY/BELTRAMI COUNTY SHERIFF'S DEPARTMENT, Randy Fitzgerald, individually and in his capacity as Deputy of the Beltrami County Sheriff's Department, and Ernie Beitel, individually and in his capacity as Deputy of the Beltrami County Sheriff's Department, Defendants.
No. CIV. 01-403 ADMRLE.
June 18, 2002.

Joni M. Thome, Esq., Thome Law Office, Minneapolis, Minnesota, appeared for and on behalf of the Plaintiff.
Ann R. Goering, Esq., and Erin K. Munson, Esq., Ratwik, Roszak & Maloney, P.A., Minneapolis, Minnesota, appeared for and on behalf of the Defendants.

MEMORANDUM OPINION AND ORDER

MAGNUSON.

I. INTRODUCTION
*1 On March 20, 2002, the undersigned United States District Judge heard the Motion for Summary Judgment [Doc. No. 13] by Defendants Beltrami County/Beltrami County Sheriff's Department (“Beltrami County”), Deputy Randy Fitzgerald (“Fitzgerald”) and Deputy Ernie Beitel (“Beitel”). Defendants seek summary judgment on many claims alleged by Plaintiff Jerrold Ryan Kemmer (“Kemmer”). For the reasons set forth below, Defendants' Motion is granted in part and the remaining state law claims are remanded to state court.


II. BACKGROUND
This case presents allegations seemingly tailored more for a made-for-TV movie, than litigation. Kemmer, born October 25, 1979, is a young man of “slight build.” Pl. Mem., at 2; see Pl. Dep., at 3. He openly identifies as a homosexual. Id. Kemmer has a history of involvement with law enforcement officials around Beltrami County, Minnesota. Over the years, he has been convicted of impersonating a police officer, sodomy, driving with suspended license, and writing worthless checks. See Pl. Dep., at 104, 115-16, 147-48, 199, 286-87. Kemmer can identify no specific instance in which he was falsely arrested. See id., at 172-74, 198-99. Some of Kemmer's contacts with law enforcement are relevant here, and a summary of those incidents follows.

On July 18, 1996, Deputies Beitel and Fitzgerald were called to a disturbance at a house in the neighborhood of Kemmer's residence ^FN1 in Bemidji, Minnesota. See Beitel Aff. ¶ 5; Fitzgerald Aff. ¶ 3. Upon arriving, the Deputies instructed Kemmer to leave the house and he complied. Someone at the house informed the Deputies that Kemmer had been dressing like a police officer, identifying himself as a police officer, and possessing police equipment. See Beitel Aff. ¶¶ 5-7; Fitzgerald Aff. ¶¶ 3-4. Deputies Beitel and Fitzgerald report that they later attempted to locate Kemmer, but to no avail. See Beitel Aff. ¶¶ 5-7; Fitzgerald Aff. ¶¶ 3-4.

FN1. During the relevant time, Kemmer was living with his mother.

Kemmer alleges, however, that Deputy Beitel found him later that night at his home and asked him questions regarding the earlier disturbance. See Pl. Dep., at 76-85. While they were seated in a squad car parked in front of Kemmer's residence, Kemmer alleges Beitel stated that he had enough information to arrest Kemmer for impersonating a police officer and take him to jail. Id. at 78. Beitel allegedly told Kemmer there were “two ways out of this ... one, I can take you to jail for impersonating a police officer right now, or you can give me a blowjob.” Id. at 82. After a few minutes passed, Beitel allegedly asked, “what's it going to be?” Id. at 83. Kemmer alleges he performed oral sex on Beitel for approximately eight to ten minutes. Id. at 84. Thereafter, Beitel allegedly warned Kemmer not to tell anyone about what had happened and said he was not charging Kemmer with any crime. Id. at 84-85.

On July 13, 1997, the Beltrami County dispatcher received a call from Kemmer, reporting that some kids were following and harassing him at Kelliher, Minnesota. See Beitel Aff. ¶ 9; Pl. Dep., at 94. The dispatcher explained to Kemmer that the nearest deputy was at Bemidji, Minnesota. See Beitel Aff. ¶ 9. On Kemmer's suggestion, the dispatcher directed the deputy to meet Kemmer at the “Food & Fuel” station in Blackduck, Minnesota, located between Bemidji and Kelliher. Id. Deputy Beitel was the available deputy at Bemidji, and he proceeded to Blackduck, arriving at 4:18 a.m. Id. ¶¶ 9-10. Deputy Beitel spoke with Kemmer for a few minutes, determined he did not need law enforcement assistance, and reported to dispatch he was leaving the scene at 4:20 a.m. Id. ¶ 10.

*2 Kemmer alleges Beitel asked him to sit in his squad car and said, “the night does not have to be a total waste.” Pl. Dep., at 95. Kemmer alleges Beitel offered, “if you do what you did last time, I'll let you drive the squad car for a little while.” Id. Kemmer wanted to drive the squad car. Id. at 95, 99-100. He allegedly performed oral sex on Beitel for about ten minutes. Id. at 96. Thereafter, Kemmer alleges Beitel allowed him to drive the squad car, and even allowed Kemmer to activate the lights & sirens in order to stop someone for a tail-light violation. Id. at 97-98.

In the late night hours of August 12, 1998, Deputy Fitzgerald received a call from the Beltrami County dispatcher, informing him that someone had reported Kemmer was out identifying himself as a police officer. See Fitzgerald Aff. ¶ 5. Deputy Fitzgerald pulled Kemmer over and found him wearing a long-sleeved uniform shirt with American Flag patches. Id. Deputy Fitzgerald asked Kemmer about the impersonating a police officer allegations, and Kemmer denied them. Id. Kemmer alleges that Deputy Fitzgerald terrorized him with a police dog. See Pl. Dep., at 112. Deputy Fitzgerald denies this allegation. Deputies Rankin and Beitel also responded to the scene. See Fitzgerald Aff. ¶ 6; Beitel Aff. ¶ 11. Pursuant to a request by the Beltrami County Attorney, the Deputies arrested Kemmer and took him into custody. Fitzgerald Aff. ¶ 7; Beitel Aff. ¶ 11. Kemmer alleges that the Deputies caused him to hit his head on the door of the squad car, but concedes that this bump did not require medical attention. See Pl. Dep., at 114.

Kemmer alleges that Beitel later visited him in his jail cell, and told Kemmer if he gave Beitel a “blowjob, he would see what he could do about getting [Kemmer] out of [jail].” Pl. Dep., at 124. Kemmer alleges he performed oral sex on Beitel until a door “clinked,” and then Beitel quickly left Kemmer's cell. Id. at 125. Deputy Beitel denies visiting Kemmer in the jail as well as ever engaging in any kind of sexual contact with Kemmer. Beitel Aff. ¶¶ 13, 17.

The drama intensified when on February 6, 2000, Deputy Fitzgerald was alerted by the dispatcher to two citizens' complaints regarding Kemmer. See Fitzgerald Aff. ¶ 9. One caller complained Kemmer was very intoxicated and had threatened him.^FN2 Id. The second caller reported that Kemmer brushed bumpers with his car, threatened him and was carrying mace. Id. Deputy Fitzgerald drove to Kelliher, Minnesota, to investigate and locate Kemmer. Id.

FN2. At his deposition, Kemmer admitted that on the evening of February 6, 2000, he drank about eight vodka and Diet Mountain Dew cocktails. Pl. Dep., at 23. He was underage at the time.

After arriving in Kelliher, Deputy Fitzgerald identified a vehicle matching the description of Kemmer's car, pulled behind and followed. Fitzgerald Aff. ¶ 10. As Deputy Fitzgerald was running a check on Kemmer's license plates, Kemmer accelerated at a high rate of speed northbound on Highway 72 out of Kelliher. Id.

Deputy Fitzgerald activated his lights & sirens and pursued Kemmer's speeding car. Id. ¶ 11. Kemmer did not stop. Even as the police chase reached speeds of 115 miles per hour, Kemmer smoked cigarettes and continued to drink his vodka and Diet Mountain Dew concoction. Pl. Dep., at 25. The high-speed chase ran from Kelliher to Baudette, Minnesota, a distance of approximately 60 miles. Fitzgerald Aff. ¶ 11.

*3 Deputy Fitzgerald called for backup. Id. ¶ 14. Deputy Bill Atwater responded. As they neared the county line, Deputy Kirk Haugen from Lake of the Woods County also responded and joined the hot pursuit. Id. Kemmer drove at speeds exceeding 100 miles per hour followed by three police vehicles with their lights & sirens running. Near Baudette, the long stretch of Highway 72 ends in a T-intersection. At this intersection, Baudette police officers erected a road block using a logging truck. Id. ¶ 16. When Kemmer approached the road block, he slowed down and somehow squeezed his car between the police car and the logging truck. Id. Kemmer sped on down Highway 11 toward Baudette. Id.

As Kemmer approached Baudette, he abruptly stopped and attempted to turn around. Fitzgerald Aff. ¶ 17. This sudden change of direction caused a collision with Deputy Haugen's squad car and the two cars came to a stop side by side. Id.; Haugen Aff. ¶ 6. Deputy Fitzgerald positioned his vehicle in front of Kemmer's car and Deputy Atwater pulled his car alongside Kemmer's car. By this arrangement, the Deputies had Kemmer's car surrounded on three sides, but not to the rear.

Deputy Haugen attempted to open Kemmer's door, but it was locked. Kemmer persistently refused instructions to open it. Haugen Aff. ¶ 7. While standing on the hood of the car, Deputy Fitzgerald kicked and broke Kemmer's windshield “to distract [Kemmer] so he wouldn't back up, and to cloud his visibility in the event he tried to back away.” Fitzgerald Aff. ¶ 18. Kemmer then unlocked his door and Deputy Haugen pulled him from the car and onto the ground. Haugen Aff. ¶ 7. Kemmer refused instructions to put one of his hands behind his back and was resisting by kicking his legs. Concerned that the uncuffed-hand was carrying the bottle of mace identified by complaints to the dispatcher, Deputy Fitzgerald employed a technique taught in law enforcement training: “When you control the head, you control the body.” Fitzgerald Aff. ¶ 19. Deputy Fitzgerald applied the weight of his knee to Kemmer's head. Then Kemmer pulled his hand from underneath his body and allowed Deputy Haugen to cuff him. Id.

Kemmer alleges Deputy Fitzgerald hit him on the left side of his face and kicked him in the ribs during this arrest. Pl. Dep., at 35-37. All officers at the scene dispute this allegation. See Fitzgerald Aff. ¶ 20; Haugen Aff. ¶ 10; Halverson Aff. ¶ 7. Lake of the Woods Sheriff, Jim Paulseth, took a statement from Kemmer regarding the incident and his allegations of wrongdoing by Beltrami County Deputies. Pl. Dep., at 43-45. Kemmer was transported to the Beltrami County jail. On February 8, 2000, the Beltrami County Sheriff, Keith Winger, and Deputy Brian Ball interviewed Kemmer regarding his complaints. In a letter of March 8, 2000, Sheriff Winger informed Kemmer that he had investigated his complaints and found Kemmer's allegations to be unsubstantiated. Thome Aff. Ex. D.

*4 On February 5, 2001, Kemmer commenced this action in state district court of Beltrami County, Minnesota. On March 5, it was removed to United States District Court.


III. DISCUSSION
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue “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 a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Plaintiff Kemmer concedes that his claims for False Imprisonment, False Arrest, Battery, Malicious Prosecution, Sexual Harassment, and Sex Discrimination, are all barred by the applicable statute of limitations or are unsupported by the evidence and thus should be dismissed against all defendants. See Pl. Mem. in Opp'n., at 14-15, 27. Summary judgment on these claims is granted. The disputed remaining claims will be addressed here.


A. Excessive Use of Force
Kemmer argues that Defendants used an excessive amount of force when arresting him at the conclusion of the high-speed chase. The “objective reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene. See Graham v. Connor, 490 U.S. 386, 395 (1989). The question is whether the officers' actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id.; Winters v. Adams, 254 F.3d 758, 765 (8th Cir.2001). Courts should not indulge in “armchair quarterbacking” or exploit the benefits of hindsight when evaluating police officers' use of force. Gardner v.. Buerger, 82 F.3d 248, 251 (8th Cir.1996). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97. These Fourth Amendment principles must be applied to Kemmer's allegations.

Following the 60-mile pursuit at speeds exceeding 100 miles per hour, Kemmer's car was finally stopped. The Deputies had Kemmer's car surrounded on only three sides, leaving Kemmer as escape route if he reversed his car. Kemmer refused Deputy Haugen's orders to unlock his car door. Deputy Fitzgerald made a split-second judgment, in a tense and uncertain moment, to break Kemmer's windshield in order to prevent or at least impede Kemmer's escape. During Kemmer's resistance to being handcuffed, the officers did not know if he held anything in the hand hidden underneath his body. It had been reported that Kemmer was carrying mace that night. Deputy Fitzgerald made a decision to place his knee on Kemmer's head, controlling his movements so that Kemmer would free his hand to be cuffed. These decisions were “objectively reasonable” from the perspective of a reasonable officer on the scene and do not rise the level of an excessive amount of force. In a situation where the deputies are absolved of liability, the County cannot be held liable for their actions. See Veneklase v. City of Fargo, 248 F.3d 738, 748 (8th Cir.2001) (en banc); see also Olinger v. Larson, 134 F.3d 1362, 1367 (8th Cir.1998) (“The City cannot be liable ... whether on a failure to train theory or a municipal custom or policy theory, unless [an officer] is found liable on the underlying substantive claim.”). Summary judgment is granted on Kemmer's excessive force claims.


B. § 1983 Claim
*5 Kemmer alleges that Beltrami County had a custom or practice of violating his constitutional rights. Kemmer may establish the County's liability under § 1983 by proving that his constitutional rights were violated by an “action pursuant to official [County] policy” or misconduct so pervasive among non-policymaking employees of the County “as to constitute a ‘custom or usage’ with the force of law.” Monell v. Department of Soc. Servs., 436 U.S. 658, 691 (1978) (internal quotation omitted); see also McGautha v. Jackson County, 36 F.3d 53, 55-57 (8th Cir.1994). There is no evidence the County had an official policy that violated Kemmer's rights. To establish a “custom or usage,” Kemmer must demonstrate: (1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the County's employees; (2) deliberate indifference to or tacit authorization of such conduct by the County's policymaking officials after notice to the officials of that misconduct; and (3) his injury by acts pursuant to the County's custom, i.e., evidence that the custom caused the constitutional violation. Ware v. Jackson County, 150 F.3d 873, 880 (8th Cir.1998).

Kemmer is required to show that County officials had notice of prior incidents of police misconduct and deliberately failed to act on this knowledge. Harris v. City of Pagedale, 821 F.2d 499, 504 (8th Cir.1987). Kemmer may not rest upon mere allegations or denials, but “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). As evidence of notice, Kemmer testified that he told his probation officer, a state employee, about his allegations regarding the Beltrami County Deputies. Notice to an employee of the State of Minnesota does not constitute notice to Beltrami County. Kemmer fails to present sufficient evidence to meet his burden of showing that the County had notice of a pattern of unconstitutional misconduct by the County's Deputies. After the County received notice of Kemmer's allegations following the chase in February, 2000, Sheriff Winger investigated those allegations. There is no evidence of additional incidents after the notice to the County. Absent evidence indicating notice and a deliberate failure to act on such knowledge, summary judgment is appropriate on Kemmer's § 1983 claim.


C. Sexual Abuse
Kemmer alleges claims for sexual abuse resulting from acts constituting criminal sexual conduct in violation of Minn.Stat. § 609.344. A six-year statute of limitations applies to claims for damages based on personal injury caused by sexual abuse. Minn.Stat. § 541.073, subd. 2. This six-year limitations period applies if Kemmer was less than 18 years of age at the time of the alleged sexual abuse. See Minn.Stat. § 609.344, subd. 1(e). Kemmer turned 18 on October 25, 1997. Thus, Kemmer's alleged incidents of sexual abuse occurring before that date fall within the six-year statute of limitations and are timely.

*6 Two allegations in this case qualify for the six-year statute of limitations. Kemmer alleges that on July 18, 1996, Beitel asked for a “blowjob” in exchange for not taking Kemmer to jail that night. Kemmer further alleges that on July 13, 1997, Beitel offered to let Kemmer drive his squad car in exchange for a “blowjob.” These allegations are not barred as untimely.

Defendants argue Beitel's alleged interactions with Kemmer do not rise to the level of criminal sexual conduct actionable as sexual abuse because Kemmer consented to the acts and Beitel was not in a “position of authority” over Kemmer. For purposes of sexual abuse, Minnesota law defines a “position of authority” as:

includ[ing] but ... not limited to any person who is a parent or acting in the place of a parent and charged with any of a parent's rights, duties or responsibilities to a child, or a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child, either independently or through another, no matter how brief, at the time of the act.

Minn.Stat. § 609.341, subd. 10. “This definition does not contain an exclusive list of persons in a position of authority.” State v. Larson, 520 N.W.2d 456, 461 (Minn.App.1994).

Using the language “includes but is not limited to,” the Minnesota Legislature intended the statute to have broad application to deal with the special problems involved in child abuse cases. See State v. Willette, 421 N.W.2d 342, 345 (Minn.App.1988) (stating that “ ‘person in a position of authority’ is broadly defined”). The statute provides that a person who has “ any duty or responsibility ” for the “ welfare ” of a child “ no matter how brief ” is considered to be in a “position of authority.” Minn.Stat. § 609.341, subd. 10 (emphasis added). Even for a brief time, a police officer may undertake a duty and responsibility for the welfare ^FN3 of a youth. Thus, a police officer who brings a young person under 18 years old into his patrol car pursuant to police business may be considered to be in a “position of authority” over that youth for purposes of Minn.Stat. § 609.344, subd. 1(e).

FN3. States exercise their police power for the protection of the public health, welfare, and morals. See Abeln v. City of Shakopee, 28 N.W.2d 642, 645 (Minn.1947) (citing Bartemeyer v. State of Iowa, 85 U.S. 129 (1873)).

On both occasions of claimed sexual contact, Deputy Beitel allegedly asked Kemmer to sit in his squad car pursuant to an investigation of potential criminal activity. Under the circumstances, Deputy Beitel had a duty for Kemmer's welfare, such that Beitel was in a “position of authority” for purposes of Minnesota's sexual abuse statute. Kemmer has presented sufficient evidence creating a genuine issue of material fact with regard to his sexual abuse claims. Defendant Beitel's motion for summary judgment on the sexual abuse claims is denied.

However, summary judgment is granted for Defendant Beltrami County to the extent Kemmer alleges a respondeat superior theory of liability on this claim. The acts alleged to have been committed by Beitel fall outside the scope of his employment as a deputy sheriff for Beltrami County. As discussed above, the County had no notice of Kemmer's allegations until February, 2000. The County may not be held liable for Beitel's acts outside the scope of his employment which are not foreseeable. See P.L. v. Aubert, 545 N.W.2d 666, 668 (Minn.1996).


D. Sexual Orientation Hostile Environment Harassment under Minn.Stat. § 363.03
*7 Kemmer alleges sexual orientation hostile environment harassment in violation of Minn.Stat. § 363.03, Subd. 4. Claims of unfair discriminatory practices must be brought as a civil action “within one year after the occurrence of the practice.” Minn.Stat. § 363.06, Subd. 3. The only incident within the statute of limitations period is the high-speed chase on February 6, 2000. All other allegations in Kemmer's Complaint or deposition are beyond the statute of limitations period. Kemmer has presented no evidence that his arrest subsequent to the 60-mile pursuit was harassing or unlawfully discriminatory. Kemmer lacks sufficient evidence upon which a jury could reasonably find in his favor on his claim of sexual orientation hostile environment harassment. See Anderson, 477 U.S. at 252. Summary judgment is granted.


E. Remand
Kemmer's remaining claims against Beitel for personal injuries caused by sexual abuse in violation of Minn.Stat. § 609.344 are governed by Minnesota law. This Court does not have federal question jurisdiction over state law claims. Diversity jurisdiction does not exist here because both parties are citizens of Minnesota. Although supplemental jurisdiction over related state law claims may exist if there is one claim over which the district court has original jurisdiction, 28 U.S.C. § 1367(c), a district court has discretion to reject supplemental jurisdiction over state law claims where the court has already “dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). The Eighth Circuit cautioned that federal courts should “exercise judicial restraint and avoid state law issues wherever possible.” Thomas v. Dickel, 213 F.3d 1023, 1026 (8th Cir.2000) (citing Condor Corp. v. City of St. Paul, 912 F.2d 215, 220 (8th Cir.1990)); see 28 U.S.C.A. § 1367 cmt. at 835 (1993). “[W]hen state and federal claims are joined and all federal claims are dismissed on a motion for summary judgment, the state claims are ordinarily dismissed without prejudice to avoid needless decisions of state law ... as a matter of comity.” ACLU v. City of Florissant, 186 F.3d 1095, 1098-99 (8th Cir.1999) (internal quotations omitted).

Kemmer first brought this action in state court and the presence of the federal law claims allowed Defendants to remove it to this Court. Summary judgment has been granted on those federal law claims. Plaintiff's remaining Minnesota law claims for sexual abuse against Defendant Beitel should be remanded to Minnesota District Court.


IV. CONCLUSION
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment [Doc. No. 13] is GRANTED in part, as described above. Plaintiff's remaining state law claims are REMANDED to Minnesota District Court, Ninth Judicial District, Beltrami County.

LET JUDGMENT BE ENTERED ACCORDINGLY.

D.Minn.,2002.
Kemmer v. Beltrami County/Beltrami County Sheriff's Dept.
Not Reported in F.Supp.2d, 2002 WL 1348007 (D.Minn.)


Motions, Pleadings and Filings (Back to top)

• 0:01CV00403 (Docket) (Mar. 05, 2001)
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