HomeMy WebLinkAbout2018CV3204 - Lori Frank V. City Of Fort Collins, Terence F. Jones And Jerome Schiager - 020 - Motion To Dismiss By Jerome SchiagerIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-03204-REB
LORI FRANK,
Plaintiff,
v.
CITY OF FORT COLLINS, a municipality;
TERENCE F. JONES, former Interim Chief of Police, in his individual capacity; and
JEROME SCHIAGER, former Deputy Chief of Police, in his individual capacity,
Defendants.
_________________________________________________ _____________________
MOTION TO DISMISS BY DEFENDANT JEROME SCHIAGER
_______________________________________________________________________
Defendant JEROME SCHIAGER (“Schiager”), moves the Court under Fed. R. Civ.
P. 12(b)(6) to dismiss the Eighth Claim for Relief in the Complaint and Jury Demand
(“Complaint”) (Doc. 2), the only claim asserted against Schiager. In support of this motion,
Schiager states:
I. INTRODUCTION
1. Plaintiff, Lori Frank (“Plaintiff” or “Frank”), a “Crime Analyst” for the City of
Fort Collins Police Services (“FCPS”) alleges that for many years the City of Fort Collins
(“City”) and two individual defendants discriminated against her in various ways relating to
her conditions of employment and pay. Schiager and the other individual Defendant, who
at various times held management or supervisory positions with FCPS, are named only on
the eighth claim brought under 42 U.S.C. § 1983 for a denial of equal protection under the
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Fourteenth Amendment.
2. Schiager is alleged to have been previously assistant chief at FCPS, which
included being Frank’s direct supervisor from November 2015 until February 7, 2017. (Doc.
2 at ¶¶ 57 and 150.) It is alleged that Schiager was placed on administrative leave on
February 7, 2017, and another individual became Frank’s supervisor, and that Schiager
was cleared and reinstated as a lieutenant, but not as Frank’s supervisor, on July 27, 2017.
(Id. at ¶¶ 150, 168 and 170.)
3. Schiager moves to dismiss the eighth claim for four independent reasons: (1)
to the extent the claim accrued prior to December 14, 2016, it is barred by the two-year
statute of limitations for §1983 actions, and no new constitutional claims are alleged
against Schiager since December 14, 2016; (2) the eighth claim is barred by failing to
allege personal participation by Schiager as to all events since February 7, 2017, when he
ceased to be Plaintiff’s supervisor; (3) the eighth claim is barred because it is a “class-of-
one” equal protection claim which cannot be maintained in public employment cases; and
(4) Schiager has qualified immunity from this claim.
II. THE PLAUSIBILITY STANDARD ON THE MOTION TO DISMISS
4. To survive this motion to dismiss, the complaint must state a plausible claim
for relief against Schiager. The plausibility standard is well-established, as summarized in
Mocek v. City of Albuquerque, 813 F.3d 912, 921 (10th Cir. 2015):
To survive a motion to dismiss, a complaint must “state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S. Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
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inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009). Thus,
a plaintiff cannot rely on “labels and conclusions, and a formulaic recitation
of the elements of a cause of action.” Twombly, 550 U.S. at 555, 127 S. Ct.
1955. We accordingly “disregard conclusory statements and look only to
whether the remaining, factual allegations plausibly suggest the defendant
is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
In addition, “threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
III. THE EIGHTH CLAIM AGAINST SCHIAGER IS BARRED BY THE STATUTE OF
LIMITATIONS
A. The Law on the Statute of Limitations and Accrual of Claims.
5. Although the statute of limitations is an affirmative defense, “when the dates
given in the Complaint make clear that the right sued upon has been extinguished, the
plaintiff has the burden of establishing a factual basis for tolling the statute.” Gosselin v.
Kaufman, 656 Fed. A’ppx 916, 919 (10th Cir. 2016)(not selected for publication), citing
Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1041, n.4 (10th. Cir. 1980).
6. The law on the two-year statute of limitations for §1983 suits filed in Colorado
and on when a claim accrues under federal law was summarized in Gosselin, at 919:
The personal injury statute of the state in which the federal district court sits
determines the limitation period for § 1983 suits. Mondragon v. Thompson,
519 F.3d 1078, 1082 (10th Cir. 2008). The general limitation for personal
injury claims in Colorado is two years from when the action accrues. Colo.
Rev. Stat. § 13–80–102. Federal law establishes when the claim accrues
and when the limitations period begins to run. Mondragon, 519 F.3d at 1082.
“A civil rights action accrues when facts that would support a cause of action
are or should be apparent.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir.
1995) (internal quotation marks and citation omitted).
7. In addition on the accrual issue, “a plaintiff need not have conclusive
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evidence of the cause of the injury in order to trigger the statute of limitations,” as the
courts “focus on whether the plaintiff knew of facts that would put a reasonable person on
notice that wrongful conduct caused the harm.” Alexander v. Oklahoma, 382 F. 3d 1206,
1216 (10th Cir. 2004), citing Baker v. Board of Regents, 991 F. 2d 628, 632 (10th Cir.
1992). “In this context, a plaintiff must use reasonable diligence in seeking to discover facts
giving rise to a claim for relief.” Alexander, 382 F. 3d at 1216.
B. Events prior to December 14, 2016.
8. The complaint (Doc. 2) in this case was filed on December 14, 2018, so to
the extent the eighth claim is based on allegations of improper actions by Schiager before
December 14, 2016, and if the claim accrued prior to that date, it is barred.
9. To determine if the claim accrued before December 14, 2016, we start by
looking at what actions Schiager is alleged to have taken and the dates of those actions.
In the eighth claim itself, the allegations are almost completely conclusory, and thus not
plausible under Iqbal, with little information about dates. (Id. at ¶¶ 272 - 293.)
10. But, ¶ 271 in the eighth claim incorporates by reference the prior allegations
of the complaint which include, in the chronological organization of the complaint, ¶¶ 57-
134 for events alleged to have occurred prior to December 14, 2016. Schiager’s alleged
involvement in these events may be summarized in eight categories: (1) Schiager opposed
Frank’s proposed re-classification of her job that she began seeking in 2014 (Id. at ¶¶ 52,
81, 87 and 110); (2) he tried to take credit for her work (Id. at ¶ 60-61); (3) he exhibited a
bad attitude towards her at work (Id. at ¶¶ 62, 65-66, 75-76 and 80); (4) he asked her to
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conduct an improper investigation (Id. at ¶¶ 63-64); (5) he took away duties previously
assigned to her (Id. at ¶¶ 67 and 77); (6) he gave her several bad performance reviews and
put her on a performance improvement plan (“PIP”) but did not treat a male employee, Erik
Martin (“Martin”), a “Financial Analyst,” in a similar manner (Id. at ¶¶ 82-84, 88,107, and
119-131); (7) he hired Martin in 2016 and paid him more money than Plaintiff (Id. at ¶¶ 88-
96); and (8) he excluded Plaintiff from work events and “marginalized” her performance (Id.
at ¶¶ 77 and 113).
11. Obviously, from these allegations of the complaint, Plaintiff was fully aware
of these alleged wrongs by Schiager that occurred prior to December 14, 2016, or at least
should have known under Alexander, because each of the events in the eight categories
personally involved her at the time that it occurred, such as Schiager opposing her attempt
to re-classify her job, taking away duties, giving poor performance reviews, etc.
12. Plaintiff’s knowledge of this claim is also demonstrated by her allegations that
prior to December 14, 2016, she complained about Schiager to the Chief of Police or the
City numerous times: (1) in early 2014, she “formally complained” to the Chief about
Schiager’s “accusations” as to her (id. at ¶¶ 71-73); (2) on November 3, 2015, as soon as
Schiager became her supervisor, Frank complained to the Chief about numerous issues
involving Schiager, including his past treatment and retaliation against her, taking away her
job duties, opposing her attempt to re-classify her position, etc. (id. at ¶¶ 76-81); (3) in May
2016, Plaintiff responded to criticisms by Schiager in her first quarter performance review
(id. at ¶¶ 82-87); (4) on August 9, 2016, Plaintiff sent a memo to the Chief about Schiager’s
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behavior and treatment towards her (id. at ¶¶105-106); (5) in late August 2016, Frank
responded to Schiager’s negative comments that he made in her second quarter review
(id. at ¶¶107-108); (6) in October 2016, Frank received a letter from the City’s Human
Resources investigator indicating that she had received Frank’s complaints about Schiager
and would be looking into “any violations” of City policies (id. at ¶¶106 and 111); and (7)
on November 30, 2016, after Frank received a poor third quarter review and PIP, and
learned that the City’s investigation supported Schiager and not her, submitted a complaint
to the City through her attorney regarding Schiager’s treatment toward her including her
performance reviews and PIP (id. at ¶¶ 116, 119, 123, and 132-134).
13. Therefore, because Plaintiff thoroughly knew (or should have known through
reasonable diligence) about the events of alleged wrongdoing by Schiager prior to
December 14, 2016, and showed her knowledge of an existing claim by complaining about
Schiager repeatedly prior to that date, the eighth claim accrued prior to December 14,
2016, as to all eight categories of allegedly wrongful acts by Schiager (see ¶ 10 above) and
is barred to that extent by the two-year statute of limitations.
C. Events from December 14, 2016, to February 7, 2017.
14. Plaintiff also makes some allegations about Schiager’s actions in the 55-day
period from December 14, 2016, to February 7, 2017, when Schiager ceased to be her
supervisor. (Doc. 2 at ¶¶135-149.)1 But, the factual allegations made about events in this
1 Plaintiff alleges later in her complaint that her rights were also violated by events
that occurred since February 7, 2017, but she makes no allegations that Schiager had any
personal involvement so he has no liability for that period. See, Section IV below.
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period merely provide additional information about the claim that had already accrued prior
to December 14, 2016, as discussed above.
15. Plaintiff’s allegations on Schiager’s actions in the 55 days following December
14, 2016, may be analyzed in three categories, each of which was raised prior to
December 14, 2016. First, Plaintiff alleges that Schiager imposed an unrealistic error rate
on her work, but Martin (the male employee) made errors and was not given a negative
evaluation or placed on a PIP. (Id. at ¶¶ 135-137.) However, these issues all arose prior
to December 14, 2016, and Plaintiff knew about them as shown in earlier allegations in the
complaint. (Id. at ¶¶107,124-127, and 130.)
16. Second, Plaintiff alleges that on January 1, 2017, she did not receive the pay
raise that she would have received because Schiager had placed her on a PIP. (Id. at
¶¶139 and 142-143.) However, it is clear from prior allegations in the complaint that the
PIP was imposed in November 2016 and Plaintiff knew then it would block her raise until
it was resolved. (Id. at ¶¶119-120, 123-126, 133-134.) Third, Plaintiff alleges that Schiager
held a staff meeting without her on January 12, 2017. (Id. at ¶¶140-141, 148-149.)
However, Plaintiff alleged that previously Schiager had begun excluding her from work-
related events and meetings and “marginalizing” her performance. (Id. at ¶113.)
17. In addition to the specific examples in the prior paragraph of these three
issues being raised prior to December 14, 2016, it must be remembered that Plaintiff
alleged eight categories of events that occurred prior to December 14, 2016 (see ¶ 10
above), that would have given her knowledge of the potential claim against Schiager well
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before these three issues allegedly arose.
18. In summary, Plaintiff’s allegations about the events in the 55 days following
December 14, 2016, relate merely to additional facts about prior allegedly unconstitutional
conduct by Schiager where the claim accrued prior to December 14, 2016, and raise no
new constitutional claims. Therefore, the eighth claim is barred by the statute of limitations
as to all of Schiager’s actions that allegedly occurred both prior to December 14, 2016, and
from that date to February 7, 2017, as discussed above.
IV. PLAINTIFF CANNOT PROCEED AGAINST SCHIAGER FOR ANY EVENTS SINCE
FEBRUARY 7, 2017, BECAUSE THERE IS NO ALLEGATION THAT HE
PERSONALLY PARTICIPATED IN SUCH EVENTS
19. It is settled law that “in § 1983 cases, a plaintiff must adequately allege the
defendant’s personal participation in a constitutional violation.” Pemberton v. Patton, 673
F. App’x 860, 867 (10th Cir. 2016), citing Iqbal at 676.
20. In Plaintiff’s complaint, she makes no allegation of any personal participation
by Schiager as to any constitutional violation against her since February 7, 2017. (Doc. 2
at ¶150, et seq.) This is understandable because Plaintiff alleges that “on or about
February 7, 2017, Schiager was placed on administrative leave and Greg Yeager became
Frank’s temporary supervisor.” (Id. at ¶150.) Plaintiff later alleges that on July 27, 2017, the
Chief concluded that Frank’s complaints about Schiager were “unfounded” and reinstated
him as a Lieutenant (Id. at ¶¶168, 170-173), but there is no allegation that Schiager ever
served again as Plaintiff’s supervisor or took any actions against her since that date.
21. Therefore, the eighth claim is barred against Schiager to the extent that it
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alleges any constitutional violation by Frank since February 7, 2017. When this argument
is combined with the argument on the accrual of the statute of limitations in Section III
above, it covers all time periods alleged in the complaint against Schiager.
V. THE EIGHTH CLAIM IS BARRED BECAUSE IT IS AN IMPROPER “CLASS-OF-
ONE” EQUAL PROTECTION CLAIM BY A PUBLIC EMPLOYEE
22. Plaintiff’s eighth claim against Schiager for violation of her right to equal
protection in her employment should also be completely dismissed because it is a “class-
of-one” claim that cannot be maintained by a public employee under Engquist v. Oregon
Dep’t of Agriculture, 553 U.S. 591 (2008). There, Engquist worked for the Oregon
Department of Agriculture (ODA) for about ten years but had problems with her supervisor
and her job was eventually eliminated. Id. at 594-595. Engquist brought suit against the
ODA and two managers on various theories. Id. at 595. In her equal protection claim,
Engquist alleged that the defendants discriminated against her on the basis of race, sex,
and national origin, but she also brought what is known as a “class-of-one” equal protection
claim, alleging that she was fired not because she was a member of any identified class
but simply for arbitrary, vindictive, and malicious reasons. Id. The jury found for Engquist
on several of her claims, including the class-of-one equal protection claim, and against the
ODA and the individual defendants, but the Court of Appeals reversed on the equal
protection claim and the Supreme Court affirmed the Court of Appeals. Id. at 595-597.
23. The Supreme Court stated that it is “well settled that States do not escape
the strictures of the Equal Protection Clause in their role as employers,” but the Court’s
“traditional view of the core concern of the Equal Protection Clause as a shield against
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arbitrary classifications, combined with unique considerations applicable when the
government acts as employer as opposed to sovereign, lead us to conclude that the class-
of-one theory of equal protection does not apply in the public employment context.” Id. at
597-598.
24. The Supreme Court reasoned that government as employer has far broader
powers and that “government offices could not function if every employment decision
became a constitutional matter.” Id. at 598-599. The Court added that it is “no proper
challenge to what in its nature is a subjective, individualized decision that it was subjective
and individualized,” which is a principle that “applies most clearly in the employment
context, for employment decisions are quite often subjective and individualized, resting on
a wide array of factors that are difficult to articulate and quantify.” Engquist at 604. The
Court concluded that the federal court is not the appropriate forum in which to review the
multitude of personnel decisions that are made daily by public agencies, and that “public
employees typically have a variety of protections from just the sort of personnel actions
about which Engquist complains, but the Equal Protection Clause is not one of them.” Id.
at 609.
25. Engquist was followed in Pignanelli v. Pueblo School District No. 60, 540
F.3d 1213 (10th Cir. 2008). There, a part-time teacher claimed, among other things, that
her teaching position was not renewed in violation of her equal protection rights because
she was treated differently than similarly-situated employees. Id. at 1218. The Court of
Appeals held that Pignanelli’s “equal protection claim against a public employer based on
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allegations the employer treated her differently than others similarly situated . . . is not a
legally cognizable cause of action” under Engquist. Id. at 1220. The Court added that the
school board’s decision to allow Pignanelli’s contract to lapse rather than rehire her, even
if not rationally related to a legitimate government purpose, “does not constitute a violation
of equal protection” under Engquist. Id. at 1221.
26. Plaintiff may argue that Engquist is distinguishable because she did not
expressly bring a class-of-one equal protection claim but instead alleged in the eighth claim
that Schiager discriminated against female employees.
27. If Plaintiff makes that argument, Schiager contends that the vague and
conclusory allegations in Plaintiff’s complaint of discrimination against a class of female
employees (Doc. 2 at ¶¶ 1-2, 18) are insufficient to avoid the rule from Engquist. As
explained below, these allegations are not truly class based to be sufficient under Iqbal
for a plausible equal protection claim, and do not show that a class was denied equal
protection by Schiager on the issues raised by Plaintiff.
28. Plaintiff alleges that two or three women resigned or complained but the
allegations are vague and unrelated to alleged discrimination against a class of female
employees on Plaintiff’s issues. (Id. at ¶¶ 15, 103-104.) Plaintiff allegedly quotes “fellow
employee M.G.” as complaining about Schiager for reasons that are not stated, but then
claims in conclusory fashion that “M.G.’s concerns were related to the treatment of women
at FCPS.” (Id. at 177-179.) Plaintiff adds later that female employee M.J. resigned, and,
“upon information and belief,” also made an unspecified complaint about her treatment as
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a woman inside the department. (Id. at 193-194.) Plaintiff cites as evidence of an
inappropriate culture at FCPS a prior lawsuit brought against the department, but that the
prior lawsuit was brought by two Hispanic male officers. (Id. at ¶¶ 7-9, 101,109, and 184.)
29. In contrast, virtually all of the substantive allegations about Schiager in
Plaintiff’s long complaint relate to his allegedly improper treatment of Frank on issues such
as improper evaluations and the PIP, being the sole person held to an impossible-to-
achieve error rate, having her duties taken away, not allowing her job to be reclassified
prior to 2016, having a bad attitude towards her, etc. (See ¶ 10 above.) There are no
plausible, factual allegations that these alleged actions of Schiager were applied to any
other women at all.
30. Plaintiff alleges that Schiager gave Martin a higher salary and a lower
standard on performance reviews than Frank (Doc. 2 at ¶¶ 88-96, 125), but there are no
allegations that he did this as to any other “similarly-situated” female employee. It must
also be noted that the complaint provides no plausible, factual allegations that Frank and
Martin, a criminal analyst and a financial analyst, were similarly situated just because they
both had job titles that included the word “analyst” and allegedly were equals on the
organizational chart. (Id. at 89-92.) Frank alleged that she analyzed crime statistics, that
Martin was hired without any law enforcement experience and was not qualified to do her
job, and that each worked “in their respective areas of expertise.” (Id. at ¶¶ 33-34, 88-91,
96, 162 and 175.) Martin has not been suf ficiently alleged to be similarly situated.
31. Plaintiff does allege that the City initiated a reclassification of jobs in 2018
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and that Frank and three other women who served as crime analysts or criminalists were
placed in the “administrative” category, while the only positions that were placed in the
“professional” category at FCPS were held by males. (Id. at ¶¶ 195-224.) But, even if that
was sufficient to be a class-based violation, it is irrelevant as to Schiager because he is not
alleged to have had any personal participation in improper events since February 7, 2017.
(See section IV above).
32. This lack of class-based factual allegations puts Plaintiff’s complaint on par
with the one submitted by Engquist. It attempts to constitutionalize the personal complaints
on the job that are unique to Frank, and do not apply to a class of female employees at
FCPS. Proceeding with the eighth claim against Schiager will involve this Court in
reviewing the employment decisions as to Frank that are necessarily subjective and
individualized, as Engquist cautioned against. For these reasons, this Court should dismiss
the eighth claim against Schiager because it is effectively a class-of-one equal protection
claim that cannot be maintained under Engquist.
VI. THE EIGHTH CLAIM AGAINST SCHIAGER IS ALSO BARRED BY QUALIFIED
IMMUNITY
33. Schiager also raises the defense of qualified immunity to the eighth claim.
When defendant asserts a qualified immunity defense, plaintiff shoulders a heavy two-part
burden to show: (1) that on the facts alleged, defendant violated her constitutional rights;
and (2) that the law was clearly established as the time of the alleged unlawful activity.
Perry v. Durborow, 892 F.3d 1116, 1120-1121 (10th Cir. 2018). Although Plaintiff has the
burden, Schiager will briefly address these two elements.
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34. As to the first element, Schiager denies that Plaintiff has stated a claim for
equal protection against him, especially under Engquist. There are no allegations that he
took any actions against other female employees on the substantive issues in the
complaint, which are unique to Plaintiff. Schiager also maintains that numerous individual
allegations do not rise to the level of a claim under the Equal Protection Clause, such as
that Schiager had a bad attitude toward her, he tried to take credit for her work, and did not
invite her to a meeting of his staff.
35. As to the second element, Schiager denies that there is any clearly-
established law that would deprive him of the qualified immunity defense on the facts
alleged here. Under District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 589-590
(2018), existing law must have placed the constitutionality of the defendant’s conduct
“beyond debate,” the defense protects all but the plainly incompetent or those who
knowingly violate the law, the legal principle must be “settled law” and not merely
“suggested” by then-existing precedent, every reasonable official would know and
understand the law, and the legal principle must clearly prohibit the officer’s conduct in the
“particular circumstances” before him, which requires a “high degree of specificity”
(citations omitted). This defendant did not find any such clearly-established precedent
governing these particular circumstances.
WHEREFORE, Defendant Schiager requests this Court to dismiss the eighth claim
(and therefore the Complaint) against him, with prejudice.
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Respectfully submitted,
Date: January 31, 2019 s/ David R. DeMuro
David R. DeMuro
VAUGHAN & DeMURO
720 South Colorado Boulevard
Penthouse, North Tower
Denver, CO 80246
303-837-9200 (phone)
ddemuro@vaughandemuro.com (e-mail)
ATTORNEY FOR DEFENDANT SCHIAGER
CERTIFICATE OF SERVICE
I hereby certify that on this 31st day of January, 2019, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system which will send notification of
such filing to the following e-mail addresses:
Jennifer Robinson
jrobinson@raemployment.com
Cathy Havener Greer
cgreer@warllc.com; bmccall@warllc.com; pcallies@warllc.com
Kathryn Anne Starnella
kstarnella@warllc.com
Sara Ludke Cook
scook@vaughandemuro.com; vnd@vaughandemuro.com
Jenny Lopez Filkins
jlopezfilkins@fcgov.com
and I hereby certify that the foregoing was placed in the U.S. Mail, postage prepaid, and
addressed to the following:
[none]
s/ David R. DeMuro
David R. DeMuro
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