Graham v. St. John's United Methodist Church et al, No. 3:2012cv00297 - Document 46 (S.D. Ill. 2012)
Court Description: ORDER granting in part, denying in part and denying as moot in part St. John's motion to dismiss and, in the alternative, to strike (Doc. 21): The Court grants St. John's motion to dismiss Count 3, denies as moot St. John's motion to s trike punitive damages under Count 4 and denies St. John's motion in all other respects. The Court grants Graham's request for withdrawal of his request for compensatory damages under Count 4. Signed by Judge Michael J. Reagan on 10/25/12. (caa)
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Graham v. St. John&#039;s United Methodist Church et al Doc. 46 I N THE UNI TED STATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF I LLI NOI S RI CHARD A. GRAHAM, ) ) Plaint iff, ) ) ) v. ) ST. JOHN’S UNI TED METHODI ST ) CHURCH, THE I LLI NOI S GREAT ) RI VERS CONFERENCE OF THE ) UNI TED METHODI ST CHURCH and ) REVEREND SHERYL PALMER, in her ) individual capacit y, ) ) Defendant s. ) Case No. 12- cv- 0297- MJR MEMORANDUM AND ORDER REAGAN, Dist r ict Judge: I n April 2012, Richard Graham filed an 8- count com plaint against St . John’s Unit ed Met hodist Church ( “ St . John’s” ) , The I llinois Great Rivers Conference of t he Unit ed Met hodist Church ( “ I GRC” ) and Reverend Sheryl Palm er ( “ Palm er” ) . Graham alleges violat ions of t he Am ericans wit h Disabilit ies Act of 1990 ( " ADA" ) , 42 U.S.C. § 12101, et seq.; t he Fair Labor St andards Act ( " FLSA" ) , 29 U.S.C. § 203( d) ; t he I llinois Wage and Collect ion Act ( " I WPCA" ) , 820 I LCS 115/ et seq.; as well as com m on law act ions for int ent ional inflict ion of em ot ional dist ress and negligent supervision. St . John’s m oves t o dism iss Count s 1 t hrough 4 of Graham ’s com plaint pursuant t o Federal Rule of Civil Procedure 12( b) ( 6) ( Doc. 21) . 1 Dockets.Justia.com The m ot ion is fully briefed and ready for disposit ion. The Court begins it s analysis wit h a recit at ion of t he fact ual background. I. Fact ual Allegat ions The com plaint alleges t he following fact s. I n 1996, Graham was t he v ict im of a serious beat ing in which he suffered m ult iple concussions, m ult iple fract ures including part s of his face, and severe cont usions over a subst ant ial port ion of his body. Graham ’s head inj uries result ed in a perm anent disabilit y of his cognit ive processes leaving him wit h difficult y art iculat ing sit uat ions. his t hought s and com prehending, especially in st ressful I n August 2008, Graham was hired as a part - t im e cust odian at St . John’s and was t old t hat he would work 25 hours a week. A short t im e aft er Graham began his em ploym ent , t he ot her part - t im e cust odian left , and Graham assum ed all cust odial dut ies at t he church. He perform ed his dut ies in a sat isfact ory m anner. Palm er t old Graham t hat regardless of t he ext ra work load and t he num ber of hours worked, he would only be paid for 25 hours a week. As a result of his head inj uries, Graham is a very acquiescent individual, especially wit h aut horit y figures like Palm er. Palm er t ook advant age of Graham ’s disabilit y and required him t o w ork seven days a week, averaging 35 to 40 hours, while approxim at ely 25 hours on his t im esheet . 2 only allowing him to put Palm er called Graham “ st upid” and “ ret ard” and allowed ot her m em bers t o call him t hese nam es as well. She yelled at Graham in front of ot hers in order t o em barrass him . About June 6, 2011, Julia and Darol Holsm an, who were m em bers of St . John’s and advocat es for Graham ’s em ploym ent , asked t he I GRC t o invest igat e Palm er’s m ist reat m ent of Graham . The Holsm ans also assist ed Graham in filing a com plaint wit h t he I llinois Depart m ent of Labor ( “ I DOL” ) . Graham repeat edly asked Palm er and St . John’s for accom m odat ion for his m ent al challenges, but t hey refused t o accom m odat e him . I n July 2011, t he Holsm ans t old Palm er and St . John’s t hat Graham was ill and scheduled for surgery. On August 15, 2011, Palm er unilat erally scheduled Graham t o ret urn t o work. I n a let t er dat ed August 17, 2011, Palm er t old Graham t hat if he did not not ify St . John's of his healt h st at us by August 23, 2011, St . John's would " assum e [ he] resigned his posit ion." On August 23, 2011, Graham was discharged. II. Legal St andard A 12( b) ( 6) m ot ion challenges t he sufficiency of t he com plaint t o st at e a claim upon which relief can be grant ed. H a llin a n v. Fr a t e r na l Or de r of Police of Chica go Lodge N o. 7 , 5 7 0 F.3 d 8 1 1 ( 7 t h Cir . 2 0 0 9 ) . Dism issal is warrant ed under Rule 12( b) ( 6) if t he com plaint fails t o set fort h “ enough fact s t o st at e a claim t o relief t hat is plausible on it s face.” 3 Be ll At la nt ic Cor p. v. Tw om bly, 5 5 0 U.S. 5 4 4 , 5 7 0 ( 2 0 0 7 ) ; EEOC v. Conce nt r a H e a lt h Se r vice s, I nc., 4 9 6 F.3 d 7 7 3 , 7 7 6 ( 7 t h Cir . 2 0 0 7 ) . I n m aking t his assessm ent , t he Dist rict Court accept s as t rue all well- pled fact ual allegat ions and draws all reasonable inferences in t he plaint iff’s favor. Ru j a w it z v. M a r t in, 5 6 1 F.3 d 6 8 5 , 6 8 8 ( 7 t h Cir . 2 0 0 9 ) ; Tr icont ine nt a l I ndust r ie s, I nc., Lt d. v. Pr ice W a t e r house Coope r s, LLP, 4 7 5 F.3 d 8 2 4 , 8 3 3 ( 7 t h Cir .) , ce r t . de nie d, 1 2 8 S. Ct . 3 5 7 ( 2 0 0 7 ) ; M a r sha ll v. Knight , 4 4 5 F.3 d 9 6 5 , 9 6 9 ( 7 t h Cir . 2 0 0 6 ) . I n Ta m a yo v. Bla goj e vich, 5 2 6 F.3 d 1 0 7 4 , 1 0 8 3 ( 7 t h Cir . 2 0 0 8 ) , t he Sevent h Circuit em phasized t hat even t hough Be ll At la nt ic “ ret ooled federal pleading st andards” and “ ret ired t he oft - quot ed Conley form ulat ion,” not ice pleading is st ill all t hat is required. “ A plaint iff st ill m ust provide only enough det ail t o give t he defendant fair not ice of what t he claim is and t he grounds upon which it rest s and, t hrough his allegat ions, show t hat it is plausible, rat her t han m erely speculat ive, t hat he is ent it led t o relief.” I d. Accor d Pugh v. Tr ibune Co., 5 2 1 F.3 d 6 8 6 , 6 9 9 ( 7 t h Cir . 2 0 0 8 ) ( “sur viving a Rule 1 2 ( b) ( 6 ) m ot ion r e quir e s m or e t ha n la be ls a nd conclusions”; t he a lle ga t ions “m ust be e nough t o r a ise a r ight t o r e lie f a bove t he spe cula t ive le ve l”) . III. Discussion A. Mot ion t o st rike com pensat ory and punit ive dam ages – Count 4 4 As an init ial m at t er , St . John’s m oves t o st rike Graham ’s claim for com pensat ory and punit ive dam ages in Count 4, w hich is based on ret aliat ion under t he ADA. Graham adm it s his error, conceding t hat com pensat ory and punit ive dam ages are not current ly available under an ADA ret aliat ion claim . So, Graham volunt arily wit hdraws his claim for com pensat ory dam ages ( Count 4, ¶ B) . Graham correct ly observes t hat he m ade no claim for punit ive dam ages in Count 4, so St . John’s m ot ion t o st rike a dem and for punit ive dam ages as to t his Count is m oot . Consequent ly, t he Court will wit hdraw Graham ’s claim for com pensat ory dam ages and deny as m oot St . John’s m ot ion t o st rike t he prayer for punit ive dam ages in Count 4. B. Count s 1 and 2 – Violat ion of t he ADA and Failure t o Reasonably Accom m odat e in Violat ion of t he ADA St . John’s cont ends t hat Graham has not sufficient ly pleaded t hat he has a disabilit y t hat subst ant ially lim it s one or m ore m aj or life act ivit ies, as is required t o st at e a claim under t he ADA. Specifically, St . John’s m aint ains t hat Graham fails t o allege a m ent al im pairm ent t hat subst ant ially lim it s a m aj or life act ivit y, a record of such an im pairm ent or t hat he was regarded as having such an im pairm ent . Graham was hired as a cust odian for St . John’s in August 2008 and was discharged in August 2011. Consequent ly, he began his em ploym ent prior t o t he effect ive dat e of t he ADA Am endm ent s Act of 2008 5 ( “ ADAAA” ) , January 1, 2009, but cont inued in his em ploym ent aft er t he Act becam e effect ive. 1 St . John’s cont ends t hat m uch of t he alleged discrim inat ory conduct t hat form ed t he basis of Graham ’s com plaint s wit h t he EEOC and t his Court occurred prior t o t he effect ive dat e of t he am endm ent s. St . John’s m aint ains t hat Graham fails t o adequat ely plead w hich of t he alleged act s occurred wit hin 300 days of his filing t he charge of discrim inat ion wit h t he EEOC and t hat any claim s out side t he st at ut ory t im e period are barred. Graham responds t hat he has adequat ely alleged t hat Palm er t ook advant age of his m ent al disabilit y by forcing him t o work seven days a week for t wo- and- a- half years. I t is prem at ure for t he Court t o decide whet her any of t he act s alleged by Graham are t im e- barred, whet her m ost of t he act s occurred aft er t he am endm ent s becam e effect ive or whet her all act s of which Graham com plains are act ionable under a cont inuing violat ions t heory. This can only be det erm ined on a fuller record aft er furt her discovery has occurred. The Court not es, however, t hat present ly in evidence is t he I DOL I nspect ion Report ( Doc. 2- 3) . The Report indicat es t hat bet ween August 2008 and August 2011, 22 violat ions of t he One Day Rest in Seven Act occurred. This appears t o cont radict St . John’s assert ion t hat 1 m ost of t he alleged The Sevent h Circuit has concluded t hat t he ADA Am endm ent s ar e not r et r oact ive. Se e W insle y v. Cook Cou n t y, 5 6 3 F.3 d 5 9 8 , 6 0 0 n . 1 ( 7 t h Cir . 2 0 0 9 ) ; Kie se w e t t e r v. Ca t e r pilla r I nc., 2 9 5 Fe d. Appx . 8 5 0 , 8 5 1 ( 7 t h Cir . 2 0 0 8 ) . 6 discrim inat ory conduct occurred prior to t he effect ive dat e of t he am endm ent s. I n order t o allege disabilit y discrim inat ion, Graham m ust claim t hat ( 1) he is disabled wit hin t he m eaning of t he ADA; ( 2) he is qualified t o perform t he essent ial funct ions of t he j ob, eit her wit h or wit hout a reasonable accom m odat ion; and ( 3) he suffered from an adverse em ploym ent act ion because of his disabilit y. H oppe v. Le w is Unive r sit y, 6 9 2 F.3 d 8 3 3 , 8 3 9 ( 7 t h Cir . 2 0 1 2 ) , cit ing N e se v. Julia n N or dic Const . Co., 4 0 5 F.3 d 6 3 8 , 6 4 1 ( 7 t h Cir . 2 0 0 5 ) . St . John’s assert s t hat Graham ’s claim s fail at t he fir st prong of t he t est - t hat he is not an individual wit h a disabilit y w it hin t he m eaning of t he ADA. The ADA definit ion of “ disabilit y” does not differ from t hat of t he ADAAA: “ ( a) a physical or m ent al im pairm ent t hat subst ant ially lim it s one or m ore of t he m aj or life act ivit ies of [ an] individual; ( b) a r ecord of such an im pairm ent ; or ( c) being regarded as having such an im pairm ent .” E.E.O.C. v. Aut oZone , I nc., 6 3 0 F.3 d 6 3 5 , 6 3 9 ( 7 t h Cir . 2 0 1 0 ) , quot ing 4 2 U.S.C. § 1 2 1 0 2 ( 1 ) . Maj or life act ivit ies include concent rat ing, t hinking and com m unicat ing. 4 2 U.S.C. § 1 2 1 0 2 ( 2 ) ( A) . The ADAAA provides m ore generous coverage t han t he ADA by providing t hat t he definit ion of disabilit y “ shall be const rued in favor of broad coverage of individuals … t o t he m axim um ext ent perm it t ed by t he t erm s of [ t he Act .] ” 4 2 U.S.C. § 1 2 1 0 2 ( 4 ) ( A) . The associat ed regulat ions inst ruct 7 court s t o be liberal in det erm ining whet her a plaint iff is subst ant ially lim it ed: “ [ t ] he t erm ‘subst ant ially lim it s' shall be const rued broadly in favor of expansive coverage, t o t he m axim um ext ent perm it t ed by t he t erm s of t he ADA. ‘Subst ant ially lim it s' is not m eant t o be a dem anding st andard.” 2 9 C.F.R. § 1 6 3 0 .2 ( j ) ( 1 ) ( i) . Graham alleges t hat he has perm anent brain dam age which causes him difficult y art iculat ing his t hought s, slowness t o com prehend and difficult y challenging anyone he views as a figure of aut horit y. As such, he has alleged sufficient fact s t o m eet t he definit ion of an individual wit h a disabilit y. His claim s are det ailed enough t o m eet t he requirem ent s of Tw om bly and, consequent ly, sufficient t o survive St . John’s m ot ion t o dism iss. Furt herm ore, accept ing as t rue all well- pleaded fact ual allegat ions and drawing all reasonable inferences in Graham ’s favor, he has sufficient ly pleaded t hat he was regarded as an individual wit h a disabilit y. Being “ regarded as” having a disabilit y “ m eans t hat t he individual has been subj ect ed t o an act ion prohibit ed by t he ADA as am ended because of an act ual or perceived im pairm ent ….” 2 9 CFR § 1 6 3 0 .2 ( g) ( ii) . The Sevent h Circuit has clarified t hat in order t o proceed under t his prong of t he ADA, a plaint iff m ust allege “ t hat t he em ployer believed t hat t he em ployee ‘( 1) had an im pairm ent ( 2) t hat subst ant ially lim it ed ( 3) one or m ore m aj or life 8 act ivit ies.’” Squibb v. M e m or ia l M e dica l Ce nt e r , 4 9 7 F.3 d 7 7 5 , 7 8 6 ( 7 t h Cir . 2 0 0 7 ) ( cit a t ion om it t e d) . Graham claim s t hat Palm er called him a “ ret ard” on m ult iple occasions as well as allowing ot her st aff m em bers t o call him by t hat epit het . Graham also claim s t hat Palm er t ook advant age of his m ent al im pairm ent by requiring him t o work seven days a week and t o do bot h cust odial work and personal chores for her. Moreover, Graham claim s t hat Palm er asked t he Holsm ans t o act as advocat es for him wit h respect t o his em ploym ent at St . John’s aft er she learned of his im pairm ent . These allegat ions are sufficient t o survive St . John’s m ot ion t o dism iss on t he issue of whet her Palm er regarded Graham as an individual wit h a disabilit y. Next , t he Court m ust consider whet her Graham could perform t he essent ial accom m odat ion. funct ions of t he cust odial posit ion wit h reasonable An individual wit h a disabilit y falls wit hin t he definit ion of a “ qualified individual wit h a disabilit y” if he can perform t he essent ial funct ions of t he desired posit ion wit h reasonable accom m odat ion. 4 2 U.S.C. § 1 2 1 1 1 ( 8 ) . Under t he ADA, an em ployer m ust pr ovide a qualified individual wit h a reasonable accom m odat ion. Ja ck son v. Cit y of Chica go, 4 1 4 F.3 d 8 0 6 , 8 1 2 ( 7 t h Cir . 2 0 0 5 ) , cit ing Re hling v. Cit y of Chica go, 2 0 7 F.3 d 1 0 0 9 , 1 0 1 4 ( 7 t h Cir .2 0 0 0 ) ; 4 2 U.S.C. § 1 2 1 1 1 ( 9 ) ( B) ( list ing e x a m ple s of r e a sona ble a ccom m oda t ions) . “ [ A] reasonable accom m odat ion is connect ed t o what t he em ployer knows about t he specific 9 lim it at ions affect ing an em ployee who is a qualified individual w it h a disabilit y.” I d. a t 8 1 3 , cit ing 4 2 U.S.C. § 1 2 1 1 2 ( b) ( 5 ) ( A) ( de fining t he term “discr im ina t e ” to include “not m a k ing r e a sona ble a ccom m oda t ions t o t he k now n physica l or m e nt a l lim it a t ions of a n ot he r w ise qua lifie d individua l w it h a disa bilit y” ( e m pha sis a dde d) ; Be ck v. Univ. of W isconsin Bd. of Re ge nt s, 7 5 F.3 d 1 1 3 0 , 1 1 3 5 ( 7 t h Cir . 1 9 9 6 ) ( “By t he st a t ut or y la ngua ge , ‘r e a sona ble a ccom m oda t ion’ is lim it e d by t h e e m ploye r 's k now le dge of t he disa bilit y.”) . So, t he federal regulat ions cont em plat e t he em ployer’s undert aking an inform al, int eract ive process wit h t he individual in need of accom m odat ion t o det erm ine t he appr opriat e reasonable accom m odat ion. I d. I n Re h ling v. Cit y of Chica go, 2 0 7 F.3 d 1 0 0 9 ( 7 t h Cir . 2 0 0 0 ) , t he Sevent h Circuit held t hat , based on it s underst anding of t he int eract ive process requirem ent , “ a plaint iff m ust allege t hat t he em ployer's failure t o engage in an int eract ive process result ed in a failure t o ident ify an appropriat e accom m odat ion for t he qualified individual.” 2 0 7 F.3 d a t 1 0 1 6 . Graham alleges t hat St . John’s init ially offered t o accom m odat e him by allowing t he Holsm ans t o act on his behalf in em ploym ent m at t ers. According t o Graham , t he failure t o accom m odat e involved St . John’s decision t o no longer allow t he Holsm ans t o fill t his role. Graham alleges t hat he "repeat edly asked Palm er and St . John's t o com m unicat e wit h or t hrough t he Holsm ans as his at t orneys- in- fact / advocat es 10 … as an accom m odat ion for his m ent al challenges," but t hey " repeat edly refused t o do so." So, Graham ’s claim is t hat St . John’s elim inat ed an accept ed accom m odat ion w it hout engaging in any int eract ive process. St at ed anot her way , Graham alleges t hat he and St . John’s had an agreed- upon reasonable accom m odat ion, but St . John’s unilat erally wit hdrew t he accom m odat ion and t hen failed t o engage in an int eract ive process, result ing in a failure t o ident ify an appropriat e accom m odat ion for him . Under t hese circum st ances, t he fault in t he failure t o m ake t he accom m odat ion available would be St . John’s. M a ys v. Pr incipi, 3 0 1 F.3 d 8 6 6 , 8 7 0 ( 7 t h Cir . 2 0 0 2 ) , cit ing Em e r son v. N or t he r n St a t e s Pow e r Co., 2 5 6 F.3 d 5 0 6 , 5 1 5 ( 7 t h Cir . 2 0 0 1 ) ; Ozlow sk i v. H e nde r son, 2 3 7 F.3 d 8 3 7 , 8 4 0 ( 7 t h Cir . 2 0 0 1 ) . As a result , alt hough it is Graham ’s burden to show t hat a part icular accom m odat ion is reasonable, t hat burden was m et by t he fact t hat St . John’s chose t he accom m odat ion request ed at t he t im e Graham was hired. C. Host ile Work Environm ent - Count 3 St . John’s cont ends t hat a host ile work environm ent claim m ay not cognizable under t he ADA and t hat , in any case, Graham has not pleaded fact s sufficient t o support such a claim . I n a nut shell, St . John’s assert s t hat ( 1) Graham has not sufficient ly alleged t hat his workplace was so perm eat ed wit h discrim inat ion and int im idat ion as t o alt er t he condit ions of his em ploym ent ; ( 2) t he rem arks alleged by Graham are insensit ive and childish, but insensit ive and childish r em arks are not act ionable; and ( 3) 11 Graham has not sufficient ly alleged t hat st at em ent s by Palm er and ot her st aff m em bers im pact ed his j anit orial dut ies or int erfered wit h his abilit y t o perform t hose dut ies. The Court has carefully reviewed Graham ’s response t o St . John’s m ot ion t o dism iss and finds t hat Graham has failed t o respond t o St . John’s m ot ion as t o t he host ile work environm ent claim , Count 3. Pursuant t o Local Rule 7.1( c) Graham ’s failur e t o respond m ay, in t he Court ’s discret ion, be considered an adm ission of t he m erit s of t he m ot ion. Accordingly, t he Court will grant St . John’s m ot ion and dism iss Count 3 of Graham ’s com plaint . D. Ret aliat ion – Count 4 St . John’s cont ends t hat t he Court should dism iss t he ret aliat ion count because Graham fails t o plead t hat he was discharged because of an act ivit y t hat was prot ect ed by t he ADA or, in t he alt ernat ive, t hat he fails t o sat isfy t he Tw om bly pleading st andard. An em ployer m ay not discr im inat e against an em ployee w ho has opposed any pract ice m ade unlawful under t he ADA because t he em ployee m ade a charge or part icipat ed in an invest igat ion under t he Act . 4 2 U.S.C. § 1 2 2 0 3 ( a ) . I t is unlawful “ t o coerce, int im idat e, t hreat en, or int erfere wit h any individual in t he exercise … of, any right grant ed or prot ect ed by [ t he Act ] .” 4 2 U.S.C. § 1 2 2 0 3 ( b) . “ The ADA prohibit s em ployers from ret aliat ing against em ployees who assert t heir r ight under t he act t o be free 12 from discrim inat ion.” Pove y v . Cit y of Je ffe r sonville , I nd., 2 0 1 2 W L 4 6 7 6 7 4 2 , at * 4 ( 7 t h Cir . 2 0 1 2 ) , cit ing 4 2 U.S.C. § 1 2 2 0 3 ( a) . “ Em ployers are forbidden from ret aliat ing against em ployees who raise ADA claim s regardless of m erit less.” whet her t he init ial claim s of discrim inat ion ar e I d., qu ot ing D ick e r son v. Bd. of Educ., 6 5 7 F.3 d 5 9 5 , 6 0 2 ( 7 t h Cir . 2 0 1 1 ) . Even if t he em ployee was not disabled, it would st ill violat e t he ADA if t he em ployer ret aliat ed against him for at t em pt ing t o raise a good- fait h claim under t he ADA. Ca ssim y v. Bd. of Educ. of Rock for d Pub. Schools, D ist . N o. 2 0 5 , 4 6 1 F.3 d 9 3 2 , 9 3 8 ( 7 t h Cir . 2 0 0 6 ) . To st at e a claim for ret aliat ion under t he ADA, “ a plaint iff m ust allege: 1) a st at ut orily prot ect ed act ivit y; 2) an adverse em ploym ent act ion; and 3) a causal link bet ween t he pr ot ect ed act ivit y and t he em ployer's act ion.” M ount s v. Unit e d Pa r ce l Se r vice of Am e r ica , I nc., 2 0 0 9 W L 2 7 7 8 0 0 4 , a t * 4 ( N .D .I ll. 2 0 0 9 ) , cit ing M cCle ndon v. I nd. Suga r s, I nc., 1 0 8 F.3 d 7 8 9 , 7 9 6 ( 7 t h Cir . 1 9 9 7 ) . According t o Graham , he was dischar ged aft er engaging in a st at ut orily prot ect ed act ivit y. He alleges t hat he first at t em pt ed unsuccessfully t o resolve his concerns wit h St . John’s, quest ioning t he hours he was working and for which he was not com pensat ed. He t hen com plained t o t he EEOC and t he I DOL t hat Defendant s discrim inat ed against him because of his m ent al im pairm ent . Graham claim s t hat his t erm inat ion 13 was in ret aliat ion for engaging in t hese act ivit ies which are prot ect ed under t he ADA. As Graham point s out , at t his st age, it is not what he can prove but only w hat he has pleaded. These allegat ions support a v iable claim of ret aliat ion under t he ADA. I V. Conclusion For t he foregoing reasons, t he Court GRAN TS in pa r t , D EN I ES in pa r t a nd D EN I ES a s m oot in pa r t St . John’s m ot ion t o dism iss and, in t he alt ernat ive, t o st rike ( Doc. 21) . The Court GRAN TS St . John’s m ot ion t o dism iss Count 3, D EN I ES a s m oot St . John’s m ot ion t o st rike punit ive dam ages under Count 4 and D EN I ES St . John’s m ot ion in all ot her respect s. Last ly, t he Court GRAN TS Graham ’s request for wit hdrawal of com pensat ory dam ages under Count 4. I T I S SO ORDERED. DATED t his 25t h day of Oct ober, 2012 s/ Michael J. Reagan MI CHAEL J. REAGAN Unit ed St at es Dist r ict Judge 14
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