Nelson v. Upsala College ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
3-24-1995
Nelson v Upsala College
Precedential or Non-Precedential:
Docket 94-5453
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-5453
JOHNETTA NELSON,
Appellant
v.
UPSALA COLLEGE;
ROBERT E. KARSTEN;
GEORGE W. FREYBERGER;
WARREN H. FUNK
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 92-1851)
Argued February 14, 1995
BEFORE: STAPLETON, GREENBERG, and COWEN, Circuit Judges
(Filed: March 24, 1995)
Charles A. Sullivan (argued)
One Newark Center
Newark, N.J. 07102
Mark P. Denbeaux
3 Werimus Road
Woodcliff Lake, N.J. 07675
Attorneys for Appellant
Nicholas J. Taldone
Peter O. Hughes (argued)
Shanley & Fisher
131 Madison Avenue
Morristown, N.J. 07962-1979
Attorneys for Appellees
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Johnetta Nelson appeals from the district court's order
of June 24, 1994, granting summary judgment to Upsala College and
certain of its officials in this action alleging unlawful
employment retaliation pursuant to section 704(a) of Title VII of
the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-3(a),
and state-law defamation. In addition, Nelson challenges the
district court's refusal to exercise supplemental jurisdiction
over her claims that Upsala and its representatives engaged in
conduct constituting unlawful employment retaliation contrary to
the New Jersey Law Against Discrimination, N.J. Stat. Ann. §
10:5-12(d) (West Supp. 1994), and the New Jersey Conscientious
Employee Protection Act, id. § 34:19-3(c) (West Supp. 1994).
The germane facts are not in dispute.1 Upsala is a
small, private liberal arts college with a campus in East Orange,
New Jersey. Defendants Robert E. Karsten, Warren H. Funk, and
George W. Freyberger are, respectively, the president, provost,
and dean of students of Upsala. As a matter of convenience we
1
. We largely take the facts from the district court opinion.
Nelson v. Upsala College, No. 92-1851 (D.N.J. June 24, 1994).
usually will refer to the college and the individual defendants
collectively as Upsala.
Upsala first employed Nelson, an African-American, in
1979 as its part-time Gospel Choir Director. In addition, Upsala
has employed Nelson as a secretary in the Office of Dean of
Students and the College Center Office. At the beginning of the
1990-1991 academic year, Upsala announced its intention to
eliminate the position of choir director for budgetary reasons.
When the choir's student participants objected, Upsala decided to
fund the choir, but to convert it to an elective course for which
students could receive academic credit. This conversion meant
that Upsala could not retain Nelson as the choir director because
she did not possess a college degree, as required under Upsala's
policy for faculty members teaching an accredited course.
Consequently, Upsala terminated Nelson's employment as of October
16, 1990.
Nelson then filed a discrimination charge with the
Equal Employment Opportunity Commission ("EEOC") against Upsala
alleging race discrimination. Nelson and Upsala settled that
claim, and on or about November 9, 1990, Upsala agreed to
reinstate Nelson to a terminal contract for the 1990-91 academic
year. The EEOC then dismissed Nelson's claim.
In accordance with the settlement agreement, Upsala
designated Nelson as director of the "extra-curricular
designated" Gospel Choir, and she continued in that position
until her terminal contract expired on May 3, 1991. During the
spring of 1991 a search committee chose Beverly Owens, an
African-American with both a bachelor degree and master of arts
degree in music performance, as the new choir director. Upsala
planned that the choir would become a course for credit during
the 1991-1992 academic year.
Following the expiration of Nelson's terminal contract
a number of incidents led to this action. On or about September
18, 1991, Nelson attended a gathering on the Upsala campus.
Freyberger was at the meeting and saw Nelson. However, neither
Freyberger nor anyone else asked Nelson to leave the campus or
forcibly removed her.
Nevertheless by letter dated September 19, 1991, Funk
wrote to Nelson stating that she was no longer permitted on
campus due to her termination as an Upsala College employee.2
2
. The letter stated:
Please understand that Upsala College has a
properly constituted Gospel Choir under the
direction of a newly appointed adjunct
faculty member.
No other singing groups concentrating upon
gospel music have been, or will be,
authorized. Your presence, last evening, in
Christ Chapel constituted a trespass of
College property.
The meeting, consisting at least of Upsala
students, was clearly for religious and
musical purposes, and, whether or not it
might have been called a rehearsal, or a
gospel choir, was the equivalent of a gospel
choir rehearsal. The result was that the
meeting constituted an unauthorized rehearsal
of an unauthorized group conducted by an
unauthorized trespasser.
Under the terms and conditions of your
separation agreement from last year, you have
Freyberger also wrote Nelson that she was no longer permitted on
campus and that it would be necessary for her to obtain prior
approval from Upsala before entering its campus.
Despite the letters, Nelson visited the Upsala campus a
number of times after September 1991. For instance, in October
of 1991, Nelson accompanied Gospel Choir members and other
students in a protest against the Upsala administration over
several issues, including her termination as choir director.
Nelson also appeared on campus without authorization in February
1992 to lead the "Former Upsala College Gospel Choir" in a
"Gospel Sing Fest." Funk attended this event and saw Nelson.
Upsala, however, did not remove Nelson from the campus or take
(..continued)
agreed to 'do everything within (your) power
to effect the spirit and intent of this
agreement.' This included your renunciation
of all future employment, and it remains the
intention of the college that you not be
involved here in any way.
You have also agreed that you 'will not at
any time disparage Upsala . . . or (its)
officers.'
Under no circumstances are you to return to
the campus except by my explicit invitation.
The security force has been instructed to
remove you should you appear again.
Appellees' app. at 19ABa. Funk wrote this letter after
discussing Nelson's appearance with Karsten and Freyberger.
According to Funk, he wrote the letter because he viewed Nelson's
actions as a deliberate attempt to interfere with Beverly Owens'
direction of the choir and as a breach of the settlement
agreement.
other actions against her when she appeared on campus after her
termination.
On September 27, 1991, Nelson filed a second
discrimination charge with the EEOC alleging that Upsala
retaliated against her for filing the earlier charge with the
EEOC. The EEOC dismissed the second charge on February 14, 1992.
Nelson then filed a complaint in the district court alleging that
Upsala engaged in conduct constituting unlawful retaliation under
section 704(a) of Title VII, the New Jersey Law Against
Discrimination, and the New Jersey Conscientious Employee
Protection Act. Furthermore, Nelson asserted a state-law cause
of action for defamation alleging that during Nelson's last year
of employment at Upsala Freyberger told a student or students
that Nelson stole money from Upsala and defrauded it by
submitting a false petty cash voucher. After Nelson filed the
district court complaint, Freyberger made a similar statement to
his secretary and members of his professional staff. By
stipulation Nelson in effect amended her complaint to add a
defamation claim predicated on this republication. Nelson also
asserted a state-law claim that the alleged retaliatory conduct
constituted a material breach of the settlement agreement by
Upsala.
Upsala ultimately moved for summary judgment. On June
24, 1994, the district court granted this motion on the claims of
defamation and unlawful employment retaliation under Title VII.
The court, however, refused to exercise supplemental jurisdiction
over Nelson's remaining state-law claims. The court concluded
that Nelson did not demonstrate a prima facie case of unlawful
retaliation under Title VII because she failed to demonstrate
that she suffered an adverse employment action. Additionally,
the court determined that Nelson's defamation claim was barred by
the New Jersey statute of limitations. N.J. Stat. Ann. § 2A:14-3
(West 1987).
Nelson has appealed from the order of June 24, 1990.
The district court had subject matter jurisdiction pursuant to 42
U.S.C. § 2000e-5(f) and 28 U.S.C. § 1331, and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
II. STANDARD OF REVIEW
When considering an appeal from the grant of summary
judgment, we exercise plenary review. See Petruzzi's IGA
Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230
(3d Cir.), cert. denied, 114 S. Ct. 554 (1993). Therefore we must
determine whether the pleadings, depositions, answers to
interrogatories, admissions, and affidavits demonstrate that
there is no genuine issue of material fact and that Upsala is
entitled to judgment as a matter of law. See Allegheny Int'l,
Inc. v. Allegheny Ludlum Steel Corp., 40 F.3d 1416, 1423 (3d Cir.
1994).
III. ANALYSIS
A. Nelson's Unlawful Retaliation Claim
1. The "Pre-Approval" Requirement
Nelson argues that Upsala's requirement for prior
approval for her to visit the campus was an unlawful retaliation
for the first charge she filed with the EEOC. She then contends
that the district court erred in ruling that she failed to make
out a prima facie case of retaliation on the basis of its
conclusions that she did not demonstrate that she suffered an
"adverse employment action," which the court defined as "any
action which already has impaired or which might impair the
employee in future employment situations." Nelson maintains that
she can establish a retaliation case without demonstrating that
she suffered an adverse employment action as defined by the
district court. She contends that actionable retaliation
includes all conduct that "arises out of or is related to the
employment relation." Thus, in her view, the conduct need not
impair an "employment situation." Brief at 11.
Upsala counters that the requirement that Nelson
receive prior approval for campus visits does not constitute an
adverse employment action within section 704 and that a plaintiff
must suffer an adverse employment action to establish a
successful retaliation case. Moreover, Upsala asserts that
Nelson failed to produce evidence demonstrating that there was a
causal connection between her filing of the original EEOC charge
and the alleged retaliation.
Section 704(a) of Title VII provides in pertinent part:
It shall be an unlawful employment
practice for an employer to
discriminate against any of his
employees . . . because he has made
a charge, testified, assisted, or
participated in any manner in an
investigation, proceeding, or
hearing under this subchapter.
42 U.S.C. § 2000e-3(a).
To establish discriminatory retaliation under Title
VII, a plaintiff must demonstrate that: (1) she engaged in
activity protected by Title VII; (2) the employer took an adverse
employment action against her; and (3) there was a causal
connection between her participation in the protected activity
and the adverse employment action. Charlton v. Paramus Bd. of
Educ., 25 F.3d 194, 201 (3d Cir.), cert. denied, 115 S. Ct. 590
(1994); Weiss v. Parker Hannifan Corp., 747 F. Supp. 1118, 1128
(D.N.J. 1990); see also Robinson v. Southeastern Pa. Transp.
Auth., 982 F.2d 892, 895 n.1 (3d Cir. 1993). Nelson's proofs
clearly satisfy the first of the above-named elements, for it is
settled that a cause of action exists pursuant to Title VII when
an employer has retaliated against an employee for filing a
charge with the EEOC. Tomkins v. Public Serv. Elect. & Gas Co.,
568 F.2d 1044 (3d Cir. 1977); Fuchilla v. Prockop, 682 F. Supp.
247 (D.N.J. 1987).
The district court, however, held that Upsala did not
violate Title VII because Nelson did not present proofs
satisfying the second element. In other words, Nelson failed to
show that she suffered an adverse employment action.
Accordingly, the court ruled that Nelson failed to demonstrate a
prima facie case of unlawful retaliation under Title VII. The
court reached this conclusion because (1) Upsala imposed its pre-
approval requirement after Nelson's employment had ended, and (2)
Upsala's actions did not affect Nelson's prior or future
employment. Moreover, the court indicated that Upsala did not
enforce the requirement even when its representatives saw Nelson
on campus.
In support of her contention that she suffered an
adverse employment action, Nelson relies on our opinion in
Charlton v. Paramus Bd. of Educ., 25 F.3d at 194. In Charlton, a
school teacher who claimed that she was terminated from her
employment because of sexual discrimination filed a Title VII
action in the district court. Subsequently, the school board
initiated proceedings to have her state teaching certificate
revoked. The teacher then advanced a retaliation claim alleging
that the board initiated the revocation proceeding in response to
her original Title VII complaint. The district court dismissed
the retaliation claim, ruling that the teacher was not an
"employee" at the time the board initiated the revocation
proceedings. Consequently, it held that she was not entitled to
protection under section 704. Charlton, 25 F.3d at 197.
On appeal, we reversed the district court and
determined that a former employee may sue for retaliation under
Title VII. In doing so we stated in pertinent part:
[A]n ex-employee may file a
retaliation action against a
previous employer for retaliatory
conduct occurring after the end of
the employment relationship when
the retaliatory act is in reprisal
for a protected act within the
meaning of section 704 and arises
out of or is related to the
employment relationship.
Id. at 200. Nelson relies on this holding to support her
assertion that she suffered an adverse employment action.
Nelson, however, misconstrues Charlton. That case does
not hold that all post-employment activity of an employer aimed
at a former employee in response to her having brought or
participated in a Title VII proceeding is actionable under
section 704. Rather, Charlton simply holds that a former
employee has standing to bring a retaliation suit under section
704.3 Thus, Nelson is incorrect when she asserts that Charlton
"in sweeping terms" prohibited all retaliation "which 'arises out
of or is related to the employment relationship.'" Brief at 18.
Indeed, if anything, Charlton suggests that post-employment
conduct, to give rise to a retaliation complaint, must relate to
an employment relationship. Charlton makes this implication by
indicating that "courts . . . have extended anti-retaliation
protection . . . where the retaliation results in discharge from
a later job, a refusal to hire the plaintiff, or other
professional or occupational harm." Charlton, 25 F.3d at 200.
But as Charlton is not conclusive on this point we look beyond
3
. Charlton holds that there should be a two-step analysis to
determine whether an allegation of post-employment retaliation is
actionable under section 704. Such an analysis inquires whether
the post-employment retaliatory conduct is (1) in reprisal for a
protected activity and (2) arises out of or is related to the
employment relationship. Charlton, 25 F.3d at 200.
that case to determine the type of an employer's post-employment
conduct prohibited under Title VII.4
The Supreme Court has stated that "[t]he objective of
Congress in the enactment of Title VII . . . was to achieve
equality of employment opportunities . . . ." Griggs v. Duke
Power Co., 401 U.S. 424, 429, 91 S. Ct. 849, 853 (1971). See
Shehadeh v. Chesapeake and Potomac Tel. Co., 595 F.2d 711, 721
(D.C. Cir. 1978). Therefore, for Title VII protections to apply,
there should be some connection between the allegedly retaliatory
conduct and an employment relationship. Although "[t]he
connection with employment need not necessarily be direct,"5 it
does not further the purpose of Title VII to apply section 704 to
conduct unrelated to an employment relationship. As the court
indicated in Reed v. Shepard, 939 F.2d 484, 493 (7th Cir. 1991),
4
. In her brief Nelson sets forth that she "believes that the
actions taken against her have had adverse employment
consequences in the sense the district court meant." She
indicates that she did not develop the facts along these lines as
Upsala did not seek summary judgment on the basis on which the
district court granted it. Thus, she contends that the district
court "erred in failing to provide [her with] an opportunity to
address the facts suddenly made dispositive by the new rule [the
court] fashioned." Brief at 12 n.8.
We reject this contention. While it is true that
Upsala filed its brief in the district court on its motion for
summary judgment before we decided Charlton and that it contended
in the brief that the termination of Nelson's employment in
itself barred this action, Upsala also argued that Nelson was not
adversely affected by Upsala's conduct. Thus, Nelson had an
incentive to demonstrate that Upsala had injured her in
employment relationships.
5
. Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th
Cir. 1980).
section 704 requires that the employee demonstrate some type of
"employment impairment that evidences actionable retaliation."
In view of Congress's objective in enacting Title VII,
it is not surprising that cases dealing with unlawful retaliation
under Title VII typically involve circumstances in which the
defendant's conduct has impaired or might impair the plaintiff in
employment situations. See Lazic v. University of Pennsylvania,
513 F. Supp. 761, 765, 767-69 (E.D. Pa. 1981) (deletion of
positive references from personnel file after EEOC charge filed);
Bailey v. USX Corp., 850 F.2d 1506, 1507-08 (11th Cir. 1988)
(unfavorable reference for a former employee by former employer
after EEOC filed); Rutherford v. American Bank of Commerce, 565
F.2d 1162, 1163-64 (10th Cir. 1977) (potential future employer
informed of circumstances of discharge and a letter of reference
modified to reflect that the former employee had filed sexual
discrimination charges); EEOC v. Cosmair, Inc., 821 F.2d 1085,
1087 (5th Cir. 1987) (discontinuance of severance benefits after
EEOC charge filed); Pantchenko v. C.B. Dolge Co., 581 F.2d 1052,
1054 (2d Cir. 1978) (former employer refuses to issue letter of
recommendation and made negative and untrue remarks about
plaintiff to prospective employer); Sherman v. Burke Contracting,
Inc., 891 F.2d 1527, 1529 (11th Cir.) (former employer persuaded
subsequent employer to terminate former employee who had filed
EEOC charge), cert. denied, 498 U.S. 943, 111 S. Ct. 353 (1990).
Furthermore, Charlton itself involved activity which would have
impaired the employee in future employment situations inasmuch as
a teacher needs a state certificate to teach in the public
schools in New Jersey.6
Our reading of section 704 does mean that a former
employee will be without a remedy for an employer's significant
wrongful post-employment conduct not touching an employment
relationship. For instance, if an employer physically assaults a
former employee or burns down her house in retaliation for the
employee having brought a Title VII charge, relief might not be
available under section 704. However, in such cases the former
employee could assert a state-law damage claim.7 In fact,
Nelson's defamation claims are an example of a former employee
seeking relief in a common law action for conduct which the
employee herself characterizes as retaliatory. Thus, if
Freyberger really defamed her she does not need a section 704(a)
retaliation action to obtain relief.
6
. Thus, in Charlton we indicated that the school board's act of
pursuing decertification amounted to an adverse employment action
because the board attempted to influence the administrative
process "to the detriment of Charlton's employment
opportunities." Charlton, 25 F.3d at 201. Accordingly, Charlton
also supports the view that an adverse employment action involves
some harm to an employee's employment opportunities.
7
. See, e.g., Reed v. Shepard, 939 F.2d 484, 492-93 (7th Cir.
1991) (reviewing plaintiff's allegations that her former employer
physically attacked, shot at, and threatened her). We recognize
that it might be argued that it is necessary to permit
retaliation claims for actions unrelated to an employment
relationship so that employees are not discouraged from bringing
Title VII claims or assisting in their prosecution. We believe,
however, that the possibility that the denial of a retaliation
claim for conduct not related to an employment relationship will
discourage Title VII activity is slight because serious
retaliatory conduct unrelated to an employment relationship will
be actionable under state law.
Our holding is consistent with the language of section
704 as that section interdicts "an unlawful employment practice"
rather than conduct in general which the former employee finds
objectionable. The words "employment practice" suggest that the
retaliatory conduct must relate to an employment relationship.
Upsala's pre-approval requirement was not an "employment
practice" inasmuch as Nelson was not Upsala's employee when the
requirement was imposed and the requirement had no impact on
Nelson's actual or proposed employment anywhere else.
Nelson cites Passer v. American Chem. Soc'y, 935 F.2d
322 (D.C. Cir. 1991), and Baker v. Summit Unlimited, Inc., 855 F.
Supp. 375 (N.D. Ga. 1994), in support of her position. But these
cases do not help her. In Passer the court ruled that under the
retaliation provision contained in the Age Discrimination in
Employment Act, 29 U.S.C. § 623(d), the cancellation of an
honorary symposium in retaliation for the filing of an EEOC
charge was not only humiliating, but also would hamper the
plaintiff in procuring future employment. Passer, 935 F.2d at
331. Thus, a cause of action for retaliation was appropriate.
Therefore, Passer supports a holding that an adverse employment
action within section 704 requires a harm which impedes
plaintiff's employment situation.
In Baker, the district court ruled that an employer's
denial of access to its child care center to the plaintiff was an
adverse employment action. The plaintiff, a former employee of
the defendant, apparently was employed by parents to pick up
children at the defendant's premises. Central to the district
court's decision was the fact "that the refusal to allow
[p]laintiff to pick up children in the same manner as other
parents may constitute an adverse employment action since it may
impact on her ability to perform this service and thereby
decrease her income correspondingly." Baker, 855 F. Supp. at 377
(emphasis supplied). This language is consistent with the long
line of cases suggesting that the challenged conduct in a section
704(a) retaliation case must affect the plaintiff's employment
situation.
In view of the foregoing analysis, we hold that the
district court correctly concluded that Upsala's requirement that
Nelson obtain its approval before entering its campus could not
give rise to a retaliation claim as the requirement had no impact
on any employment relationship that Nelson had, or might have in
the future. Thus, we will affirm the order for summary judgment
on the section 704 retaliation claim to the extent Nelson based
the claim on the pre-approval requirement.
2. Defamatory Remarks
Nelson next contends that two allegedly defamatory
remarks by Freyberger constitute an adverse employment action.
The first was in December 1990 when Freyberger received a petty
cash voucher which Nelson submitted but which a student
delivered. The following conversation, which Nelson
characterizes as the first defamatory publication, followed the
submission of the voucher:
. . .
FREYBERGER: What do you want from me?
STUDENT: Well they won't take [the voucher]
at the business office.
FREYBERGER: First of all, I am no longer
responsible for the gospel choir. And,
second of all, when somebody signs [the
voucher] as recommended, . . . if they are
not entitled to sign, it is tantamount to
stealing from the college.
Appellant's app. at 98 (emphasis added).
The second remark, an alleged republication of the
above emphasized language, occurred in early 1993 after this
action was filed. Nelson contends that Freyberger discussed the
allegations contained in her complaint with his staff, thereby
republishing the allegedly defamatory remarks.8
8
. Freyberger summarized the circumstances of the republication
in an affidavit:
Sometime subsequent to the commencement of
this lawsuit by plaintiff, in connection with
preparation for and scheduling my deposition,
I discussed plaintiff's allegation in her
complaint with my secretary, Beth Smucker.
In connection with preparing for my
deposition, I also had to review documents,
including petty cash vouchers, and
information maintained in the offices of
Director of College Center Craig Allard and
(former Chaplain now) Dean of Residents
Charles Leonard. I advised them that I was
accused of calling the plaintiff a thief but
denied I did so. I may have told one or more
of them that what I actually stated was what
I set forth in paragraph [four of my
affidavit], i.e. that her act was tantamount
to stealing from another College budget to
benefit the Choir.
Appellee's app. at 23.
The district court rejected Nelson's claim that
Freyberger's remarks gave rise to an actionable claim for
unlawful retaliation under Title VII. In doing so, the court
noted that Nelson failed to offer any evidence that these remarks
had any adverse effect on her future employment. We agree with
the conclusion of the district court and, in view of our earlier
discussion, we need not consider this claim further.
B. Nelson's Supplemental State-Law Claims
Nelson pleaded a number of claims under New Jersey law
but the district court in the exercise of its discretion under 28
U.S.C. § 1367(c) declined to exercise jurisdiction over most of
them. The court did consider one of Nelson's defamation claims
but granted Upsala summary judgment on it because the action was
barred by the statute of limitations. The record, however,
indicates that the parties entered into a stipulation providing
that although the first publication apparently was time barred,
the claim predicated on Freyberger's republication was timely.
The district court may not have been aware of this stipulation as
it seems only to have considered Freyberger's original remarks.
Upsala argues that we nevertheless should affirm the summary
judgment on the defamation claims on the merits.9
We decline to consider the defamation claims. The
district court seems to have exercised supplemental jurisdiction
9
. We probably could affirm the summary judgment on the first
publication but because Upsala does not distinguish between the
two publications in its argument that we should affirm on the
merits we will not do so.
over the defamation claim arising from the first remark because
the proper disposition of the claim appeared rather obvious.
Indeed, the court disposed of the claim in a short paragraph in
its opinion. Now, however, Upsala urges that we affirm the
summary judgment on more complex grounds. While Upsala's
substantive contentions might be correct, we conclude that there
is no reason for the exercise of supplemental jurisdiction in
this case as summary judgment is being granted on the federal
claim.10
IV. CONCLUSION
For the aforementioned reasons, we will affirm the
district court's order of summary judgment of June 24, 1994, on
the unlawful retaliation claim arising under Title VII. However,
we will vacate the summary judgment on the defamation claim and
will remand the case to the district court to dismiss that claim
without prejudice. Finally, we will affirm the order of the
district court declining to exercise jurisdiction over the
remaining state law claims.
10
. Nelson urges us to reverse the district court's order
declining to exercise supplemental jurisdiction over the
remaining state-law claims if we reverse the summary judgment on
the retaliation claim. This point is now moot.