Thomas v. Atmos Energy Corp.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 21, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 06-30514
Summary Calendar
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JOSEPH JAMES THOMAS, JR.,
Plaintiff-Appellant,
v.
ATMOS ENERGY CORP.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
No. 3:04-CV-2088
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Joseph James Thomas, Jr. (“Thomas”),
brought suit against Defendant-Appellee Atmos Energy Corp.
(“Atmos”), alleging that he was subjected to racial
discrimination and harassment, sexual harassment, and
retaliation, all in violation of Title VII of the Civil Rights
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
1
Act of 1964, 42 U.S.C. §§ 2000e, et seq. (2000)(“Title VII”). The
district court granted summary judgment to Atmos on all claims.
Thomas now appeals the district court’s grant of summary judgment
on his retaliation claim. Thomas also appeals the district
court’s decision to strike portions of affidavits he submitted as
evidence. For the following reasons, we AFFIRM the decision of
the district court.
I. FACTUAL AND PROCEDURAL HISTORY
Thomas, a black male, was first hired in August 1996 to work
at a Monroe, Louisiana facility owned by Louisiana Gas. The
facility was subsequently bought by Citizens Communications
Company (“Citizens”), formerly known as Citizens Utility Company,
and then in July 2001 by Atmos. In 1999, while employed by
Citizens, Thomas complained to the human resources department
that his supervisor, Terry Boone (“Boone”), a white male, had
called him “Mighty Joe Young . . . the big black gorilla” on more
than one occasion. Citizens conducted an investigation, spoke
with Thomas and Boone, and met with the construction department
to review the company code of conduct, instructing the crew not
to engage in harassing or intimidating conduct.
In February 2000, Thomas had an argument with his crew
leader Mike Tarkington (“Tarkington”) over Tarkington’s request
that Thomas get Tarkington’s safety suit. Boone met with both men
about the incident, at which time Thomas made a statement that
2
Boone claimed he understood as “I feel like I could blow up
something.” Boone reported to his operations manager that Thomas
had made a threat of violence, and Thomas was fired. In November
2000, Thomas filed a complaint of race discrimination against
Citizens with the Equal Employment Opportunity Commission
(“EEOC”), basing his claim on the “Mighty Joe Young” comments and
the Tarkington incident. Citizens conducted an investigation, and
Thomas told company management that he had never threatened
violence, but rather had said that he was “so upset he felt as
though he could blow up or something.” Concluding that a mistake
might have been made about the substance of Thomas’s comment,
Citizens rehired Thomas, awarding him back pay for the period of
his unemployment.1
In July 2001, Atmos purchased Citizens and became Thomas’s
employer. In May 2004, Thomas complained to Boone that he had
been harassed by a coworker, Alvin Straughter (“Straughter”), a
black male, on two occasions. On one occasion, Straughter
allegedly came up behind Thomas in the break room and rubbed his
genital area on Thomas’s back. On the second occasion, Straughter
allegedly grabbed his genital area and stated that he was going
1
After investigating Thomas’s complaint, the EEOC found no
basis to determine that Citizens had violated the law. The EEOC
issued Thomas a Notice of Right to Sue. Thomas did not file suit
because, he admits, he was satisfied by his reinstatement and
Citizens’ handling of the matter.
3
to have intercourse with the folds of skin on the back of
Thomas’s neck. Thomas complained of Straughter’s actions to
Boone, who reported the complaint to higher management. Thomas
and Straughter were placed on paid leave while an investigation
was undertaken. Atmos’s human resources manager met with Thomas
and interviewed Straughter and several coworkers. Straughter
denied Thomas’s allegations, stating that while he had once
walked behind Thomas to get to the other side of the break room
table, he had not deliberately rubbed against Thomas nor spoken
of intercourse. The interviewed coworkers likewise did not
confirm Thomas’s version of events. The coworkers did note that
their group of employees often engaged in joking, teasing and
name-calling, and that Thomas had initiated sexual conversations
in the past.
The human resources managers decided that there was
insufficient evidence that Straughter intentionally harassed
Thomas. They decided to take the following steps: (1) instruct
Straughter not to behave in an inappropriate manner; (2) instruct
Thomas not to initiate discussions on sexual topics; (3) counsel
all employees about Atmos’s conduct and harassment policies; and
(4) conduct training for supervisors and managers on preventing
harassment. On May 25, 2004, members of Atmos’s management met
with Thomas and informed him of the results of their
investigation and their planned course of action. Thomas became
angry, declared that he was quitting his job, and did so.
4
In June 2004, Thomas filed another complaint with the EEOC,
claiming racial and sexual harassment as well as retaliation for
his previous EEOC complaint. On July 9, 2004, the EEOC issued to
Thomas a right-to-sue letter stating that it was unable to
determine that Atmos had violated the law. Thomas filed suit in
federal district court on October 8, 2004, bringing claims of
racial discrimination and harassment, sexual harassment, and
retaliation in violation of Title VII.
On January 13, 2006, Atmos filed a motion for summary
judgment on all of Thomas’s claims. Thomas opposed the motion
only as to his retaliation claim, and he submitted his own
affidavit and that of a coworker, Will Davis (“Davis”). Atmos
filed motions to strike the Thomas and Davis affidavits. On April
19, 2006, the district court issued a ruling granting in part
Atmos’s motions to strike and granting Atmos’s motion for summary
judgment on all claims. Thomas now appeals the district court’s
decision to strike portions of his and Davis’s affidavits and the
district court’s grant of summary judgment to Atmos with respect
to Thomas’s retaliation claim.
II. JURISDICTION
The district court’s April 19, 2006 ruling was a final
judgment that disposed of all of Thomas’s claims. Accordingly,
this court has jurisdiction pursuant to 28 U.S.C. § 1291.
III. DISCUSSION
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A. Evidentiary Issues
1. Standard of Review
We review a district court’s grant of a motion to strike for
abuse of discretion. United States v. Pace, 10 F.3d 1106, 1115
(5th Cir. 1993). We accord considerable deference to the district
court’s evidentiary rulings, in light of our recognition that the
trial judge better understands the effect and likely probative
value of proffered evidence than the appellate court. Hardy v.
Chemetron Corp., 870 F.2d 1007, 1009 (5th Cir. 1989). Moreover, we
will reverse a judgment on the basis of an evidentiary ruling only
if it affected the “substantial rights of the parties.” Stitt
Spark Plug Co. v. Champion Spark Plug Co., 840 F.2d 1253, 1259
(5th Cir. 1988).
2. Analysis
First, Thomas appeals the district court’s decision to strike
portions of his affidavit recounting that a former coworker,
Marvin Pridgett (“Pridgett”), had told Thomas that Boone had given
a negative job reference for Thomas to the City of Monroe. The
district court concluded that this section of Thomas’s affidavit
is inadmissable hearsay and double hearsay. Thomas argues that “a
nonmoving party facing a motion for summary judgment is not
required to produce evidence in a form that would be admissible at
trial,” citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
The claim that Celotex warrants the admission of affidavits
6
containing hearsay misunderstands the Supreme Court’s reasoning in
that case. Celotex states:
We do not mean that the nonmoving party must produce
evidence in a form that would be admissible at trial in order
to avoid summary judgment. Obviously, Rule 56 does not
require the nonmoving party to depose her own witnesses. Rule
56(e) permits a proper summary judgment motion to be opposed
by any of the kinds of evidentiary materials listed in Rule
56(c), except the mere pleadings themselves . . . .
477 U.S. at 324. We have held that “Celotex did not alter the
settled law that ‘Rule 56(e) requires the adversary to set forth
facts that would be admissible in evidence at trial. Material that
is inadmissible will not be considered on a motion for summary
judgment because it would not establish a genuine issue of material
fact if offered at trial. . . .’” Duplantis v. Shell Offshore, Inc.,
948 F.2d 187, 192 (5th Cir. 1991) (quoting Geiserman v. MacDonald,
893 F.2d 787, 793 (5th Cir. 1990)). We have explained that the
above-quoted passage from Celotex permits that evidence be submitted
in a form, such as an affidavit, that would ordinarily not be
admitted at trial, so long as the form is one permitted by Rule
56(c). Duplantis, 948 F.2d at 192. It remains the case, however,
that “[s]upporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent
to testify to the matter stated therein.” FED. R. CIV. P. 56(e).
Thomas argues that Pridgett’s statement that he knew that Boone
had given a negative reference for Thomas to the City of Monroe is
7
not hearsay because it is an admission of a party-opponent. Thomas
has not shown, however, that Pridgett was authorized to make a
statement concerning the alleged negative reference, or that this
subject was a matter within the scope of Pridgett’s employment at
Atmos. See FED. R. EVID. 801. This portion of Thomas’s affidavit is
therefore inadmissable hearsay, and the district court properly
excluded it.
Second, Thomas appeals the exclusion of portions of his
affidavit that the district court struck for being “argumentative
statements, not proper fact or opinion testimony.” This section of
Thomas’s affidavit refers repeatedly to the actions of Boone as
“retaliation” and states that these actions “effected a change in
the terms and conditions of affiant’s employment.” This section
also contains the claim that “[Boone] employed the clique to do the
exact same thing, resulting in retaliatory constructive discharge
of affiant.” Federal Rule of Evidence 701 provides that a “witness’
testimony in the form of opinions or inferences is limited to those
opinions or inferences which are (a) rationally based on the
perception of the witness, and (b) helpful to a clear understanding
of the witness’ testimony or the determination of a fact in issue,
and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.” We agree with the district
court’s determination that this portion of Thomas’s affidavit should
be excluded because it contains legal arguments and conclusions
8
inconsistent with the requirements of Rule 701. See Galindo v.
Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
Third, Thomas appeals the district court’s refusal to consider
a statement in the Davis affidavit that Davis was “well aware that
there were other positions open at the time of involuntary
termination of [Davis’s] employment with Atmos.” The district court
stated that it “cannot determine whether [the statement] is based
on personal knowledge” and that the statement “appears irrelevant
to Thomas’s retaliation claim.” Thomas argues that it is not
necessary for an affidavit to contain an explicit statement that its
averments are based on personal knowledge. While this is so, the
affidavit must contain information that would allow the court to
conclude that the averments are made on personal knowledge.
“Affidavits asserting personal knowledge must include enough factual
support to show that the affiant possesses that knowledge.” El Deeb
v. Univ. of Minn., 60 F.3d 423, 428 (8th Cir. 1995). The Davis
affidavit lacks such factual support for this statement. Thomas
urges that Davis had been employed for sixteen years at the Monroe,
Louisiana work site and was very knowledgeable about its operations.
Nevertheless, there is no indication in Davis’s affidavit of how he
knew that there were positions open at the time of his termination.
The district court did not abuse its discretion in disregarding this
statement.
Fourth, Thomas appeals the district court’s decision to strike
9
the statement in the Davis affidavit that Boone was “lazy, sorry,
trifling, and good for nothing.” The district court found that this
testimony was “an improper opinion which is not helpful to the trier
of fact.” While, as Thomas contends, these characterizations may be
based on Davis’s personal observations of Boone, they are still
unsubstantiated and conclusory. We defer to the district court’s
determination that this testimony would not be helpful to the trier
of fact.
Fifth, Thomas appeals the district court’s decision to
disregard the statement in the Davis affidavit that “it was
affiant’s understanding that [Edmond Mathis] was placed in a co-
supervisor position with [Boone], with [Boone] being demoted for his
role in having [Thomas] fired.” The district court concluded that
this statement “does not appear to be based on personal knowledge.”
The Davis affidavit does not indicate how Davis might have acquired
personal knowledge of the reasons for Boone’s alleged demotion.
While it is more probable that Davis could have discovered through
personal observation that Boone and Edmond Mathis were co-
supervisors, the affidavit does not indicate that he observed this.
Instead, he merely states that it was his “understanding” that the
two were co-supervisors. “Those facts alleged on ‘understanding,’
like those based on ‘belief’ or on ‘information and belief,’ are not
sufficient to create a genuine issue of fact.” Cermetek, Inc. v.
Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir. 1978). The
10
district court did not abuse its discretion by excluding this
statement.
Finally, Thomas appeals the district court’s decision to
exclude the statement in Davis’s affidavit that during his
employment at the Monroe facility, Davis had twice been passed over
for a promotion that he deserved. The district court concluded that
this statement was irrelevant to Thomas’s retaliation claim, the
only claim for which Thomas opposed Atmos’s motion for summary
judgment. While Thomas declares initially that he is appealing the
district court’s exclusion of this statement, he does not refer
again to this statement in the body of his brief. We hold that
Thomas has waived his appeal on this issue for failure to brief it
adequately. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
B. Summary Judgment
1. Standard of Review
We review a district court’s grant of summary judgment de
novo. Dallas County Hosp. Dist. v. Assocs. Health & Welfare
Plan, 293 F.3d 282, 285 (5th Cir. 2002). Summary judgment is
proper when 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). A dispute about a
11
material fact is genuine if the evidence is such that a
reasonable fact-finder could return a verdict for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). When deciding whether there is a genuine issue of
material fact, this court must view all evidence in the light
most favorable to the non-moving party. Daniels v. City of
Arlington, 246 F.3d 500, 502 (5th Cir. 2001).
2. Title VII Retaliation Framework
Under Title VII, it is “an unlawful employment practice for
an employer to discriminate against any of his employees . . .
because [the employee] has opposed any practice made an unlawful
employment practice” by the statute or “because [the employee]
has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing” under Title
VII. 42 U.S.C. § 2000e-3(a). To establish a claim of retaliation
under Title VII, a plaintiff must demonstrate that: (1) he
engaged in a protected activity; (2) an adverse employment action
occurred; and (3) a causal link exists between the protected
activity and the adverse employment action. Fabela v. Socorro
Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003). The parties
agree that Thomas, by filing an EEOC complaint in 2000, had
engaged in an activity protected by Title VII, thus satisfying
the first element.
Thomas argues that his alleged constructive discharge
12
constitutes an adverse employment action for purposes of his
retaliation claim. A constructive discharge does qualify as an
adverse employment action. See Harvill v. Westward Communs.,
L.L.C., 433 F.3d 428, 439 (5th Cir. 2005); Landgraf v. USI Film
Prods., 968 F.2d 427, 431 (5th Cir. 1992).2 While Thomas’s
argument is convoluted, it is possible to isolate two sets of
actions as the basis for his allegation of constructive
discharge. First, Thomas claims he was ordered by Boone to
perform menial or degrading tasks such as “cleaning filthy
equipment operated by other employees,” “wiping down the walls
inside the building,” “us[ing] malfunctioning equipment,” and
“involuntary reassignment to the galvanized pipe change out
crew,” which was very physically intensive. Second, Thomas cites
the alleged harassing conduct by Straughter and Atmos’s handling
of the matter as a basis for his claim.
3. Allegations Not Included in 2004 EEOC Complaint
The filing of an administrative complaint is a prerequisite
2
Because Thomas specifies constructive discharge as
satisfying the adverse employment action element of his
retaliation claim, our analysis of his claim is unaffected by the
Supreme Court’s recent decision in Burlington Northern & Santa Fe
Railway Co. v. White, 126 S. Ct. 2405 (2006). Constructive
discharge qualified as an adverse employment action under this
circuit’s old “ultimate employment action” test, which the
Supreme Court disapproved of in Burlington Northern, and it
qualifies as such under the “material adversity” standard
established in that case. Id. at 2415. While Burlington Northern
set a lower threshold for finding an adverse employment action,
Thomas is still required to satisfy the stringent test for
constructive discharge.
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to a Title VII suit. Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir.
1995). Accordingly, we may consider as the basis for Thomas’s
suit only the specific allegations made in his 2004 EEOC
complaint, as well as “any kind of discrimination like or related
to the charge’s allegations, limited only by the scope of the
EEOC investigation that could reasonably be expected to grow out
of the initial charges of discrimination.” Fine v. GAF Chem.
Corp., 995 F.2d 576, 578 (5th Cir. 1993). Thomas’s 2004 EEOC
charge listed only Straughter’s “sexual [sic] explicit conduct”
and Atmos’s subsequent investigation as the basis for his
complaint. Thomas’s allegations that Boone assigned him menial
and degrading tasks are not “like or related to” his accusations
regarding Straughter’s conduct, and an EEOC investigation into
Straughter’s conduct could not reasonably be expected to
encompass Boone’s work assignment practices. We therefore may not
consider these practices as a basis for Thomas’s retaliation
claim.
4. Allegations Included in 2004 EEOC Complaint
We now consider the allegations within the scope of Thomas’s
2004 EEOC complaint––those concerning Straughter’s 2004 conduct
and the subsequent investigation by Atmos. We agree with the
district court that Thomas cannot make out a prima facie case
either that he suffered a constructive discharge based on the
Straughter incidents and subsequent investigation or that there
14
was a causal link between these events and Thomas’s 2000 EEOC
complaint. For either reason, Thomas’s retaliation claim must
fail.
a. Constructive Discharge
A constructive discharge has occurred when an employee
resigns after “the employer made the employee’s working
conditions so intolerable that a reasonable employee would feel
compelled to resign.” Barrow v. New Orleans S.S. Ass’n, 10 F.3d
292, 297 (5th Cir. 1994). “[T]o succeed on a constructive
discharge claim, the plaintiff must show a greater degree of
harassment than is required for a hostile work environment
claim.” Hockman v. Westward Communs., LLC, 407 F.3d 317, 332 (5th
Cir. 2004).
As explained above, we are limited to considering the two
instances of alleged harassment by Straughter, but this does not
necessarily doom Thomas’s claim. In the context of hostile work
environment claims, the Supreme Court has indicated that “extremely
serious” isolated incidents can “amount to discriminatory changes
in the ‘terms and conditions of employment.’” Faragher v. City of
Boca Raton, 524 U.S. 775, 787 (1998) (citation omitted). Similarly,
we have held that “isolated incidents, if egregious, can alter the
terms and conditions of employment.” Harvill, 433 F.3d at 435. We
need not decide, however, whether Straughter’s alleged harassment
reached the necessary level of seriousness, because Thomas’s
precipitous resignation upon being informed of the results of
15
Atmos’s investigation was not the action of a reasonable employee.
The record indicates that Atmos’s response to Thomas’s
allegation was appropriate. Thomas and Straughter were both placed
on paid leave while Atmos investigated Thomas’s claims. Atmos
interviewed several of Thomas’s coworkers, including those that
Thomas requested be interviewed. When none of these coworkers
supported Thomas’s accusations, Atmos still attempted to respond to
Thomas’s concerns. Human resources personnel pledged to counsel
Straughter to refrain from inappropriate behavior and to conduct
training for supervisors and managers on harassment. Thomas did not
remain at Atmos to see if these efforts ended the objectionable
behavior; rather, he resigned immediately. This was not the act of
a reasonable employee in his position. See Thompson v. Naphcare,
Inc., 117 F. App’x 317, 325 (5th Cir. 2004) (unpublished) (stating
that “an employee who resigns without affording the employer a
reasonable opportunity to address her concerns has not been
constructively discharged”); see also Boze v. Branstetter, 912 F.2d
801, 805 (5th Cir. 1990). Even if Thomas had demonstrated that he
was constructively discharged, however, he has made no prima facie
case of a causal link.
b. Causal Link
A plaintiff alleging Title VII retaliation may establish a
causal link in two ways: either by presenting direct evidence of
retaliatory motive or by providing circumstantial evidence that
creates a rebuttable presumption of retaliatory motive. Fabela, 329
16
F.3d at 414-15. By producing direct evidence, the plaintiff avoids
the McDonnell Douglas framework and shifts the burden of persuasion
to the employer. Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858,
861 (5th Cir. 1993).
Thomas alleges that he has direct evidence of retaliatory
motive. He states that in conversations with Thomas, Boone continued
to bring up the Mighty Joe Young incident, complained that Thomas’s
EEOC complaint had brought him under tremendous pressure, and
declared “if something like this ever comes up again, I will drag
you through the mud.” We have defined “direct evidence” as evidence
which, “if believed, proves the fact without inference or
presumption.” Brown, 989 F.3d at 861. In a Title VII context, direct
evidence includes any statement or document which shows on its face
that an improper criterion was a basis for the adverse employment
action. Fabela, 329 F.3d at 415. The evidence provided by Thomas
does not satisfy this standard. While Boone’s statements to Thomas
tend to show that Boone resented Thomas for his 2000 EEOC complaint,
they do not, on their face, demonstrate that Boone’s subsequent
actions were motivated by this resentment. Moreover, as stated
below, Thomas has not shown that Boone influenced either
Straughter’s alleged actions or Atmos’s investigation of them.
We therefore examine whether Thomas’s circumstantial evidence
demonstrates a retaliatory motive. Where the plaintiff provides only
circumstantial evidence of causation, the McDonnell Douglas burden-
shifting framework applies. Sandstad v. CB Richard Ellis, Inc., 309
17
F.3d 893, 896 (5th Cir. 2002). Thus, if the employee makes a prima
facie case of retaliation, the burden of production shifts to the
employer to state a legitimate, non-retaliatory reason for the
employment action. Baker v. Am. Airlines, Inc., 430 F.3d 750, 754-
55 (5th Cir. 2005). If the defendant meets its burden, the
presumption of discrimination created by the prima facie case
disappears, and the plaintiff is left with the ultimate burden of
proving that the protected activity was the but-for cause of the
adverse employment action. See Montemayor v. City of San Antonio,
276 F.3d 687, 692 (5th Cir. 2001).
Certainly, there can be no inference of causation from
temporal proximity in this case. The incidents of alleged
harassment by Straughter and Atmos’s investigation occurred in
the spring of 2004, a full 3.5 years after Thomas’s initial EEOC
complaint. We have noted that district courts in this circuit
have allowed an inference of causation for summary judgment
purposes where up to four months has elapsed. Evans v. Houston,
246 F.3d 344, 354 (5th Cir. 2001). The Supreme Court, however,
has cited approvingly other circuit court cases that found three
and four month periods too long to allow an inference of
causation. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-
74 (2001). Clearly, a lapse of 3.5 years does not permit an
inference of causation.
Thomas, however, argues that a causal connection is evident
because the “exact same decision-makers” were involved in the
18
2000 and 2004 incidents. The record indicates that Thomas was
fired in 2000 after Boone reported his “blowing up” comment to
Operations Manager Robert Griffin (“Griffin”), who discussed the
situation with unnamed members of the human resources department.
The 2004 investigation was initiated after Boone reported
Thomas’s new accusations to Griffin, and the investigation was
carried out by Griffin, Atmos Human Resources Manager Debbie
Redell (“Redell”) and Vice President of Human Resources David
Hebert (“Hebert”). Boone, the individual for whom there is some
evidence of residual anger at Thomas, played only a minor role in
the proceedings. Thomas has put forward no evidence indicating
that Griffin, Redell or Hebert harbored resentment against him
for his 2000 complaint, and there is substantial evidence that
the 2004 investigation was carried out with fairness and
diligence. Thomas has failed to present sufficient evidence to
create a rebuttable presumption of retaliatory motive.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the order of the
district court granting summary judgment to Atmos.
AFFIRMED.
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