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finding that an employer was not responsible for an employee's threats and harassment under the FWA where these activities occurred outside the workplace, were unrelated to employment, and were therefore outside the legitimate scope of employment
Summary of this case from Bostain v. Westgate Lakes LLCOpinion
CASE NO: 8:00-cv-365-T-26EAJ
February 8, 2001
ORDER
Before the Court are Defendant's Motion for Summary Judgment as to Charles Kelleher's Claims (Dkt. 14), Plaintiff Charles Kelleher's Memorandum of Law in Opposition (Dkt. 28), Defendant's Motion for Summary Judgment as to Cheryl Ann Kelleher's Claim (Dkt. 13), Plaintiff Cheryl Kelleher's Memorandum of Law in Opposition (Dkt. 27), and affidavits, depositions, and exhibits. After careful consideration of the entire file, the Court is of the opinion that the motions should be granted.
Facts The Parties
Defendant Pall Aeropower Corporation (Pall) manufactures and sells proprietary products such as hydraulic, fuel and lube filters and filter manifolds to the military and commercial airlines and manufacturers of airplane components. (Dkt. 18 at para. 3). Plaintiff Charles Kelleher began working for Pall in August 1995. (Dkt. 16 at para. 2). In late 1997, he was promoted to a production supervisor of the third shift. (Dkt. 16 at para. 2). The third shift operates from approximately 10:30 p.m. until 6:30 a.m. (Dkt. 16 at para. 2).
Events Occurring before the Harassment of the Kellehers
In the spring of 1999, Mr. Kelleher testified at an unemployment compensation appeals hearing regarding a former employee, David Sakevich. (Dkt. 18 at para. 6). Another employee, Lorri Becker, also testified at the hearing. (Dkt. 18 at para. 7). At the hearing, Mr. Sakevich's lawyer attempted to impeach Ms. Becker as to her truthfulness by bringing up her relationship with Mr. Kelleher. (Dkt. 16 at para. 7). When questioned at the appeals hearing, Ms. Becker admitted that she and Mr. Kelleher had "been out" on one occasion. (Dkt.16 at para. 7).
Mr. Sakevich had just been terminated from Pall for making threats to Pall's employees and property. (Dkt. 18 at para. 6). Mr. Kelleher had alerted management to the reports of threats of violence made by Mr. Sakevich. (Dkt. 16 at para. 5).
Before the hearing, Gregg Holloway, who was Pall's Director of Human Resources, had heard rumors about an affair between Ms. Becker and Mr. Kelleher. (Dkt. 16 at para. 6). Mr. Holloway avers that Mr. Kelleher assured him before the hearing that there was nothing romantic or inappropriate occurring between him and Ms. Becker. (Dkt. 16 at para. 6). After the hearing Mr. Holloway and Mr. Lapniewski, the manufacturing manager for Pall, told Mr. Kelleher that Ms. Becker's testimony regarding their relationship had become an issue at the hearing. (Dkt. 18 at para. 7; Dkt. 16 at para. 8). When confronted by Mr. Holloway and Mr. Lapniewski with the substance of Ms. Becker's testimony, Mr. Kelleher admitted that he had been out with Ms. Becker on a social basis one time, having met her for drinks. (Dkt. 16 at para. 8). Specifically, he had met Ms. Becker at a bar named Bobcats one weekend for about forty-five minutes. (Dkt. 19 at pgs. 53-54). He claimed that nothing inappropriate was "going on" between them and that they were only friends. (Dkt. 19 at pgs. 45-50; 59-62).
They had also met for breakfast one morning when the third shift ended.
In September 1999. Mr. Lapniewski found an anonymous letter in his mail box in the machine shop. (Dkt. 18 at para. 8). The letter complained about Mr. Kelleher spending too much time with Ms. Becker during the third shift. (Dkt. 18 at para. 8). Mr. Lapniewski avers that he counseled Mr. Kelleher to discontinue spending extra time with Ms. Becker at work, but Mr. Kelleher disregarded his directives and continued to take breaks with her around 3:30 a.m. m an isolated area of the facility. (Dkt. 18 at para. 9). Mr. Kelleher testified at his deposition that he and Ms. Becker did not take breaks alone. (Dkt. 19 at pgs. 51-52). He acknowledged that Mr. Lapniewski told him to stop taking breaks with Ms. Becker. (Dkt. 19 at pg. 53). He contends that he heeded the instructions and stopped taking breaks with Ms. Becker, even though he claims they never took breaks alone and that other co-workers always accompanied them on breaks. (Dkt. 19 at pg. 53).
The Harassment of the Kellehers
The Kellehers began receiving harassing telephone calls as early as June 1999. Mr. Kelleher believed the Sakeviches and their friends were making the calls because of his role in the termination of the Sakeviches and his participation in the unemployment hearing. (Dkt. 19 at pgs. 77-80, 156). The first incident beyond telephone calls happened to Mrs. Kelleher in late July. While Mrs. Kelleher was walking to her car in the parking lot of Wal-mart, a man swore at her and asked her if she was "f'ing Charlie Kelleher's wife" because he "f'ing" wanted to know. (Dkt. 22 at pgs. 186-189). She told him she was not going to answer him and then got in her car and left. (Dkt. 22 at pgs. 186-189). She could not see the license tag of the vehicle the man was leaning on, because he blocked the view.
On August 24, 1999, Mrs. Kelleher received a telephone call from a man who asked her if she felt like she was being watched and proceeded to describe her house. (Dkt. 19 at Exh. 1). He was breathing heavily as he spoke. (Dkt. 19 at Exh. 1). The following morning Mrs. Kelleher received another call from the same man. (Dkt. 19 at Exh. 1). The Kellehers called the telephone company and had a tracer put on the telephone. (Dkt. 19 at Exh. 1). On August 26, 1999, Mrs. Kelleher and her son found a letter placed in their mailbox. (Dkt. 19 at Exh. 1). The letter contained words pieced together with typewritten letters cut out from newspapers. (Dkt. 20 at Exh 13, 14, and 16.) The letter of August 26th read, "SEEN YOU TODAY yOu LOOK gooD." (Dkt. 20 at Exh. 13). This time Mrs. Kelleher called the police. (Dkt. 19 at Exh. 1).
The threats continued, and the Kellehers discovered the calls were being made from pay telephones. (Dkt. 19 at Exh. 1). Shortly after they changed their home telephone number to an unlisted number, Mr. Kelleher began receiving harassing calls on his cellular telephone. (Dkt. 19 at Exh. 1). A white pickup truck and other trucks and cars began driving by their home all the time. (Dkt. 19 at Exh. 1).
On September 3, 1999, the Kellehers' son found roses arranged in the shape of an "X" on their front doorstep. (Dkt. 19 at Exh. 1; Dkt. 20 at pgs. 206-207). Two days later, Mr. Kelleher received a message on his cellular telephone asking something like, "Boss man, did you like what we left at your door? We're getting close, we're going to get you and your wife." (Dkt. 19 at Exh. 1; Dkt. 20 at pgs. 203-205). The following day, September 6, 1999, at 10:00 p.m., two individuals stopped in front of their home and yelled an obscenity, threatening to get the Kellehers. (Dkt. 19 at Exh. 1).
Another threatening telephone call was received on September 10th, and more roses were found in front of their home on September 11th. (Dkt. 19 at Exh. 1). On September 13th, their home was vandalized. More threatening letters were left in their mail box on September 14th and 17th. (Dkt. 19 at Exh 1). One of the pieced together letters read, "Tell BOSsman we'll GET him bEFORE he gets us PS you look Fine." (Dkt. 20 at Exh. 14). Mr. Kelleher testified that he was called boss man at work and that he believed the harassment was being committed by employees of Pall. (Dkt. 20 at pgs. 222-227).
Finally, on September 22, 1999, Mrs. Kelleher and a friend visited Pall's place of business to talk with Mr. Kelleher. (Dkt. 19 at Exh. 1). While Mrs. Kelleher was in the parking lot, she identified a white pick-up truck that she had seen on many occasions driving past their home about the time the threats were received. (Dkt. 19 at Exh. 1). She saw a co-worker of her husband's, Mr. Don LaCourse, get into the truck. (Dkt. 19 at Exh. 1). She identified him as the man who bothered her at Wal-mart in July. (Dkt. 19 at Exh. 1; Dkt. 22 at pgs. 218-219). The very next day Mrs. Kelleher found a rose with a letter left on her automobile windshield which read, "I seen you and I know you seen Me." (Dkt. 19 at Exh. 1; Dkt. 22 at Exh. 19).
The Sakeviches and Mr. LaCourse had evidenced hostility toward Mr. Kelleher for his role in the termination of Mr. Sakevich. (Dkt. 19 at pgs. 80, 160-161).
Throughout August and September, the Kellehers received verbal and written threats, sometimes involving their son. Various cars and pick-up trucks, including the white pick-up truck identified at Pall, drove back and forth on their street frequently stopping in front of the house. One night the screens on their house were cut. Mr. Kelleher believes that once the police began patrolling the area and after he confronted Mr. LaCourse with the letter of September 23rd, the activity ceased. (Dkt. 19 at pgs. 77-80).
The Kellehers' attorney likens the harassment to the activities of the Ku Klux Klan.
Action Taken in Response to the Harassment By Mr. Kelleher
After the unemployment appeals hearing at some time in June, Mr. Kelleher reported to both Mr. Lapniewski and Mr. Holloway that he and his wife were being harassed at their home. (Dkt. 16 at para. 9; Dkt. 18 at para. 10; Dkt. 19 at pg. 77). Mr. Kelleher also in August told Charles Howison, the vice president of the manufacturing operations, that they had received threatening anonymous telephone calls and notes at his home. (Dkt. 17 at para. 3).
Mr. Kelleher inquired of co-workers as to whether anyone knew who was leaving the notes and driving by his home. Finally, on September 23rd, the same day Mr. Kelleher found the rose with the letter on his wife's car at their home, he took the letter with him to work that night. (Dkt. 19 at Exh. 1). At work at approximately 11:00 p.m., Mr. LaCourse asked Mr. Kelleher to see the letter and then started asking Mr. Kelleher if he thought that he had written it. (Dkt. 19 at Exh. 1). That night at 11:40 p.m. a white pickup truck, another pickup truck and a car stopped in front of the Kellehers' house. (Dkt. 19 at Exh. 1). When they spotted a police car, the vehicles left. (Dkt. 19 at Exh. 1). According to the Kellehers, the trucks and cars never returned after the night of September 23rd, (Dkt. 19 at Exh. 1 and pgs. 94-97).
By Pall
Pall's management made it clear to Mr. Kelleher that Pall did not want Mr. Kelleher conducting his own investigation of its employees. Mr. Kelleher admitted that management had told him to stop his own investigation at work and leave the matter to the authorities or an investigator. (Dkt. 19 at pgs. 89-92). He e-mailed Mr. Holloway and Mr. Howison on September 24th informing them of the last act of harassment. They replied to him telling him to cease his investigation. (Dkt. 19 at pg. 130). Pall agreed to provide a security plan for the Kellehers' residence in the nature of hiring a private investigator to watch the house for a few nights. (Dkt. 19 at Exh. 9). The Kellehers both testified that the harassment had stopped on September 23rd, which was before Pall hired the private investigator for surveillance of their home.
On October 19, 1999, Mr. Lapniewski called Mr. Kelleher into his office and told him that Mr. LaCourse had complained that he was harassing him. (Dkt. 19 at Exh. 1). Mr. LaCourse told Mr. Lapniewski that the police had been to his house asking him questions about the harassment. (Dkt. 19 at Exhs. 1 and 4, and pgs. 84-85). Mr. LaCourse questioned how the police obtained his address and other personal provided this information.
Termination
Pall had warned Mr. Kelleher that if he did not stop his internal investigation, he would be terminated. On October 29, 1999, Mr. Holloway, Mr. Lapniewski, and Mr. Howison met with Mr. Kelleher and terminated his employment. (Dkt. 17 at para. 6; Dkt. 16 at para. 15). They told him that he had continued to conduct his own investigation at the workplace, against their directives, thereby harassing other employees and committing insubordination. (Dkt. 19 at pgs. 114-116). They questioned his credibility based on his failure to disclose, until after the appeals hearing, his relationship with Ms. Becker and the meetings with Ms. Becker outside of work.
Mr. Kelleher believed he was fired as a direct result of Mr. LaCourse's complaining to management that Mr. Kelleher was harassing him by bringing the letter to work and by having the police question him at his home. (Dkt. 19 at pgs. 114-116). Mr. LaCourse had informed Pall management that he might secure an attorney. (Dkt. 19 at Exh. 4). When he was terminated, Mr. Kelleher had never received an unfavorable performance review at Pall.
This Law Suit
Shortly after Mr. Kelleher's termination, the Kellehers sued Pall in state court for (1) negligent retention, (2) violation of Florida's Private Whistle-Blower Act, sections 448.10 1-105, Florida Statutes, and (3) "wrongful termination for asserting constitutionally protected rights." Pall timely removed this action based on Plaintiffs' claim in count III that Pall terminated Mr. Kelleher "because he sought to assert his constitutionally protected rights." (Dkt. 1).
Negligent Retention
The Kellehers claim that the Sakeviches, Mr. LaCourse, and other employees committed the described acts of harassment. They urge that these acts give rise to a duty on the part of Pall to investigate various employees to ascertain whether in fact the incidents of harassment were committed by them. Whether Pall owed a duty to the Kellehers to investigate any individual for harassment that occurred outside of work, must be determined within the framework of Florida law.
In Florida, if an employer retains an employee who the employer knows committed a wrongful act outside the scope and course of employment to a foreseeable plaintiff, the plaintiff may recover against the employer for negligent retention. See Garcia v. Duffy, 492 So.2d 435, 438 (Fla.Dist.Ct.App. 1986). The employer may be held liable for negligent retention only when "the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment." See Garcia, 492 So.2d at 438-39. The facts must show that (1) the employer received active or constructive notice of problems with an employee's fitness, and (2) it was unreasonable for the employer not to investigate or take corrective action such as discharge or reassignment. See Garcia 492 So.2d at 441.
If it is established that the employer owes a duty to the particular plaintiff, the "task of judging the employer's responsibility to investigate an employee's background is consideration of the "type of work to be done by the employee.'" See Tallahassee Furniture Company, Inc. v. Harrison, 583 So.2d 744, (Fla.Dist.Ct.App. 1991) (quoting fromWilliams v. Feather Sound, Inc., 386 So.2d 1238, 1240 (Fla.Dist.Ct.App. 1980)). The following test should be applied:
In general, the test is whether the employer exercised the level of care which, under all the circumstances, the reasonably prudent man would exercise in choosing or retaining an employee for the particular duties to be performed.Garcia, 492 So.2d at 440 (emphasis added).
To impose liability for negligent retention, a plaintiff must first show that he was injured by the wrongful act of an employee. See Texas Skaggs, Inc. v. Joannides, 372 So.2d 985, 986 (Fla.Dist.Ct.App. 1979). The underlying wrong must be based on an injury resulting from a tort which is recognized at common law. See Scelta v. Delicatessen Support Services, Inc., 57 F. Supp.2d 1327. 1348 (M.D.Fla. 1999). To recover damages for emotional distress caused by the negligence of another, such as in the case of negligent retention, a plaintiff must comply with Florida's impact rule. See Scelta, 57 F. Supp.2d at 1348. Under the impact rule, the emotional distress must flow from a physical injury sustained by physical impact. See R.J. v. Humana of Florida. Inc., 652 So.2d 360 (Fla. 1995); Zell v. Meek, 665 So.2d 1048 (Fla. 1995);Resley v. Ritz-Carlton Hotel Co., 989 F. Supp.2d 1442, 1449 (M.D.Fla. 1997). "[T]he impact rule is designed to close the floodgates to recovery for purely emotional distress damages, and assure that valid claims for emotional or psychic damages will be permitted as a basis for recovery in negligence cases." See Coca-Cola bottling Co. v. Hagan, 750 So.2d 83, 86 (Fla.Dist.Ct.App. 2000) (paraphrasing Justice Overton in the Humana case).
Applying the law of Florida to the facts of this case, it becomes evident that Pall could be held liable for the negligent retention of only one employee. The only employee for whom there has been any possible connection linking the act to the employee is Mr. LaCourse. There is no evidence whatsoever that ties any other particular employee to the described acts of harassment. The Kellehers believe they have `proof' that Mr. LaCourse was one of their harassers. Their belief stems from Mrs. Kelleher's identification of Mr. LaCourse and his white pickup truck on the Pall premises. Mrs. Kelleher claims Mr. LaCourse was the man who swore at her in the Wal-mart parking lot. She claims that the white pickup truck was one of the vehicles that continuously passed back and forth in front of their home on numerous occasions.
Because the Sakeviches were not employed by Pall during the summer and early fall of 1999, Pall owed no duty to the Kellehers with respect to any harassment which the Sakeviches allegedly committed. Mr. LaCourse, on the other hand, was an employee of Pall throughout the months of harassment.
Focusing on the evidence presented as to Mr. LaCourse, one of the questions becomes whether one of the acts attributable to him constitutes a tort. The Kellehers articulate the torts as repeated trespasses upon the Kellehers' property, invasion of privacy, vandalism, stalking, and defamation. There is no evidence submitted which tends to show that Mr. LaCourse or any other employee of Pall committed the torts listed by the Kellehers. Even if the Kellehers asserted that Mr. LaCourse committed the tort of intentional infliction of emotional distress, it would fail. The incident in the parking lot and driving back and forth in front of their home do not rise to the level of outrageousness that goes beyond all bounds of decency. See Kent v. Harrison 467 So.2d 1114 (Fla.Dist.Ct.App. 1985) (continued "campaign of telephonic harassment in the aftermath of verbal conflict" in a parking lot did not meet standards of intentional infliction of emotional distress). Absent an underlying tort, negligent retention cannot stand.
The case of Nims v. Harrison, 768 So.2d 1198 (Fla.Dist.Ct.App. 2000), is distinguishable. There, high school students wrote in an underground school newsletter that they would kill the plaintiff teacher and rape the teacher's children. The Nims court parted from the great weight of authority and held that the conduct was so outrageous as to meet the onerous burden of showing an intentional infliction of emotional distress.
With respect to notice, Pall knew that Mr. Kelleher suspected Mr. LaCourse of participating in the harassment. They knew that Mr. Kelleher based his suspicions on his wife's positive identification of Mr. LaCourse and his white pickup truck on Pall's property. In response, Pall orchestrated a surveillance of the Kellehers' home for several days. The Kellehers, however, have not articulated how Mr. LaCourse's alleged behavior renders him "unfit" for work at Pall, and no case on negligent retention has been cited or found that even remotely resembles the situation here. Even assuming Mr. LaCourse was the person in the parking lot, there is no evidence that he committed the other acts of harassment such as writing or delivering the letters, driving a white pickup truck in front of their house, or placing the roses on their door step in the shape of a cross.
Perhaps the most obvious deficiency which sounds the death knell for this claim is the inability to meet the requirements of the impact rule. There is simply no authority for finding liability in negligence when the evidence does not suggest that any physical impact occurred which could have resulted in psychological damage. Thus, even assuming that Mr. LaCourse and other employees committed these acts, this Court finds that this claim for negligence is barred by the impact rule.
Violation of Florida's Private Whistle-Blower Act
Florida's private Whistle-Blower Act, sections 448.101-105, Florida Statutes, prohibits an employer from taking adverse action against an employee in certain situations. Section 448.102 provides as follows:
Prohibitions. — An employer may not take any retaliatory personnel action against an employee because the employee has:
(1) Disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation. However, this subsection does not apply unless the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and has afforded the employer a reasonable opportunity to correct the activity, policy, or practice.
(2) Provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer.
(3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.
The plaintiff must first establish a prima facie case by proving that "the protected activity and the negative employment action are not completely unrelated." See Sierminski v. Transouth Financial Corp., 216 F.3d 945, 950 (11th Cir. 2000). Then, "the burden shifts to the defendant to proffer a legitimate reason for the adverse action" See id., citing Olmsted v. Taco Bell, 141 F.3d 1457, 1460 (11th Cir. 1998). The burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the reason is pretextual. See id.
Pall relies on Sussan v. Nova Southwestern University, 723 So.2d 933 (Fla.Dist.Ct.App. 1999), and Patterson v. Downtown Medical and Diagnostic Center, Inc., 866 F. Supp. 1379 (M.D.Fla. 1994), while Mr. Kelleher relies on Golf Channel v. Jenkins, 752 So.2d 561 (Fla. 2000), and Taylor v. Memorial Health Systems, Inc., 770 So.2d 752 (Fla.Dist.Ct.App. 2000). Pall urges that Mr. Kelleher is like the plaintiff in Sussan. In Sussan, the plaintiff reported to his supervisor theft of university funds by other employees. The plaintiff next reported the alleged theft to the dean, because his supervisor failed to report the alleged theft. The university then terminated the plaintiff. The plaintiff claimed that he was entitled to protection for objecting to the alleged stealing by fellow employees. The court held that he failed to allege that he was terminated for objecting to (1) the employer's illegal activity, (2) the activity of anyone acting within the scope of his employment, or (3) illegal conduct ratified by the employer.
Pall asserts that Mr. Kelleher did not allege that he disclosed, threatened to disclose or participated in investigating any illegal act by Pall in connection with the harassment. Rather, Mr. Kelleher alleges he was terminated for reporting acts of his co-workers which are not within the scope of the co-workers' employment, like the plaintiff inSussan. There is no claim that either the employees committed the acts of harassment within the scope of their employment or that Pall ratified the acts. Mr. Kelleher even admits the employees were harassing him for their own personal purposes.
Mr. Kelleher asserts that accepting Pall's position will undermine the purpose of the Whistle-Blower Act. Mr. Kelleher begs this Court to consider the underlying facts in the Golf Channel and Taylor cases as evidence that the facts of this case state a claim for violations of the Whistle-Blower Act. After reviewing the cases, this Court agrees with Pall that the facts of this case do not give rise to a claim under the Act.
In Golf Channel the court was not deciding the issue of what acts committed by co-employees are covered under the Whistle-Blower Act. In any event, the plaintiff in Golf Channel had objected to and reported various acts of co-employees such as sexual harassment of employees in the workplace, incidents of fraud on vendors, acts of plagiarism, and falsification of company budget reports. In Taylor, an employee who worked in an emergency room reported a staff physician for illegal activities including sexual misconduct involving patients during their physical examinations.
The facts of the instant case concern matters that not only happened outside the workplace but involve activities totally unrelated to work at Pall. Mr. Kelleher reported acts of harassment that occurred to him and his family at his house. Those acts of harassment, however, do not involve actions that are illegal as a result of working for Pall, assuming the acts were committed by employees of Pall. No acts of harassment occurred at the workplace, and nothing shows that Pall ratified any acts of its employees with respect to the harassment. The objections made by Mr. Kelleher do not fall under the type of objections set forth in section 448.102(3), because Mr. Kelleher is not objecting to any activity of his employer, Pall. He is objecting to his being harassed at his home by presently anonymous individuals. Consequently, the Plaintiff has not demonstrated a prima facie case of any violation of the Whistle-Blower Act and thus, the Court need not reach the issue of whether the reason for termination was legitimate or pretextual.
"Wrongful Termination for Asserting Constitutionally Protected Rights"
Mr. Kelleher seeks relief in count III for violations of the federal and Florida constitutions. Although exactly what provisions of the constitutions have been implicated has not been revealed in the pleadings, both parties concede that a finding of state action is necessary to hold Pall liable. Pall argues that Pall's contracts with federal agencies do not transform it into a state actor, citingRendall-Baker v. Kohn, 457 U.S. 830 (1982). Mr. Kelleher counters that Pall is a government contractor earning substantial revenues from government contracts and is heavily regulated by both the state and federal government, citing West v. Atkins, 487 U.S. 42 (1988).
The fact that an entity contracts with the government does not establish state action. As noted in Rendall-Baker, the decisions of a private school receiving federal and state money to discharge certain teachers "were not compelled or even influenced by any state regulation."See Rendall-Baker 457 U.S. at 841. The "various regulators showed relatively little interest in the school's personnel matters." See id. To the extent that Mr. Kelleher's termination concerns a personnel matter, it appears that state action cannot be found. Overall, the Plaintiff has failed to articulate how a prima facie case against Pall can be made for any violations of the state or federal constitutions.
It is therefore ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment as to Charles Kelleher's Claims (Dkt. 14)is GRANTED. Defendant's Motion for Summary Judgment as to Cheryl Ann Kelleher's Claim (Dkt. 13) is GRANTED. Summary judgment is hereby entered in favor of Defendant and against Plaintiffs on all claims. The Clerk is directed to close the file.