Opinion
Case No. 01-3369-CV-S-RED
March 31, 2003
ORDER
This matter is before the Court on Defendants Polar Corporation, Polar Custom Trailers, Inc., and Polar Tank Trailer, Inc.'s (collectively "Polar") Motion for Summary Judgment (Doc. 12). Polar argues that there remains no genuine issue of material fact and that Polar is entitled to summary judgment on the issues of (1) whether Polar terminated Plaintiff Terry Kratzer ("Kratzer") because of a perceived disability or record of a disability in violation of the Americans with Disabilities Act ("ADA") and (2) whether Polar terminated Kratzer in retaliation for him having exercised his rights under the Missouri Workers' Compensation Law. Kratzer filed a brief opposing Polar's motion, and Polar later filed a reply brief.
This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., as amended by 42 U.S.C. § 1981(a) ("ADA"), and more specifically 42 U.S.C. § 12117. For the reasons explained below, Polar's motion is granted in part and denied in part.
I. Summary Judgment Standard
Rule 56(c) Federal Rules of Civil Procedure, provides that summary judgment shall be rendered if 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 judgment as a matter of law." Fry v. Holmes Freight Lines, Inc., 73 F. Supp.2d 1074 (W.D. Mo. 1999). When ruling on a motion for summary judgment, the court should view the facts in the light most favorable to the adverse party and allow the adverse party the benefit of all reasonable inferences to be drawn from the evidence. See id. (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Reed v. ULS Corp., 178 F.3d 988, 900 (8th Cir. 1999)).
If no genuine issue about any material fact exists, summary judgment is proper because it avoids unnecessary and costly litigation and promotes judicial efficiency. See id. (citing Smith v. Marcantonio, 910 F.2d 500, 502-03 (8th Cir. 1990); Roberts v. Browning, 610 F.2d 528, 531 (8th Cir. 1979)). The summary judgment procedure is not a "disfavored procedural shortcut." Id. Rather, it is "an integral part of the Federal Rules as a whole." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986)). Summary judgment is appropriate against a party who fails to make a showing sufficient to establish that there is a genuine issue for trial about an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Cunningham v. Kansas City Star Co., 995 F. Supp. 1010, 1014 (W.D. Mo. 1988) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548.)).
II. Background
Based on the parties' pleadings, affidavits, and deposition testimony, the following facts are undisputed or, if disputed and Kratzer properly presented facts supporting his version of the disputed facts, the disputed facts are presented in the light most favorable to him.
Custom Trailers, Inc., which later was acquired by Polar, hired Kratzer in early 1995 to work as a welder at its Springfield, Missouri facility. Kratzer's particular position was that of a "Head Stuffer." A Head Staffer was responsible for rounding metal "heads" into tank barrels of the tank trailers that Polar manufactured. The job required that Kratzer be able to lift and pull the metal heads weighing approximately 50 to 150 pounds. Kratzer was also required to use a 12 pound sledgehammer to wedge the head into place. Once in position, Kratzer would weld the head to the tank.
On June 17, 1997, Kratzer suffered a shoulder injury while at work. Krazter received medical treatment for the injury. While being treated, Kratzer discovered that he had bilateral carpal syndrome. As a result, Kratzer took a four month leave of absence from work and underwent surgery on both hands. Kratzer returned to work on October 28, 1997. Upon his return, he delivered to Polar's human resource manager, Larry LaForge, a list of medical restrictions issued by his physician, Dr. David Paff. The restrictions indicate that Kratzer was not to lift more than five pounds above shoulder level, engage in repetitive or forceful grasping with both hands, and utilize air power tools for long periods.
Based on the medical restrictions, Polar transferred Kratzer to another department called the Dry Bulk, Final Assembly ("Dry Bulk") area shortly after his return to work. While this position involved some welding, the duties were considered much lighter than those of a Head Stuffer. Kratzer indicates that he was happy with this assignment and that he was able to do the exact same work as the other employees assigned to the Dry Bulk Area.
Over the next two years, Kratzer's restrictions were amended on different occasions. On January 5, 1998, Dr. Paff released Kratzer to full duty with "no limitations." Two days later, however, Dr. Paff issued another set of medical restrictions limiting Kratzer to lifting 50 pounds floor to waist and carrying 25 pounds in each arm. (Plaintiff's facts ¶ 46). According to Kratzer, the January 7, 1998 restrictions did not limit any other activities such as his ability to climb, crawl, weld, push, pull, bend, or walk. Polar, however, asserts that the restrictions also restricted Kratzer from using drills and grinders, and prohibited him from climbing. (Defendant's Reply Facts ¶ 4).
On August 3, 1999, LaForge called Dr. Paffs office to obtain an update on Kratzer's medical condition, specifically his restrictions. LaForge's request was supplemented by an August 19, 1999 letter from Polar's Workers' Compensation administrator to Dr. Paff requesting an examination of Kratzer to assess his physical limitations. Dr. Paff complied and examined Kratzer on August 20. Based on this examination, Dr. Paff prepared and sent a report to Polar. The report provided that Kratzer's then-current status was that he "seems quite disabled at this time" and, "[a]s far as his current status, he is unable to use his left arm at all. He can use his right arm to lift up to 10 pounds." Dr. Paff further noted in his report that "I really do not see how [Kratzer] can continue to work in the present job he is doing." Kratzer, however, did continue to work in the Dry Bulk area.
On January 24, 2000, Kratzer testified at his Workers' Compensation hearing that he was experiencing "substantial pain and limitations." (Defendant's Reply Facts at ¶ 5). Kratzer stated that he could not put his left arm straight out to his side without incurring "excruciating pain," and that he could not even lift his arm without causing "severe pain." (Defendant's Reply Facts at ¶ 5).
Kratzer states that a month prior to the Workers' Compensation hearing, he began an intense regimen of physical therapy exercises to improve his left shoulder and hands. This workout, according to Kratzer, involved lifting and pulling milk jugs and pulleys at home. Kratzer states that the exercises initially made his left shoulder worse, but eventually produced a significant increase in strength and mobility and a decrease in pain during March, April, and May 2000.
On March 30, 2000, Kratzer settled his Workers' Compensation claim. On May 2, 2000, Polar terminated Kratzer. Polar's termination of Kratzer was documented in a letter given to him by LaForge at the time of discharge. The letter, which outlined Polar's position, stated that
The purpose of this letter is to summarize the current status of your injury of June 17, 1997 and your employment with Polar Tank Trailer, Inc. It is our understanding that you have the following permanent restrictions: maximum of lifting 10 pounds with right arm, and no use of your left arm. At the hearing oh [sic] January 24, 2000, you testified that you did not want to continue with medical treatment now nor in the future for your injuries. This was also your position as part of the recent settlement agreement.
As you know, Polar provides temporary modified light duty work during rehabilitation. Polar has been extremely patient in the hope that you would be able to return to your pre-injury position of Head Stuffer in Barrel Assembly. Unfortunately, the permanent restrictions will not allow you to perform the essential job functions of Head Stuffer. Likewise, there are not any positions open that you are eligible for or physically capable of doing. Therefore, it is with regrets that Polar must notify you of the termination of your employment effective May 2, 2000.
After his termination, Kratzer sought work in the Springfield, Missouri area. According to Kratzer, he searched for a new job for approximately one to two months. He eventually found work as a welder and has been continually employed ever since.
Kratzer filed a grievance with his union and with the EEOC contesting his termination from Polar. In his EEOC complaint, Kratzer alleged that he had been terminated because of his disability. After receiving his right to sue letter from the EEOC, Kratzer timely filed this action.
Kratzer's Complaint (Doc. 1) sets forth two separate counts for relief. Count I alleges violation of the ADA in that Polar allegedly terminated Kratzer as a result of an actual disability, a perceived disability, and/or a record of disability. Count II alleges retaliation in violation of the Missouri Workers' Compensation Act.
On August 20, 2002, the Court, per United States District Judge Gary Fenner, issued a decision (Doc. 70) granting partial summary judgment in favor of Polar on whether Kratzer had an actual disability under the ADA and whether he was denied accommodation by Polar. Defendants now move for the Court to grant summary judgment on Kratzer's remaining claims: (1) that Polar allegedly terminated Kratzer because of a perceived, or record of, disability in violation of the ADA; and (2) that Polar allegedly terminated Kratzer's employment in retaliation for Kratzer having exercised his rights under the Missouri Workers' Compensation Law.
III. Discussion
A. The ADA
The ADA prohibits "covered entitie[s]" from discriminating "against a qualified individual with a disability because of the disability of such individual. . . ." 42 U.S.C. § 12112(a). To establish a prima facie case of discrimination, a plaintiff must show that (1) he is disabled within the meaning of the ADA, (2) he is qualified to perform the essential functions of his job either with or without reasonable accommodation, and (3) he has suffered from an adverse employment decision because of his disability. See Duty v. Norton-Aloca Proppants, 293 F.3d 481, 490 (8th Cir. 2002); Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134-35 (8th Cir. 1999) (en banc).
1. Regarded As Disabled
To be regarded as disabled under the ADA, Kratzer is required to prove that Polar mistakenly believed that he had a physical impairment that substantially limited one or more major life activities, or that Polar mistakenly believed that he had an actual, nonlimiting impairment which substantially limited one or more major life activities. See Brunko v. Mercy Hosp., 260 F.3d 939 (8th Cir. 2001) (citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Either way, it is essential that Kratzer prove that Polar "entertain[ed] misperceptions about him." Sutton, 527 U.S. at 488. `The limiting adjectives `substantially' and `major' indicate that the perceived `impairment must be a significant one.'" Woolen v. Farmland Foods, 58 F.3d 382 (8th Cir. 1995) (quoting Byrne v. Board of Educ., Sch. of West Allis, 979 F.2d 5650, 564 (7th Cir. 1992)). The focus is on the impairment's effect upon the attitudes of others. See id.
Kratzer argues that a genuine issue of material fact exists as to whether Polar misperceived him as suffering from a disability. For support, he argues that Polar, in terminating him, relied exclusively on a more than eight month old report from Dr. Paff. According to Kratzer, Polar erroneously believed that Dr. Paff s August 20, 1999 report contained permanent medical restrictions. Kratzer further argues that his medical condition had improved substantially since being examined by Dr. Paff, and thus, the report was no longer valid as of the date of his termination in May 2000. The essence of Kratzer's argument is that Polar's misperception of his physical condition is that Polar did not take into consideration the fact that Kratzer had experienced dramatic improvement in his condition during March-May 2000. Kratzer does not dispute, however, that Dr. Paffs Report (August 20, 1999), Kratzer's testimony at his Workers' Compensation Hearing (January 24, 2000) and Kratzer's condition at the time he settled his Workers' Compensation claim (March 30, 2000) all accurately described his condition at the respective times said statements were made.
It must be noted that the mere issue of whether or not Polar incorrectly perceived Kratzer's physical condition is irrelevant. Rather, the crux of the matter is whether Polar, in perceiving Kratzer's physical condition, regarded Kratzer as "disabled" within the meaning of the ADA. As explained in Taylor, supra, "[l]iability attaches only to a mistake that causes the employer to perceive the employee as disabled within the meaning of the ADA, i.e., a mistake that leads the employer to think that the employee is substantially limited in a major life activity." An individual is regarded as having a substantially limiting impairment when others treat that individual as having such an impairment. See Roberts v. Unidynamics Corp., 126 F.3d 1088, 1092 (8th Cir. 1997), cert. denied, 523 U.S. 1106, 118 S.Ct. 1676, 140 L.Ed.2d 814 (1998).
Kratzer's claim is that Polar believed that he was substantially limited in the major life activity of working, lifting, performing manual tasks, reaching, and caring for oneself. Under the regulations implementing the ADA, lifting, working, and performing personal tasks are examples of "major life activities." 34 C.F.R. § 104.3(j)(2)(ii); 29 C.F.R. § 1630.2(1), App. § 1630.2(1). The EEOC regulations define "major life activities" as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). The EEOC regulations define "substantially limits" as: (i) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1). Further, the EEOC regulations state that the following factors should be considered in determining whether an impairment substantially limits a major life activity: (i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
As to the claim of a working impairment, it must be noted that an impairment that interferes with work-related tasks, however, does not necessarily rise to the level of a disability within the meaning of the ADA. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). In Toyota, the Court concluded that the inability to perform many tasks associated with a particular job — in that case, "repetitive work with hands and arms extended at or above shoulder levels for extended periods of time" — would have only limited relevance to the inquiry of whether the impairment was substantially limiting because those tasks might not be an important part of most people's daily lives. Thus, when addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with his or her specific job. See id., 122 S.Ct. at 693. The Court concluded that evidence that plaintiff was unable to do specific job-related duties was insufficient proof of a disability. See id.
The lesson of Toyota is that an inability to perform "occupation-specific" tasks does not necessarily show an inability to perform the central functions of daily life, 122 S.Ct. at 693, and that analysis applies equally to the work-related restriction at issue here. While an inability to lift heavy objects may disqualify a person from particular jobs, it does not necessarily interfere with the central functions of daily life. See Mays, 301 F.3d at 869. There may well be cases in which, because of the nature of the impairment, one could, from the work-restriction alone, infer a broader limitation on a major life activity.
The Eighth Circuit has recently addressed this area of the ADA and explains:
To be regarded as substantially limited in the life activity of working, a plaintiff must be regarded as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. Cooper v. Olin Corp., Winchester Div., 246 F.3d 1083 (8th Cir. 2001)
In Smith v. City of Des Moines, 99 F.3d 1466, 1474 (8th Cir. 1999), the Court granted summary judgment to the employer because the plaintiff produced no evidence that the employer believed he was unable to do other jobs. According to the Court, such lack of evidence demonstrated as a matter of law that the employer did not regard the plaintiff as having a disability for purposes of the ADA. See id. at 1474; see also EEOC v. Exel, Inc., 208 F. Supp.2d 1023 (8th Cir. 2002) (granting summary judgment in favor of employer where "the record is bereft of any evidence indicating that Defendant perceived [plaintiff] as anything more than unable to perform" his particular job.).
Kratzer's claim ultimately fails because he has failed to produce sufficient evidence demonstrating that Polar perceived him as having an impairment that significantly restricted any major life activity. The record reveals that Polar regarded Kratzer as unable to perform the duties of a Head Stuffer. See Wooten, 58 F.3d at 386 (ruling that an impairment or condition that affects "only a narrow range of jobs" is not considered as reaching a major life activity). For instance, Polar, upon terminating Kratzer, presented him with a letter, which provided that "[i]t is our understanding that you have the following permanent restrictions: maximum of lifting 10 pounds with right arm, and no use of your left arm. . . . Unfortunately, the permanent restrictions will not allow you to perform the essential job functions of Head Stuffer."
Kratzer argues that although Polar stated in its letter that the company was terminating Kratzer's job as a Head Stuffer, Polar actually terminated his job as an employee assigned to the Dry Bulk area. According to Kratzer, his position in the Dry Bulk area was his permanent job, and therefore Polar, by terminating him from that job, perceived him as not only unable to do the job of a Head Stuffer, but also as an employee assigned to the Dry Bulk area, indicating that Polar felt Kratzer was unable to perform a wide variety of jobs. While this issue concerning whether or not the Dry Bulk area job was temporary or permanent may have relevancy to other issues between the parties, it has no relevancy to the instant claim of perceived disability other than the obvious fact that working in the Dry Bulk area reflects a certain level of physical capability on the part of Kratzer. He had been working in this area for more than two years. It defies logic to conclude that Polar perceived that he was now unable to perform the work in the Dry Bulk area.
Kratzer further argues that the medical restrictions contained in Dr. Faffs August 1999 report, which Polar claims it relied on in terminating Kratzer, would, if true, constitute a disability within the meaning of the ADA. For support, Kratzer proffers the opinions of his purported expert, Mr. Wilbur Swearingin, who opines that a person with the type of limitations contained in Dr. Paff s report could not function at all and would be precluded from a large class of jobs. It must be noted, however, that Dr. Paff s report cannot be considered in a vacuum. Thus, even if the Court were to give Kratzer the benefit of the doubt and assume the worst from Dr. Paff s Report, i.e., that the medical condition described would constitute a limitation on a major life activity, the Court must still look at the evidence as a whole. In examining the evidence, the Court finds it significant that despite the limitations described in Dr. Paff s report in August 1999, Kratzer continued to work in the Dry Bulk area and Polar was obviously able to observe Kratzer working there on a daily basis. This record of continued employment clearly reflects that Polar regarded Kratzer as able to do some work and perform a variety of manual tasks.
It may be that Kratzer's termination was an aggressive business practice or even improper for other reasons, but Kratzer has adduced no evidence that Polar's actions arose to an ADA violation based on a perceived disability. Accordingly, summary judgment is granted in favor of Polar and against Kratzer with regard to Kratzer's claim that he was "regarded as" disabled in violation of the ADA.
2. Record of Disability
Polar next argues that Kratzer does not have a record of a disability. The ADA prohibits "discrimination based upon a documented history of having a physical or mental impairment that substantially limits one or more of the major life activities." Weber v. Strippit, Inc., 186 F.3d 907, 915 (8th Cir. 1999), cert. denied, 528 U.S. 1078, 120 S.Ct. 794, 145 L.Ed.2d 670 (2000).
To establish a claim under the ADA based upon a record of disability, a plaintiff must show that he has a history of, or has been misclassified as having, a physical or mental impairment that substantially limits one or more major life activities." Weber, 186 F.3d at 915; see Taylor v. Nimock's Oil Co., 214 F.3d 957, 961 (8th Cir. 2000). There are several types of records upon which an employer could rely, including education, medical or employment records. See 29 C.F.R. pt. 1630, App. § 1630.2(k) (1998).
In examining the record, Kratzer has failed to present any evidence showing that the August 1999 Paff Report or any of his previous restrictions misclassified Kratzer's then current physical condition. Instead, Kratzer points to no more than a "record" of routine, temporary restrictions from various medical providers, and a period of lighter-duty work.
In addition, the Court, per United States District Judge Garry Fenner, previously ruled that Kratzer has never had an actual impairment that substantially limited him in a major life activity. Thus, it logically follows, and the Court so finds, that he has no history or record of such a disability upon which to base a claim under the ADA. Accordingly, the Court concludes that Polar is entitled to summary judgment on Kratzer's claim that he was discriminated against based upon a record of having a disability.
IV. Missouri Workers' Compensation Statute
Kratzer alleges in his second count that Polar discharged him in retaliation for having exercised his rights under the Missouri Workers' Compensation statutes. Missouri recognizes the tort of retaliatory discharge as an exception to the general rule of at will employment. See Stephenson v. Raskas Dairy, Inc., 26 S.W.3d 209, 212 (Mo.Ct.App. 2000), cert. denied., 531 U.S. 1152 (2001) (citations omitted). Polar argues that it is entitled to summary judgment on this claim because Kratzer has not shown any facts supporting his contention that he was terminated for filing a Workers' Compensation claim.
Section 287.780, RSMo. provides that:
No employer or agent shall discharge or in any way discriminate against any employee for exercising any of his rights under this chapter. Any employee who has been discharged or discriminated against shall have a civil action for damages against his employer.
To prevail in an action for retaliatory discharge under Section 287.780, an employee must establish the following four elements: (1) his status as an employee of the defendant before the injury; (2) his exercising of a right granted by the Act; (3) the employer's discharge of or discrimination against the plaintiff; and (4) an exclusive causal relationship between the employee's actions and the employer's actions. See Stephenson, 26 S.W.3d at 212 (citations omitted).
The only element in dispute in this case is the fourth requirement — whether Kratzer's discharge was causally related to his filing of a Workers' Compensation claim. Polar argues that Kratzer was terminated as a result of his medical condition, specifically his inability to perform the essential job functions of a "Head Stuffer." Polar further claims that it continued to employ Kratzer for more than two years after Kratzer filed for Workers' Compensation benefits, which Polar argues, establishes that retaliation was not a factor in his discharge. In response, Kratzer notes that Polar terminated his employment only a month after his Workers' Compensation claim was settled. Kratzer also offers a September 8, 2000 letter, attached as Exhibit J to LaForge's deposition testimony, prepared by LaForge, which states that "Mr. Kratzer was released from employment due to the closure of his case." When asked at his deposition to clarify what he meant by "case," LaForge stated that he was referring to Kratzer's Workers' Compensation case.
While it is true that timing alone is insufficient to establish the existence of an issue of material fact, see Miller v. Certain Teed Corp., 971 F.2d 167, 171 (8th Cir. 1992) ("A claim cannot survive summary judgment merely because an employee is terminated after filing a claim. The employee must demonstrate a causal connection between the claim and the termination."), it is nonetheless evidence that should be considered. See Kahle v. Houghton Mifflin Co., No. 94 C 2803, 1995 WL 38956 (N.D. Ill. June 30, 1995) (finding that employee who was discharged one month after settlement of his Workers' Compensation claim supported inference that his claim was a factor in his termination, and therefore, issue of retaliatory discharge was a jury question). Also to be considered on this issue is LaForge's September 8, 2000 letter and testimony at his deposition. When viewing both pieces of evidence in a light most favorable to Kratzer, the Court finds that a genuine issue of material fact exists as to whether Kratzer's discharge was in retaliation for filing a Workers' Compensation claim. Accordingly, Polar's motion for summary judgment on Kratzer's Workers' Compensation retaliation claim is denied.
V. Dismissal as to Polar Custom Trailers, Inc. and Polar Tank Trailer, Inc.
Polar argues that in the event its Motion for Summary Judgment is not granted in its entirety, it should dismiss Kratzer's claims against Polar Custom Trailers, Inc. and Polar Tank Trailer, Inc. Polar contends that although Kratzer was employed by an entity named Polar Custom Trailers, Inc. at one time, that entity merged into Polar Corporation before Kratzer was terminated, and Polar Corporation assumed any and all of Polar Custom's liabilities. Polar also points out that Polar Custom Trailers, Inc., the entity that was served with process in this action, was not created until after Kratzer's termination of employment, and never employed Kratzer. Thus, Polar asserts that it is not a proper party to this action. With respect to Polar Tank Trailer, Inc., Polar advises that this entity never employed Kratzer, and in addition, it has never been served with process in this matter. In response, Kratzer states that he has no evidence to counter Polar's assertion that these two entities are not proper parties. Upon consideration of Polar's argument and the lack of any evidence to the contrary, dismissal of Polar Custom Trailers, Inc. and Polar Tank Trailer, Inc. is warranted.
VI. Conclusion
For the reasons explained above, summary judgment is granted in favor of Polar and against Kratzer as to Kratzer's claim that he was discharged in violation of the ADA because he was "regarded as" or had a "record of a disability. However, the Court finds that a genuine issue of material fact exists concerning whether or not Polar retaliated against Kratzer having exercised his rights under the Missouri Workers' Compensation statute. Therefore, Polar's motion for summary judgment is denied as to Kratzer's Workers' Compensation retaliation claim. Finally, Defendants Polar Custom Trailers, Inc. and Polar Tank Trailer, Inc. are hereby dismissed from this action.
IT IS SO ORDERED.