Date: 06-15-2010

Case Style: Donna L. McGullam v. Cedar Graphics, Inc.

Case Number: 08-4661

Judge: Dennis Jacobs

Court: United States Court of Appeals for the Second Circuit

Plaintiff's Attorney: DONNA L. McGULLAM, pro se, Eastport, NY.

Defendant's Attorney: Ana C. Shields (Mark Mancher, on the brief), Jackson Lewis, L.L.P., Melville, New York, for Appellee.

Description: Plaintiff-appellant Donna L. McGullam appeals pro se 16 from a judgment of the United States District Court for the 17 Eastern District of New York (Hurley, J.), granting summary 18 judgment on federal and state law claims of a sexually 19 hostile work environment, disparate treatment, and 20 retaliation in favor of McGullam’s employer, defendant- 21 appellee Cedar Graphics, Inc. Regarding the Title VII 22 hostile work environment claim to which this appeal is 23 limited, we affirm on the ground that the one non-trivial 24 comment that may fall within the limitations period (which 25 was made nearly one year after Cedar Graphics had 26 transferred McGullam to another department) is 27 insufficiently related to the earlier course of alleged 3 1 harassment. The governing authority is National Railroad 2 Passenger Corporation v. Morgan, 536 U.S. 101 (2002). 3 4 BACKGROUND 5 For reasons explained later in this opinion, McGullam 6 was required to file a complaint with the appropriate agency 7 within 300 days of the last instance in a course of 8 harassment; and if she did, that filing would have allowed 9 her to plead the full prior course of related harassment. 10 The relevant chronology is that in April 1996, McGullam 11 was hired by Cedar Graphics, a full-service printing 12 company, to work in the production department. On September 13 22, 1999, after she complained of sexual harassment and at 14 her request, she was transferred to a position in the 15 estimating department. She was terminated on September 12, 16 2000, and she filed her complaint with the relevant agencies 17 on July 3, 2001. 18 McGullam alleges that when she was in the production 19 department she “was regularly exposed to sexual comments, 20 sexually explicit matters, sexual jokes, hostile [and] 21 vulgar language, sexual [innuendos] and gross behaviors, 22 primarily by male coworkers, including management” despite 4 1 “[c]ontinual complaints to management.” According to 2 McGullam’s unsworn “journal” (submitted by McGullam in the 3 district court and accepted as true by Cedar Graphics for 4 purposes of the summary judgment motion), this offensive 5 “production department conduct” included, but is not limited 6 to, the following: 7 • On the first day of McGullam’s employment, April 15, 8 1996, she was asked to retrieve a file by climbing a 9 ladder and the male co-worker holding the ladder told 10 her “not to worry, that he wasn’t going to look up 11 [her] skirt.” 12 13 • In winter 1997, McGullam brought several packages to 14 the shipping department late one evening and a male co- 15 worker commented in part that “‘I didn’t think you 16 could even drag your big fat ass back here.’” 17 18 • In November 1998, a male co-worker in whom McGullam had 19 confided about a “romantic break up,” “attacked [her] 20 in front of the entire production department” by 21 stating: “‘I think you’d be a lot happier person if you 22 got f****d more often. Yeah, I think that’s definitely 23 your problem, you don’t get f****d enough.’” 24 25 • In July 1999, a male co-worker “sitting at his desk 26 with both arms outstretched toward [McGullam] and one 27 hand shaped into a gun” stated “‘I’d like to pump a 28 bullet into your head, right behind your ear and blow 29 your brains out.’” 30 31 • In summer 1999, McGullam “had to endure overhearing the 32 details of a conversation” in which a female co-worker 33 told two male co-workers that she witnessed an act of 34 “‘doggie style’” sex in the bathroom of a nightclub the 35 previous weekend. 36 37 • On an unknown date, a male co-worker commented “‘Boing, 38 boing, look at that--right through the denim,’” a Despite this stated rationale and the attendant pay 1 cut, McGullam publicly portrayed her transfer as a positive career move. 5 1 “reference to the fact that [McGullam’s] hardened 2 nipples were visible even through [her] denim jumper.” 3 4 • On an unknown date, an unknown person replaced a sign 5 McGullam had taped to her computer that read “‘A lot 6 goes into being the best,’” with a similar sign that 7 read “‘A lot goes in to being the bitch.’” 8 9 McGullam’s journal explains that she “was desperate to 10 remove” herself from the production department and therefore 11 requested transfer to an open position in the estimating 12 department, “which was on the other side of the building-- 13 hopefully far enough away from the hostility, harassment and 14 threats of violence.” As McGullam explained at her 15 deposition, she “mov[ed] because [she] could not take 16 working in this sexually aggressive and hostile environment 17 where [she] was eventually physically threatened by a 18 colleague.” 1 19 McGullam complains of only a single incident post- 20 dating her September 22, 1999 transfer: 21 While working in the estimating department, I was 22 away from the majority of the harassment, 23 hostility and aggravation. However, all comments 24 of a sexual and derogatory nature did not cease 25 entirely. On the opposite side of my cubic[le] 26 wall was a salesman . . . [who] carried on 27 numerous lengthy conversations with male buddies 6 1 and made frequent comments about women such as 2 referring to them as “chickies[.”] He also 3 remarked that “[i]f it wasn’t going to be a sleep- 4 over, she wasn’t worth the trip[,”] regarding a 5 woman friend that he was involved with 6 (translating to: she’s only worth the trip if I’ll 7 be getting sex). This was a thoroughly demeaning 8 comment regarding women. 9 10 The salesman who offended McGullam by the “chickies 11 comments” and the “sleep-over comment” was not a member of 12 the production department or of the estimating department. 13 On September 12, 2000, Cedar Graphics terminated 14 McGullam’s employment. On July 3, 2001, McGullam filed a 15 complaint with the New York State Division of Human Rights 16 (the “NYSDHR”) and the United States Equal Employment 17 Opportunity Commission (the “EEOC”) alleging a sexually 18 hostile work environment and retaliatory termination. On 19 February 9, 2004, the NYSDHR issued a Determination and 20 Order After Investigation finding no probable cause and 21 dismissing McGullam’s complaint. On April 2, 2004, the EEOC 22 adopted the findings of the NYSDHR, dismissed McGullam’s 23 complaint, and issued a right-to-sue letter, which McGullam 24 received on April 8, 2004. 25 On July 6, 2004, McGullam pro se filed this lawsuit, 26 alleging that she was discriminated against on the basis of 27 sex in violation of Title VII of the Civil Rights Act of Under Title VII, it is “an unlawful employment 2 practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). On this appeal, we consider only McGullam’s Title VII 3 sexually hostile work environment claim. In her complaint, McGullam additionally alleged that Cedar Graphics discriminated against her by terminating her employment and by providing her with “[u]nequal terms and conditions of [] employment.” But by order dated March 18, 2009, this Court dismissed her appeal as to all non-hostile work environment claims “because they lack an arguable basis in law or fact.” By order dated May 21, 2009, this Court denied McGullam’s motion for reconsideration of the March 18, 2009 order. To the extent that the district court construed McGullam’s complaint as additionally asserting claims pursuant to the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq., the district court lacked subject matter jurisdiction over those claims. New York’s election of remedies statute deprives New York courts of jurisdiction to hear claims filed with the NYSDHR and dismissed for any reason other than those listed in the statute. See N.Y. Exec. Law § 297(9). “[A] state law depriving its courts of jurisdiction over a state law claim also operates to divest a federal court of jurisdiction to decide the claim.” Moodie v. Fed. Reserve Bank of N.Y., 58 F.3d 879, 884 (2d Cir. 1995). 7 1 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”) 2 (the relevant text is in the margin ). This appeal 2 3 considers McGullam’s claim of a “[s]exually [h]ostile 4 [e]nvironment that was pervasive.” The disposition of her 5 other claims is set forth in the margin. 3 6 On December 21, 2007, Cedar Graphics moved for summary 7 judgment, duly attaching a “Notice to Pro Se Litigant 8 1 Opposing Motion for Summary Judgment.” McGullam failed to 2 file any opposition. On August 20, 2008, the district court 3 granted summary judgment on the Title VII hostile work 4 environment claim and entered final judgment in favor of 5 Cedar Graphics. The district court determined that (i) the 6 hostile work environment claim was time-barred, and (ii) in 7 the alternative, McGullam failed to raise a genuine issue of 8 material fact as to the severity or pervasiveness of the 9 complained-of conduct. McGullam v. Cedar Graphics, Inc., 10 No. 04-CV-2891 (DRH)(AKT), 2008 WL 3887604, at *5-*7 11 (E.D.N.Y. Aug. 20, 2008). On September 19, 2008, McGullam 12 timely filed a notice of appeal. 13 14 DISCUSSION 15 “We review an award of summary judgment de novo, and 16 will uphold the judgment if the evidence, viewed in the 17 light most favorable to the party against whom it is 18 entered, demonstrates that there are no genuine issues of 19 material fact and that the judgment is warranted as a matter 20 of law.” Global Network Commc’ns, Inc. v. City of New York, 21 562 F.3d 145, 150 (2d Cir. 2009); see also Vt. Teddy Bear 22 Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) 9 1 (applying the same standard of review to the grant of an 2 unopposed motion for summary judgment); Fed. R. Civ. P. 3 56(c)(2). Following de novo review, we affirm the grant of 4 summary judgment, but do so on a ground different from 5 either of the two alternative grounds relied on by the 6 district court. See, e.g., Boy Scouts of America v. Wyman, 7 335 F.3d 80, 90 (2d Cir. 2003) (“[W]e may affirm the 8 judgment of the district court on any ground appearing in 9 the record.”). 10 I 11 Relevant to this appeal, Title VII’s administrative 12 exhaustion provision requires that any complaint be filed 13 with the EEOC within 300 days of the alleged discriminatory 14 act. See 42 U.S.C. § 2000e-5(e)(1) (providing that where a 15 complainant “has initially instituted proceedings with a 16 State or local agency with authority to grant or seek 17 relief,” the complainant has 300 days from the occurrence of 18 the “alleged unlawful employment practice” to file a 19 complaint with the EEOC). 20 “When, as in this case, a plaintiff’s allegations of 21 discrimination extend beyond the 300-day limitations period, 22 the nature of the claim determines what consideration will 10 1 be given to the earlier conduct.” Petrosino v. Bell Atl., 2 385 F.3d 210, 220 (2d Cir. 2004). With respect to claims 3 based on “termination, failure to promote, denial of 4 transfer, or refusal to hire,” Morgan, 536 U.S. at 114, 5 section “2000e-5(e)(1) ‘precludes recovery for discrete acts 6 of discrimination or retaliation that occur outside the 7 statutory time period,’ even if other acts of discrimination 8 occurred within the statutory time period,” Patterson v. 9 County of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004) 10 (quoting Morgan, 536 U.S. at 105). 11 But “[h]ostile work environment claims are different in 12 kind from discrete acts. Their very nature involves 13 repeated conduct. The ‘unlawful employment practice’ 14 therefore cannot be said to occur on any particular day. It 15 occurs over a series of days or perhaps years and, in direct 16 contrast to discrete acts, a single act of harassment may 17 not be actionable on its own.” Morgan, 536 U.S. at 115 18 (internal citation omitted). Accordingly, “consideration of 19 the entire scope of a hostile work environment claim, 20 including behavior alleged outside the statutory time 21 period, is permissible for the purposes of assessing 22 liability, so long as an act contributing to that hostile 11 1 environment takes place within the statutory time period.” 2 Id. at 105; see also id. at 118 (“Given . . . that the 3 incidents constituting a hostile work environment are part 4 of one unlawful employment practice, the employer may be 5 liable for all acts that are part of this single claim. In 6 order for the charge to be timely, the employee need only 7 file a charge within . . . 300 days of any act that is part 8 of the hostile work environment.”). Morgan illustrated this 9 holding with two 401-day scenarios: 10 (1) Acts on days 1-400 create a hostile work 11 environment. The employee files the charge on day 12 401. Can the employee recover for that part of 13 the hostile work environment that occurred in the 14 first 100 days? (2) Acts contribute to a hostile 15 environment on days 1-100 and on day 401, but 16 there are no acts between days 101-400. Can the 17 act occurring on day 401 pull the other acts in 18 for the purposes of liability? In truth, all 19 other things being equal, there is little 20 difference between the two scenarios as a hostile 21 environment constitutes one “unlawful employment 22 practice” and it does not matter whether nothing 23 occurred within the intervening 301 days so long 24 as each act is part of the whole. Nor, if 25 sufficient activity occurred by day 100 to make 26 out a claim, does it matter that the employee 27 knows on that day that an actionable claim 28 happened; on day 401 all incidents are still part 29 of the same claim. On the other hand, if an act 30 on day 401 had no relation to the acts between 31 days 1-100, or for some other reason, such as 32 certain intervening action by the employer, was no 33 longer part of the same hostile environment claim, 34 then the employee cannot recover for the previous 35 acts, at least not by reference to the day 401 12 1 act. 2 3 Id. at 118. Accordingly, if “any act falls within the 4 statutory time period,” we need “to determine whether the 5 acts about which an employee complains are part of the same 6 actionable hostile work environment practice.” Id. at 120. 7 II 8 We start by asking whether McGullam alleged any 9 discriminatory act within the limitations period. 10 McGullam filed her complaint with the NYSDHR--which 11 sent the complaint to the EEOC for dual filing purposes--on 12 July 3, 2001. The limitations period therefore started on 13 September 6, 2000 (300 days prior to July 3, 2001). Cedar 14 Graphics terminated McGullam’s employment on September 12, 15 2000. Accordingly, unless a discriminatory act contributing 16 to her hostile work environment claim fell within the seven- 17 day window--between the start of the limitations period on 18 September 6, 2000 and the termination of her employment on 19 September 12, 2000--her claim is time-barred. 20 The only conduct complained of after McGullam’s 21 September 22, 1999 transfer to the estimating department-- 22 and therefore the only alleged discriminatory acts that 23 could fall within the seven-day window--are the chickies This construction finds support in (i) McGullam’s 4 NYSDHR complaint, which asserted that the “most recent or continuing discrimination took place [on] 09/12/00”; (ii) McGullam’s opposition to Cedar Graphics’s motion for partial summary judgment, which asserted that her claim “encompassed the entire employment period”; and (iii) McGullam’s November 21, 2008 motion to proceed in forma pauperis in this Court, which asserted that her claim was “of a continuous and ongoing nature from the first day of employment until the last and the entire time period is to be considered on that basis.” 13 1 comments and the sleep-over comment. As alleged, the 2 chickies comments are too trivial to contribute to a Title 3 VII hostile work environment claim. They were not obscene 4 or lewd, or even sexually suggestive. Even if the chickies 5 comments could be deemed unrefined or uncivil, Title VII 6 simply “does not set forth a general civility code for the 7 American workplace.” Burlington N. & Santa Fe Ry. Co. v. 8 White, 548 U.S. 53, 68 (2006) (internal quotation marks 9 omitted). We therefore focus exclusively on the timing of 10 the sleep-over comment. 11 McGullam nowhere dates that single incident. Then 12 again, the statute of limitations is an affirmative defense, 13 and the defendant has not tried to find out whether McGullam 14 can date the incident. McGullam’s submissions arguably 15 allege that the sleep-over comment was made within the 16 seven-day window. See Terry v. Ashcroft, 336 F.3d 128, 137 4 14 1 (2d Cir. 2003) (“In determining whether there are genuine 2 issues of material fact, we are required to resolve all 3 ambiguities and draw all permissible factual inferences in 4 favor of the party against whom summary judgment is sought.” 5 (internal quotation marks omitted)). In any event, the 6 district court assumed that the sleep-over comment occurred 7 within the limitations period, and Cedar Graphics does not 8 argue to the contrary on appeal. 9 III 10 Was the sleep-over comment sufficiently related to the 11 production department conduct to be part of the same alleged 12 hostile work environment practice? 13 Under Morgan, a sexually offensive incident within the 14 limitations period permits consideration of an incident 15 preceding the limitations period only if the incidents are 16 sufficiently related. “[I]t does not matter whether nothing 17 occurred within the intervening [] days so long as each act 18 is part of the whole.” Morgan, 536 U.S. at 118. 19 The district court’s relatedness test was to consider 20 whether the within-limitations period incident satisfied the 21 severe or pervasive standard of a hostile work environment 22 claim. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 15 1 (1993) (determining that to establish a Title VII hostile 2 work environment claim, a plaintiff must show that “the 3 workplace is permeated with discriminatory intimidation, 4 ridicule, and insult, that is sufficiently severe or 5 pervasive to alter the conditions of the victim’s employment 6 and create an abusive working environment” (internal 7 quotation marks and citation omitted)). Cedar Graphics 8 urges us to use the same test. However, this approach finds 9 no support in Morgan, which emphasized that the “repeated 10 conduct” giving rise to a hostile work environment claim 11 “occurs over a series of days or perhaps years” and that a 12 component act need not be “actionable on its own.” Morgan, 13 536 U.S. at 115. We instead affirm using a different 14 analysis. 15 Morgan requires courts to make an individualized 16 assessment of whether incidents and episodes are related. 17 Morgan’s discussion of the 401-day scenarios does not limit 18 the relevant criteria, or set out factors or prongs. See 19 Morgan, 536 U.S. at 118 (“[I]f an act on day 401 had no 20 relation to the acts between days 1-100, or for some other 21 reason, such as certain intervening action by the employer, 22 was no longer part of the same hostile environment claim, 16 1 then the employee cannot recover for the previous acts, at 2 least not by reference to the day 401 act.”). 3 This flexibility is useful in a context as fact- 4 specific and sensitive as employment discrimination and as 5 amorphous as hostile work environment. Morgan determined 6 that “[a]lthough many of the acts upon which [the 7 plaintiff’s] claim depends occurred outside the 300 day 8 filing period, we cannot say they are not part of the same 9 actionable hostile environment claim” based on “evidence 10 from a number of . . . employees that managers made racial 11 jokes, performed racially derogatory acts, made negative 12 comments regarding the capacity of blacks to be supervisors, 13 and used various racial epithets.” Id. at 120-21; see 14 also Rowe v. Hussmann Corp., 381 F.3d 775, 781 (8th Cir. 15 2004) (where “it was the same harasser . . . committing the 16 same harassing acts . . . ,” concluding “as a matter of law 17 that the acts before and after the limitations period were 18 so similar in nature, frequency, and severity that they must 19 be considered to be part and parcel of the hostile work 20 environment”); Lucas v. Chi. Transit Auth., 367 F.3d 714, 21 727 (7th Cir. 2004) (finding that an “altercation in 2001” 22 arising out of a “chance meeting” between an employee and a 17 1 former supervisor “simply cannot be considered part of” any 2 “1997 hostile work environment” where there were “no 3 incidents during the intervening years”). 4 In this case, the sleep-over comment is insufficiently 5 related to the production department conduct chiefly for two 6 reasons. First, Cedar Graphics transferred McGullam (at her 7 request) from the production department, where she 8 experienced harassment, to the estimating department, which 9 was a different environment in material respects--and in a 10 different sector of the building. See Morgan, 536 U.S. at 11 118 (recognizing the importance of an “intervening action by 12 the employer”). McGullam testified at her deposition that 13 she had no problem with anyone in the estimating department. 14 Second, the sleep-over comment “had no relation to the” 15 production department harassment. Id. In the production 16 department McGullam encountered lewd and teasing comments 17 that were about McGullam, and that were addressed to her or 18 were made in her presence. The sleep-over comment-- 19 offensive though it may have been--was not lewd, it was not 20 about McGullam, and it was not addressed to her or made for 21 her to hear it. And the salesman she overheard was a member 22 of neither the production department nor the estimating Unlike the district court, we therefore do not reach 5 the merits of a hostile work environment claim based on the production department conduct and do not dwell on the severity (or lack thereof) of that pre-limitations conduct. Judge Calabresi does, however, for the purpose of recommending that the Morgan test be modified or reimagined. Under Judge Calabresi’s reasoning, withinlimitations conduct that is otherwise insufficiently related to pre-limitations conduct nevertheless may revive prelimitations conduct if that conduct is especially severe. Thus, Judge Calabresi’s concurring opinion states: “The severity of th[e] pre-limitations period conduct pushes in the direction of finding a single hostile work environment . . . .” This reasoning turns Morgan on its head. Morgan directs courts to evaluate the relatedness of withinlimitations conduct and pre-limitations conduct. Consistent with a flexible approach, courts may evaluate relatedness by comparing the severity of latter-day and earlier incidents. Obviously, the more similar the incidents are in severity, 18 1 department. Moreover, for the sleep-over comment to fall 2 within the limitations period, it must have occurred nearly 3 one year after McGullam’s transfer. Although that incident- 4 free interval does not preclude relatedness, it renders less 5 plausible the notion that the sleep-over comment is of a 6 piece with the production department conduct. Given these 7 discontinuities, we have no trouble finding insufficient 8 relatedness. 9 Accordingly, the sleep-over comment did not contribute 10 to any hostile work environment claim based on the 11 production department conduct and such a claim is therefore 12 time-barred. 5 the more likely it is that the incidents are related under Morgan. Judge Calabresi’s approach inverts the test such that latter-day conduct that is mild somehow becomes “related” for the very reason that it differs markedly from earlier conduct that is severe. 19 1 IV 2 McGullam’s claim nevertheless might survive summary 3 judgment if there were a triable issue as to whether the 4 sole non-trivial incident occurring within the limitations 5 period was itself of sufficient severity to support a 6 hostile work environment claim (albeit a truncated claim 7 premised on that single incident). See, e.g., Howley v. 8 Town of Stratford, 217 F.3d 141, 148, 153-56 (2d Cir. 2000). 9 To repeat, a plaintiff seeking to establish a Title VII 10 hostile work environment claim must show that “the workplace 11 is permeated with discriminatory intimidation, ridicule, and 12 insult, that is sufficiently severe or pervasive to alter 13 the conditions of the victim’s employment and create an 14 abusive working environment.” Harris, 510 U.S. at 21 15 (internal quotation marks and citation omitted). This 16 severe or pervasive standard “has objective and subjective 17 elements: the misconduct shown must be ‘severe or pervasive 18 enough to create an objectively hostile or abusive work 19 environment,’ and the victim must also subjectively perceive A Title VII sexually hostile work environment claim 6 further requires a plaintiff to establish that the conduct at issue occurred “because of the plaintiff’s sex,” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (per curiam) (internal quotation marks omitted), and that “a specific basis exists for imputing the conduct that created the hostile environment to the employer,” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). We read section II of Judge Calabresi’s concurring 7 opinion to suggest nothing more than that time-barred conduct may be considered as background evidence in certain circumstances. As shown by the parentheticals to the citations in the text, we have no quarrel with that suggestion. 20 1 that environment to be abusive.” Alfano v. Costello, 294 6 2 F.3d 365, 374 (2d Cir. 2002) (quoting Harris, 510 U.S. at 3 21). Courts review the totality of the circumstances, 4 including “the frequency of the discriminatory conduct; its 5 severity; whether it is physically threatening or 6 humiliating, or a mere offensive utterance; and whether it 7 unreasonably interferes with an employee’s work 8 performance.” Harris, 510 U.S. at 23; see also Morgan, 536 9 U.S. at 113 (explaining that an employee is not barred “from 10 using . . . prior acts as background evidence in support of 11 a timely claim”); Fitzgerald v. Henderson, 251 F.3d 345, 365 12 (2d Cir. 2001) (“A statute of limitations does not operate 13 to bar the introduction of evidence that predates the 14 commencement of the limitations period but that is relevant 15 to events during the period.”). 7 21 1 McGullam’s subjective perception notwithstanding, the 2 sleep-over comment objectively falls short of the requisite 3 levels of severity or pervasiveness. Cf. e.g., Alfano, 294 4 F.3d 365 (overturning a jury verdict in favor of the 5 plaintiff because the evidence at trial--demonstrating 6 conduct far more egregious than the sleep-over comment in 7 this case--was insufficient as a matter of law to establish 8 a sexually hostile work environment). 9 Accordingly, the sleep-over comment alone does not 10 present a triable issue regarding McGullam’s hostile work 11 environment claim.

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See: http://www.ca2.uscourts.gov/decisions/isysquery/e221ea59-348c-419c-aea5-c9984779d166/12/doc/08-4661-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e221ea59-348c-419c-aea5-c9984779d166/12/hilite/

Outcome: We have considered all of McGullam’s contentions on this appeal and have found them to be without merit. Accordingly, the judgment of the district court is hereby

AFFIRMED.

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