Summary
noting that "[w]hile the Sixth Circuit has not addressed the analysis to be used for a purported violation of, other courts have concluded that the familiar burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green does not apply to § 2615 claims."
Summary of this case from Schmauch v. Honda of America Manufacturing Inc.Opinion
Case No. 2:00-CV-995
February 12, 2002
OPINION AND ORDER
This matter is before the Court for consideration of the Plaintiff's Motion for Summary Judgment (Doc. #13) and the Defendant's Motion for Summary Judgment (Doc. #15). For the reasons that follow, the Plaintiff's motion is granted in part and the Defendant's motion is denied.
I.
Plaintiff Lori Hoge ["Plaintiff"], an employee of Defendant Honda of America Manufacturing ["Honda"], brings this action alleging that the Defendant violated the Family Medical Leave Act ["FMLA"], 29 U.S.C. § 2601, et seq. Plaintiff's complaint also presents a claim for violation of Ohio public policy, but this claim has been voluntarily dismissed by stipulation. (Doc. #9). The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
Plaintiff commenced employment with Honda on March 6, 1995 as a Production Associate working on the assembly line at Honda's East Liberty, Ohio plant. (Deposition of Lori Hoge, hereinafter "Plaintiff's Depo." at 28). On November 10, 1995, Plaintiff was injured in a non-work related automobile accident. She sustained a fracture of the L-1 vertebrae in the lumbar region of her spine. (Id. at 24; 36). Plaintiff was hospitalized for some time and returned to work in March 1996 with medical restrictions. (Id.). Upon her return, Plaintiff performed various assembly line jobs.
By late 1996, Plaintiff was working on the door assembly line. She was not able to install glass nor could she push or pull liner racks on the line given her medical restrictions. (Id. at 44). As of October 1998, Plaintiff's permanent restrictions included: no jumping in and out of cars; no lower back extension in excess of 15 degrees; no lower back flexion in excess of 30 degrees; no pushing or pulling liner racks; and no lifting of greater than 15 pounds. (Exhibit 12, Id.). Plaintiff was also subject to a permanent five day, forty hour work week restriction. (Exhibit 13, Id.). From February 1999 to April 2000, Plaintiff requested, and was granted, several short leaves of absence for various medical reasons, consistent with Honda's leave policy. (Exhibits 16-24, Id.).
These absences are not associated with the claim at bar.
On April 20, 2000, Plaintiff requested leave for May 11 — June 12, 2000, to undergo abdominal surgery for an ulcer. (Plaintiff's Depo. at 86; Exhibit 26, Id.). Plaintiff's leave was approved. Sometime around June 12, 2000, Plaintiff telephoned Honda to advise that she would need additional leave time. (Id. at 100-01). Plaintiff did not specify when she would be able to return to work. (Id. at 106). According to Plaintiff, her abdominal surgery did not result in the need for any job accommodation upon return to work; Plaintiff did, however, continue to require accommodation for her back problems. (Id. at 108).
On June 27, 2000, Plaintiff appeared for work and presented a physician's note, dated June 23, 2000, requesting that Plaintiff be granted leave until June 26, 2000. (Exhibit 27, Id.). Plaintiff arrived at the Honda plant at approximately 6:15 am. on June 27 and proceeded to the Medical Department. (Plaintiff's Depo. at 111). Plaintiff presented the physician's note to the nurse, who in turn called Brett Strine of the Safety Department. (Id. at 113-14). Strine was responsible for placing Production Associates in positions upon their return from leaves of absence; Strine was also responsible for ensuring that such placements comport with any physical restrictions the employee may have. (Affidavit of Brett Strine at ¶¶ 1-2 attached as Exhibit A to Defendant's Motion).
At approximately 8:00 a.m. on June 27, Strine reported back to the nurse that Plaintiff should go home because there was no available position on the door line that would be suitable for her work restrictions. (Plaintiff's Depo. at 115; 142). Plaintiff was aware that before June 27, her position on the door line had been filled with a temporary employee at the end of May 2000. (Id. 141).
In February 2000, Honda implemented a "New Model" changeover to its vehicles. This resulted in a variety of gradual changes to the types of work performed by Production Associates and caused an increase in work on the production lines. (Strine Affidavit at ¶ 4). According to Strine, the production line was extremely busy on June 27, 2000 and he was unaware that Plaintiff would be returning to work that day. (Id. at ¶¶ 6-7). Upon learning of Plaintiff's return, Strine reviewed her permanent restrictions and concluded that there were no available Production Associate positions she could perform that would be consistent with her physical limitations. (id.). Moreover, Strine averred that as a result of the changeover, the door line was fully staffed on the morning of June 27. (Id. at ¶ 10).
After learning that she could not work on June 27, Plaintiff telephoned her husband and they proceeded to the Associate Relations Department. (Plaintiff's Depo. at 119). Plaintiff and her husband spoke with an individual in the department who informed Plaintiff that he would assess the situation. (Id. at 136). Following this meeting, Plaintiff went home. (Id.). Plaintiff understood that the time off would be covered by the FMLA. (Id. at 147).
On June 30, 2000, Strine met with other Safety Department representatives in an attempt to find a suitable position for Plaintiff. It was not until July 26, 2000 that a position was identified on the engine assembly line. (Id. at ¶ 15).
On June 30, 2000, Mark Lippencott of the Honda Leave Coordination Department, sent two letters to Plaintiff. The first letter approved FMLA leave from June 26, 2000 to July 12, 2000; the letter further indicates that Plaintiff should report to work on July 13 to the Medical Department with a physician note indicating a fitness to work. (Joint Deposition Exhibit Q). The second letter, also dated June 30, 2000, approves Medical Leave for the period of July 13, 2000 to December 31, 2000. (Joint Deposition Exhibit T). The letter states that Plaintiff should report to work on January 1, 2001 with a physician's note. (Id.). Plaintiff avers that she did not request to be placed on leave after June 26, 2000. (Plaintiff 1st Affidavit at ¶ 14 attached as Exhibit A to Plaintiff's Motion). On July 12, 2000, Honda informed Plaintiff, by letter, that as of July 11, 2000 she had exhausted 462 hours of FMLA leave and that she had only 18 hours remaining for the calendar year. (Joint Deposition Exhibit U).
Plaintiff commenced work on the engine line on July 31, 2000. (Plaintiff's Depo. at 172). The position paid the same rate and had the same hours as Plaintiff's previous position. The job located in the same plant as Plaintiff's previous position. (Id. at 104). Upon her return, Plaintiff was placed on a "Gradual Return to Work Program." Under this program, Plaintiff began working two hours a day until she reached an eight hour per day work schedule, three weeks after her return. (Exhibit 30, Id.). Plaintiff's family physician, Dr. Joseph Ottaviano, approved the gradual return on July 28, 2000, after Honda presented a Gradual Return to Work form to him. (Affidavit of Dr. Ottaviano at ¶ 6 attached as Exhibit 3 to Plaintiff's Motion).
Plaintiff claims that Honda violated the FMLA by failing to restore her to immediate fulltime employment on June 27, 2000. Honda contends that its actions do not constitute an FMLA violation. Both parties seek summary judgment on this claim.
II.
The procedure for considering whether summary judgment is appropriate, is found in Fed.R.Civ.P. 56(c); this section provides:
The judgment sought shall be rendered forthwith 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.
The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. Kress Co., 398 U.S. 144, 158-59 (1970). Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also, Matsushita Electronic Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).
The United States Court of Appeals for the Sixth Circuit has recognized that Liberty Lobby, Celotex, and Matsushita have effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J.C. Bradford Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identifies a number of important principles in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479.
In addition, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a mere scintilla of evidence in order to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "'show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586). Moreover, "[t]he trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. That is, the nonmoving party has an affirmative duty to direct the Court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.
III.
The FMLA provides that an "eligible employee" can take up to twelve weeks of leave for various reasons, including inability "to perform the functions of the position" because of a "serious health condition." 29 U.S.C. § 2612 (a)(1)(D). An employee is eligible for such leave if he or she works for an employer that employs at least fifty employees and the employee completes 1,250 hours of service during the twelve month period immediately preceding the commencement of leave. 29 U.S.C. § 2612 (a).
In this case, it is undisputed that Plaintiff was an eligible employee entitled to FMLA leave for the period of May 11 — June 26, 2000. It is also undisputed that Plaintiff was entitled to be restored to employment, at some point, when her leave ended. The issue in this case is whether, upon her return, Plaintiff was entitled to immediate restoration of employment. As demonstrated below, the FMLA is silent on this issue.
The relevant statutory provision states:
(a) Restoration to position
(1) In general
[A]ny eligible employee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave —
(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or
(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.29 U.S.C. § 2614 (a).
The FMLA further provides that the right to be restored to employment "shall [not] be construed to entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit or position to which the employee would have been entitled had the employee not taken the leave." 29 U.S.C. § 2614 (a)(3)(B).
An "equivalent position" for purposes of § 2614(a)(1)(B) is
one that is virtually identical to the employees former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities which must entail substantially equivalent skill, effort, responsibility, and authority.29 C.F.R. § 825.215 (a). The regulations further provide that "[t]he employee is ordinarily entitled to return to the same shift or the same or an equivalent work schedule." 29 C.F.R. § 825.215 (e)(2).
With respect to limitations on the employer's obligation to restore employment, the regulations provide:
(a) An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. For example:
(1) If an employee is laid off during the course of taking FMLA leave and employment is terminated, the employer's responsibility to continue FMLA leave, maintain group health plan benefits and restore the employee cease at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise. An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration.
(2) If a shift has been eliminated, or overtime has been decreased, an employee would not be entitled to return to work that shift or the original overtime hours upon restoration. However, if a position on, for example, a night shift has been filled by another employee, the employee is entitled to return to the same shift on which employed before taking FMLA leave.
(b) If an employee was hired for a specific term or only to perform work on a discrete project, the employer has no obligation to restore the employee if the employment term or project is over and the employer would not otherwise have continued to employ the employee. On the other hand, if an employee was hired to perform work on a contract, and after that contract period the contract was awarded to another contractor, the successor contractor may be required to restore the employee if it is a successor employer. See § 825.107.
(c) In addition to the circumstances explained above, an employer may deny job restoration to salaried eligible employees ("key employees," as defined in paragraph (c) of § 825.217) if such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer; or may delay restoration to an employee who fails to provide a fitness for duty certificate to return to work under the conditions described in § 825.310.
(d) If the employee has been on a workers compensation absence during which FMLA leave has been taken concurrently, and after 12 weeks of FMLA leave the employee is unable to return to work, the employee no longer has the protections of FMLA and must look to the workers compensation statute or ADA for any relief or protections.29 C.F.R. § 825.216.
The FMLA prohibits an employer from "interfer[ing] with, restrain[ing], or deny[ing] the exercise of, or the attempt to exercise, any right provided" under the FMLA. 29 U.S.C. § 2615 (a)(1). The statute also prohibits an employer from "discharg[ing] or in any other manner discriminat[ing] against any individual for opposing any practice made unlawful" by the FMLA. 29 U.S.C. § 2615 (a)(2).
Section 2615(a)(2) is the "antidiscrimination" component of the FMLA. Plaintiffs complaint does not allege that she was discriminated against on account of taking leave. Rather, Plaintiff alleges that she was deprived of a right she was entitled to under the FMLA — specifically, the right to be restored to employment upon return from leave time. Thus, her claim falls within the prohibition of § 2615(a)(1). While the Sixth Circuit has not addressed the analysis to be used for a purported violation of this section, other courts have concluded that the familiar burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) does not apply to § 2615(a)(1) claims. See Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711 (7th Cir. 1997); Bachelder v. America West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001); Hunt v. Rapides Healthcare Sys., LLC, No. 00-31260, 2001 WL 1650961 (5th Cir. Dec. 26, 2001).
With these principles in mind, the Court proceeds to consider the merits of the parties' summary judgment motions.
IV.
In this case, Honda argues that because Plaintiff was restored to an "equivalent position" on the engine line, there is no violation of the FMLA. Honda further argues that it is not obligated, under the FMLA, to immediately restore an employee returning from leave. Honda points out that, since Plaintiff was subject to permanent restrictions on account of her earlier back injury, it had to undertake an accommodation review for purposes of the ADA. Honda contends that such reviews must simply be completed within a reasonable amount of time and that, in this case, the time between June 27, 2000 to July 26, 2002 was reasonable.
Honda points out that between June 30, 2000 to July 10, 2000, the plant was on "shutdown" for the July 4 holiday. (Strine Affidavit at ¶ 14).
Plaintiff maintains that she should have been restored to employment on June 27, 2000. In support of her position, Plaintiff relies upon Harrison v. Landis Plastics, Inc., No. 97C7094, 1998 WL 417493 (N.D. Ill. July 23, 1998). In that case, the plaintiff worked as an inspector packer for the Defendant, which manufactured plastic containers. Plaintiff was diagnosed with tendinitis and capsulitis in her hands and wrists and was placed on light work duty. She underwent several surgeries, but her physician recommended that she could work with certain
restrictions on her light duty assignments. It was undisputed that the Defendant did not attempt to find a position for Plaintiff consistent with her physical limitations; rather, Plaintiff was terminated from employment for exceeding FMLA leave time. Plaintiff alleged, inter alia, that the Defendant violated the FMLA by failing to restore her to the position she held prior to leave or by failing to place her in an equivalent position. The Defendant argued that it had no duty to restore Plaintiff's employment because she was unable to perform the essential functions of the inspector-packer position.
The district court concluded that summary judgment was inappropriate. The court noted that despite evidence that Plaintiff could return to work with accommodation, it was undisputed that the Defendant did not attempt to find a position suitable for Plaintiff Furthermore, there was a dispute as to whether any light duty assignments were available at the time Plaintiff wanted to return to work. Thus, the court concluded that a reasonable jury could find that the Defendant breached its duty under the FMLA to restore Plaintiff to the same or an equivalent position. Id. at *9.
Plaintiff in the case at bar argues that the instant facts are analogous to those in Harrison. Plaintiff herein was able to perform either the same or an equivalent position with some form of accommodation. Unlike the situation in Harrison, however, Defendant herein attempted to find Plaintiff a suitable position. The Defendant in Harrison simply terminated plaintiffs employment after making no attempt whatsoever to determine how it could provide accommodation. Thus, the Court does not find the Harrison analogous to this case.
Honda argues that since Plaintiff suffers from a "serious health condition" for purposes of the FMLA, "it was not immediately clear whether Plaintiff could perform the essential functions of the door line position" when Plaintiff returned to work on June 27. (Defendant's Motion for Summary Judgment at 15). Thus, Honda relies upon 29 C.F.R. § 825.214 for the proposition that because it was undisputed that Plaintiff had permanent work restrictions, she had no right to restoration to another position under the FMLA.
This regulation provides:
(a) On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave convinced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee's absence. .
(b) If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. However, the employer's obligations may be governed by the Americans with Disabilities Act (ADA).29 C.F.R. § 825.214.
Plaintiff takes issue with Defendant's reliance on the foregoing. In particular, Plaintiff points out that, at no time has she claimed that she is "disabled" for purposes of the ADA. Thus, Plaintiff contends that it is disingenuous for Defendant to assert that the delay associated with restoring Plaintiff to an equivalent position was in order to ensure ADA compliance.
The Court notes that Honda in fact concedes that, because of her back condition, Plaintiff is "disabled" for purposes of the ADA. (Reply Memorandum at 14 n. 11). Nonetheless, since Plaintiff does not argue that she is disabled and since she advances no ADA claim, the Court will not consider whether Plaintiff is in fact disabled for purposes of the statute.
The Court rejects Defendant's reliance on § 825.214 as a basis for delaying Plaintiff's restoration to employment. While it is undisputed that Plaintiff had physical restrictions, it is also undisputed that Defendant had several jobs which Plaintiff could perform as to all essential functions, since she is currently working in such position and has been in one or more of such positions since her return to work on July 31, 2000. Thus, § 825.214 is not dispositive of the issue at bar. Furthermore, the fact remains that, under 29 U.S.C. § 2614 (a)(1) Plaintiff was entitled to be restored to her former position, or an equivalent one, at some point unless her restrictions prevented the performance of the essential functions of such positions, which they did not.
In support of her theory of "immediate restoration," Plaintiff argues that when she returned to work on June 27, 2000, her previous position on the door line had not changed in any substantive way. Thus, Plaintiff argues that she should have been placed on the door line that day. As noted above, when Plaintiff appeared on June 27, the door line was producing the new models. Brett Strine made no attempt on that day to assess what, if any, tasks associated with the job had changed because of the new model production. (Strine Depo. at 3 8-39). Strine did later make the assessment and concluded that due to the changeover, the engine line provided the best accommodation for Plaintiff's physical limitations. (Id. at 40-41). In the Court's view, the determination of whether an equivalent position comports with the employee's physical limitations, lies with the employer. The Court concludes, however, that the degree to which Plaintiff's former job changed does not alleviate the duty to restore Plaintiff to an equivalent position.
The Court notes that Plaintiff offers the affidavit of one Brian Jones, who worked on the door line beginning in 1998. According to Jones, the new model changeover did not "cause any serious changes to any of the processes on the D-3 line . . . . The physical changes to the D-3 line were very minor." (Affidavit of Brian Jones at ¶ 6 attached as Exhibit 4 to Plaintif's Motion). In the Court's view, this testimony does not necessarily support Plaintiff's argument that she should have been returned immediately to the door line. Jones acknowledges that there were at least "minor" changes in the job and, moreover, it is undisputed that it was up to Brett Strine to assess the degree to which any job changes would impact Plaintiff's physical limitations. (Strine Depo. at 39).
Plaintiff also argues that the regulatory scheme of the FMLA contemplates that an employee should be restored immediately or, at a minimum, "without delay." First, Plaintiff points out that an employer may delay restoration until the employee provides medical certification of fitness for return to work. See 29 C.F.R. § 825.311 (c); § 825.312(c). Second, Plaintiff points out that an employer may delay or deny restoration if one of the exceptions in 29 C.F.R. § 825.216, set forth supra, applies. The Defendant expressly states that it does not contend that any of the enumerated exceptions applies to this case (Defendant's Memorandum contra Plaintiff's Motion at 8-10), nor does the Defendant challenge the Plaintiff's physical readiness to return to work. Thus, the Court finds no need to analyze whether any regulatory exception to restoration may apply. Furthermore, the Court declines to imply a rule of immediate restoration on account of the regulatory scheme.
Concomitantly, the Court declines to imply a rule that restoration to employment within a "reasonable time," as the Defendant suggests, comports with 29 U.S.C. § 2614. The statute clearly provides that "any eligible employee who takes leave, shall be entitled, on return from such leave" to be restored to her former or to an equivalent position. 29 U.S.C. § 2614 (a)(1) (emphasis added).
Indeed, the starting point of the Court's analysis is with the statute itself "If the intent of Congress is clear, that is the end of the matter." Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (quotation omitted). Departure from the plain language of a statute is appropriate only in "rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters . . . or when the statutory language is ambiguous." Kelley v. E.F. DuPont de Nemours Co., 17 F.3d 836, 842 (6th Cir. 1994) (citation and internal quotation omitted). In all other instances, the plain meaning of the statute controls. Id.
In this case, the Court finds no reason to depart from the literal language of the statute. Under 29 U.S.C. § 2614, the Plaintiff herein was entitled to be restored to employment, in either her former or an equivalent position, on her return from leave. The undisputed evidence reveals, however, that Plaintiff failed to give any advance notice of her return so as to allow Defendant time to immediately locate an equivalent position. Thus, the Court concludes that the failure to restore her on June 27, 2000 was not contrary to law. Nonetheless, Defendant's failure to find a suitable position until July 26, 2000 was contrary to law. This Court holds that the Defendant should have restored Plaintiff to an equivalent position by June 28, 2000. Thus, the Defendant's actions were in violation of 29 U.S.C. § 2614 (a) and 2615(a)(1).
The Court notes Plaintiff's argument that since she was placed on the Gradual Return to Work Program, she was not fully restored to employment until three weeks after July 31, 2000. It is, however, undisputed that Plaintiff did not object to the gradual program. (Plaintiff's Depo. at 186). Further, the program was approved by Plaintiff's family physician, who was familiar with Plaintiff's history of physical limitations attendant with her earlier back injury. (Affidavit of Dr. Ottaviano at ¶ 6 attached as Exhibit 3 to Plaintiff's Motion). In addition, as Lorena Dodds of Honda's Medical Department avers, an associate on the gradual program may, at any time, elect to terminate such program with physician approval. (Exhibit A at ¶ 2 attached to Defendant's Memorandum contra). There is no evidence that Plaintiff made any such attempt in this case. Thus, the Court cannot conclude that the simple fact that Plaintiff was placed on a gradual return to work schedule was a violation of the restoration provisions of the FMLA.
In sum, the Court concludes that the Defendant is liable for the loss of compensation Plaintiff suffered as a consequence of not being restored to employment from June 28, 2000 to July 31, 2000, as contemplated by 29 U.S.C. § 2617. As to issues of liability only under the FMLA, the Plaintiff's Motion for Summary Judgment is granted in part.
V.
In light of the foregoing, the Plaintiff's Motion for Summary Judgment (Doc. #13) is GRANTED in part. The Defendant's Motion for Summary Judgment (Doc. #15) is DENIED.
This matter is hereby scheduled for a Telephone Status Conference to address remaining matters on Monday, February 25, 2002 at 10:00 a.m.
IT IS SO ORDERED.