United States Court of Appeals For the First Circuit
No. 22-1696
BONNIE DIXON-TRIBOU,
Plaintiff, Appellant,
v.
DENIS RICHARD MCDONOUGH, Secretary, U.S. Department of Veterans Affairs,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Kayatta, Selya, and Gelpí, Circuit Judges.
Robert F. Stone and Law Office of Robert F. Stone on brief for appellant. Darcie N. McElwee, United States Attorney, and James D. Concannon, Assistant United States Attorney, on brief for appellee.
November 14, 2023 GELPÍ, Circuit Judge. Plaintiff-Appellant Bonnie
Dixon-Tribou ("Dixon") was formerly employed by
Defendant-Appellee, the U.S. Department of Veterans Affairs
("VA"), as a nurse. Following her removal from federal service in
November 2016, Dixon brought suit against the VA, alleging
disability discrimination, among other claims. Dixon appeals the
district court's decision granting the VA's motion for summary
judgment and denying her like motion. For the reasons described
herein, we affirm.
I. Background
When reviewing a district court's entry of summary
judgment, we recite the facts in the light most favorable to the
nonmovant -- here, Dixon -- "consistent with record support."
Lahens v. AT&T Mobility P.R., Inc., 28 F.4th 325, 328 (1st Cir.
2022) (citations omitted). We are careful, however, to omit from
our recitation those facts that the district court deemed excluded
for Dixon's failure to comply with Local Rule 56(f).1 See id. at
1 Despite our prior urging to comply with local anti-ferret rules at summary judgment, see, e.g., López-Hernández v. Terumo P.R. LLC, 64 F.4th 22, 25-27 (1st Cir. 2023), we are once again faced with a litigant who failed to support her asserted facts with appropriate citations to the record. See Dixon-Tribou v. McDonough, 616 F. Supp. 3d 38, 43 n.2 (D. Me. 2022). Accordingly, the district court struck said facts for violating Local Rule 56(f). Id. The district court also noted that, because Dixon filed no response to the VA's proposed additional facts, the VA's additional facts were admitted for purposes of deciding Dixon's summary judgment motion. Id. Our recitation of the facts accounts
- 2 - 328 n.1 (omitting from discussion on appeal facts that the district
court excluded pursuant to Local Rule 56(e)). Additionally,
because the extensive factual history is thoroughly detailed in
the district court's opinion, see Dixon-Tribou, 616 F. Supp. 3d at
43-51, we recite only the facts needed for purposes of the present
appeal. See Dukes Bridge LLC v. Beinhocker, 856 F.3d 186, 187
(1st Cir. 2017).
A. Dixon's Employment with the VA
Dixon began working for the VA as a floor nurse at the
Togus, Maine VA Medical Center ("Togus") in 2006. In 2007, a
patient injured Dixon, and she was thereafter assigned temporary
light duties. In the latter part of 2008, treatment for Dixon's
work-related injury revealed that she had multiple sclerosis
("MS"). One of the many symptoms of MS is heat intolerance, which
results in fatigue after exposure to elevated temperatures. Dixon
felt that her light-duties restriction was not being honored in
her role as a floor nurse, so when offered a role in the Quality
Management Department, she accepted.
In January 2015, the VA reassigned Dixon to the Patient
Care Services Department ("Non-VA Care Department"), where she
for the district court's decisions -- decisions that Dixon does not challenge on appeal. Given that the failure to heed local rules at summary judgment harms litigants and creates additional work for the district court, see id. at 51 n.11, we continue to stress the importance of compliance.
- 3 - processed referrals for patients to seek care outside of the VA
system. Dixon first began experiencing issues with the temperature
of her work environment shortly after she moved to her new office.
On July 8, 2015, she contacted Dustin Cochran ("Cochran"), Togus's
Reasonable Accommodation Coordinator, about the temperature
issues. Dixon provided Cochran with a letter from her doctor, Dr.
Paul Muscat, which stated that, as a result of Dixon's "long-
standing [MS]," she was "very sensitive to even moderately elevated
temperatures." The letter stated that she "need[ed] a work
environment in which higher temperature [was] not a problem" and
asked the VA to "make every effort to accommodate this requirement
in any way that [it saw] fit." The VA granted Dixon's reasonable
accommodation request on July 20, 2015, and arranged to move her
physical workspace to another office (room 218E) and to supply her
new room with an air conditioner, all of which the VA implemented
a few weeks later.
Following Dixon's move to room 218E, Dixon reported
continued temperature control issues, as well as interpersonal
conflicts with her officemates over the temperature of the space.
Then, on March 4, 2016, Dr. Muscat submitted a second reasonable
accommodation request to Cochran on Dixon's behalf. Dr. Muscat
requested that Dixon be allowed to telework to enable her to take
medication, which would relieve her pain symptoms, and to help
meet Dixon's existing reasonable accommodation for temperature
- 4 - control. After receiving the request, Cochran emailed Dr. Ray
Lash seeking his medical opinion on the accommodation request.
Dr. Lash responded that he "believe[d] there [wa]s some degree of
potential for improvement in her function with strict management
of temperature control and work conditions" and that "one could
make a reasonable case to consider a trial of strict home
temperature control as a means of managing her symptoms and ability
to function in her work." Per Cochran, he had a follow up
conversation with Dr. Lash where it was decided that "a reasonable
trial would be a [six]-month period in which [Dixon] could telework
up to two days a week based on her symptoms." On March 28, 2016,
the VA approved Dixon's second accommodation request -- insofar as
she was permitted to telework two days per week -- and committed
to providing her a new workspace that met all of her needs. By
late April 2016, Dixon was teleworking per her accommodation and
had a new private office located in Quarters 32.
Then, in summer 2016, Corey Vail ("Vail"), Dixon's then-
supervisor, received several reports from employees that Dixon was
in the community garden during work hours. An internal review of
her computer revealed that Dixon was logged off of her work
computer for more than two hours per day on twenty-eight separate
occasions during a five-month period. On September 21, 2016, Vail
proposed Dixon's removal from federal service for "failure to put
forth an honest effort in the performance of [her] duties." Dixon
- 5 - then submitted a third reasonable accommodation request on
September 27, 2016, seeking full-time telework. On October 26,
2016, Dixon met with Alan Lane, another Reasonable Accommodations
Coordinator, to discuss her request. Following their
conversation, Jonathan Meserve, Director of Human Resources, sent
Dixon a letter proposing an accommodation and seeking feedback.
On November 3, 2016, however, the VA informed Dixon that she was
removed from federal service, effective November 12, 2016.
On January 26, 2017, Dixon applied for disability
retirement with the U.S. Office of Personnel Management ("OPM")
pursuant to the Federal Employees Retirement System ("FERS"),
claiming that the VA removed her from federal service due to her
disability. After initially denying her application, OPM granted
Dixon disability retirement in May 2019.
B. Dixon's Administrative Complaints
On March 17, 2016, while still employed with the VA,
Dixon began the administrative process for filing a discrimination
claim by contacting a VA Equal Employment Opportunity Commission
("EEOC") counselor. Then, on June 22, 2016, Dixon filed a formal
complaint of employment discrimination, which the VA's Office of
Resolution Management ("ORM") partially accepted for investigation
on August 22, 2016. Specifically, ORM agreed to investigate the
following: (1) the VA's alleged failure to comply with Dixon's
reasonable accommodation for temperature control, (2) the VA's
- 6 - alleged denial of her March 2016 request for full-time telework,
and (3) the VA's increases in Dixon's workload from May 2016 to
July 2016. Approximately a month after ORM accepted Dixon's claims
for investigation, the VA proposed her removal from federal
service.
After her removal, on January 26, 2017, Dixon moved to
amend her formal discrimination complaint to include a promotion
that she did not receive in February 2014, her transfer to the
Non-VA Care Department in January 2015, and her removal from
federal service in November 2016. About a month later, ORM denied
Dixon's amendment request, explaining that her first and third
proposed additional claims could proceed as a separate complaint
but that her second claim was untimely and thus dismissed because
she failed to contact an EEOC counselor within forty-five days of
her transfer. On June 6, 2017, Dixon filed a second formal
complaint of discrimination based on: (1) her non-promotion in
2014, (2) the VA's failure to accommodate her disability, and
(3) her 2016 removal from service -- all of which were accepted
for investigation by ORM. ORM concluded both of its investigations
by October 24, 2017, and the complaints proceeded to a hearing in
front of an EEOC administrative law judge. On August 1, 2019, the
EEOC administrative law judge granted the VA's motion for summary
- 7 - judgment, which became final on August 6, 2019, when the VA
accepted the decision and issued its final agency decision.
C. Proceedings Before the District Court
Dixon filed the underlying complaint on November 8,
2019, in the United States District Court for the District of
Massachusetts, raising the following claims: (1) disability
discrimination under the Rehabilitation Act ("RA"); (2) hostile
work environment under the RA and Americans with Disabilities Act;
(3) retaliation in violation of Title VII; and (4) failure to
accommodate under the RA. The case was transferred to the United
States District Court for the District of Maine in October 2020.
There, during a Local Rule 56(h) conference, Dixon clarified that
all of her claims were based on the RA, not Title VII. Both
parties moved for summary judgment in February 2022.
On July 13, 2022, in a very thorough opinion, the
district court granted summary judgment in favor of the VA on all
counts and denied Dixon's like motion. Dixon-Tribou, 616 F. Supp.
3d at 63. In reaching said conclusion, the district court found
that, even if Dixon had met the prima facie burden of establishing
her disability discrimination and retaliation claims, Dixon failed
to offer evidence from which a reasonable juror could find that
the VA's nondiscriminatory reasons for its actions were
pretextual. Id. at 57-58. As to Dixon's hostile work environment
claim, the district court concluded that Dixon failed to present
- 8 - evidence establishing that the conduct she endured was
"sufficiently severe or pervasive to alter the conditions of her
employment" and that she failed to "offer[] any evidence that any
harassment that she suffered occurred as a result of her
disability." Id. at 60-61. Finally, as to Dixon's failure to
accommodate claim, the district court concluded that "no
reasonable juror could find that the VA failed to provide for a
reasonable accommodation," despite the occasional shortcomings in
achieving temperature control. Id. at 61-62. After entry of
summary judgment in favor of the VA, Dixon appealed.
II. Standard of Review
We review a district court's order granting summary
judgment de novo. Lahens, 28 F.4th at 333. To prevail at summary
judgment, a movant "must demonstrate that 'there is no genuine
dispute as to any material fact' and [that they are] 'entitled to
judgment as a matter of law.'" Id. (quoting Fed. R. Civ. P.
56(a)). The standard remains the same when the district court is
faced with cross-motions for summary judgment. See Dusel v.
Factory Mut. Ins. Co., 52 F.4th 495, 503 (1st Cir. 2022) (citation
omitted). While we must consider the record and the reasonable
inferences drawn therefrom in the light most favorable to the
nonmovant, we need not credit "conclusory allegations, improbable
inferences, and unsupported speculation." Lahens, 28 F.4th at 333
- 9 - (quoting Pruco Life Ins. Co. v. Wilmington Tr. Co., 721 F.3d 1, 6-
7 (1st Cir. 2013)).
III. Analysis
At the outset, we note that Dixon's challenges on appeal
differ from our typical summary judgment review. With one
exception, which we ultimately reject, Dixon does not point to
factual disputes precluding summary judgment. Nor does she
directly take issue with the district court's conclusion that the
VA was entitled to summary judgment on each of her four claims.
Instead, Dixon argues that the district court lacked jurisdiction
at summary judgment to review the facts underlying her claims,
that the district court should have precluded the VA from raising
certain arguments on appeal, and that the district court improperly
resolved a factual dispute at summary judgment and overlooked
specific pieces of evidence in reaching its decision. Although
Dixon's briefing is not a beacon of clarity, we do our best to
address the claims raised, as we understand them. We begin with
her argument that the district court lacked jurisdiction.
A. Jurisdiction Claim
Dixon devotes most of her briefing to arguing that OPM's
disability retirement decision is "final," "conclusive," and "not
subject to review," meaning, per Dixon, that the district court
lacked jurisdiction to review the facts related to OPM's disability
- 10 - determination at summary judgment.2 Dixon grounds her argument in
5 U.S.C. § 8461(d), which states in part: "The Office shall
determine questions of disability and dependency arising under the
provisions of this chapter administered by the Office. Except to
the extent provided under subsection (e), the decisions of the
Office concerning these matters are final and conclusive and are
not subject to review."3 Setting aside for a moment the question
of what OPM actually decided when it granted her disability
retirement, Dixon's jurisdictional argument is foreclosed by the
plain text of the statute. "[A]rising under . . . this chapter,"
as used in Section 8461(d), clearly refers to Chapter 84 of Title
5 of the United States Code, entitled "Federal Employees'
Retirement System," where the statute at issue is housed. There
is no suggestion that the statute has force outside of the FERS
context, and, notably, Dixon cites no support for her assertion
that Section 8461(d) applies to claims arising under the RA.
2 Sandwiched into Dixon's jurisdictional argument is her claim that the VA lacked standing to challenge OPM's disability decision. For the reasons we set forth in the opinion, the OPM's disability decision does not alter the outcome of our inquiry. 3 Dixon's motion for summary judgment erroneously cited 5
U.S.C. § 8347, which applies to Civil Service disability retirement. Giving Dixon the benefit of the doubt, the district court considered her jurisdictional claim under Section 8461, the analogous FERS statute. See Dixon-Tribou, 616 F. Supp. 3d at 53 n.13. Dixon attempts, somewhat confusingly, to assign error based on the district court's decision, despite citing to Section 8461 herself on appeal. We need not dwell on this issue given that neither statute gets Dixon where she wants to go.
- 11 - In fact, the cases cited by Dixon work against her. In
Anthony v. Office of Personal Management, the Federal Circuit
explicitly stated that "Section 8461 of Title 5 . . . sets out
OPM's authority to administer FERS benefits." 58 F.3d 620, 624
(Fed. Cir. 1995) (emphasis added). Further, each case that Dixon
cites for the premise that Section 8461(d) circumscribes judicial
review involved an appeal from the denial of retirement benefits
under FERS, not claims of employment discrimination. See Alston
v. Off. of Pers. Mgmt., 527 F. App'x 872, 874 (Fed. Cir. 2013)
(per curiam) (considering appeal from the denial of plaintiff's
"application for disability retirement under FERS"); Black v. Off.
of Pers. Mgmt., 250 F. App'x 343, 344 (Fed. Cir. 2007) (per curiam)
(reviewing appeal related to plaintiff's FERS disability
retirement application); Grayton v. Off. of Pers. Mgmt., 136
F. App'x 364, 365 (Fed. Cir. 2005) (per curiam) (deciding appeal
pertaining to the denial of FERS disability retirement benefits);
Anthony, 58 F.3d at 622 (affirming the denial of FERS disability
benefits). The district court correctly concluded that
Section 8461(d) did not bar its review of Dixon's claims at summary
judgment.
B. Preclusion Claim
Dixon next argues, in a similar vein, that the district
court erred by not giving OPM's disability retirement decision
- 12 - preclusive effect against the VA.4 According to Dixon, for OPM to
grant her disability retirement, it necessarily found that Dixon
"was in a position where her disabling MS . . . could not be
reasonably accommodated, and that her work deficiencies were due
to lack of accommodations." She further argues that, because OPM
found that her work deficiencies were disability-related and not
due to her failure to put forth an honest effort in her work, the
district court should have precluded the VA from arguing that she
was removed for "work dishonesty."
Dixon's preclusion argument is a nonstarter. First, "a
party asserting preclusion must carry the burden of establishing
all necessary elements." Puerto Ricans for P.R. Party v. Dalmau,
544 F.3d 58, 70 (1st Cir. 2008) (quoting 18 Charles Alan Wright &
4 Before the district court and on appeal, Dixon cites the doctrine of res judicata as the basis for her preclusion argument. "Res judicata -- also known as claim preclusion -- is a longstanding legal doctrine that 'a final judgment on the merits of an action precludes the parties from relitigating claims that were or could have been raised in the prior action.'" Rivera- Rosario v. LSREF2 Island Holdings, Ltd., Inc., 79 F.4th 1, 2 (1st Cir. 2023) (quoting Haag v. United States, 589 F.3d 43, 45 (1st Cir. 2009)). Given that Dixon's preclusion argument pertains to issues that she claims the VA should have been barred from relitigating, we assume she intended to ground her argument in collateral estoppel -- also known as issue preclusion. This doctrine provides that "[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Ríos–Piñeiro v. United States, 713 F.3d 688, 691-92 (1st Cir. 2013) (emphasis omitted) (quoting Mihos v. Swift, 358 F.3d 91, 101 (1st Cir. 2004)).
- 13 - Arthur R. Miller, Federal Practice and Procedure § 4405, at 83 (2d
ed. 2002)). Dixon made no meaningful effort to do so before the
district court, instead relying on her own conclusory assertions
about what OPM decided and her assumptions about the basis for its
decision. The only evidence that she offered as to OPM's decision
was a letter stating that she was entitled to disability retirement
under FERS. The district court correctly noted that it contained
"no factual findings or legal conclusions of any kind." Dixon-
Tribou, 616 F. Supp. 3d at 53. Among other deficiencies, Dixon
failed to put forth any facts from which it could be determined
that the parties "actually litigated" the issues as to which she
seeks preclusion, see Ríos–Piñeiro, 713 F.3d at 692 (quoting Mihos,
358 F.3d at 101), or that OPM "[wa]s acting in a judicial capacity"
when it made its decision, see id. at 691-92 (quoting United States
v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966)). Dixon's
position that the OPM awarded her benefits based in part on a
finding that her disability could not be reasonably accommodated
would, if accepted, provide yet another basis for challenging her
foundational contention in this case that the VA should be held
liable for failing to provide a reasonable accommodation. See
Pena v. Honeywell Int'l, Inc., 923 F.3d 18, 27 (1st Cir. 2019).
Given the shortcomings of Dixon's preclusion argument, the
district court did not err in rejecting her attempt to oppose the
VA's motion for summary judgment on this basis.
- 14 - C. Other Claims of Error
Finally, Dixon takes aim at the district court's summary
judgment decision by pointing to an alleged factual dispute that
she claims should have foreclosed summary judgment, as well as
evidence allegedly overlooked by the district court. We begin
with Dixon's disputed-facts claim.
1. Alleged Conflict Between Cochran and Dr. Lash
Dixon argues that the district court erred in granting
summary judgment to the VA because there was a dispute of material
fact between Cochran and Dr. Lash as to the reasonableness of
Dixon's March 2016 telework request. According to Dixon, Dr. Lash
opined that her full-time telework request was reasonable.
However, Cochran claimed that Dr. Lash recommended only two days
of telework per week on a six-month trial basis. Dixon argues
that the district court erred by intruding on the role of a jury
and resolving this factual dispute at summary judgment.
We need not dive into the issue of materiality -- whether
a fact "has the potential of affecting the outcome of the case,"
Taite v. Bridgewater State Univ., Bd. of Trs., 999 F.3d 86, 93
(1st Cir. 2021) (quoting Pérez-Cordero v. Wal-Mart P.R., Inc., 656
F.3d 19, 25 (1st Cir. 2011)) -- given that the conflict Dixon
points to is nonexistent. While Dixon is correct that Dr. Lash
stated that a trial of telework was reasonable to manage her MS
symptoms, there is no evidence of him opining on the frequency of
- 15 - said telework. In fact, Dixon's second reasonable accommodation
request, which Dr. Lash reviewed, does not specify that she was
seeking to telework full-time. Further undercutting Dixon's
argument is the fact that Dr. Lash, during a conversation with the
ORM investigator, stated that he could "not recall who said what
pertaining to the actual number of days that [Dixon] would be
permitted to telework on a trial basis." Contrary to Dixon's
claim, there is no record support for her assertion that Dr. Lash
approved her to telework full-time and thus no factual dispute
between Dr. Lash and Cochran precluding summary judgment.
Dixon also appears to argue that the district court erred
by not construing the facts related to the reasonableness of her
telework request in the light most favorable to her. She asserts
that the district court erred when it credited Cochran's statement
that Dr. Lash recommended two days of telework per week, as opposed
to drawing the more favorable inference that he approved full-time
telework. As explained above, the record does not support Dixon's
claim that Dr. Lash ever endorsed a full-time telework request.
Additionally, Dixon's argument misconstrues the district court's
recitation of the facts. Contrary to Dixon's claim, the district
court stated that "Dr. Lash recommended 'a trial of strict home
temperature control' but did not specify how many days he thought
Ms. Dixon-Tribou should be permitted to telework." Dixon-Tribou,
- 16 - 616 F. Supp. 3d at 46 (emphasis added). We turn next to her
overlooked-facts arguments.
2. Dixon's Transfer to the Non-VA Care Department
Dixon's next contention on appeal relates to her
transfer to the Non-VA Care Department in January 2015. Dixon
asserts that the district court failed to consider the implications
of her transfer, namely, that the VA moved her from a position
where her MS was accommodated to one where it was not. Dixon does
not spell out the significance that she wishes us to attach to
this asserted fact, nor how it applies to her claims. Assuming,
as the VA did, that she would like us to consider her 2015 transfer
as the withdrawal of a reasonable accommodation, thus constituting
an adverse act by the VA, Dixon faces two problems. First, the
district court did not "overlook" Dixon's 2015 transfer. During
a Local Rule 56(h) conference prior to summary judgment, the
district court sought clarification on the adverse actions on which
Dixon was relying. See Dixon-Tribou, 616 F. Supp. 3d at 57 n.20.
Dixon identified three allegedly adverse actions, none of which
involved her 2015 transfer. As such, the district court did not
consider said transfer because the court "t[ook] her at her word."
See id. Second, as the district court correctly noted, Dixon
failed to contact an EEOC counselor within forty-five days of her
transfer to the Non-VA Care Department. See id. Per ORM, said
claim was untimely raised and thus barred. See 29 C.F.R.
- 17 - §§ 1614.105(a)(1), 1614.107(a)(2); Velazquez-Rivera v. Danzig, 234
F.3d 790, 794 (1st Cir. 2000) (explaining that "administrative
remedies had not been exhausted" where plaintiff failed to
"contact . . . an [EEOC] counselor within 45 days, as required by
29 C.F.R. § 1614.105(a)(1)"). Given Dixon's representation to the
district court about the adverse acts underlying her claims and
her failure to exhaust her administrative remedies with respect to
her 2015 transfer, the district court did not err in excluding her
transfer from its summary judgment analysis.
3. Melina Leland Statement
Finally, Dixon contends that the district court
overlooked evidence establishing that the VA did not reasonably
accommodate her with temperature control of seventy-one degrees or
less. Specifically, Dixon points to a statement from her former
coworker, Melina Leland ("Leland"), which states that "[o]n the
days the office was 75-76 degrees, [Dixon] seemed to have some
difficulty focusing and moving from one system to another. The
days that it was 69-71, she was able to quickly process her
referrals and didn't need my assistance." While Dixon criticizes
the district court for failing to consider Leland's statement,
Dixon failed to cite said statement in her opposition to the VA's
motion for summary judgment. We have previously explained that
"litigants ignore [local summary judgment rules] at their peril,"
Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st
- 18 - Cir. 2007), and that it is not the job of the district court to
"perus[e] through the summary judgment record in search of disputed
material facts," López-Hernández, 64 F.4th at 26 (citation
omitted). As such, Dixon cannot fault the district court for
failing to consider a fact that she herself failed to put properly
before it. See Cabán Hernández, 486 F.3d at 8 (explaining that
appellate review is limited to determining "whether the district
court appropriately granted summary judgment based on the facts as
set forth in [the relevant] moving papers").5 We find no error on
the part of the district court here.
IV. Conclusion
Having dispensed with Dixon's claims of error and
discerning none in the district court's meticulous summary
judgment decision, we affirm.
5 Even if Dixon properly raised Leland's statement before the district court, Dixon fails to explain on appeal how consideration of the statement would change the summary judgment calculus. The district court, in its analysis of Dixon's failure to accommodate claim, credited her contention that the accommodations provided by the VA sometimes fell short, including the VA's efforts to achieve temperature control. Dixon-Tribou, 616 F. Supp. 3d at 61. The district court noted, however, that the VA made reasonable efforts to accommodate Dixon and that she "point[ed] to no authority for the idea that an employer is liable for imperfect accommodations." Id. Given that Dixon does not challenge the district court's conclusion that imperfect accommodations made in good faith are not "legally deficient," id., we fail to see how consideration of Leland's statement moves the needle.
- 19 -