Appendix — Gyadu v. Workers' Compensation Commission

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GetiGe OF THE CLERK

in The

Supreme Court Of The United States

Washington, D.C. 20543

October, 1997 Term

Accompanying Rulings of

Petition For A Writ Of Certiorari

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

BEN GYADU,

Plaintiff No. 3:96-CV-0043 (GLG)

- against -

WORKERS' COMPENSATION COMMISSION. Opinion

WORKERS' REHABILITATION COMMISSION. and

JOHN A. MASTROPIETRO, COMMISSIONER.

Defendants

APPEARANCES

For the Plaintiff

BEN GYADU, pro se

Post Office Box 4314

Waterbury, Connecticut 06704

For the Defendants

RICHARD BLUMENTHAL

Attorney General

WILLIAM J. McCULLOUGH

Assistant Attorney General

LISA GUTTENBERG WEISS

Assistant Attorney General

State of Connecticut

Post Office 120

Hartford, Connecticut 06106-1774

SGUETTEL BZ.

Defendants have moved this Court to dismiss

Plaintiffs Amended Complaint, in which Plaintiff seeks to

hold Defendants liable under Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. S 2000e et_seq., and 42

U.S.C. § 1983 for their alleged failure to provide Plaintiff

with certain benefits and rehabilitative services to which he

claims entitlement under difficulty in finding another job,

particularly one which would compensate him

commensurately with what he was earning prior to his injury.

(The Amended Complaint does not indicate what Plaintiff's

occupation was prior to his injury). He complains that the

Commissioner has encouraged him to look for jobs which he

cannot perform, in an effort to get Plaintiff "off the system."

Plaintiff alleges that this has caused him a great deal of

anxiety, distress, and financial hardship.

Plaintiff, in general, complains of what he describes as

the Commission's “arbitrary and capricious" handling of his

claims. He alleges that the Commission has made it possible

for the insurance carrier to withhold various benefits. As

examples, he cites Defendants’ failing to take action when the

carrier "dishonored its agreement" to pay dependency

benefits, and when the carrier discontinued his weekly

section 308a benefits (C.G.S.A. S 31-308a) for a three-week

period in late December of 1995.° He alleges that the

We do not have the record of the Workers’

Compensation hearings before us. However, it appears from

Plaintiffs 28-page Amended Complaint that Plaintiff was

claiming a dependency allowance for his late sister's children

for whom he claims he was providing support. Section

31-308b, C.G.S.A. (repealed effective July 1, 1991), provided

for a dependency allowance of ten dollars per week for each

of an employee's children or stepchildren, under certain

circumstances. Apparently, this allowance was disallowed,

and Plaintiff appealed. He states in his Amended Complaint

"{i]t is 2 years ago now since the plaintiff appealed a decision,

which arbitrarily denied him dependency allowance and till to

date he has not had a hearing on that appeal... . ." (Amended

Complaint at 8).

> Section 31-308a of the Connecticut's Workers’

Compensation Act covers "[{a]dditional benefits for partial

permanent disability," which may be awarded by the

Commissioner after the payments provided in section 31-308

have been paid for the period set forth in that section

Subsection (a) of that section concludes that "[a]dditional

benefits provided under this section shall be available only to

employees who are willing and able to perform work in this

state." Subsection (b) provides that [n]Jotwithstanding the

provisions of subsection (a) of this section, additional benefits

provided under this section shall be available only when the

nature of the injury and its effect on the earning capacity of an

employee warrant additional compensation."

Commissioner gave his blessing to this "illegal action."* He

also challenges the Commissioner's calculation of his weekly

benefits "based on an arbitrary figure he chose as the plaintiff's

current earnings capability," which resulted in a decrease of

$97.00 in Plaintiff's weekly benefits. He contends that the

Commission should have increased his weekly benefits when

the statutory maximum was increased in 1991 (pursuant to

P A. 91-339, S 29, eff Oct. 1, 1991), some five years after

the date of his injury. He complains about the Commissioner's

In his Amended Complaint, Plaintiff describes the

circumstances surrounding the termination of his 308a

benefits for a period of three weeks as follows: Plaintiff states

that the carrier stopped paying his benefits because they were

informed that plaintiff was "looking for work his own way."

The carrier, after stopping the weekly benefits on December

22, 1995, then wrote the Commission for an informal hearing.

Plaintiff asked the Commission to intercede on his behalf to

require the crrier to reinstate his benefits, but the Commission

took no action, pending the informal hearing on January 4,

1996.

> We do not have the Commissioner's ruling before us,

but from what we can discern from the Amended Complaint,

it appears that the Commissioner at the hearing ruled that,

because these benefits were discretionary and because the

duration "within which the benefits was [sic] granted was

exhausted," the carrier was entitled to discontinue the benefits

prior to an informal hearing.

use of an allegedly incorrect discount rate in calculating the

lump sum payment (see C.G.S.A. § 31-302) of a portion of

his benefits.* And, he contends that he has been denied proper

rehabilitative services and job search benefits under section ™

31-308, C.G.S.A., thus requiring him to take out student

loans’ and exhaust other benefits.” The only one of these

* Section 31-302, C.G.S.A., provides in relevant part

that

[c]ompensation payable under this chapter

shall be paid at the particular times in the week

and in the manner the commissioner may order

, but, when he finds it just or necessary, the

commissioner may approve or direct the

commutation, in whole or in part, of weekly

compensation . . . into a single lump sum

In any case of commutation, a true equivalence

of value shall be maintained, with due discount

of sums payable in the future

Plaintiff complains of the Commissioner's use of the

current discount rather than the discount rate applicable at the

time of his accident. The state court in Gyadu _v. Chairman,

Workers Compensation Commission, No. 122258, 1994 WL

711199 (Conn. Super. Memorandum of Decision, Dec. 9,

1994) (see note 5, infra), found that the Commissioner's

decision was an order or decision under CGS A. §

31-301(a), subject to the administrative review procedures of

that section.

Although not mentioned in the Plaintiff's Amended

Complaint, the Connecticut Superior Court notes in a

Memorandum of Decision dated December 9, 1994,

S

adverse actions that Plaintiff has appealed through the

administrative appeals process set forth in the Workers’

Compensation Act is the Commission's denial of a

dependency allowance.

In this case, Plaintiff seeks an equitable relief, inter

alia, an order that would require the Defendants to provide

the Court with specific strategies which they would pursue to

find "ways and means to help plaintiff secure a gainful

employment whose income would, at least commensurate

dismissing Plaintiffs state court complaint for failure to

exhaust administrative remedies (see discussion at pages 6-7,

infra), that the Plaintiff, while disabled, received his bachelor's

degrees in geology in 1989-90, and in economics in 1989-90,

as well as his masters degree in public administration in June

of 1994. (The Decision also mentions a bachelor's degree in

business administration in 1980-81 and a master's degree in

business administration in 1981-82. However, based on the

information that we have before us on this Motion to Dismiss,

it appears that these were prior to the injury that is the subject

of his complaints in this action). See Gyadu_v. Chairman,

Workers Compensation Commission, No. 122258, 1994 WL

711199 (Conn. Super., Memorandum of Decision, Dec. 9,

1994).

* Plaintiff complains that he was denied section 308,

C.G.S.A. § 31-308, benefits while he was looking for work.

Instead, he states that he was given a specific award under

section 31-308a for the permanent partial disability, C_'G.S.A.

S 31-308a, which he claims that he exhausted in his job search

efforts.

with the plaintiff's income 10 years ago to adjust

Plaintiffs weekly benefits; to pay the cost of Plaintiff's

training, including his student loan; to provide on-the-job

training assistance; to "recover" his "specific award" for the

"permanent partial loss of the use of his master hand," which

award he exhausted in his search for a job because of

Defendants' denial of benefits; to refund three weeks of

weekly benefits that were withheld; and to pay the

dependency allowance which was denied to Plaintiff. He also

demands that this Court "[m]ake the defendants state that not

until they assist the plaintiff in any way possible to secure a

gainful employment, they should continue to support

plaintiff."

As money damages, h e asks this Court award

damages to compensate Plaintiff for loss of income and to

reasonably compensate him for injuries he has suffered

because of Defendants’ actions

In addition, he challenges as unconstitutional (a)

Defendants' actions which denied Plaintiff section 308.

et

C.G.S.A. § 31-308, benefits; (b) the law or regulation which

made Defendants take this action; (c) section 31-308a,

C.G.S.A., which he alleges allowed the Commissioner to

encourage the carrier to withhold and discontinue benefits

without due process and allowed the Commissioner to use an

arbitrary and capricious means to determine Plaintiff's weekly

benefits;.(d) the informal hearing process as a violation of due

process; (e) the law that establishes the maximum weekly

compensation rate,’ "as it subjects prior injury high income

earning claimants, as the plaintiff, to unfair and unequal

treatment and therefore injustices;" and (f) section 31-284, the

exclusive remedy provision of the Workers’ Compensation

Act, applicable to employers, as a violation of due process.

As noted above, in seeking this relief, he attempts to

invoke this Court's federal question jurisdiction under Title

VII, 42 U.S.C. S 2000e et seq., and 42 U.S.C. S 1983.

Presumably, Plaintiff is referring to C.GS.A §

31-309, "Maximum Weekly Compensation. Determination of

Average Weekly Earnings of Production and Related

Workers in Manufacturing."

————_——_ ero

DISCUSSION

Plaintiff has previously filed a similar complaint’ in

state court, which was dismissed due to Plaintiff's failure to

exhaust the administrative remedies provided in the Workers’

Compensation Act Gyadu--v. Chairman, __ Workers

Compensation Commission, No. 122258 (Superior Court,

Judicial District of Waterbury, Conn., Memorandum of

Decision Dec. 9, 1994). The Superior Court correctly noted

that the Compensation Act contains an_ elaborate

administrative procedure for the resolution of claims for

compensation under the Act. Compensation Commissioners

have the authority to hear all matters arising under the Act

with respect to the entitlement to benefits. CGSA. §

31-278, 31-297, 31-297a, 31-298. Their decisions are then

subject to review by the Compensation Review Board

C.GS.A. § 31-301(a), 31-280b(b). Additionally, the parties

may seek further review of any question of law by the state

Plaintiff's state court complaint challenged the same

actions of the Commission but it did not raise the

constitutional issues asserted in this federal action

9

appellate court CGSA. § 31-301b. Accordingly, the

Superior Court dismissed Plaintiffs state court complaint,

finding that Plaintiff's claims seeking redress for the denial of

an increase in benefits in accordance with the increase in the

statutory maximum, for the denial of certain rehabilitative

services, and the application of the allegedly incorrect

discount rate to his application for a lump sum portion of his

benefits fell within the scope of the administrative remedies

provided by the Compensation Act and, therefore, were

committed to the administrative review procedures therein.

Because of the constitutional claims now asserted by

Plaintiff in his Amended Complaint, our task is not quite so

easy. In ruling on Defendants’ Motion to Dismiss, we consider

each of the Plaintiff's Claims separately.

L Plaintiffs Claims for Equitable Relief

A careful review of Plaintiffs Amended Complaint

indicates that what Plaintiff is primarily seeking in this federal

forum is equitable relief from various decisions of the

10

Compensation Commissioner. This is not the function nor

province of this Court. We do not sit as an alternative forum

to the administrative appeals process set forth in the Workers’

Compensation Act. A workers’ compensation claimant,

unhappy with the outcome of a compensation hearing, may

not come into this Court to obtain review of that decision

absent some legitimate basis for invoking the federal

jurisdiction of this Court.

The Second Circuit has recently addressed the

permissible scope of the abstention doctrine in the case of

Tribune Co. v. Abiola, 66 F.3d 12, 15-17 (2d Cir. 1995), an

action brought by a newspaper against its union employees,

their unions, attorneys and doctors, alleging a conspiracy to

submit fraudulent workers’ compensation claims. The Second

Circuit began its analysis with a discussion of the Supreme

Court's decision in Burford v. Sun Oil Co. 319 US. 315

(1943). Burford involved predominantly state law claims, as

well as a Fourteenth Amendment challenge to the Texas

Railroad Commission's grant of an oil drilling permit, which

1]

the Court characterized as a "simple proceeding in equity to

enjoin enforcement of the Commission's order." 319 U.S. at

317. In Burford, the Court held that, as a matter of sound

equitable discretion, the district court had properly declined to

exercise its jurisdiction because of several factors, including

the complex state regulatory scheme involved, id. at 318-24,

the local importance of the matters before the regulatory

agency, id. at 320, the existence of a unified system of review

of commission decisions by a single court, the potential for

delay and misunderstanding of local law, needless conflict

with the state policy by federal review, id. at 325, and because

plaintiffs federal claims could be heard in the relevant state

proceedings and would be "fully preserved" by appeal to the

Supreme Court, if necessary, id. at 334. Tribune Co., 66 F.3d

at 15

The Second Circuit then discussed the subsequent

Supreme Court decision in New Orleans Public Service, Inc.

v. Council of the City of New Orleans, 491 U.S. 350 (1989)

("NOPSI"), in which the "Supreme Court took pains . . . to

reiterate the narrow reach of Burford abstention, and to distill

the distinctively equitable principles underlying that doctrine."

66 F.3d at 15. The Second Circuit noted that the Supreme

Court in NOPSI held that “there are some classes of cases in

which the withholding of authorized equitable relief because

of undue interference with state proceedings is 'the normal

thing to do," 491 U.S. at 359, and that a federal court asked

to provide equitable relief "should be wary of interrupting the

proceedings of state administrative tribunals by use of the

extraordinary writ of injunction." NOPSI, 491 U.S. at 362.

Recognizing that there is a split among the Circuits as

to whether the Burford abstention doctrine senlien only when

a federal court is sitting in equity, the Second Circuit, without

expressly deciding the issue, held that only claims seeking

equitable relief will "generally" pose a danger of interfering

with state proceedings or orders. Tribune Co., 66 F.3d at 16.

Thus, we consider the abstention doctrine only with respect to

Plaintiff's claims for equitable relief.

We have carefully considered the relief sought by

Plaintiff and have determined that this is an appropriate case

in which to exercise abstention as to the equitable remedies

sought by Plaintiff with respect to the challenged actions of

the Defendants. Here Plaintiff challenges decisions made

under a relatively complex state system, which the State has

relegated to a special administrative tribunal to resolve. This

Court is in essence being asked to usurp the authority of the

Connecticut Workers' Compensation Board and_ the

Commissioner. Moreover, as to the relief that Plaintiff seeks

with respect to the denial of his claim for a dependency

allowance, Plaintiff has an administrative appeal pending,

although he is upset by the length of time the appeals process

is taking. And, as to the other rulings that he, in essence, is

asking this Court to reverse, he has failed to file any appeals,

claiming that the process takes too long.

Frustrated with the treatment that he has received by

the Commission and Commissioner and having been

unsuccessful in his attempts to get relief from the state court,

fo a oe eee

Plaintiff now asks this federal court to intervene in the state

workers’ compensation process and to order the Defendants

to take certain action. This we will not do

Accordingly, we decline, based on principles of

abstention, to exercise jurisdiction over Plaintiffs equitable

requests for an order requiring Defendants: (a) to provide

strategies that they will pursue to help Plaintiff seek gainful

employment with income commensurate with that he was

earning prior to his injury; (b) to adjust Plaintiffs weekly

benefits, (c) to pay the cost of Plaintiff's training, including his

student loan; (d) to provide on-the-job training assistance; (e)

to refund his specific award for the permanent partial loss of

his hand, which award he exhausted in his search for a job; (f)

to refund the three weeks of benefits that were withheld by

the carrier; (g) to pay the dependency allowance; and (h) to

continue to support Plaintiff until they assist Plaintiff in

securing gainful employment

Therefore, Plaintiffs claims for equitable relief are

dismissed

—"

WN

IL. Plaintiff's Claims for Money Damages

We next turn to the issue of Plaintiff's claims under

Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e et_seq., and 42 U.S.C. S 1983 for money

damages against the various Defendants.

A. Plaintiff's Title VII Claims

Title VII of the Civil Rights Act of 1964, as amended,

42 USC. S 2000e et_seq, prohibits employment

discrimination on the basis of race, color, religion, sex, or

national origin. 42 U.S.C. S 2000e-2. By its very terms it

applies to employers. None of the Defendants listed by

Plaintiff is alleged to have been his employer. Additionally,

Plaintiff does not allege discrimination in employment on the

basis of race, color, religion, sex, or national origin. Thus,

Plaintiff has failed to state a cause of action under Title VII,

and Title VII cannot serve as a basis for this Court's subject

matter jurisdiction over Plaintiffs Amended Complaint. See

Smith v. U.S. Air Force, 566 F.2d 957 (Sth Cir.), cert. denied,

439 US. 819 (1978).

Plaintiff counters that Title VII covers disparate

impact discrimination, citing Griggs v. Duke Power Co., 401

US. 424 (1971), and claims that the cap on workers’

compensation benefits and Defendants' denial of necessary

vocational training had a disparate impact on him, since prior

to his injury he was earning far in excess of average wage

used to calculate the maximum weekly benefit. Thus, he

argues that these statutory provisions are discriminatory

Plaintiff is correct that Title VII does indeed cover

discriminatory employment practices that have a disparate

impact on members of a protected group. However, this

theory of proof requires that an employment practice be

challenged as discriminatory on the basis of race, sex, national

origin, et_cetera, which Plaintiff has not done. Plaintiff is

challenging decisions of the Workers’ Compensation

Commission, as applied to him, and the effect of

Connecticut's Workers’ Compensation Act. These are not

cognizable claims under Title VII under a disparate impact

theory or under any other theory.

Therefore, Plaintiff has failed to state a claim under

Title VII upon which relief may be granted.’

B. Plaintiff's Section 1983 Claims

i Plaintiff's Claims Against the State

Agencies and Commissioner in his Official Capacity

Section 1983 of Title 42 authorizes the imposition of

liability against "[e]very person" who, acting under color of

state law, violates another person's federally protected rights.

The Supreme Court in Will v. Michigan Dept. of State Police,

491 US. 58 (1989), has made clear that neither State

agencies nor State officials acting in their official capacities

are "persons" under section 1983. Thus, neither the

Connecticut Workers’ Compensation Commission nor

Commissioner Mastropietro in his official capacity are

"persons" subject to section 1983 liability.

Additionally, the Eleventh Amendment bars federal

courts from entertaining suits brought by a private party

administrative remedies and a right-to-sue letter before an

action may be commenced in federal district court. 42 U.S.C.

S 2000e-S.

18

a

i

a

ee Oper

against a State and State agencies. Edelman v: Jordan. 415

U.S. 651 (1974). Contrary to the argument made by Plaintiff.

the Eleventh Amendment is not applicable only to the State

itself, but its immunity protections extend to State agencies as

well. Id. at 663; Pennhurst State School & Hosp. _v.

Halderman, 465 U.S. 89, 100 (1984); Lipofsky v. Steingut,

1996 WL 290216 (2d Cir. June 4, 1996) (State Insurance

Fund is a state agency immune from suit under the Eleventh

Amendment)

Plaintiff argues that sovereign immunity does not

apply in this case because the payments for benefits which

have been denied the Plaintiff come from the insurance

carrier, and not the State. But, Plaintiff has not sued the

insurance carrier, he has sued a state agency, the State

Workers' Compensation Commission, and is seeking money

damages from the Commission, which would come from the

State treasury, not from the insurance carrier. The

Commission as a state agency is entitled to invoke the

sovereign immunity protections of the Eleventh Amendment.

Additionally, the case of Heffez_v. Washington Metro

Area Transit Authority, 569 F. Supp. 1551 (D.D.C. 1983),

affd 786 F.2d 431 (DC. Cir. 1986), cited by Plaintiff is

inapposite. Heffez did not involve a state agency, but rather a

quasi-governmental entity created by an interstate compact,

whose immunity was dependent upon the terms of the

compact. The Connecticut Workers’ Compensation

Commission, unlike the Washington Metro Area Transit

Authority, is clearly a state agency entitled to invoke the

Eleventh Amendment immunity protections available to state

agencies

The Eleventh Amendment immunity to which a State

ee ee ne ng ee eee ee ee

official is entitled in a section 1983 suit depends on the

capacity in which he is sued. To the extent that a State |

official is sued in his official capacity, such a suit is deemed to

be a suit against the State, and the official is entitled to invoke

the Eleventh Amendment immunity belonging to the State.

Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993). Fj

As to claims brought against a State official in his or her :

individual capacity, the State official has no Eleventh

Amendment immunity. Id.

It is unclear from Plaintiffs Amended Complaint

whether his claims are against the Commissioner in his

capacity as an official of the State, or in his individual

capacity, or both.’ Plaintiffs Amended Complaint names

“Commissioner Mastropietro (In His Individual Capacity) - 3d

Defendant," but then states that the "3rd Defendant is a State

Official," and alleges various claims against the Commissioner

In connection with activities taken by him in his official

capacity. Because Plaintiff is proceeding pro se, we will treat

In Kentucky v. Graham, 473 U.S. 159 (1985), the

Supreme Court explained the difference between

individual-capacity claims and official-capacity claims

Personal-capacity suits seek to impose personal

liability upon a government official for actions he takes under

color of state law Official-capacity suits, in contrast,

"generally represent only another way of pleading an action

against an entity of which an officer is an agent." .. . As long

as the government entity receives notice and an opportunity

to respond, an official-capacity suit is, in all respects other

than name, to be treated as a suit against the entity . . . It is

not a suit against the officially personally for the real party in

interest is the entity. Id. at 165-66 (citations omitted)

21

his complaint as stating both individual and official capacity

claims against Commissioner Mastropietro. See Frank _v.

Relin, 1 F.3d 1317, 1326 (2d Cir.), cert. denied, 114 S. Ct.

604 (1993).

The same rationale would apply to the Workers’

Rehabilitation Commission, named as a Defendant, if such an

entity existed.'' However, no such agency exists. Accordingly,

based on the legal principles set forth above, Plaintiff's section

1983 claims for money damages against both the State

Workers’ Compensation Commission and Commissioner

Mastropietro in his official capacity only are dismissed in that

they are not "person[s]" within the meaning of the statute and

based on Eleventh Amendment State sovereign immunity.

‘a Plaintiffs Claims _ Against _ the

Commission in his

Individual Capacity

'' While under C.G.S.A. S 31-283a, the Workers'

Compensation Commission is authorized to provide

rehabilitation programs for employees suffering compensable

injuries, according to the Defendants, there is no state agency

or entity known as the Workers’ Rehabilitation Commission,

and no such entity has been served by Plaintiff or appeared as

a defendant in this action.

22

This ruling, however, does not affect Plaintiff's claims

against Defendant Commissioner Mastropietro in_ his

individual capacity. As Plaintiff correctly points out, the

Commissioner when sued individually is considered a

“person" within the meaning of section 1983, and is not

entitled to invoke the protection of the Eleventh Amendment

a The Commissioner's Absolute

and Qualified Immunity

Defendants assert in their motion to dismiss that the

Commissioner, sued in his individual capacity, is entitled to

absolute judicial immunity and qualified immunity as to the

acts of which Plaintiff complains in his Amended Complaint

Whether an official is entitled to absolute or qualified

immunity depends on the nature of the official's functions at

issue. "[I]mmunity is justified and defined by the functions it

protects and serves, not by the persons to whom it attaches."

Forrester v. White, 484 U.S. 219, 227 (1988). As the Second

Circuit recently held in Young v. Selsky, 41 F.3d 47, 51 (2d

Cir. 1994), "whether non-judicial officers merit quasi-judicial

absolute immunity depends upon 'the functional comparability

of their judgments to those of the judge," citing Imbler_v.

Pachtman, 424 U.S. 409, 423 n.20 (1976). Because the

approach is functional rather than titular, an official may be

absolutely immune from liability with respect to certain

functions of his job, but enjoy only qualified immunity as to

others. Schwartz, M., Section 1983 Litigation. Claims,

Defenses, and Fees S 9.2 (2d ed. 1991)

In his Amended Complaint, Plaintiff complains about

the Commissioner's _— at a hearing allowing the insurance

carrier to discontinue weekly benefits for a three-week period

of time, which Plaintiff characterizes as giving his “blessing to

the carrier's illegal action." (Count Two, page 5, 7). He

complains about the Commissioner's calculation of Plaintiff's

weekly benefits, which allegedly allowed the carrier to

~ The Second Circuit then listed six factors that, among

others, should be considered in analyzing functional

comparability: (1) the need to assure that the individual can

perform his functions without harassment or intimidation; (2)

the presence of safeguards that reduce the need for private

damages actions as a means of controlling unconstitutional

conduct, (3) insulation from political influence, (4) the

importance of precedent, (5) the adversary nature of the

process, and (6) the correctability of the error on appeal. Id.

24

ee ee sof te ie

withhold $97.00 per week from Plaintiffs weekly benefit

check. (Count Two, pages 5-6). He complains about the

Commissioner's recommending that Plaintiff look for jobs that

he contends “every available medical reports [sic] indicates

that the plaintiff is not capable of doing." (Count Two, pages

6-7). And, he complains about the Commissioner's failure to

set an emergency hearing. (Count Two, page 9).

In the instant case, the duties of the Commissioner are

set forth in C.G.S.A. § 31-278. He has the power to summon

and examine under oath witnesses; he may direct the

production of documents, he can order depositions; he can

certify official acts and has “all the powers necessary to enable

him to perform the duties imposed upon him by the provision

of this chapter." C.G.S.A. § 31-278. He has the power to

conduct hearings, which are governed by C_G.S.A. § 31-298.

The hearings are of an adversary nature, conducted in

accordance with the rules of equity, and the Commissioner

has the authority to proceed "in a manner best calculated to

ascertain the substantial rights of the parties and carry out the

25

provisions and intent of this chapter." C.G.S.A. S 31-298. All

testimony is recorded. Either party has a right to appeal.

CGS. A. § 31-301

Persons performing adjudicatory functions in

administrative agencies enjoy absolute immunity from liability

for damages for their judicial acts. Butz_v._ Economou, 438

US. 478, 512 (1978). "[A]dministration within a[n]

administrative agency shares enough of the characteristics of

the judicial process that those who participate in such

adjudications should also be immune from suits for damages."

438 US. at 512. Thus, Commissioner Mastropietro’s rulings

concerning Plaintiff's entitlement to workers’ compensation

benefits were acts within his capacity as Commissioner, and

thus, were "judicial acts" See Messa v. Foley, 1993 WL

106519 (E.D. Pa. April 9, 1993). Accordingly, Commissioner

has absolute immunity with respect to those acts. Simularly,

his decision about whether to hold an emergency hearing was

a judicial act entitled to absolute immunity. See Massa _v

Folly, No. CIV. 92-1887, 1993 W 106519 (E.D. Pa. Apr. 9,

26

nO tawinhd Aneel

1993). As to Plaintiff's claims against the Commissioner for

his alleged miscalculation of Plaintiffs benefits and his

recommending that Plaintiff seek certain jobs,’’ these claims

relate to acts of the Commissioner that clearly were within the

scope of his duties and he is at least entitled to qualified

immunity as to those acts.”

In a section 1983 action, qualified immunity shields an

official sued in his individual capacity "from liability for civil

damages insofar as [his] conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known," Harlow v_ Fitzgerald,

457 US. 800, 818 (1982), or, even, where the rights were

clearly estabiished, if it was objectively reasonable for the

It is unclear from Plaintiffs Amended Complaint

exactly in what context these acts were taken --- whether as

part of a ruling or otherwise. Were we to have more facts, it

is conceivable that these acts are entitled to absolute

immunity. For purposes of this decision we need not go that

far

The state court judge in Gyadu, supra, ruled that the

calculation of benefits was an “order or decision" of the

Commissioner under section 31-301l(a), C:GS.A., that was

subject to administrative review

27

official to believe that his acts did not violate those nghts.

3

Anderson v. Creighton, 483 U.S. 635, 638 (1987); see also

Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert.

denied, 503 U.S. 962 (1992).

Nothing is alleged that would indicate that

Commissioner Mastropietro's conduct violated clearly

established nights. If anything, Plaintiff's Amended Complaint

alleges that Commissioner Mastropietro was acting in

accordance with the Workers' Compensation Act. Thus, we

find that he is entitled to qualified immunity with respect to

the specific acts alleged against him by Plaintiff.

b. Plaintiffs Failure to State a Claim

Under Section 1983

Furthermore, to properly state a claim under section

1983, Plaintiff must allege that (1) he was deprived of a right

secured by the Constitution and laws of the United States;

and (2) the deprivation was committed by a person acting

under the color of state law. West v. Atkins. 487 U.S. 42. 48

(1988). As the Supreme Court has repeatedly held, "section

28

ia ciaeemmensiseniesiiiaiiiiiiiiaiaiitiiiaal

1983 is not itself a source of substantive rights, but merely

provides a method for vindicating federal rights elsewhere

conferred." Albright v. Oliver, 510 U.S. 266 (1994). Matters

formerly within the exclusive cognizance of the states do not,

by virtue of this

section, necessarily become matters of national concern

Snowden v. Hughes, 321 U.S. 1, 11 (1944)

Plaintiff alleges that Defendants’ actions which "gave

their blessing" to the insurance carrier's withholding of his

weekly section 308a, C.G.S.A. § 31-308a, benefits prior to a

hearing denied him due process; that their denial of section

308 benefits, C.G.S.A. § 31-308, to him during his search for

a job deprived him of "Equal Protection as well as Income

Indeed, to the extent that Plaintiffs Amended

Complaint could be read to allege a violation of state law by

Defendants, even that conduct would not give rise to a cause

of action under section 1983. Oberlander v. Perales, 740 F.2d

116 (2d Cir. 1984). Williams v. Treen, 671 F.2d 892 (Sth Cir

1982), cert. denied, 459 U.S. 1126 (1983). Nor would

Plaintiffs challenge of an allegedly erroneous determination

by a state agency charged with enforcement of state law

present a substantial federal question that would be

encompassed by section 1983. See Stenson v. State of New

rk, 422 F. Supp. 38 (S.D.N_Y. 1976)

~

Y

Security” and violated his right to due process; and that their

denial of a dependency allowance to him to care for his late

sister's children denied him due process and subjected Plaintiff

to "gross discrimination and a loss of Income Security."

As to the last claim, Plaintiff has an administrative

appeal pending, and, therefore, this claim is not ripe for

review by any court. See Abbott Laboratories v_ Gardner, 387

U.S. 136, 148-49 (1967). As to his claims that the denial of

section 308 benefits, CG S.A S 31-308, violated his Equal

Protection rights, Plaintiff has failed to allege membership in a

constitutionally protected suspect or quasi-suspect group. See

Phillips v. Ford Motor Co , 83 F.3d 235, 241 (8th Cir 1996)

As best we can discern from his Amended Complaint, Plaintiff

is complaining that he has been discriminated against on the

basis of his pre-injury income, which was higher than the

average used for purposes of calculating workers’

SS ee

compensation benefits. Plaintiff alleges no other basis for the

alleged discrimination. It is difficult to understand how former

membership in this higher income group could in any way

30

|

affect whether he received section 308 benefits. Nevertheless,

we find that Plaintiff has failed to state a claim under section

1983 based on an alleged violation of his rights under the

Equal Protection Clause

Because Plaintiff has not alleged membership in a

constitutionally protected group, equal protection concerns

will be satisfied so long as the classification is rationally

related to a legitimate state interest. City of New Orleans \

Dukes, 427 U.S. 297 (1976). The courts have repeatedly held

that the states have a legitimate interest in controlling the

costs of the workers' compensation system. See, e.g., Veronie

v_ Garcia, 878 F.2d 347 (10th Cir. 1989), Fisher v_ Reiser.

610 F.2d 629 (9th Cir. 1979), cert. denied, 447 U.S. 930

(1980), Chiropractors for Justice v_ Alaska, 895 P.2d 962

(Alaska 1995). The constitutional violation alleged by Plaintiff

relates to actions taken by Defendants in accordance with the

State workers’ compensation system and the statutes that

regulate the payment of benefits. As discussed more fully

below, we find this statutory scheme withstands an equal

protection challenge on the ground that it is rationally related

to the State's legitimate interest in regulating the costs of

workers’ compensation. Thus, we find that there is no set of

facts that Plaintiff will be able to prove at trial that will

support these vague, generalized allegations of an equal

protection violation, so as to state a cause of action under

section 1983.

With respect to his claim that the suspension of his

section 308a benefits, C-G.S.A. § 31-308a, prior to a hearing

deprived him of due process, we first question whether there

has been a sufficient allegation of a deprivation by someone

acting under color of state law to state a claim under section

1983. It was that insurance carrier, not the Commissioner,

that discontinued his benefits prior to a hearing. There is

nothing to indicate that the Commission or Commissioner

participated in this decision to terminate his benefits. See

Cryder_v. Oxendine, 24 F.3d 175 (11th Cir. 1994). His

obscure allegations that Defendants somehow gave their

32

3

}

|

:

"blessing" to this action does not allege action under color of

state law.

Further, as discussed more fully below, we find that

the post-deprivation hearing afforded Plaintiff, as well as the

administrative appeals process which Plaintiff refused to

pursue, satisfy the due process requirements. Thus, we find

no grounds upon which a constitutional claim could stand

under the facts alleged in the Amended Complaint

Accordingly, we find that Plaintiff has failed to allege

a claim under section 1983 upon which relief may be granted

Additionally, because of the Commissioner's absolute and

qualified immunity from liability in his individual capacity, we

dismiss Plaintiffs claims for money damages against

Defendant Mastropietro in his individual capacity

Il. —_ Plaintiff's Constitutional Challenges to the Connecticut

Workers' Compensation Act

Last, we consider Plaintiffs challenges. to the

constitutionality of various provisions of the Connecticut's

Workers’ Compensation Act

~

>

Lod

A. The Maximum Weekly Benefit Cap, C.G.S.A.

S 31-309

As noted above, Plaintiff challenges the maximum

weekly benefits cap, set forth in C.G.S.A. § 31-309, on equal

protection grounds. Plaintiff asserts that it discriminates

against him and others like him who were high income wage

earners at the time of their injuries, earning in excess of the

average weekly wages used for purposes of calculating the

maximum cap on weekly benefits.

A violation of the Equal Protection Clause may occur

when a state enacts a law that has a special impact on less

than all the persons subject to its jurisdiction. New_York City

Transit Auth. v. Beazer, 440 U.S. 568, 587 (1979). However,

the Fourteenth Amendment does not deny to the state the

power to treat different classes of person in different ways.

Reed v. Reed, 404 U.S. 71, 75 (1971). If the groups are

similarly situated, the legislation will be presumed to be valid

and will be sustained if the classification drawn by the statute

is rationally related to a legitimate state interest. City of

Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). If,

however, the classification, a strict scrutiny analysis replaces

the general rule or presumed validity.

An individual's high income does not place him or her

in a constitutionally protected group. Therefore, where, as

here, the classification created by the maximum cap on weekly

benefits neither trammels a fundamental right nor burdens a

suspect class, equal protection concerns will be satisfied if the

classification is rationally related to a legitimate state interest

See City of New Orleans v. Dukes, 427 U.S. 297 (1976)

Giannattasio v. Stamford Youth Hockey Ass'n, Inc., 621 F

Supp. 825, 829 (D. Conn. 1985). The classification in this

case clearly meets this standard, for the State has a legitimate

interest in controlling costs to employers of workers'

compensation system. See, e.g, Veronie, supra; Fisher_v

Reiser, supra. As the Supreme Court held in Vance _v

Bradley, 440 U.S. 93 (1979), a statute that does not burden a

suspect class or a fundamental interest should not be

overturned "unless the varying treatment of different groups

35

Or persons is so unrelated to the achievement of any

combination of legitimate purposes that we can only conclude

that the legislature's actions were irrational." Id. at 97. In light

of our conclusion that the State has a legitimate interest in

regulating the costs of the workers’ compensation system to

employers, we cannot conclude that it is irrational for the

statute to place a cap on the maximum weekly benefits to be

paid to compensation claimants. See Texas Workers’

Compensation Comm'n v. Garcia, 893 S.W. 2d 504, 531

(Tex. S. Ct. 1995)

B. The Termination of Section 308a Benefits

Prior to a Hearing

Plaintiff complains that the statutory provisions that

allow a workers’ compensation carrier to terminate section

308a benefits, C:G.S_A. S 31-308a, prior to a hearing violates

the due process clause. We disagree. As the Eleventh Circuit

held in Cryder v. Oxendine, supra, "[d]ue process is a flexible

concept that varies with the particular situation." 24 F.3d at

177. And, while the Supreme Court has held that due process

36

an

ae

requires a hearing before the termination of basic welfare

benefits, Goldberg v. Kelly, 397 U.S. 254 (1970), in Mathews

v. Eldridge, 424 U.S. 319 (1976), the Supreme Court upheld

a system which afforded an individual no right to a hearing

until after disability payments had been terminated against due

process chailenges

As with my social security disability benefits, Plaintiff's

eligibility for section 308a benefits is based on factors other

than financial need. Plaintiff does not challenge the sufficiency

of the notice that he received. He is primarily upset by the fact

that the termination of these benefits by the insurance carrier

occurred prior to the hearing ‘ e believe that the

post-termination hearing, which in this case took place two

weeks after the termination of benefits, and the appellate

remedies afforded by sections 31-301 and 31-301b, of which

Plaintiff has not availed himself, satisfactorily comport with

the dictates of due process. See Campo v. New York City

Employees Retirement System, 843 F.2d 96 (2d Cir.) (due

process did not require predeprivation hearing for failure to

pay survivor benefits), cert. denied. 488 U.S. 889 (1988):

Johnson v. Cohen. 836 F.2d 798 (3d Cir. 1987) (child eligible

for Aid to Families with Dependent Children not entitled to

ras lis sati~an haarina haf, } ; . 77

predeprivation hearing before he was requirec to assign

— - a. i is, . " . er" . ~ r .

enefits to state welfare agency), Signet Constr. Corp. \

3 = 775 | 2d 1SO (2d Ci 1985) (due process did not

e prede n hearing before city board withheld

s), Al-Charles, Inc_v. Heintz, 620 F. Supp

») { s*

{ e Law Which Denied Plaintiff Sectior

8 Bene e » He Was Lookine for Emplovment and

— . ss — tL)" = . > ws

C H stead I x 1st the Spec fic \wal 1 Tor H S

pP Disability

( e process claim, Plaintiff must allege that

CC € roperty interest in receiving section

. . . SEE ) 1 Ve I Schwab 7 [ » 65

; ‘ Sweeney 2 F.3d 1106 (9th Ci

: | ( Re Sel ; } ad 29 AK 24 (‘ +? { ° | 79)

I § c ni enefits ot based on necessity does

not implicate the same constitutional concerns as denial of the

benefit for basic subsistence), cert. denied. 447 US. 930

(1980). Plaintiff alleges that these benefits were terminated

after his physician released him to look for a job within his

physical capabilities. It appears that Plaintiff had reached the

Statutory maximum period for the payment of benefits. In

either event, there is nothing to indicate that Plaintiff had a

protectible property interest in receiving section 308 benefits

during the time that he was looking for a job, as opposed to a

lump sum award, which he received for his permanent partial

disability

D The Informal Hearing Process

The Supreme Court in Logan v. Zimmerman Brush

Co., 455 US. 422 (1982), held that the right to use state

adjudicatory procedures is a constitutionally protected

property interest. Since the Connecticut's Workers’

Compensation Act establishes a comprehensive scheme for

adjudicating workers’ compensation claims, Logan makes it

clear that Plaintiffs right to seek redress for his workers’

compensation claim using Connecticut's adjudicatory

procedures is a constitutionally protected interest. Thus, the

question presented to this Court, like the Supreme Court in

Logan, is what process is due to Plaintiff, Logan emphasizes

that the due process clause requires “an opportunity

granted at a meaningful time and in a meaningful manner, for

[a] hearing appropriate to the nature of the case." Id. at 437

In this case, however, although Plaintiff alleges in the

vaguest of terms that he was denied procedural due process

by virtue of the informal hearing process, Plaintiff has failed

to avail himself of the procedural protections afforded by

Connecticut's Workers’ Compensation Act The

Compensation Act establishes an administrative procedure for

the review of decisions of the Commissioner. Plaintiff could

have appealed this decision to the Compensation Review

Board pursuant to section 31-301. This he has not done,

choosing instead to file this lawsuit in federal court. Thus, the

alleged deprivation could not have occurred as a result of

some established state procedure, since Plaintiff chose not to

40

follow established state procedures. Parratt v. Taylor, 451

U.S. 527 (1981). Paskaly v. Seale, 506 F.2d 1209, 1212 (9th

Cir 1974) Additionally, the mere assertion that state

remedies are lengthy (Plaintiff complains about the length of

the administrative appeals process) will not render state

remedies inadequate unless they are "inadequate to the point

that [they are} meaningless or nonexistent." Easter House \

Felder, 910 F.2d 1387, 1406 (7th Cir. 1990) (en banc), cert

lenied, 111 S. Ct. 783 (1991)

[he Exclusive Remedy Provision

Last, Plaintiff challenges the exclusive remedy

provision of Connecticut's Workers’ Compensation Act.

C GSA. S 31-284. It ts unclear from Plaintiffs Amended

Complaint how he has been adversely affected by this statute.

and, thus, whether he has standing to assert this challenge It

would seem that any claim that he would have had against his

ld 9 > ry on fam L,; 1Og : ‘ -

employer would have arisen from his 1986 injury. and

presumabdiy would be barred by the applicable statute of

limitations. Nevertheless, we address the constitutional issue

raised by Plaintiff.

In Northern Pac. Ry. Co. v. Meese, 239 U.S. 614

(1916), the Supreme Court summarily dismissed an equal

protection challenge to a workers’ compensation statute. And

in New York Central R.R. Co. v. White 243 US. 188

(1917), the Supreme Court upheld that state's authority to

establish by legislation departures from common-law rules

affecting an employer's liability for an employee's personal

injuries. 243 U.S. at 200. Since then, numerous courts have

upheld the constitutionality of exclusive remedy clauses in

state workers’ compensation statutes. See Davidson v. Hobart

Corp. , 643 F.2d 1386 (10th Cir. 1981); Lusson v. Carter, 704

F 2d 646 (Ist Cir. 1983); King v. Williams Industries, Inc.u,

724 F.2d 240 (ist Cir. 1984), cert. denied, 466 U.S. 980

(1984), Garcia _v. American Airlines, 816 F. Supp. 72

(D P.R.), affd 12 F.3d 308 (Ist Cir. 1993). We agree and find

no due process or equal protection problems arising from the

exclusive remedy provisions of Connecticut's Workers’

Compensation Act

CONCLUSION

Cherefore, for the reasons set forth above, we grant

Defendants’ Motion to Dismiss Plaintiff's Amended Complaint

(Doc. #16) in its entirety

SO ORDERED.

Dated: June 24, 1996.

Bridgeport, Connecticut.

GERARD L. GOETTEL

U.S.D.J.

CTDC (nhct)

96-cv-43

Goettel, DJ

Exhibit #4

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE

PUBLISHED IN THE FEDERAL REPORTER AND

MAY NOT BE CITED AS PRECEDENTIAL

AUTHORITY TO THIS OR ANY OTHER COURT,

BUT MAY BE CALLED TO THE ATIiktNTION OF

THIS OR ANY OTHER COURT IN A SUBSEQUENT

STAGE OF THIS CASE, IN A RELATED CASE, ORIN

ANY CASE FOR PURPOSES OF COLLATERAL

ESTOPPEL OR RES JUDICATA.

As a stated term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse, Foley Square, in the City of New York, on

the 17th day of November, one thousand nine hundred

and ninety-seven.

PRESENT:

Hon. Wilfred Feinberg,

Hon. Richard J. Cardamone,

Hon. John M. Walker, Jr..

Circuit Judges.

44

BEN GYADU,

Plaintiff-Appellant.

v. Nos. 96-7950

96-9616

WORKERS' COMPENSATION COMMISSION,

WORKERS' REHABILITATION COMMISSION, and

JOHN A. MASTROPIETRO, COMMISSIONER.

Defendants-Appellees.

APPEARING FOR PLAINTIFF- Ben Gyadu, Pro Se,

APPELLANT: Waterbury, Connecticut

APPEARING FOR DEFENDANTS- Donna Hixon-Smith.

APPELLEES: Assistant Attorney General.

Hartford, Connecticut

Appeal from the United States District Court for the

District of Connecticut

This cause came on to be heard on the transcript of

record from the United State District Court for the District of

Connecticut (Goettel, J.), and was argued

ON CONSIDERATION WHEREOF, IT IS

HEREBY ORDERED, ADJUDGED AND DECREED

that the Judgment of the district court be and it hereby is

affirmed

Plaintiff-appellant Ben Gyadu ("Gyadu") appeals from

the judgment of the district court on June 24, 1996 dismissing

Gyadu's complaint against defendants-appellees Workers’

Compensation Commission, Workers’ Rehabilitation

45

Commission, and John A. Mastropietro, Commissioner

("Mastropietro"), which alleged various claims under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. S 2000(e) et

seq) and 42 USC. S 1983. See Gyadu_v. Workers'

Compensation Comm'n, 930 F. Supp. 738 (D. Ct. 1996).

With the exception of the "due process claim concerning

{[Gyadu's] administrative appeal of the dependency

allowance," this court on January 29, 1997 granted a motion

to dismiss all of Gyadu's claims as frivolous. r

Gyadu's due process claim arose as follows: following

a job-related injury in 1986, Gyadu petitioned before the

Connecticut Workers’ Compensation Commissioner for the

Fifth District ("Fifth District") for a dependency allowance to

provide for his deceased sister's children. On May 5, 1995, the

Fifth District denied Gyadu's dependency allowance on the

ground that the Connecticut Workers' Compensation statute

covers only "children and stepchildren" not nieces or

nephews. Gyadu appealed the Commissioner's decision to the

Compensation Review Board ("CRB"). In January 1996, with

his appeal still pending before the CRB, Gyadu brought the

current action in federal district court, alleging, inter alia, that

the Board's delay in hearing his appeal violated his procedural

due process rights. On May 2, 1997, the Board heard and

dismissed Gyadu's dependency allowance appeal on the

merits.

As a preliminary matter, the Eleventh Amendment

bars this court from hearing Gyadu's action against the

Workers’ Compensation Commission, a state agency. See

Edelman v. Jordan, 415 U.S. 651, 663 (1974). To the extent

Gyadu seeks damages from Commissioner Mastropietro in his

official capacity, the Eleventh Amendment also bars his claim.

Id. We note further that the "Workers'’ Rehabilitation

Commission," named as a defendant in "“Workers'

Rehabilitation Commission," named as a defendant in this

action, appears not to exist. See Gyadu, 930 F. Supp. at 747

n. 11. Gyadu has served no such entity; no such entity has

46

appeared as a defendant; and we therefore affirm the district

court's dismissal of Gyadu's complaint as to it.

In addition, it is unclear whether Gyadu has in his brief

even preserved his right to appeal the district court's denial of

his due process claim. See LoSacco v. City of Middletown,

71 F.3d 88, 92 (2d Cir. 1995); Fed. R. App. P. 28(a)(6) (the

appellant's brief "must contain the contentions of the appellant

on the issues presented.").

In any event, Gyadu's claim must be dismissed.

Because the CRB has now heard Gyadu's dependency

allowance claim, Gyadu's procedural due process claim for

injunctive relief is moot. See, e.g., Murphy v. Hunt, 455 U.S.

478, 480-481 (1982) (case moot where parties no longer have

legally cognizable interest in Outcome). As stated, the

Eleventh Amendment bars Gyadu's damages claim for the

alleged due process violation. Even if Gyadu's claim were not

so barred, Gyadu has not stated a valid cause of action under

the Due Process Clause. "[T]he mere assertion that state

remedies are lengthy . will not render state remedies

inadequate [under the Due Process Clause] unless they are

‘inadequate to the point that [they are] meaningless or

nonexistent." Gyadu, 930 F. Supp. at 752, quoting Easter

House v. Felder, 910 F.2d 1387. 1406 (7th Cir 1990) (en

banc)

Finally, we note Gyadu's argument that the workers’

compensation statute was clearly intended to provide for

dependents, which Gyadu says his sister's children are. He

argues that Ghanaian law recognizes his responsibility for

these children and that it is unfair (and presumably a

constitutional violation) for this statute not to recognize it.

We cannot agree with Gyadu that the statute provides for his

deceased sister's children. Even if Gyadu were correct that

under Ghanaian law he is responsible for the children. the

limitation in Connecticut's workers’ compensation statute is

for payments only for children or step-children. This limitation

is not unreasonable Because at the time of Gyadu's

47

work-related injury Gyadu's nephews were not children or

step children as defined by Connecticut law, Gyadu cannot

claim entitlement to a dependency allowance.

We have carefully considered Gyadu's remaining

arguments and find them to be without merit. Accordingly,

we affirm the judgment of the district court.

FOR THE COURT:

GEORGE LANGE III, Clerk

by: Lucille Carr, Deputy Clerk

48