     Case: 13-31269         Document: 00512832340          Page: 1     Date Filed: 11/10/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                         No. 13-31269                        United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
YOUNG BUISSON,                                                              November 10, 2014
                                                                               Lyle W. Cayce
                 Plaintiff - Appellant                                              Clerk

v.

BOARD OF SUPERVISORS OF THE LOUISIANA COMMUNITY AND
TECHNICAL COLLEGE SYSTEM,

                 Defendant - Appellee




                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                USDC No. 2:12-CV-2008


Before JOLLY and JONES, Circuit Judges, and GODBEY*, District Judge.
PER CURIAM:**


       This is an appeal from a grant of an employer’s motion for summary
judgment, rejecting claims of race-based employment discrimination and
retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq. We AFFIRM in
part, VACATE in part, and REMAND.


       *   District Judge of the Northern District of Texas, sitting by designation.
       **Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 13-31269
                              I. Background

      Plaintiff Young Buisson, an Asian-American with South Korean origin,
taught chemistry at Delgado Community College from January 2009 to July
2011. The defendant, Board of Supervisors of the Louisiana Community and
Technical College System (“the Board”), serves as the management board of
Delgado Community College (“the college”).

a. Buisson’s Employment

      From August 2010 until April 2011, Buisson taught at the college and
reported to Raymond Duplessis, the Chair of the college’s Physical Science
Department. From April to July 2011, Buisson reported to Bereket Tewolde,
the college’s Lead Chemist. Both Duplessis and Tewolde reported to Dean
Thomas Gruber.
      Dean Gruber did not make all hiring decisions. Duplessis was able to
hire whom he wanted. And, when he had a choice, Duplessis only promoted
black instructors.
      Buisson received excellent performance evaluations before Duplessis
and Tewolde became her supervisors. Buisson’s classes filled quickly, and
enrollment in her courses sometimes increased as the semester progressed.
Buisson was promoted during the course of her employment, and Dean Gruber
assigned Buisson an intensive teaching course in May 2011. When he assigned
that course, he said, “[Y]ou are the only one who can handle this course.” Dean
Gruber also gave Buisson responsibility for developing the college’s Chemistry
Technology Program. During the time period relevant to this case, Buisson
received one low performance evaluation.




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b. Duplessis’s Behavior

      While Buisson was employed at the college, Duplessis called Buisson,
who is of Asian descent, a “chink” and inflicted daily acts of “personal pain and
degradation” on Buisson. Instructors also observed Duplessis treat Buisson
and other non-black instructors less favorably than black instructors.
Examples of Duplessis’s less favorable treatment include (1) providing
unfavorable work schedules to non-black instructors; (2) forwarding student
complaints regarding non-black instructors directly to Dean Gruber while
handling student complaints regarding black instructors himself; (3) allowing
academic freedom to black faculty while disallowing such freedom to non-black
faculty; and (4) interrupting and disrupting non-black faculty during class but
not disturbing black faculty during class. 1 One instructor stated in a sworn
declaration that Duplessis “target[ed] certain people, primarily non-[black]
workers causing them great mental pain and creating a work environment that
. . . could . . . be called racist.” “By the nature of the actions and interactions
with” Buisson, Duplessis “wanted [her] gone.”
      Between August 2010 and July 2011, Duplessis subjected Buisson and
other non-black faculty members to many instances of unwelcome and
irritating behavior. In particular, Duplessis was rude to Buisson. He removed
her name plate from her office. On many occasions, Duplessis removed the
notes that Buisson left on her office door to communicate with her students.
One instructor said that the only reason to do this would be to “interrupt and
degrade [Buisson’s] daily work.”
      Duplessis “snoop[ed] around Buisson’s office and classroom like he was
spying.” He also used his cousin as a spy to gather information. Duplessis




      1   Duplessis also made one non-black instructor give higher grades to black students.
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                                       No. 13-31269
interrupted Buisson’s classes “all the time and made unbearable noises.” 2 He
used Buisson’s computer without permission and had full access to her
personal files. Duplessis also tampered with Buisson’s computer to block inter-
office email and school communications. 3
       He also left Buisson and other non-black instructors off of email
notifications and inter-office communications. Duplessis did not remove these
non-black instructors from every email; instead, he failed to send those emails
that were most likely to cause damage to the instructors’ reputations. For
example, after leaving Buisson off of an email reminding faculty of the deadline
for submitting mid-term grades, Duplessis accused Buisson of missing that
very deadline. In May 2011, Buisson brought at least one of these email-
exclusion incidents to Dean Gruber’s attention. Thereafter, Duplessis forged
an email to hide the fact that he had not sent the grade-deadline email to
Buisson. Dean Gruber provided grievance forms to Buisson for her use if she
wanted to file a grievance against Duplessis for the forged email. There is no
indication that Buisson filed a grievance.
       Duplessis left a list of Buisson’s prior course offerings, which included
Buisson’s     confidential     faculty    identification     number      and    confidential
information pertaining to her students, unattended on a public printer. 4
       Duplessis also solicited a complaint letter against Buisson from one of
her students. And, he lied to Dean Gruber about Buisson, telling him that
Buisson violated the college’s “open door” policy by leaving the chemistry lab
door closed. As a result, Dean Gruber singled out Buisson for violation of the




       2 Buisson began reporting these interruptions to Dean Gruber in the spring of 2011.
       3 Duplessis erased computer files of another non-black instructor just before that
instructor needed to turn his grades in to the main office. There is no indication that Buisson
knew of this other computer-tampering incident.
       4 Buisson complained to Dean Gruber about this incident.

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chemistry lab’s “open door” policy, even though other instructors also violated
the policy.
      Duplessis stole Buisson’s books and the books of other non-black
instructors, and he provided a bookshelf or file cabinet to all full-time faculty
except Buisson and two other non-black faculty members. After relocating
many chemistry lab materials, Duplessis told all faculty, except Buisson, of the
relocation.   Duplessis ignored Buisson’s suggestions about Chemistry
Department issues, such as the use of closed-toed shoes.
      Duplessis allowed faculty members flexible working conditions such as
ending their semesters several weeks early but denied these conditions to
Buisson. He also assigned chemistry courses at the college without giving
Buisson a choice in her assigned courses. And, the one day that Buisson
brought her child to work, Duplessis sent an email to all instructors stating
that children should not be unattended at the college—even though Duplessis
and his wife, also a professor, had violated that policy several times.
      Duplessis told Buisson that she would be paid for teaching an extra
course. After she taught the course, Buisson was not paid. She complained to
Dean Gruber, who said he would tell Duplessis to arrange the payment.
Duplessis refused to authorize the full payment and would only agree to pay
approximately sixty percent of the promised rate.
      The day before Buisson interviewed for a full-time, permanent faculty
position in the fall of 2010, one of her students sent an email complaint to
Duplessis. Duplessis forwarded this email to Dean Gruber, who told Duplessis
to ask Buisson for a response.     Duplessis failed to inform Buisson of the
complaint until after the first round of interviews was completed; thus,
Buisson had no chance to defend herself during her initial interview.




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c. Altercation with Tamika Duplessis

      In June 2011, Buisson and professor Tamika Duplessis, the wife of
Duplessis and Buisson’s officemate, had a verbal altercation that made
Buisson fear for her safety.    After the incident, Tamika Duplessis filed a
grievance against Buisson, and the parties had a pre-grievance meeting. After
that meeting, Duplessis (the husband) came to Buisson’s office and told her to
move out of the office, “harassed Buisson a tremendous amount,” and then told
Buisson that he would call the police if she did not move out. When Buisson
refused to move offices, Duplessis asked for, and received, Dean Gruber’s
permission to order Buisson’s relocation.       The parties never had a final
grievance hearing because Buisson’s employment was terminated in July 2011.
Tamika Duplessis was not subjected to any adverse action based on the verbal
altercation with Buisson.

d. Promotions in 2010

      In the fall of 2010, the college had two permanent, full-time, chemistry-
faculty vacancies. Buisson and six other applicants applied for the openings
and endured two rounds of interviews. In the first round, a seven-member
hiring committee interviewed the applicants.       The committee asked each
applicant a set of standard questions and graded the applicants on fixed
criteria, with each committee member ranking the quality of the answers and
interpersonal skills on a 100-point scale. Buisson received the fourth-best
rating from the first round of interviews.
      In the second round of interviews, Dean Gruber asked questions, and
Duplessis observed without asking questions. Buisson performed well in her
second interview. Nevertheless, Dean Gruber hired the two applicants who
received the highest rating from the first set of interviews.        Both hired
applicants were black.
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                                   No. 13-31269
      At least one faculty member was told by several people that he should
not apply for an open faculty position because hiring decisions were decided
before the hiring committee ever met.

e. Termination in 2011

      In June 2011, Dean Gruber offered Buisson a permanent faculty
position. Shortly thereafter, in July 2011, Dean Gruber terminated Buisson’s
employment. When asked for a reason, Dean Gruber stated that he had “no
reason” and that he would give Buisson a “good recommendation and referral
if needed.” Dean Gruber found a black instructor to cover Buisson’s classes.
Duplessis told an instructor that Buisson’s employment was terminated due to
grade inflation, while Tewolde told that instructor that the termination was
for “fighting with . . . Duplessis’s wife.”
      In an affidavit prepared for this case, Dean Gruber provided several
other reasons for his decision to terminate Buisson’s employment: having a
teaching style that was inappropriate for a two-year college; being unable to
motivate less capable students; failing to understand the difference between
knowing a lot and imparting that knowledge to students; prioritizing
completion of her syllabus over instructing students; complaining about
instructors; being difficult to understand in the classroom; creating a high-
stress classroom atmosphere; discussing students with other students; being
more concerned about other faculty than her own self-improvement; creating
a stressful work environment by constantly criticizing her peers; inflexibility
in working with others; and having a personality and teaching style that made
students avoid her class and result in decreased enrollment for her courses.




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                                   No. 13-31269
f. Other Miscellaneous Actions

      There are several other facts pertaining to Duplessis that either occurred
after Buisson’s employment was terminated or were not revealed to Buisson
before that termination. In particular, Duplessis called Buisson, who is of
South Korean origin, “Kim Young” and also showed animus by calling an
Indian-origin instructor, Syed Ahmed, by the name “Ahmedinejad.” He also
made a remark based on an Italian-based stereotype when interacting with an
Italian-origin instructor.
      Duplessis also threatened to fire a non-black instructor “just like he did
with . . . Buisson.” Tewolde warned that same professor that “Duplessis will
run [you] out of [the college] the same way he got rid of Dr. Buisson.”
      Duplessis told a non-black instructor that he moved the Physical Science
Department to a different building because that building housed more black
people and he wanted to be with “his people.” After President Obama was re-
elected in late 2012, Duplessis wore an Obama t-shirt to the college and told a
non-black instructor, “[W]e have a black president, a black chancellor, a black
math chairman, and I am black. . . . [T]here is no more White House; it is now
the Black House.”

                             II. Procedural History

      Based on these allegations, Buisson filed a charge with the EEOC, which
subsequently issued a Notice of Right to Sue. Buisson then filed the instant
complaint against the Board in the district court. In her complaint, Buisson
alleged that the Board violated Title VII of the Civil Rights Act of 1964 by
engaging in discrimination based on race and national origin, fostering a
hostile work environment based on the same characteristics, and retaliating



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against her for engaging in protected conduct. 5        After discovery, the Board
filed a motion for summary judgment seeking a dismissal of all claims. The
district court granted the Board’s motion and dismissed all of Buisson’s claims
with prejudice. Buisson filed this appeal.

                               III. Discussion


a. Discrimination

      Title VII race- and national-origin-based discrimination claims, such as
those at issue here, are evaluated under the McDonnell Douglas burden-
shifting framework. 411 U.S. 792, 802–04 (1973). Under that framework, a
plaintiff must establish that she (1) is a member of a protected group; (2) was
qualified for the position at issue; (3) suffered an adverse employment action,
such as termination of her employment; and (4) was replaced with someone
outside her protected group or was treated less favorably than other similarly
situated employees outside the protected group. McCoy v. City of Shreveport,
492 F.3d 551, 556 (5th Cir. 2007). If the plaintiff makes this prima facie
showing, the burden shifts to her employer to produce evidence of a legitimate,
non-discriminatory reason for the adverse employment action. Id. at 557. If
the employer articulates a legitimate reason for the adverse employment
action, “the plaintiff then bears the ultimate burden of proving that the
employer’s proffered reason is not true but instead is a pretext for the real
discriminatory . . . purpose.” Id.; see also Vaughn v. Woodforest Bank, 665 F.3d
632, 636 (5th Cir. 2011) (describing mixed-motive analysis).
      Buisson alleges four adverse employment actions: a poor performance
evaluation, non-payment for a course she taught, failure to promote her in the


      5 Buisson also brought age-based discrimination claims; however, she voluntarily
dismissed those claims in the district court.
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fall of 2010, and termination of her employment in the summer of 2011. With
respect to the first two employment actions, we affirm the district court’s grant
of summary judgment in the Board’s favor.          Buisson’s poor performance
evaluation was not an adverse employment action, so the Board is entitled to
summary judgment for that action. Cf. Pegram v. Honeywell, Inc., 361 F.3d
272, 282 (5th Cir. 2004) (noting that an adverse employment action “consists
of ultimate employment decisions such as hiring, granting leave, discharging,
promoting, [demoting,] and compensating” and must “affect job duties,
compensation, or benefits” (quotation marks omitted)). The record does not
reflect that black persons were paid more for similar course assignments or
that the Board’s explanation for the non-payment was pretext for race-based
discrimination. Thus, the Board is entitled to summary judgment for that
action. Cf. McCoy, 492 F.3d at 556.
      With respect to the final two employment actions, the district court erred
in granting summary judgment to the Board. Viewed in Buisson’s favor, the
evidence supports a prima facie case of race-based discrimination regarding
Buisson’s failure-to-promote claim: She was a non-black, non-African person
qualified for the permanent, full-time, faculty position and was passed over for
promotion to positions that were ultimately filled by black persons. The Board,
in turn, provided evidence of a legitimate, non-discriminatory reason for the
college’s decision to promote the black applicants: Dean Gruber gave great
weight to the hiring committee’s ranking of the applicants after their initial
interviews. However, viewed in Buisson’s favor, there is evidence that this
reason is pretext for discrimination. In particular, Duplessis harbored racial
animus for non-black employees and was present for the second round of
interviews.   He also solicited student complaints against Buisson and
forwarded Dean Gruber one such complaint on the eve of Buisson’s first
interview. Duplessis then ignored Dean Gruber’s directive to inform Buisson
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                                   No. 13-31269
of the student’s complaint, denying Buisson the opportunity to respond to the
charge.      Duplessis waited more than two weeks to inform Buisson of the
student complaint, providing it to Buisson shortly before her second interview.
       The record is replete with evidence that Duplessis harbored pro-black
sentiments in the context of his position, often in derogation of those who were
not black. A jury could infer—certainly from the record as a whole and also
from specific remarks and actions involving Buisson—that Duplessis’s actions
were a successful, race-based attempt to sabotage Buisson’s chances at a
promotion. A jury could also infer that Duplessis had access and opportunity,
through his presence at the final interview, to exert influence over Dean
Gruber and obstruct Buisson’s promotion. Roberson v. Alltel Info. Servs., 373
F.3d 647, 653 (5th Cir. 2004) (“To invoke the cat’s paw analysis, [a plaintiff]
must submit evidence sufficient to establish two conditions: (1) that a co-
worker exhibited discriminatory animus, and (2) that the same co-worker
possessed leverage, or exerted influence, over the titular decisionmaker.”
(quotation marks omitted)).        Moreover, Buisson’s affidavit supports the
inference that Dean Gruber did not make all hiring decisions and that
Duplessis effectively made the promotion decision here. Thus, a jury could
infer that Duplessis was the effective decision-maker for the promotion
process, and his decision not to hire Buisson was based on her race or national
origin. Consequently, the Board is not entitled to summary judgment on this
claim.
       Viewed in Buisson’s favor, the evidence also supports a prima facie case
of   race-    or   national-origin-based    discrimination   regarding   Buisson’s
termination claim: She was a non-black, non-African person qualified for the
faculty position she held; yet, her employment was terminated and her position
was filled by a black person. The Board, in turn, provided evidence of several
legitimate, non-discriminatory reasons for the decision to terminate Buisson’s
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employment, all of which were principally based on Buisson’s workplace
personality or teaching style. But, as with the failure-to-promote claim, there
is evidence that these reasons are pretext for discrimination. First, Dean
Gruber’s initial reason for his termination decision was “no reason,” which
contradicts the reasons he gave after Buisson filed suit.            Second, two
supervisor-level faculty gave two additional, and different, reasons for the
termination decision—yet another contradiction. Third, and perhaps, most
important, just prior to his decision to terminate Buisson’s employment, Dean
Gruber promoted Buisson. Based on this promotion decision, a jury could infer
that Dean Gruber did not believe that Buisson had a poor workplace
personality or teaching style—but, in fact, thought that Buisson positively
contributed to student education at the college. A jury could also infer that
Dean Gruber’s evolving and contradictory reasons for terminating Buisson’s
employment are pretext for discrimination. Cf. Kragor v. Takeda Pharm. Am.,
Inc., 702 F.3d 1304, 1307 (11th Cir. 2012) (“[A] contradiction of the employer’s
proffered reason for the termination of an employee is sometimes enough,
when combined with other evidence, to allow a jury to find that the firing was
the result of unlawful discrimination.”); Haun v. Ideal Indus., Inc., 81 F.3d 541,
546 (5th Cir. 1996) (noting that evidence that an employer has given a false
reason for terminating employment may contribute to a determination that the
reason was pretext for discrimination); cf. also Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148 (2000) (“[A] plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s asserted justification is
false, may permit the trier of fact to conclude that the employer unlawfully
discriminated.”).




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b. Hostile Work Environment

      To establish a race- or national-origin-based, hostile-work-environment
claim under Title VII, a plaintiff must prove (1) she belongs to a protected
group, (2) she was subjected to unwelcome harassment, (3) the harassment was
based on her membership in the protected group, (4) the harassment affected
a term, condition, or privilege of employment, and (5) the employer knew or
should have known of the harassment and failed to take prompt remedial
action.   Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).            For
harassment to affect a term, condition or privilege of employment, it must be
“sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993) (quotation marks omitted). To determine
whether harassment is so severe or pervasive that it alters the conditions of
the plaintiff’s employment, this Court considers a number of factors: “the
frequency of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating (or whether it is a mere offensive utterance), and
whether it unreasonably interferes with the victim’s work performance.” Id.
      We affirm the district court’s grant of summary judgment in the Board’s
favor on this claim. The evidence does not reveal harassment that was so
severe or pervasive that it altered the conditions of Buisson’s employment.
Most of the incidents, while perhaps offensive or annoying, are not evidence of
race- or national-origin-based harassment. See Lauderdale v. Tex. Dep’t of
Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007) (“Title VII . . . is not a
‘general civility code,’ and ‘simple teasing,’ offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes
in the ‘terms and conditions of employment.’ ” (quoting Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998))). The incidents do not rise to the level of

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severity or pervasiveness required to support a hostile-work-environment
claim. None of them involved physically threatening or humiliating conduct,
as opposed to offensive utterances. And, Duplessis’s use of the bigoted term
“chink” was isolated. 6      Its utterance indicates Duplessis’s discriminatory
intent; however, its one-time utterance is insufficient—even when combined
with Duplessis’s other behavior—to create a race- or national-origin-based,
hostile work environment. The comment pales in comparison, both in severity
and frequency, to the kinds of verbal harassment that this Court and other
circuits have held would support a Title VII, hostile-work-environment claim.
Compare Walker v. Thompson, 214 F.3d 615, 619–22 (5th Cir. 2000) (holding
that a hostile work environment claim survived summary judgment where
evidence demonstrated years of inflammatory racial epithets, including
“nigger” and “little black monkey”); Daniels v. Essex Group, Inc., 937 F.2d 1264,
1266 (7th Cir. 1991) (holding that the plaintiff survived summary judgment
where the plaintiff was subjected to “nigger jokes” for a ten-year period and
the plaintiff’s workstation was adorned with “a human-sized dummy with a
black head”); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 182 (4th Cir. 2001)
(reversing summary judgment where the plaintiff suffered “incessant racial
slurs” including “nigger” and “dumb monkey”), with Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007) (finding that the
evidence was insufficient to establish a hostile-work-environment claim where
a supervisor’s comments about inner-city “ghetto children” ceased upon
plaintiff’s request, and the supervisor’s other arguably racially offensive
comments were “isolated incidents”).            Moreover, Buisson has offered no




      6 There is no indication that Buisson was aware of Duplessis’s other bigoted
statements during her employment. Therefore, those events cannot support Buisson’s hostile
work environment claim.
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evidence that Duplessis’s annoying acts or his bigoted comment prevented her
from doing her job, and the facts do not support such an inference.
      In sum, the evidence is insufficient to support Buisson’s hostile-work-
environment claim, and, thus, the district court properly granted the Board’s
motion for summary judgment on this claim.

c. Retaliation

      A plaintiff establishes a prima facie case of retaliation under Title VII by
showing that (1) she participated in a protected activity, (2) she suffered an
adverse employment action, and (3) there is a causal connection between the
protected activity and the adverse action. Stewart v. Miss. Trans. Comm’n, 586
F.3d 321, 331 (5th Cir. 2009).     “Summary judgment is appropriate if the
plaintiff cannot support all three elements.” Id.
      The Board is entitled to summary judgment on this claim because
Buisson has not shown that she engaged in a protected activity. She reported
some of Duplessis’s annoying behavior to Dean Gruber; however, there is no
evidence that she indicated that these otherwise, non-race-based incidents
were motivated by race or national origin. And, there is no evidence that Dean
Gruber was aware, or should have been aware, of Duplessis’s bigoted remarks.
Without evidence that Buisson engaged in a protected activity, the Board is
entitled to judgment as a matter of law.

                             IV. Conclusion

      For the reasons above, we VACATE the district court’s grant of summary
judgment on Buisson’s failure-to-promote and termination claims.              We
AFFIRM the district court’s grant of summary judgment on all other claims.
We REMAND to the district court for further proceedings not inconsistent with
this opinion.

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                            No. 13-31269
                 VACATED in part, AFFIRMED in part, and REMANDED.




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