1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Pacific Bell was erroneously sued herein as “SBC 1

Communications, Inc.”

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

WILLIAM GAINES,

NO. 2:04-cv-2297-MCE-GGH

Plaintiff,

v. MEMORANDUM AND ORDER

SBC COMMUNICATIONS, INC.,

ALICE HUERTA, DEBRA THOMAS;

DOE 1; DOE 2; DOE 3; DOE 4;

DOES 5 through 100, inclusive,

Defendants.

----oo0oo----

In bringing the present action, Plaintiff William Gaines

(“Plaintiff”) alleges that he was laid off from his position as a

first-level supervisor with Defendant Pacific Bell Telephone

Company (“Pacific Bell”) because of his race and/or age. 1

///

///

///

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 1 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiff’s discrimination and harassment claims are also 2

predicated on alleged violations of California law under the Fair

Employment and Housing Act, California Government Code § 12900,

et seq. (“FEHA”).

Some of the factual allegations as set forth in this 3

section are disputed by the parties. To the extent either party

has interposed evidentiary objections to these facts, however,

those objections are overruled unless otherwise noted. 

Additionally, this section incorporates the facts considered by

the Court in ruling on this motion. The Court need not rule on

objections to evidence not discussed below, and declines to do

so, because that evidence was not germane to the Court’s

decision. The Court similarly declines to rule on requests that

certain evidence be stricken for the same reason. 

2

Pacific Bell removed Plaintiff’s action, originally filed in

state court, to this court on grounds that it included federal

claims arising under Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e, et seq. (“Title VII”), as well as claims

brought pursuant to 42 U.S.C. § 1983 (“Section 1983"). Pacific

Bell now moves for summary judgment as to Plaintiff’s claims in

their entirety on grounds that said claims fail as a matter of 2

law. For the reasons outlined below, Pacific Bell’s motion will

be granted. 

BACKGROUND3

Plaintiff, an African-American male, was hired by Pacific

Bell on September 1, 2000. On or about March 1, 2002, Plaintiff

was transferred to the Sacramento Customer Service Center, where

he became a Mechanized Loop Assignment Center (“MLAC”)

Supervisor, reporting to Area Manager Deborah Thomas (“Thomas”). 

Thomas, in turn, reported as Alice Huerta (“Huerta”), General

Manager for both the North (Sacramento) and Bay (San Ramon)

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 2 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

Customer Service Centers. 

Both Thomas and Huerta have been named as individual defendants

to this action along with Pacific Bell.

Because Thomas believed that Plaintiff’s performance as an

MLAC Supervisor was inconsistent, she decided to laterally

transfer Plaintiff to another first-level supervisorial position

as an In-Charge/Force Manager responsible for managing customer

service employees’ work schedules. Plaintiff, in essence,

switched jobs with another supervisor, Lisa Cigelske, and Ms.

Cigelske was enlisted to help train Plaintiff in assuming the

responsibilities attendant to her former position.

Plaintiff’s transition to the In-Charge/Force Manager

position, which took place in June of 2002, was not a smooth one. 

He and Cigelske did not share a good working relationship;

Cigelske complained to Thomas that Plaintiff was not expending

enough effort to learn his new job’s duties and Plaintiff, for

his part, felt that Cigelske was impatient and spoke to him in a

demeaning manner. Thomas received complaints about Plaintiff’s

job performance from at least two other sources after Plaintiff’s

transfer to the In-Charge/Force Manager position.

In late 2002, Pacific Bell announced plans for a nationwide

reduction in force (“RIF”) that would encompass a total of 11,000

job cuts across the country, 9,000 of which were scheduled to

occur by the end of the year and one-third of which would impact

managerial positions. In order to effectuate that RIF, Alice

Huerta was told by her boss at the time, Rick Resnick, to reduce

five first-level supervisors from her Sacramento/San Ramon

organization.

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 3 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Those groups were comprised of the designation “A” 4

(exceeding expectations, “B” (meeting expectations), “C” (meeting

some expectations), and “D” (not meeting expectations).

4

On September 19, 2002, Huerta instructed her area managers,

including Deborah Thomas, to rate and rank the forty-one firstlevel supervisors working in Sacramento and San Ramon. For

purposes of determining which supervisors would be designated

“surplus” and selected for layoff, Huerta told her managers to

rate their supervisors in the manner prescribed by Pacific Bell’s

Management Staffing Guidelines. Those Guidelines required that

supervisors be grouped into four general categories predicated 4

on performance, skills, experience and training. Supervisors

assigned the same rating would then be ranked to the extent

necessary to match the number of positions to be eliminated. 

Huerta told her managers to rate the first-level supervisors

collectively since the RIF was directed to their classification

generally and not to any more particularized job description.

Because two of the five targeted supervisor positions had

already been vacated by a death in one instance and a transfer in

another, ultimately only three individuals had to be selected for

layoff. In the end, three supervisors, including Plaintiff, were

rated within the lowest classification. Plaintiff was ranked in

the middle of three employees hence determined to be “surplus”

and subject to the RIF.

//

//

//

//

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 4 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiff was also given the option of immediate 5

termination, with severance, which he declined.

5

Thereafter, on November 12, 2002, Huerta and Thomas met with

Plaintiff and informed him that as a surplus employee, he would

be terminated in thirty days unless he was hired in another

capacity by Pacific Bell. Plaintiff did not secure another 5

position and his employment with Pacific Bell terminated on

December 13, 2002. 

Plaintiff was fifty-three years of age at the time of the

RIF. The second supervisor designated as surplus, John Busath,

age forty-five, was ranked ahead of Plaintiff. The lowest ranked

supervisor, Marc Stevenson, was thirty-six. Both Busath and

Stevenson were Caucasian.

Plaintiff now claims that he was discriminated against by

Pacific Bell due to his race and age, despite the fact that the

ten other African-American supervisors subjected to rating were

all retained, and despite the fact that in the Sacramento

Customer Service Center alone, three of twelve retained managers

were older than Plaintiff.

In moving for summary judgment, Defendants argue that

Plaintiff has produced no evidence to suggest that Plaintiff’s

layoff was motivated by discriminatory animus. Accordingly,

Defendants claim that Plaintiff’s claims premised on Title VII

and FEHA violations necessarily fail. Defendants go on to

contend that Plaintiff’s only other cause of action, for civil

rights violations under 42 U.S.C. §§ 1983 and 1988, also fail in

the absence of any governmental action. 

///

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 5 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

STANDARD

The Federal Rules of Civil Procedure provide for

summary judgment when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). One of the

principal purposes of Rule 56 is to dispose of factually

unsupported claims or defenses. Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986). Under summary judgment practice, the

moving party

“always bears the initial responsibility of informing the

district court of the basis for its motion, and identifying

those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file together with the

affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Rule

56(c).

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

585-587 (1986); First Nat’l Bank v. Cities Ser. Co., 391 U.S.

253, 288-289 (1968).

In attempting to establish the existence of this factual

dispute, the opposing party must tender evidence of specific

facts in the form of affidavits, and/or admissible discovery

material, in support of its contention that the dispute exists. 

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 6 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

Fed. R. Civ. P. 56(e). The opposing party must demonstrate that

the fact in contention is material, i.e., a fact that might

affect the outcome of the suit under the governing law, and that

the dispute is genuine, i.e., the evidence is such that a

reasonable jury could return a verdict for the nonmoving party. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52

(1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper

Workers, 971 F.2d 347, 355 (9 Cir. 1987). Stated another way, th

“before the evidence is left to the jury, there is a preliminary

question for the judge, not whether there is literally no

evidence, but whether there is any upon which a jury could

properly proceed to find a verdict for the party producing it,

upon whom the onus of proof is imposed.” Anderson, 477 U.S. at

251 (quoting Improvement Co. v. Munson, 14 Wall.442, 448, 20

L.Ed. 867 (1872)). As the Supreme Court explained, “[w]hen the

moving party has carried its burden under Rule 56(c), its

opponent must do more that simply show that there is some

metaphysical doubt as to the material facts ... Where the record

taken as a whole could not lead a rational trier of fact to find

for the nonmoving party, there is no ‘genuine issue for trial.’” 

Matsushita, 475 U.S. at 586-87.

ANALYSIS

 Plaintiff’s First Amended Complaint contains four causes

of action all premised on claims that Plaintiff was discriminated

against in violation of both Title VII and FEHA. 

///

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 7 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

The factual basis for all four claims are intertwined, and share

common allegations that Plaintiff’s selection for layoff was

motivated by a discriminatory animus and/or that Plaintiff was

subject to impermissible harassment on the basis of his race and

age. Plaintiff’s seventh and final claim is for violation of his

civil rights under 42 U.S.C. §§ 1983 and 1988.

Because the subject matter of Plaintiff’s lawsuit falls

within these three main areas – discrimination, harassment, and

violations of Sections 1983 and 1988, each of those areas will

now be addressed.

A. Race or Age Discrimination 

In asserting a viable claim under Title VII, Plaintiff must

first establish a prima facie case of disparate treatment under

the framework outlined by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). In order to make that

initial showing, Plaintiff must demonstrate 1) that he belongs to

a protected class; 2) that he was performing his job

satisfactorily; 3) that he was terminated, rejected for

employment, or otherwise subjected to a tangible employment

action; and 4) that this took place under circumstances giving

rise to an inference of unlawful discrimination. See Id. at 802;

see also Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

253 (1981).

///

///

///

///

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 8 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

The burden of establishing a prima facie case is not

onerous; to survive summary judgment Plaintiff need only provide

evidence from which it can reasonably be inferred that her

employer’s decision was based on a discriminatory motive. Id.;

Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9 Cir. th

2004). The amount of evidence required is “very little” so long

as it is more than “purely conclusory allegations of alleged

discrimination, with no concrete, relevant particulars.” Id.,

citing Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409,

1419 (9 Cir. 1988). th

If Plaintiff succeeds in establishing a prima facie case as

outlined above, the burden shifts to the Defendants to articulate

a legitimate, non-discriminatory reason for the adverse action

taken. McDonnell Douglas, 411 U.S. at 802; Texas Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. at 256. If Defendants satisfy that

burden, the Plaintiff must then show that the reason proffered by

Defendants was merely a pretext for discrimination. McDonnell

Douglas, 411 U.S. at 804; Bodett v. CoxCom, Inc., 366 F.3d 736,

743 (9 Cir. 2004). th

The McDonnell Douglas burden-shifting analysis applicable to

Title VII claims is equally germane to FEHA claims. Horn v.

Cushman & Wakefield Western, Inc., 72 Cal. App. 4th 798, 805-06

(1999).

Applying the McDonnell Douglas criteria to the present case,

Defendants do not dispute that Plaintiff, an African-American,

qualifies as a member of a protected class. 

///

///

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 9 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

Moreover, while Defendants ostensibly contend that Plaintiff was

not performing his job in a satisfactory manner, it is undisputed

that Plaintiff ultimately was not rated as failing to meet work

expectations. Particularly when viewed in the context of the

minimal showing required to make a prima facie case, Plaintiff

has satisfied the job performance portion of establishing a

viable discrimination claim. Finally, it is even plainer that

Plaintiff’s layoff constituted an adverse employment action for

purposes of meeting the third prong of the McDonnell Douglas

analysis, particularly since the Ninth Circuit has consistently

taken a broad view of what constitutes an adverse employment

action in that regard. See, e.g., Fonseca v. Sysco Food Services

of Arizona, Inc., 374 F.3d 840, 847 (9 Cir. 2004); Ray v. th

Henderson, 217 F.3d 1234, 1240 (9 Cir. 2000). th

That leaves the fourth and final element of a prima facie

discrimination case: evidence suggesting that, in this case,

African-American employees were treated less favorably than their

Caucasian counterparts, thus giving rise to an inference of

discrimination against Plaintiff, as an African-American man.

Plaintiff has presented no competent evidence to support

such a discriminatory inference. Although the two other

supervisors initially designated as surplus were Caucasian, as

indicated above nine out of the ten Caucasian supervisors under

Alice Huerta’s control were retained. Plaintiff has otherwise

pointed to nothing which suggests any racial animus on the part

of either Defendant Huerta or Defendant Thomas in making the

decision to as to which employees would be designated surplus.

///

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 10 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

Although John Busath was ultimately retained as a first-level

supervisor (due to an opening created by the death of another

supervisor), that fact does not demonstrate discrimination.

Defendants have shown that Busath had better performance

evaluations, a longer tenure of employment with Pacific Bell, and

more relevant work experience and education than Plaintiff. At

any rate, to raise a triable question of discrimination,

Plaintiff’s qualifications must have been “clearly superior” than

Busath’s. Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d

1185, 1194 (9th Cir. 2003). Plaintiff has not made such a

showing.

Plaintiff’s argument that his age was also a factor is

equally unsupported. Three of twelve supervisors retained in

Sacramento were older than Plaintiff and Marc Stevenson, the

other supervisor eventually subject to layoff, was considerably

younger at thirty-six years of age compared to Plaintiff’s fiftythree. Plaintiff has produced no evidence at all to suggest that

he was discriminated against on the basis of his age in any

fashion.

Since Plaintiff has utterly failed to make any showing that

his layoff occurred under circumstances giving rise to any

inference of discrimination, this Court does not believe that

Plaintiff has set forth even a prima facie showing of

impermissible behavior under the McDonnell Douglas framework. 

Nonetheless, because the evidentiary burden for that showing has

been deemed to be slight (Peterson v. Hewlett-Packard Co., 358

F.3d at 603), the Court will proceed with the remainder of the

analysis. 

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 11 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

12

Hence the Court will look to whether Defendants have demonstrated

a legitimate, non-discriminatory reason for Plaintiff’s layoff,

and will then examine whether the reason advanced by Defendants

in that regard was merely pretextual. Plaintiff fares no better

in sustaining a viable claim under those latter portions of the

McDonnell Douglas analysis than he did for purposes of meeting

his initial prima facie burden.

Defendants have produced evidence showing that the reduction

in force pursuant to which Plaintiff was laid off stemmed from a

nationwide decision affecting thousands of employees. Plaintiff,

in response, has not demonstrated that the RIF was initiated for

anything other than for valid business purposes. A reduction in

force has been deemed by the Ninth Circuit to constitute a

legitimate, nondiscriminatory reason for terminating an employee. 

See Winarto v. Toshiba Am. Elec. Components, Inc., 274 F.3d 1276,

1295 (9th Cir. 2001).

Since Defendants have unquestionably demonstrated the

requisite nondiscriminatory reason for laying off Plaintiff

pursuant to its RIF, the validity of Plaintiff’s claim, assuming

that he can make a valid prima facie case, depends on whether he

can show that the RIF was really just a pretext for

discriminating against Plaintiff due to his race and/or age. See 

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993).

 Evidence of pretext can be either direct, in persuading the

court that a discriminatory reason more likely motivated

Defendants, or indirect, by showing that Defendants’ proffered

explanation is unworthy of credence. Raad v. Fairbanks N. Star

Borough Sch. Dist., 323 F.3d at 1196. 

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 12 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

While Plaintiff argues that he did not receive a formal 6

performance evaluation prior to his selection for RIF, and should

(continued...)

13

Plaintiff’s burden, like that in establishing a prima facie case,

“is hardly an onerous one”, and the plaintiff “need produce very

little evidence of discriminatory motive to raise a genuine issue

of fact as to pretext.” Payne v. Norwest Corp. 113 F.3d 1079,

1080 (9 Cir. 1997), citing Warren v. City of Carlsbad, 58 F.3d th

439, 443 (9 Cir. 1995). Nonetheless, some “specific and th

substantial” evidence must be offered to show that Defendants’

reason for Plaintiff’s termination was really just a pretext for

unlawful discrimination. Aragon v. Republic Silver State

Disposal, Inc., 292 F.3d 654, 661 (9th Cir. 2002). Evidence

already produced to establish Plaintiff’s prima facie case may be

considered to show the requisite pretext, so the initial showing

to support an inference of discrimination may also go towards

demonstrating pretext. See, e.g., Yartzoff v. Thomas, 809 F.2d

1371, 1377 (9 Cir. 1987). th

Although Plaintiff’s burden in establishing pretext, at

least for purposes of defeating summary judgment, is not 

extensive, Plaintiff must point to at least some credible

evidence in support of his theory that the termination of his

employment was due to race and/or age rather than simply in

accordance with a nationally-mandated reduction in force.

Plaintiff has failed to adduce any such evidence. No direct

evidence of discriminatory animus has been presented, and the

circumstantial evidence as discussed above does not support any

inference of discrimination, either. 

6

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 13 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(...continued) 6

have received such an evaluation before any adverse employment

action was taken against him, that requirement does not apply in

the face of a reduction in force. Defendants have shown that

staffing cuts had to be made for first-level supervisors across

the board irrespective of the quality of the supervisors’ job

performance. Moreover, and in any event, even under the

Performance Improvement Plan pursuant to which Plaintiff claims

he should have been counseled prior to any adverse action being

taken against him, notification is required only if an employee’s

performance is deemed unsatisfactory. As stated above, Plaintiff

here was not rated as unsatisfactory for purposes of determining

whether he was a surplus employee; determination of his surplus

status was instead made on grounds that he was ranked lowest

among supervisors determined to be functioning at a satisfactory

level. 

14

Defendants are accordingly entitled to summary judgment as to

Plaintiff’s discrimination claims. 

B. Harassment Claims

With respect to Plaintiff’s related argument that he was

also subject to race and/or age related harassment, that claim is

solely premised on what Plaintiff perceived to be “demeaning”

comments by Lisa Cigelske to the effect that Plaintiff was not

assimilating information quickly enough after his transfer to a

new supervisorial position. Plaintiff has presented no evidence

whatsoever that any impatience expressed by Cigelske was

motivated by either Plaintiff’s age and/or race. The comments

attributed by Plaintiff to Lisa Cigelske were facially neutral in

that no reference was made to any protected classification. 

Absent any concrete nexus to age and/or race bias, Plaintiff’s

harassment claims necessarily fail. 

///

///

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 14 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

While 42 U.S.C. § 1988 is also a stated basis for the Fifth 7

Cause of Action, that section is not independent and simply sets

forth remedies for violations of Section 1988.

15

See Guthrey v. State of Cal., 63 Cal. App. 4th 1108, 1124 (1998)

(sex discrimination, harassment, and retaliation claims were

frivolous because none of the alleged misconduct was sexual in

nature and all of it was objectively gender-neutral).

C. Civil Rights Violations Under 42 U.S.C. § 1983

The McDonnell Douglas burden-shifting analysis applicable to

Title VII claims is also properly used for analyzing alleged

violations of 42 U.S.C. § 1983. See Rivera v. Puerto Rico

Aqueduct and Sewers Auth., 331 F.3d 183, 192 (1st Cir. 2003). As

already discussed above, because Plaintiff’s claims cannot

withstand scrutiny under McDonnell Douglas, they fail not only

under Title VII and FEHA, but also to the extent they are

asserted pursuant to Section 1983 in Plaintiff’s Fifth Cause of

Action.7

Any claim made by Plaintiff under Section 1983 also fails

for an even more fundamental reason. Any action taken against

Plaintiff by Pacific Bell, a private company, fails to satisfy

the prerequisite of state action attendant to any Section 1983

claim. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 49-50 (1999). Hence Defendants are entitled to summary

adjudication as to the Fifth Cause of Action. 

///

///

/// 

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 15 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Because oral argument will not be of material assistance, 8

the Court orders this matter submitted on the briefs. E.D. Cal.

Local Rule 78-230(h).

16

CONCLUSION

For the reasons stated above, Defendants’ Motion for Summary

Judgment is granted in its entirety. The Clerk of the Court is 8

hereby directed to close this file.

IT IS SO ORDERED.

DATED: March 1, 2006

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

Case 2:04-cv-02297-MCE -GGH Document 50 Filed 03/03/06 Page 16 of 16