Honorable Yvette Kane, Chief Judge of the United *

States District Court for the Middle District of Pennsylvania,

sitting by designation.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-3877

_____________

EMMANUEL NOEL,

 Appellant

 v.

THE BOEING COMPANY

___________

On Appeal from the District Court 

for the Eastern District of Pennsylvania

(No. 06-cv-2673)

District Judge: Honorable J. Curtis Joyner

___________

Submitted January 26, 2010

Before: FUENTES, FISHER, Circuit Judges, and KANE,

District Judge*
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(Opinion Filed: October 1, 2010)

Albert J. Michell, Esq.

Albert J. Michell, PC

510 Bainbridge Street

First Floor

Philadelphia, PA 19147

Attorney for Appellant

Thomas K. Johnson II, Esq.

Leora F. Eisenstadt, Esq.

Dechert LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

Attorneys for Appellees

OPINION OF THE COURT

FUENTES, Circuit Judge:

Emmanuel Noel appeals from the District Court’s grant

of summary judgment in The Boeing Company’s favor on his

employment discrimination claim brought under Title VII of the

Civil Rights Act of 1964. On appeal Noel argues that the
 Unless otherwise noted, the following facts are derived 1

from the District Court’s factual findings. 

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recently enacted Lilly Ledbetter Fair Pay Act of 2009 renders

his otherwise out-of-time administrative filing timely,

preserving his failure-to-promote claim. For the following

reasons, we will affirm the District Court’s ruling. 

I.

A. Background

Noel is a black Haitian national, who began working for

Boeing in 1990 as a sheet metal assembler at its Ridely Park,

Pennsylvania facility. Noel was hired at Labor Grade 5 and 1

repaired Chinook 47 aircraft. The terms of Noel’s employment

were governed by a collective bargaining agreement (“CBA”)

between Boeing and the International Union of United

Automobile Aerospace and AgriculturalImplementWorkers of

America Local 1069, as well as internal Boeing policies. 

Boeing employees were occasionally offered an

opportunity to work at offsite locations. Because employees

working offsite received greater pay, per diems and additional

training, offsite positions were coveted and individuals

volunteered for these assignments. Any promotions and

corresponding raises were limited to the duration of the offsite

assignment. According to the CBA that governed Noel’s

employment, seniority was not the only factor that Boeing

considered when assigning workers offsite. Rather, skill and

ability were the determining factors, and seniority was only

considered when those factors were equal. 
-4-

Noel took his first offsite assignment in 1991 at a Boeing

facility in Shreveport, Louisiana; this lasted approximately six

months. Although he sought an offsite assignment in May 2002,

Noel was not assigned offsite again until November 2002, when

he was designated an aircraft mechanic to work on

modifications to the V-22 Osprey at the Bell Helicopter facility

in Amarillo, Texas. That assignment resulted in Noel’s labor

grade rising from 7 to 8; he also received a $57 per diem. After

two weeks of working in Amarillo, Noel’s salary was increased

from $26.11 per hour to $28.75 per hour. 

Around the same time, Chris Carlin and Gary Newman,

both white employees, were also assigned to Amarillo from the

Ridley Park facility. They too were reclassified from Labor

Grade 7 aircraft assemblers to offsite mechanics at Labor Grade

8. After working in Amarillo for seven months, Carlin and

Newman were promoted to Offsite Mechanic General, Labor

Grade 11, while Noel remained at the lower paying Grade 8. In

September 2003, Noel complained about these promotions to a

union representative and a Boeing labor relations representative.

His complaints went unanswered. Noel filed a Title VII suit

against Boeing and one of its managers alleging discrimination

based on race and national origin. On March 25, 2005, Noel

filed a formal grievance with the Equal Employment

Opportunity Commission (“EEOC”). 

On June 20, 2006, Noel filed a four-count Title VII

complaint against Boeing. He thereafter amended the

complaint. Count I of the Amended Complaint accused Boeing

of intentional discrimination and disparate treatment based on

Noel’s race and national origin. Count II raised the same issue

under the Pennsylvania Human Rights Act. Count III levied a
 Noel’s complaint included several additional adverse

2

employment actions. Because Noel does not challenge the

District Court’s rulings regarding those claims, we find it

unnecessary to discuss them in further detail. 

-5-

retaliation claim against Boeing, and Count IV demanded

punitive damages. These claims were based on several specific

incidents referenced by Noel in his complaint. Relevant to this

appeal, Noel complained: (1) that Boeing did not send him

offsite to Amarillo in May 2002 when white, non-Haitian

employees who held the same job as Noel but were junior to him

were sent offsite; and (2) in 2003, while offsite at Amarillo, he

was promoted to Labor Grade 8 while his junior, white, U.S.-

born co-workers were promoted to Labor Grade 11.2

B. The District Court’s Ruling

After a four-day bench trial, the District Court ruled in

Boeing’s favor on all counts. The District Court first granted

Defendant’s summary judgment motion on Noel’s claim that

Boeing violated Title VII when it failed to send him offsite to

Amarillo in May 2002 and when he was not promoted to offsite

mechanic Labor Grade 11 in 2003, holding that this claim was

time-barred since Noel did not file a charge of discrimination

with the EEOC until March 2005, well outside the 300-day

statutory time period. The District Court also granted

Defendants’ motions for Judgment on Partial Findings on Noel’s

claim that he should have been promoted to lead mechanic upon

his return to Ridley Park. Judgment was also awarded in

Boeing’s favor regarding Noel’s erroneous placement on

Boeing’s offsite list, which stymied his promotion, since
 Though not relevant to this appeal, the District Court 3

also granted judgment in Defendants’ favor on Noel’s retaliation

and hostile work environment claims. (App. at 57.)

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Defendants subsequently promoted Noel and awarded him

backpay. 

Next, the District Court granted judgment in Defendants’

favor on Noel’s claim that race- and national origin-based

discrimination animated Boeing’s decision not to transfer him

to the position of offsite material handler while it did transfer

Carlin and Newman. Although the District Court noted that

Noel had established a prima facie case of discrimination, it

nonetheless granted judgment in Defendants’ favor because

Boeing successfully rebutted that case. Specifically, the District

Court found credible Boeing’s assertion that the sole reason

Carlin and Newman were sent offsite to work as material

handlers was because they were the “only employees who

directly expressed interest in and volunteered for the jobs and

that in doing so, it followed the Collective Bargaining

Agreement guidelines to the letter. . . . As [Noel] himself

acknowledges, he never sought to have another job in Amarillo

other than the one which he was then performing – mechanic.”

(App. at 39-40.) Thus, the District Court granted judgment in

Defendants’ favor because Noel did not “convince” it that

Boeing’s stated reason for moving Carlin and Newman offsite

was false and “that discrimination was the real reason for the

decision.” (Id. at 40.)3
We have jurisdiction over Noel’s appeal pursuant to 28 4

U.S.C. § 1291, and our review of a District Court’s grant of

summary judgment is plenary. See Mikula v. Allegheny Cnty. of

Pa., 583 F.3d 181, 185 (3d Cir. 2009) (per curiam). Summary

judgment is granted only if there remains no genuine issue as to

any material fact and the moving party is entitled to judgment as

a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).

 The Fair Pay Act, codified at 42 U.S.C. § 2000e- 5

5(e)(3)(A), was signed into law on January 29, 2009 and made

retroactive to May 28, 2007. 

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II.

The only aspect of the District Court’s ruling that Noel

challenges is its determination that he failed to administratively

preserve his claim that, in 2003, Defendants failed to promote

him to Offsite Mechanic General Labor Grade 11 in violation of

Title VII. According to Noel, because of this discriminatory 4

employment action, he received less pay than his white coworkers throughout his time at the Amarillo plant. Noel

contends that the Lilly Ledbetter Fair Pay Act of 2009 (“FPA”)5

makes clear that “in pay discrimination matters an unlawful

employment practice occurs each time an individual is affected

by application of a discriminatory compensation decision.”

Appellant’s Br. at 8. Noel argues that the District Court erred as

a matter of law when it granted summary judgment in

Defendants’ favor since Boeing’s failure to promote him

resulted in lower pay, and, therefore, each paycheck he received

started the administrative clock anew. 
-8-

Title VII of the 1964 Civil Rights Act makes it unlawful

for an employer “to . . . discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment . . . or . . . to limit . . . or classify his employees . .

. in any way which would deprive . . . any individual of

employment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s race . . . or

national origin. ” 42 U.S.C. § 2000e-2(a)(1)-(2). Before filing

a claim in federal court, a Title VII plaintiff in Pennsylvania

must file a charge of discrimination with the EEOC within 300

days of the alleged unlawful employment practice. See Mikula,

583 F.3d at 183; 42 U.S.C. § 2000e-5(e)(1). If a claimant fails

to exhaust his or her claim within the requisite time period, that

claim is administratively barred. This statute of limitations

applies to discrete employment actions, including promotion

decisions. See Nat’l R.R. PassengerCorp. v. Morgan, 536 U.S.

101, 114 (2002). 

Here, the adverse employment actions Noel complained

of occurred between July and September 2003. Because Noel

did not file his EEOC charge until March 25, 2005, well after

the 300-day time period expired, the District Court ruled that

any claims of discrimination stemming from the 2003

employment decisions were barred as a matter of law.

Nevertheless, Noel argues that the FPA revives his claim since

each paycheck he received during the requisite time period

started the administrative clock ticking anew.

Congress passed the FPA in response to the Supreme

Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co.,

Inc., which held that “pay-setting” was a discrete act and

therefore the period for filing an EEOC claim commences when
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the unlawful act occurs. 550 U.S. 618, 621 (2007), superseded,

in part, by statute, Fair Pay Act of 2009, Pub. L. No. 111-2, 42

U.S.C. § 2000e-5(e)(3), as recognized in Mikula, 583 F.3d at

183-84, 186. Ledbetter worked for Goodyear from 1979 until

1998; she introduced evidence at trial that throughout her

employment, Goodyear supervisors evaluated her poorly

because of her sex,resulting in lower pay than if her evaluations

had been discrimination-free. Id. at 621-22. She further proved

that the discriminatory pay decisions negatively affected her pay

throughout the course of her employment, resulting in a salary

that was significantly lower than that of her male peers. Id. at

622. Although a jury found in Ledbetter’s favor and awarded

her backpay and damages, the Supreme Court affirmed the

circuit court’s reversal, ruling that “[t]he EEOC charging period

is triggered when a discrete unlawful practice takes place. A

new violation does not occur, and a new charging period does

not commence, upon the occurrence of subsequent

nondiscriminatory actsthat entail adverse effects resulting from

the past discrimination.” Id. at 628. In so holding, the Court

noted that “it is not our prerogative to change the way in which

Title VII balances the interests of aggrieved employees against

the interest in encouraging the prompt processing of all charges

of employment discrimination and the interest in repose.” Id. at

642 (internal citation & quotation marks omitted). That

prerogative lies with Congress, which answered swiftly by

passing the FPA. 

The Lilly Ledbetter Fair Pay Act amended Title VII by

adding the following section:

[A]n unlawful employment practice occurs, with

respect to discrimination in compensation in
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violation of this subchapter, when a

discriminatory compensation decision or other

practice is adopted, when an individual becomes

subject to a discriminatory compensation decision

or other practice, or when an individual is

affected by application of a discriminatory

compensation decision or other practice,

including each time wages, benefits, or other

compensation is paid, resulting in whole or in

part from such a decision or other practice.

42 U.S.C. § 2000e-5(e)(3)(A). The purpose of the FPA “was to

reinstate the law regarding the timeliness of pay compensation

claims as it was prior to the Ledbetter decision, which Congress

believed undermined statutory protections against compensation

discrimination by unduly restricting the time period in which

victims could challenge and recover for discriminatory

compensation decisions.” Mikula, 583 F.3d at 184. Thus,

pursuant to the FPA, each paycheck that stems from a

discriminatory compensation decision or pay structure is a

tainted, independent employment-action that commences the

administrative statute of limitations. 

Noel contends that the FPA revives his otherwise

administratively time-barred claims because the “Court’s

assertion that [his] filing of his EEOC charge . . . is outside of

the filing period . . . is based on the erroneous conclusion that

the 300 day period started upon the act of failing to grant him

a promotion/raise in Amarillo . . . in the spring of 2003.”

Appellant’s Br. at 8-9. According to Noel, “Boeing’s

discrimination in refusing to give [him] a raise to Labor Grade

11 while giving this grade to similarly situated white coworkers . . . was perpetuated each time the resulting lower

compensation was thereafter paid to” him, bringing his claim

squarely within the FPA. Id. at 12. 

Before addressing Noel’s argument that the FPA
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retroactively renders his March 2005 EEOC filing timely, we

must first determine whether he actually alleged pay

discrimination in connection with Boeing’s failure to promote

him in 2003. Noel assigns error to the District Court’s

determination that the 300-day filing period commenced “upon

the act of failing to grant him a promotion/raise in Amarillo . .

. in the spring of 2003.” Appellant’s Br. at 9. He styles his

failure-to-promote claim as a pay-setting claim by connecting

“promotion” and “raise,” and by asserting that Boeing’s

purportedly discriminatory act was “refusing to give [him] a

raise to Labor Grade 11.” Id. This claim is unpersuasive,

however, since Noel did not plead or claim a nexus between his

promotion claim and the resultant lower salary before the

District Court. To the contrary, nowhere in Noel’s Amended

Complaint does he make any allegations of disparate

compensation during the relevant period. See Compl. ¶¶ 11-13

(App. at 68) (describing the desirability of offsite assignments

and accusing Boeing in 2002 of sending white co-workers

offsite and passing him over). Rather, his factual allegations

were focused on Boeing’s allegedly discriminatory failure to

promote him while advancing his white co-workers. 

Indeed, Noel did not raise the specter of compensation

until he reaches the events of 2005. See Compl. ¶¶ 23-26 (App.

at 69.) And even then, he only discussed compensation in the

context of disparate pay rates for offsite versus Ridley Park

jobs, and not as unequal pay for performance of the same job.

Nor did he attempt to connect his promotion claim to a

compensation claim in his opposition to Boeing’s motion for

summary judgment. (App. at 132-34.) Rather, Noel argued that

his failure to file an EEOC complaint within 300 days of his

promotion denial was not fatal pursuant to the continuing

violations theory. (Id. at 131-32.) Again, he claimed no nexus

between Boeing’s decision not to promote him and any resultant

disparate compensation. 
-12-

Nor did Noel allege that he received less pay than his

white peers for work performed at the same grade level. Rather,

he consistently and forcefully argued that he was unlawfully

passed over for promotion while his white co-workers were

advanced. To be sure, in his Federal Rule of Civil Procedure

52(b) motion, Noel noted that because his white co-workers

were promoted to Labor Grade 11, they received more pay than

he did. (Id. at 444-45.) This does not, however, transform his

failure-to-promote claim into a discrimination-in-compensation

claim. Because his white co-workers were at a higher pay grade

they necessarily received an elevated salary. Throughout this

litigation, Noel never argued that he was denied equal pay for

equal work. At best he attempts to connect his lack of

promotion with the resulting lower salary for the first time on

appeal. Therefore, we conclude that despite Noel’s

protestations to the contrary, he grieved a failure-to-promote

claim and not a discrimination-in-compensation claim. 

Having determined that Noel actually pled a failure-topromote claim, we address an issue of first impression in this

circuit: whether, under the FPA, a failure-to-promote claim

constitutes “discrimination in compensation.” Only one other

circuit has addressed this issue. 

The D.C. Circuit recently held that the FPA’s terms do

not cover failure-to-promote grievances. See Schuler v.

PricewaterhouseCoopers, LLP, 595 F.3d 370, 375 (D.C. Cir.

2010). In Schuler, the plaintiff brought an Age Discrimination

in Employment Act (“ADEA”) complaint against his employer

for failure to promote him to partner. Id. at 373. The district

court dismissed it as administratively barred. Like Noel,

Schuler on appeal argued that the FPA rendered his failure-topromote claims timely. Id. at 374. The D.C. Circuit rejected

this argument, noting first that “[t]here can be no dispute that in

order to benefit from the [FPA, plaintiff] must bring a claim

involving ‘discrimination in compensation’ and point to a
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‘discriminatory compensation decision or other practice.’” Id.

The court next noted that in employment law, “‘discrimination

in compensation’ means paying different wages or providing

different benefits to similarly situated employees, not promoting

one employee but not another to a more remunerative position.”

Id. (citing Anderson v. Zubieta, 180 F.3d 329, 338 (D.C. Cir.

1999)). In turn, the D.C. Circuit concluded that in “context,

therefore, we do not understand ‘compensation decision or

other practice’ to refer to the decision to promote one employee

but not another to a more remunerative position.” Id. at 375. 

We note, as did the D.C. Circuit, that the FPA was

enacted with the specific intent to overrule the Supreme Court’s

Ledbetter decision, and the issue in that case was confined to

pay discrimination. The FPA’s focus on compensation

decisions is evidenced by the “findings” section of the statute,

which states:

The Supreme Court[’s decision in Ledbetter]

significantly impairs statutory protections against

discrimination in compensation that Congress

established and that have been bedrock principles

of American law for decades. The Ledbetter

decision undermines those statutory protections

by unduly restricting the time period in which

victims of discrimination can challenge and

recover for discriminatory compensation

decisions or other practices, contrary to the intent

of Congress. . . . The limitation imposed by the

Court on the filing of discriminatory

compensation claims ignores the reality of wage

discrimination . . . .

Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 2,

123 Stat. 5 (2009). In our view, Congress’ motivation for

enacting the FPA was to overturn the perceived harshness of

Ledbetter and to provide greater protection against wage
 This interpretation does not render the phrase “or other 6

practice” superfluous. These words merely indicate that in

order to fall within the ambit of the FPA, the discriminatory

“other practice,” while not actually setting a disparate

remuneration level, must relate to pay disparity. See Schuler,

595 F.3d at 375 (noting that “giving an employee a poor

performance evaluation based upon her sex . . . and then using

the [unlawful] evaluation to determine her rate of pay”

constitutes “an other practice” within the meaning of the FPA).

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discrimination but not other types of employment

discrimination. Thisintention is evidenced by Congress’ use of

the term “compensation,” repeated five times throughout the

Act, indicating that the driving force behind the FPA was

remedying wage discrimination. 

6

On the basis of a plain and natural reading, we conclude

that the FPA does not apply to failure-to-promote claims. As

noted above, the FPA states that “[f]or purposes of this section,

an unlawful employment practice occurs, with respect to

discrimination in compensation in violation of this subchapter,

when a discriminatory compensation decision or other practice

is adopted.” 42 U.S.C. § 2000e-5(e)(3)(A). This first clause of

§ 2000e-5(e)(3)(A) limits the scope of the Lilly Ledbetter

Amendment by defining “unlawful employment practice” vis-avis “discrimination in compensation” violations. It then further

confines its applicability to situations in which “a

discriminatory compensation decision or other practice is

adopted.” Thus, the plain language of the FPA covers

compensation decisions and not other discrete employment

decisions. 

This textual analysis is reinforced by our treatment of

compensation-related claims and failure-to-promote claims as

distinct grievances that are not coextensive. To maintain a pay

disparity claim, a plaintiff must demonstrate that “employees .
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. . were paid differently for performing ‘equal work’–work of

substantially equal skill, effort and responsibility, under similar

working conditions.” Stanziale v. Jargowsky, 200 F.3d 101,

107 (3d Cir. 2000) (citation omitted). A failure-to-promote

claim, however, requires a Title VII plaintiff to show “(i) that

he belongs to a [protected category]; (ii) that he applied and was

qualified for a job for which the employer was seeking

applicants; (iii) that, despite his qualifications, he was rejected;

and (iv) that, after hisrejection, the position remained open and

the employer continued to seek applicants from persons of

complainant’s qualifications.” Fuentes v. Perskie, 32 F.3d 759,

763 (3d Cir. 1994). Our sister circuits also treat these types of

discrimination claims as distinct causes of action, requiring

different elements. See Schuler, 595 F.3d at 374-75 (collecting

cases). It is well understood that “Congress is aware of a

judicial interpretation of statutory language.” Nequsie v.

Holder, 129 S. Ct. 1159, 1181, – U.S. –, (2009); see also Pope

by Pope v. E. Brunswick Bd. of Educ., 12 F.3d 1244, 1249 (3d

Cir. 1993) (“Congress [is] presumed to know the meanings of

the words and phrases it uses in drafting statutes.”). Congress

was undoubtedly aware that courts have universally treated paysetting and failure-to-promote claims as different causes of

action. Had Congress intended the FPA to cover types of

employment discrimination claims apart from pay discrimination

claims, it would have done so explicitly. 

Like the D.C. Circuit, we also note that our decision is

consistent with Congress’ intent when it passed the FPA. In her

dissenting opinion in Ledbetter, Justice Ginsburg distinguished

between compensation decisions and other employment

decisions, noting that “[p]ay disparities are . . . significantly

different from adverse actions such as termination, failure to

promote, . . . or refusal to hire, all involving fully communicated

discrete acts, easy to identify as discriminatory.” Ledbetter, 550

U.S. at 645 (Ginsburg, J., dissenting) (internal quotation marks

omitted). Unlike the discrete employment acts identified by
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Justice Ginsburg, which are readily apparentsince an individual

will know when (s)he has been hired, fired, or promoted,

compensation decisions are often cloaked in secrecy, and an

employee may not know how much his or her co-workers earn.

See id. at 649 (Ginsburg, J., dissenting) (“A worker knows

immediately if she is denied a promotion . . . . And promotions

. . . are generally public events, known to co-workers. When an

employer makes a decision of such open and definitive

character, an employee can immediately seek out an explanation

and evaluate it for pretext. Compensation disparities, in

contrast, are often hidden from sight.”). Thus, the FPA was

enacted to address a particular type of employment

discrimination, compensation decisions, which are often

concealed and not discovered until long after the 180- or 300-

day administrative period expires. There is no indication,

however, that Congress intended the FPA to apply to discrete

employment decisions, like promotion decisions, and Noel cites

no authority for that proposition. 

 Noel’s reliance on our holding in Mikula does not alter

this conclusion. In Mikula the plaintiff sued the Allegheny

County Police Department for gender discrimination based on

its failure to give her a pay raise. 583 F.3d at 182. Mikula

alleged that she repeatedly asked for pay increases but received

no response from her employer. While we initially upheld the

grant of summary judgment in the defendant’s favor since her

suit was administratively time-barred, we granted rehearing to

determine the effect of the FPA on Mikula’s claim and

ultimately remanded to the district court. Id. at 182, 186. In

doing so, we held that “the failure to answer a request for a raise

qualifies as a compensation decision because the result is the

same as if the request had been explicitly denied.” Id. at 186.

Noel contends that the same logic applies here, since

Boeing’s failure to promote him resulted in lower

compensation. This argument misses the mark. We recognize
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that many employment-related decisions, not simply pay-setting

decisions, ultimately have some effect on compensation. But to

include these myriad employment decisions within the “other

practice” language of the FPA would weaken Title VII’s

administrative exhaustion requirement. Indeed, the expansive

interpretation of “other practice” advanced by Noel would

potentially sweep all employment decisions under the “other

practice” rubric.

Furthermore, there is well-established Supreme Court

precedent holding that discrete employment acts trigger the

administrative clock at the time the employment decisions

occur. See Morgan, 536 U.S. at 113-14. Had Congress

intended to abrogate § 2000e-5(e)(1) and overturn Morgan, it

would have done so explicitly and not by implication. See

Astoria Fed. Sav. and Loan Ass’n v. Solimino, 501 U.S. 104,

109 (1991) (reaffirming “the kindred rule that legislative repeals

by implication will not be recognized, insofar as two statutes are

capable of coexistence, absent a clearly expressed congressional

intention to the contrary”) (citation & internal quotation marks

omitted)). Indeed, in § 2 of the FPA, Congress explicitly

mentioned that the Ledbetter decision was the driving force

behind enacting the Lilly Ledbetter Amendment to Title VII.

Congress did not, however, cite to Morgan with displeasure.

We will therefore not expand the meaning of “other practice”

such that it swallows whole Title VII’s exhaustion requirement

and overturns settled Supreme Court precedent. 

In sum, because Noel filed his failure-to-promote

discrimination charge with the EEOC outside of the 300-day

period, and because a failure-to-promote claim is not a

discrimination-in-compensation charge within the meaning of

the FPA, we affirm the District Court’s Order granting Boeing

summary judgment. 
-18-

III.

For the foregoing reasons, we will affirm the District

Court’s grant of Judgment on Partial Findings in Defendants’

favor.