NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1188n.06 No. 11-5238 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

MARANDA TI BB S, Plaintiff-Appellant,

v. CAL VARY UNI TED METHO DI ST CHURCH, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL FROM T HE UNI TED STATES DI STRI CT COURT FOR THE MI DDL E DI STRI CT OF TEN

NESSEE

BEF ORE: BOG GS and GRI FF I N, Circuit J udg es; and B ARZ I L AY, Judge. * GRI FF I N, Circuit J udg e. Plaintiff-appe llant Mara

nda Tibbs filed this action ag ainst her former employ er, defe ndantappellee Calvary United Methodist Church (“Calva ry ”), alleg ing ag e discrimination under the Ag e Discrimination in Employ ment Act (“A DEA” ) and rac e discrimination under Title VI I of the Civil Rights Act of

1964 (“Title VI I ”). Tibbs a ppeals the district c ourt’s g rant of summary judgme nt in favor of Calvar y . For the re asons set for

th below, we a ffirm. I

. Mara nda Tibbs is an Afric an-A merica n woman who worke d as an assi s t an t teac her at Calvary ’s Young C hildren’s S chool (“YCS”) from March of 1989 until h er d i s ch ar ge on J uly 29,
The Honora

ble J udit h M

. B a r zi la y , Senior J udg e, United States Court of I nterna tional Trade , * sitti ng by desig nation.No. 11-5238

Tibbs v. Calvary United Methodist Church

2008. I n November 2007, Calvary hired Sharon Golden, a Cauca sian, as the direc tor of the YCS and instructed her to make chang es in the prog ram for the 2008-2009 school y ear , including rea rra ng ing teac her assign m en ts to confor m with the applicable state and fede ral acc reditation and licensing standards. Although the YCS had been using a sy stem of t eam teaching for some time, the 2008- 2009 standards r equire d that eac h classroom have one lead tea cher who had a

Child Development Associate cer

tification, an associate ’s deg ree , or a colleg e deg ree , and one assistant teac her (who was not require d to hold a deg ree ). When Golden beg an her tenure , there wer e two classrooms that did not meet the 2008-2009 standards—o n e was Tibbs’s classroom in the nurser y . During the 2007-2008 school y ear , Tibbs, who was not qualified to be a lead teac her for lack of the requisite deg ree , taug ht with L inda Short, who also was not qualified as a lea d t ea ch er . Be cause neither Tibbs nor S hort wer e lead teac hers (nor e ligible to be one ), Golden de cided to re assig n them to differ ent classr ooms. I n Marc h 2008, Golden discussed her proposed chang es in classroom assig nment s fo r t h e 2008-2009 school y ear wi th the staff. Tibbs expressed her pref ere nce to continue working with Short in the nurser

y , but beca

use this was not an option, Gol d en ar ra n ged for Tibbs to work with Kimberly Hommel, a lead teac her, in the four-y ea r-old’s classroom. Tibbs states that Golden justified the rea

rra ng ement by telling her that working with older students would be “ea sier on y our back.” Tibbs further testified that Golden said that “bec ause of my ag e and I was older, it would be less bending and lifting” and that “the y oung er teac hers probably ha[ve] g ot more ener g y and [are]

more . . . flexibl e working with y oung er children.” Golden denies making those statements, and

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Tibbs v. Calvary United Methodist Church
Tibbs does not dispute that she took time off of work in ear ly 2008 due to a non-work- rela ted back injury

. I n J uly 2008, due to a drop in enrollment num bers, Golden deter mined that there wer e not enoug h four- y ear -olds to comprise a class for the 2008-20 0 9 s chool y ear . She ultimately decide d to rea ssign Tibbs and Hommel to a newly -cr eate d class for two-y ear -olds. On J uly 29, she an d assistant direc tor J ennife r J ohnson met with Tibbs and Hommel, who wer e not p l ea s ed wi t h the

rea ssignment, to discuss the s wi t ch. The parties dispute what happene d at the meeting

. Golden t es t i fi ed t h at Tibbs beca

me upset at the rea ssignment, y elled at her, and left the meeting befor e it conclude d. J ohnson and Hommel said Tibbs spoke loudly during the meeting and expressed ang er and hurt. Golden viewed Tibbs’s behavior as insubordinate and inappropria te. Tibbs alleg es to the contra ry , testify ing tha t Golden, in a ra ised and ang ry voice, said disparag ing things a bout Tibbs’s education and nature . Tibbs testified that she wa s not disrespec tful, but admitted that she bec ame upset, started c ry ing, a

nd left the mee ting be fore its conclusion. Another teache r, Hedy Morrison, who was in an adjoining room and overhea rd part of the meeting , testified that she hear d Golden y ell at Tibbs and pound on her desk. Whil e noting that both Golden and Tibbs have “loud voices” and that the discussion was “heated,” Morrison testified that she did not hear Tibbs say any thing insubordinate or disrespec tful, but she hear d Tibbs cry ing. Tibbs admits that Morrison did not hear Golden make any comments about Tibbs’s ag e or rac e during the meeting and that there is nothing in Morrison’s statement to indicate that Tibbs’s ag e or rac e play ed a par t in her subseque nt termination.

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Tibbs v. Calvary United Methodist Church
After Golden conclude d the meeting in Tibbs’s abse n ce , she immediately confe rre d with assistant direc tor J ohnson, YCS attorney Chris Ander son, senior pastor Peter Van Ey s and YCS personne l chair L eslie Calvert, about Tibbs’s behavior

. Gol d en s o u g ht and ultimately obtained permission to fire Tibbs for insubordination. L ater that day , Golden, Calvert, and J ohnson told Tibbs she was terminated beca

use of her behavior during the meeting

. At the time of her discharg e, Tibbs

was 51 y ear s old and was one of four Afric an-A merica n employ ees at Calvary

. Calvary repla ced her with a y oung er, Cauc asian woma n. Tibbs filed the prese nt action ag ainst Calvary , alleg ing ag e discrimination in violation of the ADEA, and rac e discrimination contra ry to Title VI I

. Calvary moved for summary judgme nt. The district court, finding no direc t evidenc e of discrimination under either claim, applied the McD onnell Douglas burden- shifting fra mework to both claims and, assuming that Tibbs established prima fac ie

case s, held that Calvary satisfied its burden of articula ting a leg itimate nondiscriminatory rea son for Tibbs’s termination—perc eived insubordination towards Golden, her supervisor. The district court further deter

mined that Tibbs failed to come forwa rd with sufficie nt ag e or rac e-ba sed evidenc e from which a rea sonable jury might reje ct Calvary ’s stated re ason as pr etextual. Tibbs now appea ls the district court’s order of summary judgme nt in favor of Calvary

. The Equal Employ ment Opportunity Commi ssion (“EEOC”) filed an a micus brief in support of T ibbs’s Title VI I claim.

I I

. We revie w de novo a district court’s g rant of summary judgme nt. Longaberger Co. v. Kolt , 586 F.3d 459, 465 (6th Cir. 2009). Summary judgme nt is proper “if the movant shows that there is

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Tibbs v. Calvary United Methodist Church

no g enuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P. 56(a) ; see a l s o Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). When deter mining whether the movant has met this burden, we view t h e ev i d en ce in the light most favor able to the nonmoving party
. Smith W holesale Co., Inc. v. R.J. Rey nolds Tobacco Co. , 477 F.3d 854, 861 (6th Cir. 2007). I I I

. A. Tibbs arg ues that the district court err ed in concluding that she did n o t o ff er any direc t evidenc e of a g e discrimination. We disag ree . The ADEA prohibits employ ers from discriminating “ag ainst any individual with respe ct to his compensa tion, terms, conditions, or privileg es of employ ment, bec a

u s e o f s u c h in d iv id

u a l’ s a g e . ” 29 U.S.C. § 623(a)

. An ag g rieve d employ ee may obtain relief under the ADEA if the employ ee can prove by a preponde ranc e of the evidenc e that ag e was the “but-for ” cause of the challeng ed employ ment action. Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 180 (2009). “A n employ ee c an establish an ag e discrimination case by either direc t or circ umstantial evidenc e.” Martin v. Toledo Cardiology Consul tants, Inc. , 548 F.3d 405, 410 ( 6th Cir. 2008). “Dire ct evidenc e o f d is c r im in a ti o n is th a t e v id ence which, if believed, require s the conclusion that unlawful discrimination was at least a motivating fac tor in the employ er’ s actions.” Provenzano

v. LCI Holdi n g

s , Inc. , 663 F.3d 806, 811 (6th Cir. 2011) (citation and internal quotation marks omitted). Direc t evidenc e of discrimination does not require a fac tfinder to draw any infere nces in

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Tibbs v. Calvary United Methodist Church
order to conclude that the challeng ed employ ment action was motivated, at least in part, by unlawful discrimination. Johnson v. Kroger Co. , 319 F.3d 858, 865 (6th Cir. 2003). I n other words, “[d] irec t evidenc e is composed of only the most blatant rema rks, whose intent could mean nothing other than to discriminate on the basis of some impermissible fac tor.” Umani v. Michigan Dep’ t of Corr. , 432 F. App’x 453, 458 (6th Cir. 2011). “I solated and ambig uous comments are insufficient to suppor t

a finding of direc t discrimination.” W hite v. Columbus Metro. Hous. Auth. , 429 F.3d 232, 239 (6th Cir. 2005). Tibbs relies on G o ld e n ’ s M a rch 2008 statements as the purported direc t evidenc e in this case . She states that Golden expr es s ed co n ce rn that “bec ause of [Tibbs ’s] ag e and [she] was older, it would be less bending and lifting” to work with older childre n an d t h at “the y oung er teac hers probably ha[ve] g ot more ener g y and [are] more . . . flexibl e working with y oung er children.” Those ambig uous statements, which alleg edly occur red four months befor e her termination, are not direc t evidenc e of ag e discrimi nation. Assuming Golden made the statements as Tibbs claims, she was speaking in connec tion o nly with classroom assig nments; they are not temporally connec ted with Tibbs’s dismiss al or the rea sons for that dismiss al. The statements are also ambig uous in that they addre ss T i b b s’s ag e and abilities in the context of her rec ent back issues and do not expli citly demons t ra t e discriminatory prejudice based upon her ag e. Golden’s acknow ledg ment of Tibbs’s individualiz ed circ umstances are leg itimate workplac e conce rns, not “blatant rema rks” whose intent

means nothing other than to discriminate on t h e b as i s o f ag e. Since Golden’s statements wer e

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Tibbs v. Calvary United Methodist Church
unrela ted to the challeng ed employ ment action, and an infere nce is r equire d to link the ambig uous statements to Tibbs’s dismiss al, they do not constitute direct evide nce of ag e discrimination. B. Tibbs next arg ues that she has prese nted en oug h circ umstantial evidenc e of ag e discrimination to survive summary judgme nt. I n particula r, Tibbs maintains that there is sufficie nt evidence to establish that she did not act insubordinately during the J uly 29, 2008, mee t i n g, an d , there fore , a rea sonable jury could reje ct Calvary ’s alleg ed nondiscriminatory rea son for terminating her as a prete x t for ag e discrimination. Calvary , conce ding that Tibbs has established a prima fac ie

case of ag e discrimination, maintains that Tibbs has not prese nted sufficie nt ag e-ba sed evidenc e to reje ct its nondiscriminatory rea son for he r termination. We ag ree with Calvary

. Under the fra

mework established in McD onnell Douglas Corp. v. Gree n , 411 U.S. 792, 793 (1973), if an ag g rieve d employ ee cannot prove discriminatory intent by direc t evidenc e, the employ ee may do so by making a prima fac ie case of ag e discrimination thr o u gh ci rc u m stantial evidenc e. See Martin , 548 F.3d a t 410. Once a prima facie case has been established, t he burden shifts to the defe ndant employ er to articula te a leg itimate, nondiscriminatory rea son for the adver se employ ment action. Id

. “Onc e the defe ndant meets this burden, the plaintiff must produce sufficie nt evidenc e from which the jury may rea sonably reje ct the employ er’ s explanation” as prete x tual. Id

. at 410–11 (c itation and internal quotation marks omitted). Although Calvary

conce des that Tibbs ha s established a prima fac ie case , it ha s articula ted

a leg itimate, nondisc riminatory rea son for Tibbs’s termination: insubordination and inappropria te

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Tibbs v. Calvary United Methodist Church
behavior

. We have previously confirme d that “insubordination can constitute leg itimate rea sons for termination.” Arnold v. Marous Bros. Constr., Inc

. , 211 F. App’x 377, 381 (6th Cir. 2006) (citing Cooley v. Carmike Cinemas, Inc. , 25 F.3d 1325, 1330 (6th Cir. 1994); see also Clack v. Rock -Tenn Co. , 304 F. App’x 399, 406 (6th Cir. 2008). Calvary supp o rt s i t s p ro ffe red rea son by prese nting Golden’s testimony that Tibbs raised her voice and walked out of the meeting befor e it was conclude d—admis s i ble evidenc e which, if believed, would support a finding that the termination

was n o t based upon Tibbs’s ag e. The burden of production now shifts back to Tibbs to produce sufficie nt evidence demonstrating that Calvary ’s proff ere d rea son was pre text ual. Tibbs may establish prete x t by showing that Calvary ’s stated rea son (1) has no basis in fac t; (2) did not actua lly motivate the termination; or (3) was insufficient to war rant her dismiss al. Seege r

v. Cincinnati Bell Tel. Co., LLC , 681 F.3d 274, 285 (6th Ci r. 2 0 1 2 ). Her e, Tibbs seeks to demonstrate prete x t by means of the first method—no basis in fac t—which is essentially an attack

on the credibility of C alvar y ’s reason and “consists of showing t hat t he em p l o y er d id not actua lly have cause to take adver se action ag ainst the employ ee based on its proff ere d rea son, and thus, that the proff ere d rea son is prete x tual.” Id

. at 285 (citation and internal quotation marks omitted). I n this reg ard, althoug h Tibbs denies being insubordinate and offe rs corr oborating testimony of a third party (Morrison), who admittedly hear d only part of the meeting , she does not dispute that she left t he “heated” meeting ear ly without her sup ervisor’ s permission. This ty pe of behavior , whether truly insubordinate or ju s t i n appropr iate, is enoug h to justify Calvary ’s termination of Tibbs’s at-will employ ment. Tibbs’s subjecti v e b el i ef that she was not insubordinate is insufficient to rebut

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Tibbs v. Calvary United Methodist Church Calvary ’s nondiscriminatory rea son. See Mitchell v. Tole d o Hosp ., 964 F.2d 577, 585 (6th Cir. 1992) (“[C] onclusory alleg ations and subjecti v e beliefs

. . . are wholly insufficient evidenc e to establish a claim of discrimination as a matter of law.”)

. Acc ording ly , Tibbs has failed to establish a g enuine issue of

materia l fac t on the prete x t issue. We further find that the “honest belief rule” protec ts Calvary ’s termination decision. Under this rule, if an employ er demonstrates an honest belief in its proff ere d rea son fo r t he adver se empl oy ment action, the infere nce of prete x t is not war rante d. Seege r , 681 F.3d at 285. We h av e previously

explained that

an employ er’ s proff

ere d rea son is considere d honestly held wher e the employ er can establish it rea sonably reli[ed] on particula rized fac ts tha t w ere befor e it a t the time the decision was made. There afte r, the burden is on the plaintiff to demonstrate that the employ er’ s belief was not hone stly held. An employ ee’ s bare asser tion that the employ er’ s proff

ere d rea son has no basis in fac t is insufficient to call an employ er’ s honest belief into question, and f ails to create a g enuine issue of materia l fac t. Id. (c i t at i o n and internal quotation marks omitted). Moreove r, so long as the employ er has established its honest belief, “ the employ ee cannot esta blish pretext even if the employ er’ s rea son is ultimately found to be mistaken, fool ish, trivial, or basele ss.” Id

. at 286 (citation and internal quotation marks omitted). Her e, Calvary ma d e it s te r

mina tion decision based on particula rized fac ts. Golden persona lly observe d behavior she believed was insubordinate and inappropria te. Consequently , she consulted J ohnson, Ander son, Van Ey s, and Calvert in obtaining permission to terminate Tibbs. Although Tibbs continues to asser

t she was not, as a fac tual matter, insubordinate, “ar g uing about the acc urac y of the employ er’ s as sessment is a distraction beca use the question is not whether the employ er’ s - 9 -No. 11-5238

Tibbs v. Calvary United Methodist Church

rea sons for a decision are right but whether the employ er’ s descr i p t i o n o f its rea sons is honest .” Smith v. C

hrysler C orp. , 155 F.3d 799, 806 (6t h Cir. 1998) (citation and int erna l quotation marks omitted). The test is whether a rea sonable jury could find that Calvary “fa iled to make a rea sonably informed and considere d decision befor e taking its adver se employ ment action, there by making its decisional proce ss unworthy of cre dence

. . . .” See W right v. Murray Guard, Inc. , 455 F.3d 702, 708 (6th Cir. 2006) (citation and internal quotation marks omitted). Calvary ’s decision to fire Tibbs was not so questionable that it might be deeme d unworthy of cre dence

. The rec ord does not support that conclus i o n . I n s tead, the rec ord sug g ests that Calvary decide d to terminate Tibbs for her conduct during the meeting , conduct that Calvary perc eived to be insubordinate and ultimately unacc eptable. Whether it was truly an act of insubordination is not the issue. Although it is unfortunate , Calvary ’s termination of Tibbs ref

lects a rea sonably informed and considere d decision. We there fore find that Tibbs has not ref

uted Calvary ’s honest belief that it terminated her for insubordination and af firm the district court’s g rant of summar y judgme nt in Calvary ’s fa vor on the AD EA cla im.

C. Next, Tibbs and the EEOC arg ue that she has prese nted enoug h circ umstantial e vidence of

rac e discrimination to prese nt her Title VI I claim to the fa ctfinder

. We disag ree . 1 Title VI I prohibits employ ers from discriminating ag ainst employ ees on the basis of race

. 42 U.S.C. § 2000e-2( a)( 1). This court applies the same McD onnell Douglas fra mework when analy zing Title VI I rac ial discrimination claims based on circ umstantial evidenc e as it does for the Tibbs presents no dire ct evidenc e of r acia l discrimination. 1 - 10 -No. 11-5238

Tibbs v. Calvary United Methodist Church

ADEA. See Imwalle v. Reliance Med. Prods., Inc. , 515 F.3d 531, 544 (6th Cir. 2008)

. A plaintiff establishes a prima fac ie case of rac e discrimination under Title VI I by proving “(1) membership in

a protec ted class; (2) that she suffe red an adver se action; (3) that she was qualified for the position; and (4) that she was repla ced by , or trea ted differ ently than, someone outside the protec ted class.” Laderach v. U

-Haul of Nw. Ohio , 207 F.3d 825, 828 ( 6th Cir. 2000). Calvary conce des that Tibbs has established all b u t th e f o u r th element of the prima fac ie case . I t attacks the final element by arg uing Tibbs was not trea ted differ ently than any employ ees outside the protec ted class and no differ ent than other employ ees. We ag ree with Ti b b s t h at t h e fourth element is stated in the disjunctive, so that a plaintiff may establish that element either by proof that she was repla ced by someone outside the protec ted class, or was trea ted differ ently

. Her e, Calvary does not dispute it repla ced Tibbs with a Cauca sian fema le. Tibbs has there fore established the prima fac ie case , and the burden now shifts to Calvary to articula te a leg itimate, nondiscriminatory

rea son for her termination. Consist ent with their respe ctive positions on the ADEA claim, Calvary

asser ts it terminated Tibbs beca use of insubordination, and Tibbs maintains this rea son is a prete x t for r ace discrimination. As with her ag e discrimination claim, we fi n d t h at Tibbs has failed to produce sufficie nt

e v id e n c e f r o m w h ich a rea sonable jury could reje ct Calvary ’s nondiscrim in a to r y r e a s o n a s p r e te xtu a l. Tibbs has failed to cre ate a g enuine issue of materia l fac t on the prete x t issue beca use she does not deny that sh e l ef

t t h e “h eate d” meeting ear ly , and her belief that she was not insubordinate is

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irrele vant in the analy sis. I n addition, she has failed to g enuinely dispute Calvary ’s honest belief in terminating her f

or insubordination. Moreove r, Tibbs’s exhaustive compar isons of her alleg ed behavior during the meeting , for which she was fired, to Cauca sian co-w orker s’ alleg ed misconduct, for which they wer e not fired or disciplined, do not cre ate a g enuine issue of materia l fac t on prete x t. I n revie wing such an arg ument,

we focus on whether the employ ees outside the protec ted class wer e simil arly situated in all rele vant aspec ts, and whether the proff ers of simil ar misconduct are anal o go u s in terms of sever ity and commonality

. Chattman v. Toho T enax A m., Inc

. , 686 F.3d 339, 348–50 ( 6th Cir. 2012). The proff ere d compar isons here are unpersua sive as the circ umstances an d s er i ousness of these other incidents varie d considera bly , and the Cauca sian co-w orker s wer e not simil arly situated to Tibbs. She offe rs no evidenc e that Calvary did not discipline Cauca sian employ ees who eng ag ed in sever e misconduct analog ous to arg uing with a supervisor in a loud, “heated” meeting and walking out of that meeting befor e the supervisor called it to a close. She also offe rs no proof that Calvary employ ees commonly trea ted supervisors in such a manner or that sup ervisors routinely tolerate d such behavior

. Fur

ther, we reje ct T i bbs’s proff er of three memoranda written by Golden which purportedly s h o w that Calvary did not terminate Cauca sian employ ees for eng ag ing in simil ar insubor d i n at e conduct. Golden penned those memos seven months to two y ear s after Tibbs’s termination; they are not temporally connec ted to events in this case and are irrele vant as to Golden’s motive for dischar ging Tibbs. Acc ording ly , Calvary was entitled to summary judgme nt on this claim.

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D. Tibbs’s final arg ument is that the district court err ed in not considering her “mix ed-motive” claim of rac ial discrimination w hen g ranting summary judgme nt to Calvary

. Although the district court did not specific ally addre ss her mix ed-motive claim in its written memorandum, it nece ssarily disposed of this claim by holding t h at T i b b s “produc ed no evidenc e that Def endant’ s decision to terminate he r wa s in any way based on her race

. . . .” (Emphasis added.) We find no er ror in the district court’s c onclusion. Title VI I prohibits adver se employ ment actions i f the employ ee’ s rac e was a motivating fac tor, eve n i f o t h er leg itimate fac tors also motivated the employ er’ s decision. 42 U.S.C. § 2000e-2( m). To avoid summary judgme nt on a mix ed-motive rac e discrimination claim, a plaintiff must produce sufficie nt direc t or circ umstantial evidenc e from wh i ch a rea sonable jury could conclude that: (1) the defe ndant t o o k an adver se employ ment action aga inst the pl aintiff; and (2)

rac e was a motivating fac tor for the defe ndant’s adver se employ ment action. W

hite v. Baxter Healthcare Corp. , 533 F.3d 381, 400 (6th Cir. 2008)

. The plaintiff’s burden of produc tion “is not

onerous and should prec lude sending the case to the jury only wher e the rec ord is devoid of evidenc e that could re asonably

be construe d to support the plaintiff’s cla im.” Id. Tibbs’s proofs do not allow a re asonable jury to c onclude that Calvary considere d her rac e

a motivating fac tor in its decision to discharg e her for insubordination. The rec ord contains no direc t evidenc e of racia l discrimination. Fr om the s cintilla of circumstantial evidenc e off ere d—isolated compar isons of how Calv ary alleg edly trea ted Tibbs differ ently from Cauca sian co-w orker s—a
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rea sonable jury could not draw the infere nce that Calvary considere d her rac e a motivating fac tor in its termination decision. Diffe renc es in require ments rela ted to d o ctors’ notes or disciplinary decisions for m i n or workplac e offe nses undersc ore the discretionar y nature of administrative decision making

. A fac tfinder could not r easona bly construe those differ ence s as proof that it was more likely

than not that Tibbs’s rac e partly motivated Calvary to fire a t wenty -y ear veter an of its instit ution. Relatedly , as with the single -motive claim, we do not consider th e m em o ra n d a that Golden wrote seven months to two y ear s afte r Tibbs was terminated beca use the compar ators wer e not simil arly situated in that there is no temporal nexus to the events here an d t h e m i sconduct differ ed from Tibbs’s actions in this case . We there fore aff irm the district court’s g rant of summary judgme nt in Calvary ’s fa vor. I V. For the fore g oing r easons, we aff irm the judg ment of the district cour t.

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