Yvonne Craddock v. FedEx Corp. Servs., Inc.Yvonne Craddock v. FedEx Corp. Servs., Inc.
Case Information
*1 Before: GIBBONS, McKEAGUE, and STRANCH, Circuit Judges.
_________________
COUNSEL ON BRIEF: Mary A. Brown, Grenada, Mississippi, for Appellant. Charles V. Holmes, Barak J. Babcock, FEDERAL EXPRESS CORPORATION, Memphis, Tennessee, for Appellee.
STRANCH, J., delivered the principal opinion of the court in which GIBBBONS and McKEAGUE, JJ., concurred. McKEAGUE, J. (pp. 17–19), delivered a separate opinion of the court in which GIBBONS and STRANCH, JJ., concurred.
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. FedEx Corporate Services terminated Yvonne Craddock’s employment following a workplace altercation. Craddock, who is African American, sued FedEx, alleging that she was terminated because of her race in violation of Title VII of the Civil Rights Act of 1964 . Her claims were submitted to a jury, which concluded that FedEx’s reason for termination was pretextual, but that Craddock had failed to demonstrate that FedEx intentionally discriminated against her because of her race. Craddock appeals, arguing that the district court abused its discretion by forcing her to bifurcate the liability and damages portions of her trial and by excluding testimony and evidence pertaining to events post- termination; that some of the court’s trial rulings and case management decisions were improper; that the jury verdict form was plainly erroneous; and that cumulatively, these errors warrant reversal of the judgment and remand for a new trial. For the following reasons, we hold that the district court did not abuse its discretion regarding the claims raised by Craddock, and AFFIRM the jury’s verdict.
I. BACKGROUND
A. Facts
Yvonne Craddock began working at FedEx in 1983. She started her FedEx career sorting packages at a facility part-time; over time, she received further training, obtained additional degrees, and transitioned through several different full-time roles. Craddock did not experience problems with supervisors or coworkers in these positions. In April 2015, Craddock became a senior project process analyst in FedEx’s Supply Chain Office, where Leanne Scallions served as her manager. Craddock sought and obtained permission from Scallions to adjust her work schedule to care for her mother, who had Alzheimer’s disease, including leaving early on Tuesdays.
To help acclimate Craddock to her new role, Scallions assigned her a training partner, Cindy Fischer. Conflicts soon emerged between the two. For example, despite not serving as Craddock’s supervisor, Fischer monitored Craddock’s office arrival and departure times, for which Fischer ultimately received a verbal warning to stop tracking Craddock’s whereabouts.
On December 3, 2015, Craddock went to Fischer’s cubicle and asked why she kept emailing Scallions about Craddock’s comings and goings. Fischer got upset, began yelling, and then stood up facing Craddock toe-to-toe. The parties dispute what happened next; Craddock says she raised her forearm and “brushed up against” Fischer as Fischer stepped closer to her, and Fischer says Craddock pushed her. Later that day, Scallions called and notified Craddock that she was suspended. Rich Psyzniak, a representative from FedEx’s Human Resources department, stated that he called Craddock later that day and spoke with her about the contents of the suspension letter and the underlying incident; Craddock claims this conversation never took place. On January 27, 2016, Scallions and Psyzniak called Craddock and notified her that FedEx was terminating her for workplace violence.
B. Procedural Background
Craddock filed a complaint with the Equal Employment Opportunity Commission, which
issued her a right to sue letter on July 24, 2017. Craddock filed this lawsuit on October 23, 2017,
and filed an amended complaint on March 20, 2018, raising, in relevant part, race discrimination,
hostile work environment, and retaliation claims under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e,
et seq.
The district court granted FedEx’s motion to dismiss Craddock’s libel
claim, Family Medical Leave Act claim, 42 U.S.C. § 1981 claim, and spoliation claim, but
denied dismissal of her Title VII claims. After discovery, the court granted FedEx’s motion for
summary judgment on Craddock’s Title VII claims. We affirmed the dismissals but vacated the
grant of summary judgment on Craddock’s race discrimination claim and remanded that claim
for further proceedings.
Craddock v. FedEx Corp. Servs., Inc.
, No. 20-5655,
The district court set the jury trial for September 2022. FedEx moved for sanctions against Craddock because she allegedly failed to meet deadlines to produce financial information, such as bank statements or tax returns reflecting her sources of income since leaving FedEx, despite FedEx’s repeated requests for this information; and the evidence provided contained conflicting information regarding her damages. Additionally, FedEx moved to exclude testimony and evidence related to Craddock’s dismissed hostile work environment and retaliation claims. Although the court initially denied a motion from Craddock to continue—that is, to delay—the trial, at the parties’ September pretrial conference, the court delayed the trial date until November 2022. At that conference, Craddock was ordered to supplement her discovery responses regarding damages by October 7.
FedEx renewed its motion for sanctions in October 2022, arguing that “[t]o date, FedEx has not been provided the information that it needs to evaluate and defend against a claim by Craddock for economic damages,” and that “Craddock’s continued failure to comply with discovery obligations” warranted dismissal with prejudice under Federal Rule of Civil Procedure 41(b) or a prohibition on Craddock presenting any evidence of alleged damages at trial. During a pretrial conference on November 4, the court expressed its concerns with Craddock’s failure to produce the relevant financial records, despite FedEx “asking for this information now for years,” and concluded that sanctions were appropriate. As to dismissal, the court stated, “it’s a very close question about dismissing the case outright,” declined to resolve the issue of what sanctions to issue, and converted the November trial date to a status conference. At that conference, the court heard arguments on FedEx’s pending motions, and the court expressed concern that it was “struggling . . . with how we can proceed in this case” because Craddock still had not provided FedEx with accurate financial information. The court found that on this record, it “could dismiss this case on the basis of the plaintiff’s failure to prosecute her damages claims”; however, because “both sides have everything they need to” litigate “the question of liability,” the court could bifurcate the trial and present only the issue of liability to the jury, with the court deciding the issue of damages, if needed. When the court told Craddock that she could choose between dismissal of her case for failure to prosecute or agree to bifurcate the trial, Craddock “favor[ed]” bifurcation.
Following the pretrial conference, the court granted FedEx’s motion for sanctions in part and bifurcated the trial “[t]o avoid unfair prejudice to Defendants and misleading the jury on the issue of damages,” ordering presentation of the issue of liability to the jury and reserving the issue of damages, if necessary, for a bench trial. It also took the remainder of FedEx’s pretrial motion under advisement and stated it would “rule on [relevant] evidentiary issues during trial.” Additionally, the court cautioned Craddock “that if her pattern of providing incomplete and inaccurate responses about her financial status and her claim for damages continues, the Court may dismiss the case along with other sanctions.”
At a final pretrial conference on March 1, counsel stated that Craddock “didn’t think [it] was much of a choice” to bifurcate her case or face dismissal and the court acknowledged that “it wasn’t much of a choice if [Craddock] wanted her case heard.” The court then emphasized that Craddock’s failure to sufficiently prosecute her case could “easily” justify dismissal of the action, noting that it raised the possibility of bifurcation because it was “trying to give [Craddock] an opportunity to be heard.” Counsel responded by pressing Craddock’s objection to bifurcation.
Trial commenced on March 27, 2023. The court ruled that evidence related to events postdating Craddock’s termination was inadmissible because it was irrelevant. Over the course of the four-day trial, the court called several sidebars where, out of the jury’s hearing, it addressed issues with the trial actions of Craddock’s counsel. These included: reminders not to solicit irrelevant testimony or testimony about events that postdated termination and attempts to have Craddock’s counsel refine her questions to avoid confusing the jury. The court also addressed issues concerning actions by Craddock’s counsel, such as her request to have documents she left at home delivered to the courthouse and her claim that she forgot to ask specific questions during her direct examination of Fischer because the court intimidated her.
During the third day of trial, the judge called a sidebar where he raised concerns that Craddock’s counsel was “not listening to the rulings” and “just plowing ahead” despite the court’s decision “to narrow the focus of this case”; the judge noted he was “going to consider contempt” if counsel continued to disregard his rulings. The court later responded to the comment that Craddock’s counsel felt intimidated during a sidebar, stating:
I want to address that, because in this case your presentation has been very repetitive. You have repeated answers before asking the next question. It has probably at least doubled the length of time this trial needed to take. You have not seemed to understand how to introduce a document as an exhibit. There have been several steps along the way where I felt like I had to intervene because you were standing in front of a jury and you are—you ignored the Court’s rulings over and over and over again. Now, whether you understood them, I don’t know, but you continued to go up to the witness and try to introduce documents that were well outside what we had already talked about.
The court apologized for making Craddock’s counsel feel intimidated and emphasized its “duty . . . to make sure that this is a fair trial, not only to Ms. Craddock, but also to FedEx, and that the jury hears the evidence that is relevant,” and that the court was “trying to do [its] job to make sure that the jury doesn’t get confused.”
After FedEx rested, the court solicited feedback on the proposed jury instructions. Craddock’s counsel asked to email proposed additions to the court; the court responded that proposed instructions “were due two weeks ago,” but allowed Craddock’s counsel to send them to the court for consideration. The next day, the court largely declined to incorporate Craddock’s proposed jury instructions; at the close of the discussion, Craddock’s counsel indicated that she was fine with the language proposed by the court. The jury instructions tasked the jurors to evaluate Craddock’s racial discrimination claim, in part, as follows:
If you do not believe Defendant’s explanation for this action, then you may infer, but need not infer, that the real reason was that Defendant unlawfully discriminated against Plaintiff because of her race (that is, black). Plaintiff may demonstrate that the reasons given by Defendant are unworthy of belief through evidence showing:
1. The asserted reasons had no basis in fact;
2. The asserted reasons did not actually motivate Plaintiff’s discharge; or 3. The asserted reasons were insufficient to motivate Plaintiff’s discharge.
Remember that the ultimate burden of proof is with Plaintiff. It is not enough to disbelieve the employer. She must prove, by a preponderance of the evidence, that Defendant took the adverse action against Plaintiff because of her race (that is, Black).
R. 144, Jury Instrs. & Verdict Form, PageID 1672-73.
On March 31, the jury returned a verdict. It found that Craddock had proved, by a preponderance of the evidence, a prima facie case of race discrimination; that FedEx had offered evidence of a legitimate, non-discriminatory reason for terminating Craddock; and that Craddock proved by a preponderance of the evidence that the reason advanced by FedEx for her termination “was a pretext for race discrimination.” But on the final question, the jury found that Craddock had not “prove[n] by a preponderance of the evidence that she was the victim of intentional race discrimination when she was terminated.” After excusing the jury, the court summarized the verdict, stating, “[s]o, the verdict, again, as to the ultimate question of whether the termination was based on race discrimination, the answer was no.” The court asked if there were any other matters to address; Craddock’s counsel responded “[n]o.” This appeal followed, and we have jurisdiction. See 28 U.S.C. § 1291.
II. ANALYSIS
Craddock challenges the court’s requirement that she bifurcate the trial or face dismissal of her claims; the court’s exclusion of testimony and exhibits postdating termination; some of the court’s trial rulings and case management decisions; and the jury verdict form. She also contends that cumulatively, these errors warrant reversal and remand for a new trial. We take up each issue below.
A. Bifurcation of the Trial or Dismissal
Under Federal Rule of Civil Procedure 42(b), “a court may bifurcate a trial on its own
motion.”
Saxion v. Titan-C-Mfg., Inc.
,
“The authority of a federal trial court to dismiss a plaintiff’s action with prejudice
because of his failure to prosecute cannot seriously be doubted.”
Link v. Wabash R.R. Co.
, 370
U.S. 626, 629 (1962). Federal Rule of Civil Procedure 41(b) provides for involuntary dismissal
of a plaintiff’s entire case or individual claims for failure to prosecute or comply with court
orders or procedural rules.
See
Fed. R. Civ. P. 41(b). Dismissal under this rule “operates as an
adjudication on the merits.”
Id.
“[D]ismissal with prejudice is a harsh remedy not to be
employed” indiscriminately.
Consolidation Coal Co. v. Gooding
, 703 F.2d 230, 232 (6th Cir.
1983). Still, though “the most severe in the spectrum of sanctions provided by statute or rule,”
dismissal with prejudice remains “available to the district court in appropriate cases, not merely
to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those
who might be tempted to such conduct in the absence of such a deterrent.”
Nat’l Hockey League
v. Metro. Hockey Club, Inc.
,
After Craddock responded to FedEx’s discovery requests with incomplete financial information, FedEx attempted unsuccessfully to depose Craddock three times. On November 3, barely a week before the then-mid-November trial date, Craddock sent FedEx additional financial information to supplement her responses to interrogatories. This information was incomplete, as it did not include information on Craddock’s proceeds from “flipping” houses through her real estate business, which FedEx later located through public records. For “years,” Craddock failed to provide FedEx with complete and accurate disclosures, which were—as Craddock’s counsel acknowledged—necessary for Craddock to prove and for FedEx to defend against claimed damages.
In light of Craddock’s persistent failure to abide by her disclosure obligations, the years-
long discovery in the case, and the need to efficiently resolve the matter, the court’s decision to
bifurcate the trial advanced convenience, avoided prejudice, and moved toward resolving the
case in an expeditious and economical manner.
Saxion
,
Craddock argues that she “had no choice” but to agree to bifurcation, because otherwise,
she faced dismissal with prejudice, a “final adjudication on the merits.” As discussed, however,
the district court’s decision to bifurcate was not an abuse of discretion. Because the district court
could have rendered its decision without the parties’ agreement,
see Saxion
,
As a final matter, Craddock argues on appeal that bifurcation of the trial forced her to
relinquish her right to have a jury determine the amount of damages she could receive had she
proven FedEx’s liability. The right traces to the Seventh Amendment, which provides that, for
all civil suits “at common law,” the “right of trial by jury shall be preserved.” U.S. Const.
amend. VII. We note that where a plaintiff seeks compensatory or punitive damages in a Title
VII suit, she has the right to have a jury decide any fact necessary to determining the amount of
damages.
See
42 U.S.C. § 1981a(c);
City of Monterey v. Del Monte Dunes at Monterey, Ltd.
,
Crucially, though, for Craddock to succeed on a claim that the district court violated her
right to a jury determination of damages, there must have been a determination of liability and
resulting damage. The district court did not conduct a bench trial on damages because, as the
jury determined, FedEx was not liable to Craddock. Because the district court did not abuse its
discretion in bifurcating the trial, and Craddock has not argued that the court’s proposed choice
prejudiced her during the liability trial, she cannot show that she is entitled to relief regarding
damages where the jury found against her on liability.
Cf. Wilson v. Morgan
,
B. Exclusion of Testimony and Exhibits Postdating the Termination We review a district court’s evidentiary rulings for abuse of discretion. Barner v.
Pilkington N. Am., Inc.
,
The district court ruled that the parties could not introduce evidence of events that
occurred after Craddock’s January 27, 2016 termination. The court reiterated that it imposed this
limitation because the trial was “strictly about [Craddock’s] termination.” It emphasized that
both the trial court “and the United States Sixth Circuit Court of Appeals have defined this case’s
scope as being about the termination.”
See Craddock
, 2021 WL 4127078, at *5-*7 (vacating
only the district court’s summary judgment order on Craddock’s race discrimination but not her
hostile work environment or retaliation claims). As a result, the district court reasoned, evidence
of post-termination events could not “add[] anything relevant to the jury.” Craddock fails to
demonstrate that this ruling rested “on clearly erroneous findings of fact,” improper application
of the law, or “an erroneous legal standard.”
Beck
,
C. Court’s Trial Rulings and Case Management
Trial judges enjoy broad discretion in their trial management strategies, for “[i]n a trial by
jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the
purpose of assuring its proper conduct and of determining questions of law.”
Quercia v. United
States
,
The record in this civil matter reflects that Craddock’s counsel repeatedly attempted to introduce evidence that postdated Craddock’s January 27 termination, despite the court’s ruling excluding such evidence. Additional sidebars were also undertaken because, for example, counsel struggled to properly introduce exhibits, and left documents she intended to introduce as exhibits at home, necessitating additional sidebars. After Craddock’s counsel stated that the court “intimidated” her, the court apologized for making her feel this way, then explained its duty to ensure a fair trial for all parties and that the need to avoid confusing the jury compelled it “to intervene.” Craddock argues that though the jury could not hear the court’s words during the sidebars, it could observe the court’s demeanor and infer the court’s frustration with counsel. Invoking Hickman , 592 F.2d at 936, Craddock urges that the court’s actions constituted plain error warranting reversal and remand.
Although Craddock relies on
Hickman
, 592 F.2d at 936, it is not clear how that
decision—a criminal case analyzing the court’s conduct against the backdrop of “the fair and
impartial trial which the Sixth Amendment to the Constitution guarantees” specifically to
criminal defendants—applies to Craddock’s civil case. Even if it does, however, Craddock’s
situation is distinguishable. Unlike in
Hickman
,
D. Verdict Form
Craddock asserts two challenges to the verdict form: First, that the final question,
whether Craddock proved by a preponderance of the evidence that she was the victim of
intentional race discrimination when she terminated, was erroneous; and second, that the jury
found in favor of Craddock and the final question of the verdict form provided a standard
unsupported by law. We reverse a judgment based on improper jury instructions “if the
instructions, viewed as a whole, were confusing, misleading and prejudicial.”
Kitchen v.
Chippewa Valley Schs.
, 825 F.2d 1004, 1011 (6th Cir. 1987). If the party appealing the jury
instructions failed to raise the issue at trial, however, we review for plain error.
See United
States v. Thomas
,
A verdict form’s instruction “constitutes plain error when it ‘misapplies the law as to a
core issue in the case resulting in the substantial prejudice of the party challenging the instruction
on appeal.’”
Reynolds v. Green
,
The verdict form and jury instructions charged jurors regarding the lone claim in the
case—Craddock’s Title VII cause of action. “Title VII forbids an employer ‘to . . . discharge
any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.’”
Noble v. Brinker Int’l, Inc.
,
Because “[r]acial animus is not the only inference that can be drawn from evidence that
the proffered reason for an adverse employment action was pretext,” we have acknowledged that
“[e]vidence that the employer’s proffered reason for the termination was not the actual reason
. . . does not mandate a finding for the employee” by the jury.
Griffin v. Finkbeiner
, 689 F.3d
584, 594 (6th Cir. 2012). This is consistent with a Title VII plaintiff’s “ultimate burden”: to
show “that she has been the victim of intentional discrimination”—in the context of termination,
that her employer fired her because of her protected characteristic.
Burdine
, 450 U.S. at 256.
“The ultimate question is whether the employer intentionally discriminated, and proof that ‘the
employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily
establish that the plaintiff’s proffered reason . . . is correct.’”
Reeves v. Sanderson Plumbing
Prods., Inc.
,
Here, the jury instructions comported with governing law in several respects. The verdict form read:
We, the jury, unanimously answer the questions submitted by the Court as follows:
1. Has Plaintiff proved a prima facie case of race discrimination based on her termination by a preponderance of the evidence? ANSWER: Yes _____ or No _____ (Plaintiff has the burden of proof.)
If you answered “Yes,” proceed to Question 2. Otherwise, sign the verdict form and return it to the Court.
2. Did FedEx offer evidence of a legitimate, non-discriminatory reason for terminating Plaintiff? ANSWER: Yes _____ or No _____ (Defendant need only state a legitimate, non-discriminatory reason for you to answer “yes” to this question.)
3. Did Plaintiff prove by a preponderance of the evidence that the reason advanced by Defendant for her termination was a pretext for race discrimination? ANSWER: Yes _____ or No _____ (Plaintiff has the burden of proof.)
If you answered “Yes,” proceed to question 4. Otherwise, sign the verdict form and return it to the Court.
4. Did Plaintiff prove by a preponderance of the evidence that she was the victim of intentional race discrimination when she was terminated? Yes _____ or No _____
R. 146, PageID 1688-89. Questions 3 and 4 are consistent with our recognition that after a
plaintiff produces evidence that the employer’s stated reason for the adverse employment action
was pretextual, it is for the jury to determine “whether racial animus was the actual reason for
[her] termination.”
Griffin
,
Craddock challenges the overlap of items three and four on the verdict form. The
language of the verdict form’s third question asked jurors to decide whether FedEx’s reason for
terminating Craddock “was a pretext for race discrimination.” Read in isolation, the jury’s
affirmative response to a question asking about pretext for “race” discrimination could reflect
that it “believe[d] the reason offered by the plaintiff,” for her termination—specifically, “that the
plaintiff was the victim of intentional discrimination.”
Barnes v. City of Cincinnati
, 401 F.3d
729, 737-38 (6th Cir. 2005). But the verdict form’s next question then addressed “[t]he ultimate
question” in a Title VII dispute, “whether the employer intentionally discriminated.”
Reeves
,
530 U.S. at 146. On question four, the jury found that Craddock failed to carry her “ultimate
burden” to demonstrate “that she has been the victim of intentional discrimination.”
Burdine
,
The form appears to split the “ultimate question” of intentional discrimination into two
distinct inquiries that unnecessarily overlap.
Reeves
, 530 U.S. at 146. Craddock’s counsel,
however, did not object to the court’s characterization that the verdict form reflected, “as to the
ultimate question of whether the termination was based on race discrimination,” that “the [jury’s]
answer was no.” Craddock does not argue, and the record does not indicate, that the jurors
“struggled with the verdict” or “that the language on the verdict form played a major role in their
difficulty in deciding the case.”
Reynolds
, 184 F.3d at 595. Considering the jury instructions
and verdict form “as a whole,” as we must, we cannot say that the verdict form’s questions “were
so clearly wrong as to produce a grave miscarriage of justice.”
Miller
,
Instruction on the McDonell Douglas framework may prove useful “in an appropriate circumstantial-evidence case”; however, “there is no requirement that” a court include such instruction “in all cases.” Blair v. Henry Filters, Inc. , 505 F.3d 517, 526 n.9 (6th Cir. 2007) (emphasis omitted). Indeed, as this case and the concurrence illustrate, inclusion of the McDonnell Douglas factors on a verdict form, on its own, does not amount to reversible error, but can be inadvisable, as instruction on McDonnell Douglas ’s first two steps risks confusing the jury.
This observation comports with the approach of some sister circuits. For example,
district courts in the Eleventh Circuit “do not instruct juries on the prima facie case or the
McDonnell Douglas
framework.”
Tynes v. Florida, Dep’t of Juv. Just.
,
E. Cumulative Errors
“The cumulative effect of errors that are harmless by themselves can be so prejudicial as
to warrant a new trial.”
United States v. Sypher
,
As explained above, the district court’s bifurcation, evidentiary, and trial management
rulings were not erroneous. And, just as the verdict form issue did not constitute plain error, it
did not deny Craddock due process.
See Sypher
, 684 F.3d at 628. This record presents “no
cumulation of errors.”
United States v. Bankston
,
III. CONCLUSION
There being no error in the challenged actions of the district court, we AFFIRM the jury’s verdict.
_________________
OPINION
_________________ McKEAGUE, Circuit Judge, concurring. I agree fully with the principal opinion’s resolution of this case. [1] I write separately to emphasize that I view the district court’s choice to include the McDonnell Douglas factors on the special verdict form as a mistake—though not one that rises to legal error. In my view, the McDonnell Douglas factors seldom help a jury decide the ultimate question it must answer when faced with an intentional discrimination claim under Title VII. Indeed, as this case illustrates, inclusion of the factors on a verdict form might tend to confuse the issues—as they appear to have confused Craddock here.
Satisfying the
McDonnell Douglas
factors would
permit
the trier of fact to infer
intentional discrimination.
See Reeves v. Sanderson Plumbing Prods., Inc.
,
Like the principal opinion ably explains, the district court did not err by including those
factors on the special verdict form.
See
Principal Op. at 12–16;
see also Brown v. Packaging
Corp. of Am.
,
Indeed, I’m inclined to endorse the “clear preference” that the Sixth Circuit has at times
expressed for avoiding excessively legalistic and misleading formulations of the
McDonnell
Douglas
standard in a jury-verdict form.
Brown
, 338 F.3d at 592 (principal op.) (collecting
cases, including
In re Lewis
,
By design, the
McDonnell Douglas
factors help clarify whether certain evidence might
satisfy a judgment for either party.
Burdine
,
Although the district court did not err by including the factors on the verdict form, I hope this case shows why district courts should nonetheless avoid doing so.
Notes
[1] Because all three judges on this panel join this opinion in addition to the principal opinion, this separate writing also constitutes the opinion of the Court.
[2]
Like in this case, this portion of Judge Clay’s opinion garnered a majority of panel votes and constitutes
the opinion of the Court.
See Brown
,