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United States District Court, N.D. California
April 21, 2014
HYPOWER, INC., Plaintiff,v.SUNLINK CORPORATION, Defendant.
THELTON E. HENDERSON, District Judge.
This matter came before the Court on April 14, 2014, on the motion of Defendant Sunlink Corporation ("SunLink") to dismiss, or, in the alternative, transfer to the United States District Court for the Southern District of Florida Plaintiff Hypower Inc.'s ("Hypower") Petition to Vacate Arbitration Award ("Petition to Vacate"). After carefully considering the written and oral arguments of the parties, the Court GRANTS SunLink's motion to TRANSFER the Petition to Vacate under the "first-to-file" rule for the reasons discussed below.
The instant motion arises out of a Petition to Vacate an arbitration award filed by Hypower in this Court on February 18, 2014, although the history of the dispute between the parties is significantly older. A brief summary of the facts and procedural history follows.[1] The underlying dispute relates to SunLink's alleged breach of contract and tort claims stemming from the design and construction of a roof-top solar power facility in New Jersey. On November 18, 2011, SunLink filed a demand for arbitration with the American Arbitration Association ("AAA"), asserting causes of action arising out of the contracts executed between the parties. Thereafter, on May 4, 2012, Hypower filed suit in the 17th Judicial Circuit Court in Broward County, Florida. SunLink timely removed the case to the United States District Court for the Southern District of Florida ("Southern District of Florida") on June 6, 2012, invoking that court's diversity jurisdiction. See Hypower, Inc. v. Sunlink Corporation, No. 12-cv-61119-CIV-ZLOCH, Docket No. 1 (S.D. Fla. Jun. 6, 2012) (the "Florida Case" or "Florida court"). Hypower is a Florida corporation with its principal place of business in Broward County, Florida, and SunLink is a Delaware corporation with its principal place of business in San Rafael, California.
SunLink thereafter moved to stay the Florida Case and compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 4, which the Florida court granted on March 13, 2013. In determining which arbitration provision in the various agreements controlled, the Florida court found that the applicable dispute resolution provision required any dispute be resolved in "binding arbitration, " administered by the AAA under its "Commercial Arbitration Rules, " that the location of the arbitration will be in San Francisco, California, and that "any judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction." Florida Case, Order Compelling Arbitration and Staying Action, Docket No. 30 at 3, 5. The Florida court compelled arbitration before the AAA in San Francisco, stayed the Florida Case pending resolution of the arbitration, and directed the parties to "notify the Court immediately upon any settlement" or "upon resolution of arbitration." Id. at 12.
On January 30, 2014, a panel of AAA arbitrators in San Francisco resolved the matter in favor of SunLink, and awarded SunLink certain damages, attorneys' fees and costs, and administrative fees and expenses (the "Arbitration Award").[2] On February 6, 2014, SunLink notified the Florida court of the arbitration award, petitioned that court to confirm it pursuant to 9 U.S.C. section 9, and sought entry of final judgment. Florida Case, Docket No. 31. On February 18, 2014, Hypower filed the Petition to Vacate in this Court. On February 20, 2014, Hypower moved the Florida court to transfer that case to the Northern District of California, or, in the alternative, to stay the case pending this Court's resolution of the Petition to Vacate. On March 7, 2014, SunLink moved this Court to dismiss the Petition to Vacate or transfer it to the Southern District of Florida under the first-to-file rule. The Court heard argument on the instant motion on April 14, 2014.
The "first-to-file" rule is a "generally recognized doctrine of federal comity which permits a district court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district." Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir. 1982). This rule "promotes judicial efficiency and prevents the risk of inconsistent decisions that would arise from multiple litigations of identical claims, and thus should not be disregarded lightly.'" Meru Networks, Inc. v. Extricom, Ltd., No. C-10-02021 RMW, 2010 WL 3464315, at *1 (N.D. Cal. Aug. 31, 2010) (citing Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622, 625 (9th Cir. 1991)). At the same time, it is "not a rigid or inflexible rule to be mechanically applied, but rather is to be applied with a view to the dictates of sound judicial administration." Pacesetter, 678 F.2d at 95. Thus, the Ninth Circuit has recognized exceptions to the first-to-file rule under various circumstances, such as bad faith, anticipatory suit, and forum shopping. Alltrade, 946 F.2d at 628. Thus, in these situations, a court "can, in the exercise of [its] discretion, dispense with the first-filed principle for reasons of equity." Id.
SunLink moves to dismiss, or in the alternative, transfer Hypower's Petition to Vacate the arbitration award rendered by the AAA to the Southern District of Florida. SunLink argues this relief is justified by the first-to-file rule because the Florida court stayed the underlying action pending the arbitration that it compelled, and retained jurisdiction by requiring the parties to notify the Court upon settlement or resolution of arbitration. Hypower contends that, in light of Atlantic Marine Construction Company, Inc. v. United States District Court for Western District of Texas, et al. (" Atlantic Marine "), 134 S.Ct. 568 (2013), dismissal is inappropriate because of the existence of a forum-selection clause, and that transfer under 28 U.S.C. § 1404(a) should be denied because the Northern District of California is a more appropriate forum. As explained below, this Court finds that federal comity militates in favor of transferring the Petition to Vacate to the Southern District of Florida under the first-to-file rule.
I. The Florida Case Is the First-Filed Action Under the First-to-File Rule.
"Absent an exception to the first-to-file rule, a court of second-filing will defer to a court of first-filing, if the two matters before them exhibit chronology, identity of parties, and similarity of issues." Intersearch Worldwide, Ltd. v. Intersearch Grp., Inc., 544 F.Supp.2d 949, 957 (N.D. Cal. 2008) (citing Alltrade, 946 F.2d at 625-27). As the first-filed Court, the United States District Court for the Southern District of Florida is owed deference in this matter.
A. Chronology
The Florida Case was filed before this matter. Hypower filed suit in the 17th Judicial Circuit Court in Broward County, Florida on May 4, 2012, and SunLink removed the suit to the Southern District of Florida on June 6, 2012. "[T]he filing of actions in coordinate jurisdictions [is what] invokes considerations of comity." Pacesetter, 678 F.2d at 96 n. 3. After the AAA rendered its decision, on February 6, 2014, SunLink notified the Florida court of the Arbitration Award, and invoked that court's jurisdiction again by petitioning for confirmation of the Arbitration Award pursuant to 9 U.S.C. section 9. Hypower did not invoke the jurisdiction of this Court until it filed its Petition to Vacate in the Northern District of California on February 18, 2014. Put succinctly, the Southern District of Florida had the matter first and entertained a petition to confirm the Arbitration Award before this Court's jurisdiction was invoked.
B. Identity of the Parties
Hypower and SunLink are the parties in both cases.
C. Similarity of Issues
Both cases involve the underlying dispute and relate to the validity of the AAA's Arbitration Award. The primary difference between this case and the Florida Case is the relief sought by the parties. In the Southern District of Florida, SunLink seeks confirmation of the Arbitration Award whereas in the Northern District of California, Hypower seeks to vacate it. The first-to-file rule promotes judicial efficiency and prevents the risk of inconsistent decisions that would arise from multiple litigations of identical claims. Meru Networks, 2010 WL 3464315, at *1; see also Church of Scientology of California v. U.S. Dep't of Army, 611 F.2d 738, 750 (9th Cir. 1979) (noting that one of comity's goals with respect to the first-to-file rule is "to avoid the embarrassment of conflicting judgments.") Here, the underlying issues and relief sought are not only sufficiently similar but are mutually exclusive. If this Court were to vacate the Arbitration Award and the Southern District of Florida were to confirm it, the exercise would not only be an inefficient expenditure of scarce judicial resources, but the result would be patently inconsistent decisions despite the best efforts of "courts of coordinate jurisdiction and equal rank." West Gulf Maritime Ass'n v. ILA Deep Sea Local 24, 751 F.2d 721, 728 (5th Cir. 1985). Accordingly, the Court finds that the Florida Case is the first-filed action for purposes of the first-to-file rule.
D. Exceptional Circumstances
Notwithstanding an otherwise proper application of the first-to-file rule, a court has discretion not to apply the rule if certain equitable circumstances apply. See Alltrade, 946 F.2d at 627-28. Such circumstances include bad faith, anticipatory suit, and forum shopping. Id. at 629.
Hypower's counsel candidly acknowledged during the hearing that the Court has discretion to transfer the matter under the first-to-file rule, but argued that equitable concerns counsel against such a transfer. Here, there is an insufficient showing that either party has engaged in bad faith or filed an anticipatory suit. Hypower accuses SunLink of forum shopping by seeking to confirm the Arbitration Award in Florida, given that SunLink initially initiated arbitration in San Francisco, then vigorously resisted Hypower's attempts to litigate in Florida, and eventually won the contest by convincing the Florida court to compel arbitration in California. While not thoroughly argued in the papers, Hypower's counsel suggested at oral argument that SunLink is engaging in forum shopping because the Fourth Circuit Court of Appeals has a more favorable standard of review than the Ninth Circuit. The parties, however, have identified no clear tactical advantage that Hypower might gain by having this Court rather than the Florida court confirm or vacate the Arbitration Award, and no such advantage is evident based on the evidence in the record. The Court therefore finds that there is an insufficient showing of forum shopping. Thus, none of the typical equitable circumstances that would counsel against application of the first-to-file rule apply. Long-recognized principles of comity counsel federal district courts in this situation to "to exercise care to avoid interference with each other's affairs." West Gulf Maritime Ass'n, 751 F.2d at 728. In light of the above, the Court concludes that the first-to-file rule controls here.
II. Transfer Is Appropriate Under the First-to-File Rule.
The Court exercises its discretion to transfer the matter to the Southern District of Florida under the first-to-file rule. Hypower raises several additional arguments in opposition to transfer. While these arguments were ably made, the Court is not persuaded that Hypower's Petition to Vacate must be heard be heard in the Northern District of California. By way of statutory background, both this Court and the Southern District of Florida have the authority to confirm or vacate the Arbitration Award. Section 9 of the Federal Arbitration Act ("FAA") provides that:
If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made.
9 U.S.C. § 9 (emphasis added). Section 10 provides that any party to the arbitration may make an application for an order vacating the award to "the United States court in and for the district wherein the award was made" in certain enumerated circumstances. 9 U.S.C. § 10. The Supreme Court has held that the venue provisions in sections 9-11 of the FAA are "permissive, permitting [a motion to confirm, vacate or modify an arbitration to be brought] either where the award was made or in any district proper under the general venue statute...." Cortez Byrd Chips, Inc. v. Bill Harbert Const. Co., 529 U.S. 193, 195 (2000). Thus, because venue is proper in both the Northern District of California and the Southern District of Florida, [3] under the FAA and Cortez, either court has the power to confirm or vacate the Arbitration Award here. Cf. Cortez, 529 U.S. at 202 ("[T]he court with the power to stay the action under [9 U.S.C.] § 3 has the further power to confirm any ensuing arbitration award.") (citing Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 275-276 (1932)).
Here, the parties' various agreements do not specify that a petition to confirm or vacate an arbitration award be heard in a specific court, let alone this Court. In fact, the dispute resolution provision found operative by the Florida court when it compelled arbitration provides that "any judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction." Florida Case, Order Compelling Arbitration and Staying Action, Docket No. 30 at 3, 5. Hypower, however, contends that because the arbitration was held in San Francisco, California pursuant to the AAA forum-selection clause in the dispute resolution provision, the parties have consented to having a California court hear any petition to vacate because of California Code of Civil Procedure section 1293, which provides that parties arbitrating in California are deemed to have consented to the jurisdiction of California courts for enforcement of their arbitration awards. According to Hypower, section 1293, combined with the Supreme Court's recent decision in Atlantic Marine, which emphasized the primacy of valid forum-selection clauses, 134 S.Ct. at 581-82, indicates that the Petition to Vacate should be heard in the Northern District of California because the arbitration was held in San Francisco, California.
The Court, however, disagrees with this contention because consent to jurisdiction is not an exclusive grant of jurisdiction. Section 1293[4] does not mandate that if an arbitration occurs in California, only California courts, to the exclusion of all other courts, may enforce and enter arbitration awards arising therefrom. While the Court has no doubt that section 1293 is enforceable, the Court does not read section 1293 to abrogate the first-to-file rule where section 10 of the FAA mandates that any federal district court where venue is proper may hear a petition to vacate an arbitration award. 9 U.S.C. § 10; Cortez, 529 U.S. at 195. Rather, section 1293 provides that if parties contract for an arbitration to be held in California, a challenge to the jurisdiction of the California state courts to enforce or enter judgment on the award would fail because the parties would be deemed to have consented to the California state court's jurisdiction; it does not strip federal courts sitting in diversity of the jurisdiction to enter judgment upon an award rendered from an arbitration performed in California.
The lynchpin of Hypower's opposition to the transfer stems from Hypower's reading of Vulcan Chemical Technologies, Inc. v. Barker (" Vulcan "), 297 F.3d 332, 339 (4th Cir. 2002). During oral argument, Hypower's counsel suggested that it would be an abuse of discretion to transfer the matter to the Southern District of Florida in light of Vulcan, which Hypower contends provides persuasive authority that the equities here tip in favor of this Court refraining from exercising its discretion to transfer under the first-to-file rule. The Court disagrees, and explains its reasoning.
In Vulcan, after business relations between a distributor and Vulcan Chemical soured, the distributor sued Vulcan Chemical in California state court for breach of contract and related claims, and joined Vulcan Materials as an alter ego. Consistent with the distribution agreement - which provided for final and binding arbitration to take place in Sacramento, California, or a mutually acceptable location in California, upon any dispute or claim arising out of or relation to the distribution agreement - both Vulcan Chemical and Vulcan Materials (collectively, "Vulcan") moved to compel arbitration under the arbitration clause and the California Arbitration Act in California state court. The distributor resisted the motion on the ground that Vulcan Material was not a party to the arbitration agreement, but Vulcan Material agreed to be bound by the arbitrator's decision. Based on Vulcan Material's agreement to be bound, the California state court granted Vulcan's motion to compel arbitration and stayed court proceedings "pending completion of arbitration." The arbitrator rendered an award in favor of the distributor. Two days later, Vulcan commenced an independent action to vacate the arbitrator's award under Section 10 of the FAA in the federal district court in the Western District of Virginia. During the same period, after waiting the 15-day period required by California law, the distributor filed a motion in the California state court to confirm the arbitration award. Vulcan filed a motion in California state court to vacate the arbitration award. The distributor moved to stay, abstain, or dismiss Vulcan's petition to vacate in the Virginia district court, but that court enjoined the distributor from pursuing the California litigation. After the Fourth Circuit reversed that injunction, the California state court confirmed the arbitration award, and Vulcan appealed that decision. Two months later, the Virginia district court vacated the arbitration award that had been confirmed by the California state court.
The Fourth Circuit on appeal reversed the Virginia district court's vacatur on two grounds. First, the Fourth Circuit held that the district court erred in not enforcing Vulcan's election to pursue binding arbitration in California, to which it agreed, and "willingly initiated enforcement of its agreement under the supervision of the California state courts." Id. at 340. Central to this holding was recognition that Vulcan - the party seeking to vacate the award in an independent federal proceeding in Virginia - had first invoked the jurisdiction of the California state court when it moved to compel arbitration in California, "elect[ing] to use a California forum for arbitration" and "inherently agree[ing] to use the California state court system as its forum for sorting out the effect of the arbitration." Id. at 339. Moreover, the California state court there, when it compelled arbitration, stayed further proceedings until completion of the arbitration. Id. The Court concluded that having elected, enforced, and implemented the arbitration clause in California, Vulcan "should not be permitted to renege on its agreements now that it has lost in that proceeding." Id. Second, the Fourth Circuit held that the district court abused its discretion by not abstaining under Colorado River abstention where the state court had entered judgment on the exact issue to be considered by the federal court. Id. at 343-44.
Hypower contends that SunLink, like Vulcan, (1) opposed a forum-selection clause by its opponent (forum in Broward County, Florida) based on a rival forum-selection clause (AAA arbitration in San Francisco); (2) prevailed in that argument (before the Southern District of Florida after SunLink removed the case); (3) arbitrated to victory in California, and now cannot "renege" on its position advocating for a California forum and California law in favor of a different forum to enforce the award (the Southern District of Florida). Opp'n at 5-6. Thus, Hypower argues that the Northern District of California should hear the Petition to Vacate.
The Court reads Vulcan differently. First, because the distributor there initiated the action in California state court, and Vulcan Material specifically agreed to and "willingly initiated enforcement of its agreement under the supervision of the California state courts, " the "California case was first-filed." Id. at 342. This consideration weighed in favor of the Fourth Circuit's determination that Vulcan elected to use a California forum for arbitration and "inherently agreed to use the California state court system as its forum for sorting out the effect of the arbitration." Id. at 339. This presumption does not apply in the present case. While SunLink initiated arbitration in California, Hypower filed the first action in Broward County, Florida, which SunLink removed to the Southern District of Florida. The Florida court is thus the first-filed court that compelled arbitration, procedurally resembling the position of the California state court in Vulcan. Moreover, like the California state court that stayed the arbitration pending completion of the proceedings, the Florida court here stayed proceedings pending settlement or resolution of the arbitration. Thus, Hypower's posture here actually resembles Vulcan's: it actively sought to vacate an award in a new forum while confirmation of the same award was pending before another court that had already compelled arbitration and stayed the action (here, SunLink's petition to confirm is currently pending in the Southern District of Florida). Importantly, the Fourth Circuit also held that that the district court in Vulcan abused its discretion when it failed to abstain under Colorado River abstention from entering judgment on the exact issue already decided by the state court. Id. at 340-43. The federal-state comity principles that underlie Colorado River abstention are similar to the comity principles that inform the Court's first-to-file analysis and counsel this Court to defer to the Florida court. While facially similar, the Court finds that Vulcan - which is non-controlling, out-of-circuit authority - is distinguishable and does not require that this Court hear Hypower's Petition to Vacate. Neither section 1293 nor Vulcan persuades the Court that transferring this matter to the Southern District of Florida would be inappropriate.
Lastly, the Court disagrees that Atlantic Marine prevents transfer of this case to the Southern District of Florida. Atlantic Marine held, inter alia, that in the presence of a valid forum-selection clause, district courts "adjust" their usual transfer analysis under 28 U.S.C. § 1404(a) by finding that the plaintiff's choice of forum merits no weight, by not considering arguments about the parties private interests, and by considering arguments about public-interest factors only, such that "a valid forum-selection clause [should be] given controlling weight in all but the most exceptional cases." 134 S.Ct. at 581-82.
The parties do not cite, and the Court has been unable to find, any authority suggesting that Atlantic Marine abrogates the first-to-file doctrine in the context of confirming or vacating arbitration awards. Additionally, the Court is not persuaded that Atlantic Marine 's 28 U.SC. § 1404(a) adjusted analysis dictates that transfer pursuant to comity principles such as the first-to-file doctrine would be inappropriate. In Pacesetter, the Ninth Circuit rejected the argument that the district court in the second-filed action was required to "give consideration to the same factors as it would under motions to transfer brought pursuant to 28 U.S.C. § 1404(a).... [N]ormally the forum non conveniens argument should be addressed to the court in the first-filed action.... The court in the second-filed action is not required to duplicate this inquiry...." 678 F.2d 93 at 96-97. Because nothing in the parties' forum-selection clause requires this Court to hear a petition to confirm or vacate the Arbitration Award, and Pacesetter and Atlantic Marine emphasize the importance of the public-interest factors, to the extent Atlantic Marine controls in the context of the first-to-file rule, the Court finds that the first-to-file rule is a compelling public-interest factor that weighs in favor of transfer to the Southern District of Florida under § 1404(a). Thus, the Court rejects Hypower's argument that transfer here is inappropriate. As the Court in the second-filed case, the Court exercises its discretion to TRANSFER the matter to the Southern District of Florida under the first-to-file rule.
For the foregoing reasons, the Court GRANTS SunLink's motion to TRANSFER this case to the Southern District of Florida. The Clerk is directed to close the case file.
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The stock of NRG Energy Inc (NYSE:NRG) is a huge mover today! About 727,594 shares traded hands. NRG Energy Inc (NYSE:NRG) has declined 9.95% since March 9, 2016 and is downtrending. It has underperformed by 17.36% the S&P500.
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Mirae Asset Global Invests Limited has 0.03% invested in the company for 81,972 shares. Wfg Advsrs Lp has 224 shares for 0% of their US portfolio. Keeley Asset Mngmt Corp has 0.56% invested in the company for 903,399 shares. Acadian Asset Mgmt Limited Co last reported 5,496 shares in the company. New York State Common Retirement Fund holds 0.02% of its portfolio in NRG Energy Inc (NYSE:NRG) for 917,509 shares. Hartford Investment Mngmt has 74,639 shares for 0.02% of their US portfolio. Moreover, Twin Tree Limited Partnership has 0.01% invested in NRG Energy Inc (NYSE:NRG) for 34,976 shares. The Massachusetts-based Liberty Mutual Grp Asset Mgmt Incorporated has invested 0.01% in NRG Energy Inc (NYSE:NRG). Moreover, Sawtooth Asset Mngmt has 0.36% invested in NRG Energy Inc (NYSE:NRG) for 44,282 shares. Davenport Co Limited Liability Co accumulated 0% or 22,229 shares. Savant Ltd Company owns 18,660 shares or 0.08% of their US portfolio. Signaturefd Lc owns 69 shares or 0% of their US portfolio. Chicago Equity Prtnrs Ltd holds 0.01% of its portfolio in NRG Energy Inc (NYSE:NRG) for 31,615 shares. Commonwealth Fincl Bank Of reported 86,700 shares or 0.02% of all its holdings. Paradigm Asset Company Limited Company accumulated 0% or 41,741 shares.
Insider Transactions: Since May 20, 2016, the stock had 0 insider buys, and 2 insider sales for $85,391 net activity. 1,968 shares with value of $30,530 were sold by Callen David on Friday, May 20. The insider WEIDEMEYER THOMAS H sold $54,861.
More news for NRG Energy Inc (NYSE:NRG) were recently published by: Businesswire.com, which released: "NRG Energy, Inc. Announces Cash Tender Offer for its Outstanding 7.625% Senior …" on October 04, 2016. Bizjournals.com's article titled: "NRG Energy wins bid to take ownership of bankrupt co.'s solar energy projects" and published on September 13, 2016 is yet another important article.
NRG Company Profile
NRG Energy, Inc. (NRG), incorporated on May 29, 1992, is an integrated power firm that produces, sells and delivers energy, and energy services and products in various power markets in the United States. The Company's divisions include NRG Business, which includes power generation, the carbon capture business and energy services; NRG Home, which includes NRG Home Retail, which consists of residential retail services and products, and NRG Home Solar, which includes the installation and leasing of residential solar services; NRG Renew, which includes solar and wind assets, excluding those in the NRG Yield and NRG Home Solar divisions; NRG Yield, and corporate activities. NRG Yield includes certain of the Company's contracted generation assets. The Company's corporate segment includes Boston Energy Trading and Marketing LLC (BETM), international business and electric vehicle services. The Firm owns and operates approximately 50,000 megawatts of generation; engages in the trading of wholesale energy, capacity and related products; transacts in and trades fuel and transportation services, and directly sells energy, services, and services and products to retail clients under the names NRG, Reliant and other retail brand names owned by the Company.
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- Worldwide Rank #1,981,962
- Follower/Following Ratio 0.63
- Daily New Followers 0
이현소 Twitter Stats
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Related terms for "wind energy industry ":
wind energy companies
, onshore wind energy industry companies
HSE Integrated Ltd. is Canada's largest national industrial safety services company with operations across the country and into the United States. The first of its type, HSE provides a comprehensive and integrated suite of health, safety and environmental monitoring services to protect workers, assets and the community in the most cost-effective manner possible.
based in Calgary, ALBERTA (CANADA).
Wind Engineering S.p.A. (WESPA) was founded in Gualdo Tadino (PG) in 2011. The initial idea was to became the italian leader in manufacturing and installing of wind turbines of I- II and III classes, in the mid-market or in the sizes from 200 to 750 kW . The Company buys the North European technology, changing and modernizing it in order to make it competitive in the ...
based in Grosseto, ITALY.
The Energy Institute (EI) is the leading chartered professional membership body for the global energy industry, supporting over 23,000 individuals working in or studying energy and 250 energy companies worldwide. The EI provides learning and networking opportunities to support professional development, professional recognition and technical and scientific knowledge ...
based in London, UNITED KINGDOM.
Apex Wind Energy Inc. is a national developer of wind energy facilities that deliver clean, renewable energy. Apex Wind Energy Inc. is one of the most experienced independent developers in the industry. Our management team has built a reputation in the industry for responsible development and quality facilities.
based in Charlottesville, VIRGINIA (USA).
Clarke Energy is a multinational specialist in the engineering, installation and maintenance of gas-fuelled power plants. Our facilities deliver fuel efficiency and help reduce carbon emissions. Applications include combined heat and power (CHP) with natural gas, biogas, landfill gas and coal gas. We are a the largest authorised distributor and service provider for GE's ...
based in Liverpool, UNITED KINGDOM.
SUN & WIND ENERGY uses a new concept to provide information on the most important markets for solar and wind energy. From 2014 onwards SUN & WIND ENERGY will be published 10 times per year with 6 dedicated SOLAR EDITIONS and 4 dedicated WIND EDITIONS With national and technical market analyses, product overviews, company profiles and best-practice examples, SUN & WIND ...
based in Bielefeld, GERMANY.
Aeolos wind turbine is a leading small wind turbines manufacturer in the world. Aeolos wind turbine was founded in Denmark in 1986. After 20 years development, Aeolos engineer team could provide various wind energy solutions for different customers. Aeolos owned seven patents on wind generator, control systems, blade design and inverter. Aeolos wind turbine has built an ...
A not-for profit, pan-indian organisation working in the larger interest of wind energy community with the objective of making wind energy popular and commercially viable alternative source of energy.
based in August Kranti Marg, INDIA.
The Global Wind Energy Council (GWEC) was established in early 2005 to provide a credible and representative forum for the entire wind energy sector at an international level. GWEC's mission is to ensure that wind power establishes itself as one of the world's leading energy sources, providing substantial environmental and economic benefits.
based in Brussels, BELGIUM.
Wind as an alternative non-emitting energy source will continue to established itself in the years to come. Energy production by means of wind power will become more effective. Worldwide, greatly diverse wind environments require modern, innovative technologies which bring high yields. Throughout the entire value-added chain of wind energy, the cost and the yield of ...
based in Rostock, GERMANY.
Fortis Wind Energy is a leading company in design, manufacturing, sales and commissioning of high performance stand alone and grid connected Small Wind Turbines. Our reputation is built on 35 years of experience in providing innovative solutions for the use of wind energy. More than 6000 Small Wind Turbines applications are installed all over the world. Some of our ...
based in Hoogkerk, NETHERLANDS.
Pioneer Wind Energy Systems (`Pioneer Wind`) has a 10-year history developing, manufacturing, commissioning and servicing its advanced wind turbine designs. The company`s turbines are rated up to 1.65 megawatts of output and deliver clean and reliable energy in a variety of wind conditions and terrains. Pioneer Wind provides complete project management, systems ...
based in Granby,, QUEBEC (CANADA).
Carter Wind Energy is a manufacturer of next generation wind turbine technology that is self-erecting and designed for utility, distributed, and micro-grid power generation applications in the most remote, extreme environment locations which may not be viable with conventional wind turbine technologies. Wind energy is more commercially available than ever, but accounts ...
based in Wichita Falls, TEXAS (USA).
The Danish Wind Industry Association (DWIA) is a non-profit association whose purpose is to promote wind energy at home and abroad. The association was founded in 1981. DWIA today represents 99.9 per cent of Danish wind turbine manufacturing measured in MW and more than 180 companies with activities in the Danish wind industry. The Danish Wind Industry Association (DWIA) ...
based in Frederiksberg C, DENMARK.
The American Wind Energy Association (AWEA) is the national trade association for the U.S. wind industry – the country's fastest growing energy industry. With thousands of wind industry members and wind policy advocates, AWEA promotes wind energy as a clean source of electricity for American consumers.
based in Washington, DISTRICT OF COLUMBIA (USA).
XZERES Wind designs, manufactures, and distributes high quality distributed wind energy systems. Through innovative design focused on reliability, durability, and simplicity, XZERES Wind offers wind energy solutions with industry leading performance by maximizing energy production through efficiency.
based in Wilsonville, OREGON (USA).
IWEA is the national association for the wind industry in Ireland. This website is a resource for IWEA members and others interested in the promotion of wind energy in Ireland. IWEA is committed to education and awareness building to promote the use of a sustainable energy system in Ireland and thus contribute to a cleaner environment with the benefits of non fossil ...
based in Naas, IRELAND.
When dealing with WEP you can relax in the knowledge that you are talking to people with a strong track record of delivering quality product and excellent service to customers over the past 25Years. It has always been our belief that providing an honest appraisal to customers is critical to gaining the confidence of the client and developing a strong vibrant business. ...
based in Co. Laois, IRELAND.
The Canadian Wind Energy Association (CanWEA) is a non-profit trade association that promotes the appropriate development and application of all aspects of wind energy in Canada, including the creation of a suitable policy environment. Established in 1984, CanWEA represents the wind energy community — organizations and individuals who are directly involved in the ...
based in Ottawa, ONTARIO (CANADA).
The Polish Wind Energy Association (PWEA) is a non-governmental organisation established in 1999 (previously known as "VIS VENTI Association for Supporting Wind Energy"). PWEA acts on the basis of the Associations Act. The Association is an organization supporting and promoting wind power development which aim, realized through joint activities of its members, is to ...
based in Szczecin, POLAND.
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May 12, 2010
OKSANA KOPCHUK, PLAINTIFF,v.COUNTRYWIDE FINANCIAL CORPORATION, ET. AL., DEFENDANTS.
On April 26, 2010, plaintiff's counsel, Mr. Stevan J. Henrioulle, was ordered to show cause why he should not be sanctioned in the amount of $300.00 for his failure to respond to legal deadlines and the court's orders. Counsel's response to the Order to Show Cause was due on or before May 7, 2010. Mr. Henrioulle has failed to file any response.
The court therefore makes the following orders:
1. Mr. Henrioulle shall pay sanctions in the amount of $300.00. Payment should be in the form of a check made payable to the Clerk of the Court. The sum is to be paid personally by plaintiff's counsel not later than fourteen (14) days from the filing of this Order for Sanctions.
2. This sanction is personal to the attorney, is to be borne by him personally, and is not to be transmitted to the client by way of a charge of attorney's fees and/or costs.
3. Counsel is further reminded that payment of $150.00 is additionally due pursuant to the court's April 26, 2010 Order. Said payment is now overdue. If counsel does not pay said amount within fourteen (14) days of the date of this Order, the court may impose further monetary sanctions by separate order.
4. Not later than twenty-one (21) days from the filing of this Order, plaintiff's counsel shall file a declaration attesting to his compliance with the terms of this Order.
5. The hearing set for May 21, 2010 is VACATED.
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text: 2015 Year In Review We're taking a look back to 2015 and wanted to share with you the most viewed and downloaded photos of the year. Be sure to follow us on Facebook, Twitter, Tumblr, Pinterest, and Instagram for the latest photos. Thank you for helping make 2015 a great year. Most Viewed Photos of 2015 Most Downloaded Photos of 2015


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You have to upload the Premium Themes files into your WordPress installation in your hosting account.
Inside the main ZIP that you just downloaded there is another ZIP file that contains all the files that you need to install.
Login to your WordPress dashboard (www.yourdomain.com/wp-admin) and navigate the menu:
If you are installing a new theme, go to: Appearance > Themes, then click on Add New. Now click on Upload Theme, and then click on Browse… now you have to select the ZIP files that you already extracted onto your PC from the main ZIP file. Now all you have to do is Activate your new theme.
If you are installing a new plugin, go to: Plugins > Add New, then click on Upload Plugin, and then on Browse… now you have to select the ZIP files that you already extracted onto your PC from the main ZIP file. Now all you have to do is Activate your new plugin.
Installing and Activating Your Premium WordPress Themes/Plugins
After you download your Premium WordPress® Theme, you need to upload it to your hosting account, unarchive it, and then activate it.
Manual Plugin Installation
- There are a few cases when manually installing a WordPress Plugin is appropriate.
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Chris Walla Tape Loops on 200g LP + Download
Second Solo Album from Former Death Cab For Cutie Co-Founder
Chris Walla has said little publicly about his 2014 departure from Death Cab for Cutie, a band that he co-founded and called home for 17 years. He begins to break his silence with Tape Loops, a full-length album that doesn't so much provide answers or explanations, but invites the listener into the instrumental landscapes of his inner world.
Sidestepping the specificity of narrative songwriting in favor of immersive aural topographies, Walla's Tape Loops offers up a quietly dynamic listen that is as beautiful as it is masterful. Leaning into the constraints of analog loop-based recording, Walla's virtuosity as a composer and producer shines. The album's richly layered arrangements reveal their powerful.
"I can't change a closed, physical tape loop with a mouse-click or a keystroke, and that's precisely the point," Walla explains. "Digital recording and editing often feels like working in a spreadsheet – it's not always a place for dreams." Walla is a writer, musician and record producer. Tape Loops is his first solo album since Field Manual (2008). A founding member of Death Cab for Cutie, he was the guitarist, producer and co-writer from 1997 to 2014.
1. Kanta's Theme
2. Introductions
3. I Believe In The Night
4. Goodbye
5. Flytoget
No interest if paid in full in 12 months
Check out the newest Music Direct catalogs
Place a qualifying order over $49* and receive FREE DOMESTIC GROUND SHIPPING.
When your order subtotal reaches $49 in the shopping cart the shipping charge for associated qualifying items will automatically be adjusted on your order. If you continue to see a shipping charge on your order, please check the exclusions listed below.
*Ground shipping to the 48 contiguous states only (FPO/APO excluded).
**Orders must be at least $49, before tax, to qualify.
This offer also excludes Oppo, demos, closeouts/sale items and freight shipped items.
This offer cannot be applied to previously placed orders.
Music Direct reserves the right to select the carrier and ship method within the terms of this offer.
Music Direct reserves the right to change the terms of this promotion or discontinue this offer at any time.
This offer is not included on any shipments to FPO/APO addresses. Music Direct will contact you with shipping charges for these addresses.
Customers can choose an alternative expedited shipping method but it will not qualify for this free shipping offer.
Please Note: Orders that are less than $99 are not guaranteed to ship via FedEx. The ground shipping method used will be determined at Music Direct's discretion. Average ground delivery time ranges from 7-14 business days. Music Direct does not guarantee delivery within that specified time period.
At Music Direct our message has always been clear: It's the music that matters! As the leading seller of audiophile products, we stand behind the quality of our goods. Our shipments are carefully inspected and packed before leaving our warehouse, but in the event you are not satisfied with your purchase, please take note of the following return policy:
Music Direct offers a 60-day money back guarantee on most equipment/accessories (excluding fluids, pastes, aerosols and special order items, none of which are returnable).
We'll require an explanation for the return (defective, damaged, etc). Don't be surprised if we ask you some pretty detailed questions about the reason for your return. Hearing first hand what our customers are experiencing will enable us to provide you with the best possible service.
Returns will not be accepted without a Return Authorization #, or RMA# which must be obtained by phone or email. An RA must be obtained within 60 days of the purchase, and Music Direct must receive the package within 15 days of issuing the RA. Note that after 60 days all sales are final. Please write your RA# on the outside of the shipping box (not the product box). Failure to do this will delay the processing of your return. Your return package must include the following: a copy of your invoice, a note detailing the reason for the return, all original packing materials, including cables, power supplies, instructions, remote controls, warranty cards, etc. Your package must arrive in resalable condition. If these instructions are not followed your return will not be accepted.
If your return package is deemed acceptable after inspection, Music Direct will refund the purchase price of the returned item. Shipping costs will NOT be refunded. Return shipping costs are also the responsibility of the customer. Music Direct will absorb the shipping costs only in the case of defective merchandise (this does not include shipping costs for defective music titles, which is the responsibility of the customer). Please note that if defective merchandise proves to be non-defective upon inspection, or if Music Direct otherwise determines the customer is exercising chronic abuse of the return policy, the customer will be charged a re-stocking fee at Music Direct's discretion. Music Direct also reserves the right to impose a re-stocking fee at our discretion for any returned item that is damaged, cosmetically dinged or returned missing accessories. Also please note, if you received Free Shipping with your initial order and you returned the non-defective item, we will deduct the initial shipping fee from your refund. Any and all packages that are refused delivery and sent back to music direct without an RMA number will not be refunded the initial shipping charge and a restocking fee will be added to the return.
We strongly recommend sending your return package via UPS or FedEx so it can be insured and tracked (this is especially important with heavy, fragile, and more expensive items). If a return is sent via US Mail, then the customer accepts all responsibility if the package is lost, stolen, or damaged in transit. Music Direct is not liable for any uninsured packages.
A note about phono cartridges and music titles:
Phono cartridges and music titles are non-refundable and returnable only if they are defective. If by rare occurrence you receive a defective cartridge or music title, they may only be exchanged for the same item. In the case of phono cartridges, they must be deemed defective by the manufacturer before they can be exchanged. Please make sure phono cartridge problems are not due to user error as the item will not be returnable in such cases.
At Music Direct, we strive to provide the best possible customer service. If you are experiencing problems/difficulties with your merchandise we recommend consulting our highly qualified staff of audio specialists before returning any items as they may be able to help you resolve any issues.
We look forward to providing you with the best customer service in the future.
Contact Music Direct at: 1-800-449-8333 / 312-433-0200 / [email protected]
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The monogram is a gorgeous, personal touch to a nursery or child's bedroom. Choose the font (see image of suggestions) and colours for the first name and the initial (this can be the first letter of the last, middle or even first name). Easy to install and removable.
Create a gorgeous wall feaure with this quote, fairies, blossoms and stars. Choose from the suggested colour ways, or your own colours
For the comic fan or wanna-be super hero, the pop art Kapow design is cool for a child's bedroom wall. Gorgeous fabric finish and removable, available in 2 sizes.
Printspace have created this gorgeous design with this inspiring quote "Go confidentally". A beautiful removable wall feature for a nursery or child's bedroom.
"I love you to the moon and back" written on this real life looking moon. Perfect for a nursery or child's room. Choose from 5 colour ways. Landlord friendly.
"Once Upon A Time…" is a stunning design for above a cot or bed, or in reading areas. Choose your own colour from our Colour Chart, easy to install and landlord friendly.
These door names are a beautiful way to decorate your child's bedroom or door, and are great in shared bedrooms. Choose your name, design and the colours.
The In Love quote in cut-out letters is a gorgeous design element that would suit any room. Choose your own colour from our Colour Chart. Landlord friendly and Australian made.
Jump Fly Run wall decal is a cool styling piece, with an inspiring message for a nursery or boy's bedroom. Choose your own colour
The Words removable wall stickers are a simple pop of colour for a nursery or child's bedroom. Choose your own colour from our Colour Chart for "fun, laugh, play and dream".


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Wanna see what I got for Valentine's Day? I'm wearing it now! (My new boyfriend the Unabomber sent it to me from jail– how thoughtful, right?)
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!! OMG, How Thoughtful: The HugEGram !!
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» posted by Bmad on Tuesday, February 16th, 2010
Don't send her disgusting old flowers again! Send her a HugEGram! Order now and get a beautiful bouquet of flowers free!
» posted by Bawb | February 18th, 2010 at 9:51 PM
That makes me violent….there should be one that looks like a big poo and you record a message like "I missed not watching the Kardashians with you last night" and then it farts really loud and releases a death-stink, just like the ones your boyfriend lets go when you are together. It could be called THE HUDGEY-GRAM. That would be more fun to take to the office. Maybe you could order from 5 different scents too..I'm brainstorming here people
» posted by John | February 16th, 2010 at 8:31 PM
I can't believe I didn't find this before Vday. 🙁
» posted by Levinson & Axelrod | February 16th, 2010 at 11:38 AM
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Green Beans Piquant
|Frozen cut green beans
|20 Ounce (2 packages, 10 ounce each)
|1 Medium, thinly sliced
|1⁄2 Cup (8 tbs)
|1⁄2 Teaspoon
|Bacon slices
|Red wine vinegar
|3 Tablespoon
|2 Teaspoon
|Worcestershire sauce
|1 Teaspoon
|1⁄4 Teaspoon
In a saucepan combine green beans, onion, water, and the 1/2 teaspoon salt.
Cook, covered, 10 to 15 minutes or till beans are tender.
Drain; keep warm.
Meanwhile, in skillet cook bacon till crisp.
Remove bacon, reserving drippings in skillet.
Crumble bacon; set aside.
Add vinegar, sugar, Worcestershire sauce, and the 1/4 teaspoon salt to drippings in skillet.
Bring mixture to boiling.
Pour sauce over hot beans; sprinkle with crumbled bacon.
Toss lightly to coat.
Recipe Summary
Rate It
Nutrition Rank
Nutrition Facts
Serving size: Complete recipe
Calories 376 Calories from Fat 29
% Daily Value*
Total Fat 3 g5.3%
Saturated Fat 1.2 g6.2%
Trans Fat 0 g
Cholesterol 6.9 mg2.3%
Sodium 1642.7 mg68.4%
Total Carbohydrates 65 g21.6%
Dietary Fiber 17.2 g69%
Sugars 32.8 g
Protein 11 g21.8%
Vitamin A 13.9% Vitamin C 68.1%
Calcium 33.1% Iron 17.7%
*Based on a 2000 Calorie diet


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News : Smartphone App is Better Than Calling 111 If Your Baby is Sick
London, UK, Feb 1, 2016 -- Anxious parents worried about their child's health have been urged to use a smartphone app to check for illnesses - after a report revealed the NHS 111 service has failed to spot life-threatening conditions in babies.
Baby Check has been developed by academics and health professionals, and has a scoring system to help parents understand the seriousness of their child's symptoms.
Senior doctors said the app gives detailed information to help stop parents acting on poor advice from health professionals.
It's creation comes after an NHS report into the death of one year old William Mead, who died after doctor's told his mother "not to worry" about his symptoms.
His distraught mum found him dead in his cot despite multiple visits to her GP and a call to the NHS's 111 service.
He died of sepsis - a condition where the body's immune system goes into overdrive and can reduce the blood supply to vital organs. The potentially life-threatening condition is triggered by an infection.
An NHS report found that William could still be alive if a 111 call centre worker realised how ill he was.
Baby Check developer Professor Colin Morley said that if doctors had been using the app's system they might have prevented William's death.
An 18-point list has been used by doctors for many years, and asks questions about things such as temperature, vomiting, fluid intake, and breathing. The same checklist has been been built into the Baby Check app.
Once completed the list is completed the app comes up with a score to inform whether or not the child's condition is life-threatening.
A spokesman from the Lullaby Trust charity, which has made the app available, said: "By working through a series of questions, the app helps people to decide whether to contact a doctor."
Days after the NHS released its report stating the 111 service had failed to spot life-threatening illnesses in children, one of the trust's call centre operatives was found hanged in a toilet at her place of work.
Emma Alsopp, 22, was said to be under pressure from the volume and type of calls she was handling at the hotline's West Hub office in Exeter, Devon.
Posted by Veronica Silva Cusi, news correspondent
Source: http://www.thesun.co.uk
Related Editorial
More Editorial From NHS Direct
- NHSmail 2 Migration Triggers Spike in Help Desk Calls
- NHS Helpline System to Launch Four Years Late
- NHS 111 Helpline Condemned in Scathing Report
- Probe Launched into Whistleblower's Claims Over Health Helpline
- NHS 111 Call Centre Worker 'Cost a Patient Her Life'
- NHS 111 Staff 'Pressured' Not to Transfer Calls to 999
About NHS Direct:
NHS Direct is a 24 hour health advice and information service provided by the National Health Service (NHS) in England. NHS Direct provides confidential access to medical information, guidance and reassurance through a range of interactive services. These include an expert telephone advice line and detailed web resources.
About Lullaby Trust:
The Lullaby Trust (formerly FSID) is a British charitable organisation aiming to prevent unexpected deaths in infancy and promote infant health.
Published: Tuesday, February 2, 2016


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Schneider Electric has completed the expansion of TierPoint's Seattle-based data center.
Schneider Electric's Mission Critical Services group and Data Center Service Provider team managed the design, engineering, construction and final commissioning of the new data center in 11 weeks.
To meet TierPoint's increasing market demand for services in Seattle, Schneider Electric had 11 weeks to convert a floor of TierPoint's Fisher Plaza facility, previously used as office space, into 10,000 square feet of raised floor space and 2.0 megawatts of 2N critical load. Additionally, as part of a multi-tenant building, service to other customers could not be interrupted during construction.
Schneider Electric in a statement said it partnered with several firms such as McKinstry Mechanical, Prime Electric, Degenkolb Engineering and WorkSafe, to facilitate the installation of overweight data center infrastructure equipment onto ball bearing isolation platforms; develop a solution for water delivery and distribution for cooling units; retrofit the existing office floor into a raised floor; and adhere to strict regulations and building codes.
"Our ability to manage projects from the preliminary planning stages to final commissioning and launch is a key strength of the Mission Critical Services group," says John Fithian, director of Data Center Solutions for Schneider Electric.
The new facility also includes Schneider Electric Structural Isolation Systems, Square D Switchgear, 500kW Symmetra PX, APC PDU 300kVA, Modular Remote Power Panels and a Power Monitoring and Building Automation System.


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March 20, 2009
MOHAMED ABDELKARIM, ET AL., PLAINTIFFS,v.KENNETH Y. TOMLINSON, CHAIRMAN, BROADCASTING BOARD OF GOVERNORS DEFENDANT.
This case arises from a employment dispute by former employees of Voice of America ("VOA") who were not hired by Radio SAWA after a reorganization of VOA. Plaintiffs allege discrimination based on national origin, religion, and age. Defendant argues that the plaintiffs did not exhaust administrative remedies and that their claims fail under McDonnell Douglass because while they meet the prima facie test, they cannot show pretext. Upon consideration of the motion, responses and replies thereto, applicable law, and the entire record, the Court finds that this case is fraught with genuine issues of material facts in dispute. Accordingly, defendant's Motion for Summary Judgment is DENIED.
Plaintiffs were employees of VOA before it ended its Arabic Service and switched to Radio SAWA, also an Arabic language radio station supported by the U.S. Government. Plaintiffs include: Mohamed Abdelkarim, a U.S. citizen of Egyptian background, who is a practicing Sunni Muslim; Zainab Abdulrahman, a U.S. citizen of Egyptian background, who is a practicing Sunni Muslim; Hayat Alkhateeb, a U.S. citizen of Palestinian background, who lived in Syria for many years and is a practicing Sunni Muslim; Amina ElBishlawy, a U.S. citizen of Egyptian Background, who is a practicing Sunni Muslim; and Faiza Elmasry, a U.S. citizen of Egyptian background, who is a practicing Sunni Muslim.
In early 2001, the Broadcasting Board of Governors decided to replace the VOA Arabic Service with the Middle East Radio Network ("MERN"), which eventually became known as Radio SAWA. According to James Hooper, Radio SAWA's staff director, "Radio SAWA was set up because of the overwhelming need [of] the United States government to reach people in the Middle East." VOA employees were allowed to compete for jobs with Radio SAWA through an agreement that was worked out with their union. MERN was allotted thirty-two positions; there were thirty-four employees in the VOA Arabic Service. VOA posted vacancy announcements for multiple positions at the GS-12 and GS-13 grade levels. Pursuant to a memorandum of understanding worked out between VOA and the union, VOA employees who were only seeking lateral reassignment to Radio SAWA were not required to apply under a merit promotion vacancy announcement. Only employees who were seeking promotion were required to apply under the merit promotion announcement.
Jack Welch, the Director of Personnel, assured VOA staff that current employees would be considered for positions with Radio SAWA before outside employees and lower graded employees were considered. Welch also set out other criteria for selecting Radio SAWA employees in this order: The panel would first consider internal candidates at grade of position to be filled; if no internal candidates met the requirements, internal candidates who did not apply but who were at grade of the position to be filled would be considered; if none of the candidates met those requirements, the panel would look to internal applications for promotion; if none of these requirements were met, then external candidates would be considered. Welch noted that external hires or contractors would be used only if a determination was made that no current staff member meets the requirements for the position involved. The personnel department determined whether candidates for promotion met basic qualification requirements based on position description and qualification requirements supplied by MERN. The selection process was also governed by the Hatch-Mundt Act, 22 U.S.C. § 1474, which grants hiring preferences to U.S. citizens over non-citizens. Morever, according to VOA policy, "[a] nonU.S. citizen may be appointed only after reasonable efforts to recruit equally or better qualified U.S. citizens have been made and have been unsuccessful."
Susan King, the personnel specialist who assisted in the processing of applications for the vacant positions, reviewed the applications that were received through the merit/competitive selection process to determine which candidates met the basic qualifications for the positions. After candidates were ranked by a committee of three individuals, King issued a merit promotion certificate of eligibles to Moufac Harb, the Director of Network News for Radio SAWA. This certificate contained the names of the individuals with the top ten scores from the rating panel, including plaintiffs Abdelkarim, Abdelrahman, and Elmasry.
King, however, was asked by her supervisor, Michael Conboy, to retrieve the list and issue a list with only five eligible candidates. The second certificate contained the names of plaintiffs Abdulkarim and Abdelrahman. Later, Welch instructed King to issue a third certificate that contained the names of all seventeen candidates who applied for the available positions.
With the exception of Elmasry, who withdrew her application, all of the plaintiffs applied for the GS-13 Supervisory International Radio Broadcaster ("IRB")/Shift Editor positions.
They were all on the certificate of eligibles, and they were interviewed by the selection committee. None of them was selected for positions with Radio SAWA. All of the plaintiffs also applied for the GS-12 IRB positions. They were all included on the certificate of eligibles, and they were interviewed by the selection committee. None of them was selected for positions with Radio SAWA. Harb testified in his deposition that none of the plaintiffs were even minimally qualified to perform the jobs for which they applied.
Plaintiffs contacted VOA's Office of Civil Rights on November 7, 2002, and filed formal complaints on May 13, 2003. In January 2004, plaintiffs elected to proceed to a hearing before an administrative judge at the Equal Employment Opportunity Commission ("EEOC"). Discovery with the EEOC closed on January 11, 2005; plaintiffs withdrew their hearing request on January 12, 2005. Plaintiffs then requested a Final Agency Decision ("FAD"), which they received. On September 8, 2005, plaintiffs filed suit in this Court. Discovery closed in this case on April 9, 2007. Defendant filed a Motion for Summary Judgment on August 15, 2007, which this Court denied without prejudice on May 28, 2008. Defendant filed a renewed Motion for Summary Judgment on June 13, 2008 that is currently before this Court.
A. Standard of Review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). A fact is genuine "'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Facts are material if they "'might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson, 477 U.S. at 248).
The party seeking summary judgment bears the initial burden of demonstrating an absence of genuine issues of material fact. Celotex, 477 U.S. at 322; Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). "When a motion for summary judgment is properly made and supported, [however,] an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2); see also Celotex, 477 U.S. at 324. "'[A] mere unsubstantiated allegation . . . creates no genuine issue of fact and will not withstand summary judgment.'" Ginger v. District of Columbia, 527 F.3d 1340, 1347 (D.C. Cir. 2008) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993)) (alterations in original). "Accepting . . . conclusory allegations as true . . . would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial." Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Keyes v. District of Columbia, 372 F.3d 434, 436 (D.C. Cir. 2004). "'As employers rarely maintain records directly evidencing discrimination, an added measure of rigor or caution is appropriate in applying this standard to motions for summary judgment in employment discrimination cases.'" Brownfield v. Bair, 541 F. Supp. 2d 35, 41 (D.D.C. 2008) (quoting Woodruff v. Peters, 482 F.3d 521, 526 (D.C. Cir. 2007)).
B. Analysis
1. Exhaustion of Administrative Remedies
Defendant argues that plaintiffs have failed to exhaust administrative remedies because they abandoned the administrative process and failed to contact an Equal Employment Opportunity ("EEO") counselor on their harassment claim and their discrimination and retaliation claims regarding pay assignments and overtime within forty-five days. In Brown v. Tomlison, 462 F. Supp. 2d 16 (D.D.C. 2006), this Court found that a complainant who timely elects a hearing before an EEOC administrative judge may withdraw from the hearing and proceed to federal court. See id. at 19-20. Plaintiffs in this case, however, went further than the plaintiffs in Brown. Plaintiffs requested a FAD and received one. They then filed suit in this Court within ninety days of receipt of the FAD. Title VII authorizes a plaintiff to file suit in federal court "[w]ithin 90 days of receipt of notice of final action taken by a department, agency, or unit." 42 U.S.C. § 2000e-16(c). There is no reason for this Court to stray from the well-reasoned decision in Brown.
Defendant also complains that the plaintiffs benefitted from discovery before withdrawing their request for an administrative hearing. Defendant, however, cites no case law that prevents plaintiffs from the course of action they took. In fact, the EEOC's guidance makes clear that a complainant may voluntarily withdraw a request for a hearing at any time. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-1 (Nov. 9, 1999) ("Generally, an Administrative Judge will conduct a hearing on the merits of a complaint unless . . . the hearing request is voluntarily withdrawn."). Plaintiffs did exhaust their administrative remedies, and their suit is properly before this Court.
2. Discrimination Claims
Plaintiffs allege that they were discriminated against based on national origin, religion, and age in violation of Title VII. Employee allegations of discrimination trigger the familiar McDonnell Douglass burden-shifting framework in federal courts. See Stella v. Mineta, 284 F.3d 135, 144 (D.C. Cir. 2002). In the absence of direct evidence of discrimination, the courts use this framework to determine whether an employee-plaintiff has a colorable claim against his or her employer. See McDonnell Douglass v. Green, 411 U.S. 792, 802 (1973). According to the McDonnell Douglass framework, the plaintiff has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. See id.; Stella, 284 F.3d at 144. If the plaintiff succeeds in making out a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. Stella, 284 F.3d at 144 (citing McDonnell Douglas, 411 U.S. at 802). If the employer articulates a non-discriminatory reason for the adverse employment action, the burden then shifts back to the plaintiff, who must demonstrate that the employer's stated reason was merely pretext and that the true reason was discriminatory. Id. (citing McDonnell Douglas, 411 U.S. at 802). If the plaintiff cannot demonstrate pretext, the employee's claims necessarily fail.
To establish a prima facie case of a discriminatory failure to promote or hire, plaintiffs must show: (1) that they belong to a protected group; (2) that they applied and were qualified for a job for which the employer was seeking applicants; (3) that despite their qualifications, they were rejected; and (4) that individuals were selected to fill the positions. See Cones v. Shalala, 199 F.3d 512, 516 (D.C. Cir 2000) (citing McDonnell Douglas, 411 U.S. at 802).
Defendant acknowledges that plaintiffs have established a the prima facie case. The burden is now upon the defendant to articulate a non-discriminatory reason for its failure to promote or hire. While defendant argues that plaintiffs were not promoted or hired because plaintiffs failed to demonstrate that they had a "skill set" or the background for the new positions, the Court cannot make that determination at this stage because there are numerous material facts that are in dispute. For example, there is a dispute about why three different lists of qualified candidates were produced. Plaintiffs argue that one of the selectees complained to Harb that she was not on the original list and that Harb intervened on her behalf. Harb denies this. There is also some discrepancy about who made the final decision about who was hired. Harb says that the decision was made by the committee. There is evidence in the record that indicates that Harb made the decision and the other committee members deferred to him because he spoke Arabic. There also seems to be a dispute about why plaintiffs were not hired. While defendant argues that plaintiffs were not qualified, Harb testified that he has no memory of the interviews with plaintiffs. Harb also goes back and forth during his testimony about whether or not he knew the ratings and scores of the candidates. After claiming that plaintiffs were not qualified for the jobs for which they applied, Radio SAWA continued to rely heavily on them for assignments. Finally, plaintiffs were required to train many of the people who were hired for the jobs for which plaintiffs applied.
These disputed facts are not exhaustive but are merely examples culled from the pleadings. These issues are genuine, material, and disputed. These claims are not ripe for summary judgment.
3. Hostile Work Environment Claim
To establish a prima face case for a hostile work environment claim, a plaintiff must show that: "(1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment occurred because of the plaintiff's protected status; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known about the harassment, but nonetheless failed to take steps to prevent it." Baloch v. Norton, 355 F. Supp. 2d. 246, 259 (D.D.C. 20005). Courts must look at the totality of the circumstances when making a determination of whether a hostile work environment exists. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). This determination includes examining "the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. at 787-88 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 12, 23 (1993)).
Defendant acknowledges that plaintiffs are members of a protected class. Viewing the facts in the light most favorable to the non-moving party, it is clear that plaintiffs' claims of a hostile work environment are not ripe for summary judgment. Plaintiffs allege that Harb said that he would "clean the Arabic Branch of Egyptians" and that there were too many Egyptians in the Arabic Service. He also changed the VOA style to give preference to Lebanese dialects, phrasing, colloquialisms, and pronunciations. Plaintiffs allege that Harb routinely made derisive comments about Radio Cairo, where many of the plaintiffs had previously worked. They allege that he repeatedly denigrated the Egyptian dialect and ridiculed Egyptian cultural icons on a daily basis. Plaintiffs do not complain of isolated incidents; they complain of an on-going pattern of hostility towards their national origin, culture, and background. They also complain of comments that Harb frequently made about their age.
"When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris, 510 U.S. at 21 (internal citations and quotation marks omitted). Based on plaintiffs' allegations, a jury could find that the alleged "discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their [age], religion, or national origin [and therefore] offends Title VII's broad rule of workplace equality." Id. at 22. Plaintiffs have established a prima facie case, and a jury could find that defendant violated Title VII. Defendant's motion for summary judgment on the hostile work environment claims are similarly denied.
For the foregoing reasons, defendant's Motion for Summary Judgment is DENIED. An appropriate Order accompanies this Memorandum Opinion.
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Vincent schools became the first in Alabama to switch to a year-round calendar 11 years ago in a bid to boost student achievement. Citing positive results, supporters of the change oppose any return to the traditional calendar.
Amy Martin, a teacher and parent at Vincent schools, said the year-round schedule works and doesn't need to be changed.
"If you insist on everybody being on the same calendar, fine," she told the Shelby County school board. "Put them on our calendar."
All other Shelby County schools are on a traditional schedule and Vincent should join them, says School Superintendent Evan Major. But the county school board on Thursday night opposed Major's recommendation. The board tabled the issue until two separate calendars can be drafted for consideration.
Major wanted one calendar for all schools because two separate calendars is inconvenient, he said. Major said he's not disappointed in the board's decision.
"We have a system and that system works," he said.
Board member Steve Martin said either two calendars are needed - one for Vincent schools and another for the rest - or all Shelby County schools need to go on the year-round schedule.
"Vincent is a very innovative, very willing community made up of a school that is part of a very large school system," Martin said. "They've shown that people are smarter than government."
Backers of a year-round school schedule were relieved by the board's decision. More than 200 people from Vincent crowded into the board chambers, arguing that since the switch to a year-round schedule, standardized test scores have improved, along with morale among the students and teachers.