Denton v. Morgan

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-11304

JOHN G. DENTON and PAULA J. SAVAGE,

Plaintiffs-Appellees-Cross-Appellants,

VERSUS

JAMES MORGAN, Commissioner, Juvenile Board of Comanche County, Et
Al.
Defendants

JOHN WEAVER, Commissioner, Juvenile Board of Comanche County,
Texas; ERNIE REINKE, Commissioner, Juvenile Board of Bosque County,
Texas; CHARLES GARRETT, Commissioner, Juvenile Board of Hamilton,
County, Texas; JUVENILE PROBATION BOARD OF COMANCHE COUNTY;
JUVENILE PROBATION BOARD OF BOSQUE COUNTY; JUVENILE PROBATION BOARD
OF HAMILTON COUNTY,

Defendants-Appellants-Cross-Appellees.

Appeals from the United States District Court
for the Northern District of Texas
March 23, 1998

Before JOLLY, DUHÉ, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

The Plaintiffs, John G. Denton and Paula J. Savage, sued the

Defendants, Judges Weaver, Reinke, and Garrett, Commissioners of

the Juvenile Probation Boards of Bosque, Comanche, and Hamilton

Counties, Texas, alleging violations of the First Amendment to the

United States Constitution, enforceable under 42 U.S.C. § 1983, and
the Texas Whistleblower Act, Tex. Rev. Civ. Stat. Ann. art. 6252-

16A § 2(Vernon Supp. 1992)(repealed)(current version at Tex. Govt.

Code. § 544.002 (Vernon Supp. 1996)). The Defendants appeal from

an order of the district court denying Defendants’ Motion for

Judgment as a Matter of Law on the Plaintiffs’ First Amendment

claims. The Plaintiffs, as Cross-Appellants, appeal from an order

of the district court ordering remittitur and granting Defendants’

Motion for Judgment as a Matter of Law on Denton’s Texas

Whistleblower claim. After consideration of the briefs and the

record on appeal, we affirm the district court.

I.

Plaintiff, John G. Denton, served as Chief Probation Officer

for the Juvenile Probation Boards of Bosque, Comanche, and Hamilton

counties from May 1983 until his discharge in January 1992.

Plaintiff, Paula J. Savage, served as a juvenile probation officer

for the three counties from January 1990 until she was discharged

in September 1991.

In January 1991, the Plaintiffs were assigned the case of

“W.D.A.,” a juvenile recently released from Belton Detention

Center. Although W.D.A. had been released from the detention

center because the center had closed, the juvenile was still

subject to a continuing detention order. As W.D.A.’s juvenile

probation officers, the plaintiffs attempted to secure educational

services for W.D.A. in the Clifton Independent School District

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(“Clifton I.S.D.”), located in Bosque County. After a meeting

attended by the plaintiffs, Clifton I.S.D. officials, a

representative from the Texas Department of Mental Health and

Mental Retardation, the Clifton police chief, Judge Reinke, and a

county attorney, the juvenile was denied admission to Clifton

I.S.D. because of the continuing detention order. Following the

meeting, the county attorney issued an order to take W.D.A. into

custody and detain him for not completing his stay at his previous

placement. W.D.A. was later released to his father, but remained

under a detention order that prohibited him from attending school.

Judge Reinke, Commissioner of the Juvenile Board of Bosque County

subsequently committed W.D.A. to the Texas Youth Commission.

Believing that the actions taken by Clifton I.S.D. were illegal,

the plaintiffs wrote a letter to the Texas Education Agency (“TEA”)

complaining that W.D.A.’s rights under the Texas Education Code and

the Federal Individuals with Disabilities Education Act had been

violated.

According to Denton and Savage, the Defendants were angered

and embarrassed that the Plaintiffs had gone “over their heads” by

writing the letter to the TEA. Following disclosure of the TEA

letter, the judges unanimously voted in September 1991 to discharge

Savage and demote Denton from chief probation officer. In January

1992, the judges voted to terminate Denton. According to the

Defendants, however, the Plaintiffs were fired due to inappropriate

travel expense reports and continuing budget problems. Denton sued

Judge James Morgan, Commissioner, Juvenile Board of Comanche

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County, Texas,1 and Judges Ernie Reinke, John Weaver, and Charles

Garrett, Commissioners of the Juvenile Boards of Bosque, Comanche

and Hamilton Counties, Texas, respectively (collectively

“Defendants”), alleging violations of the First Amendment under 42

U.S.C. § 1983, and the Texas Whistleblower Act. Plaintiff Savage

joined in the First Amendment claim against Defendants. The

Plaintiffs alleged that they were unlawfully discharged by

Defendants in retaliation for writing the letter to the TEA

complaining about the failure of the Clifton I.S.D. to provide

educational services to W.D.A.

After a trial on the merits, the jury found that the

Defendants terminated the Plaintiffs in retaliation for reporting

an alleged illegality and speaking out on a matter of public

concern. Thus, the jury found liability on the Plaintiffs’ First

Amendment claims and Denton’s Whistleblower claim against the

Juvenile Probation Boards of Bosque, Comanche, and Hamilton

counties. The jury awarded Denton $117,876 in past lost wages and

$111,000 for lost pension. The jury awarded Savage past lost wages

of $19,600. At trial, however, the Plaintiffs’ expert economist

had only testified that Savage’s lost wages totaled $8,640 and

Denton’s past lost wages totaled $24,376 and lost pension totaled

$82,620.

Following trial, the Defendants moved for judgment as a matter

of law on the Plaintiffs’ First Amendment and Whistleblower claims.

1
Defendant Morgan, Commissioner, Juvenile Board of Comanche
County did not appeal the judgment.

4
The trial court granted the Defendants’ Rule 50(b) renewed motion

for judgment as a matter of law on Denton’s Whistleblower claim,

denied the Defendants’ motion for judgment as a matter of law on

the Plaintiffs’ First Amendment claim, and ordered remittitur of

the damages to the amount for which the Plaintiffs’ expert

testified.

II.

The Defendants contend that the district court erred by

submitting to the jury liability issues regarding the individual

county juvenile boards because the Plaintiffs were actually

employed by the 220th Judicial District Juvenile Board, composed of

the juvenile boards of Bosque, Comanche, and Hamilton counties.

The Defendants contend that the individual juvenile boards of

Bosque, Comanche, and Hamilton have not functioned since 1988, when

they ceased to function and were replaced by the 220th Judicial

District Juvenile Board created by statute. The Defendants assert

that the membership of the 220th Judicial District Juvenile Board

consists of Judges Weaver, Reinke, and Garrett, with Judge Morgan

serving as chairman. The district court, however, found that the

220th Judicial District Juvenile Board was not a legal entity.

Although the three county juvenile boards may have operated as

a single unit, there is no statutory authority for such joint

operation. See Tex. Hum. Res. Code Ann. § 152.0031. While Texas

law allows some county juvenile boards to operate jointly, the

counties of Bosque, Comanche, and Hamilton are specifically

5
excluded from such joint operation. See id. §§ 152.0031; 152.0036;

152.0241; 152.0531; and, 152.1031. In any event, the name used to

describe the Plaintiffs’ employer would not alter the Defendants’

liability because the membership of the hypothetical 220th Judicial

District Juvenile Board consists of the three individual county

boards. The judges, who represent the county juvenile boards,

voted unanimously to terminate the Plaintiffs. Thus, liability of

the 220th Judicial District would be imputed to each of the

individual county boards.

III.

The Defendants contend that the district court erred by

denying their Rule 50(b) renewed Motion for Judgment as a Matter of

Law and Motion for New Trial on the Plaintiffs’ First Amendment

claims. In support of this contention, the Defendants argue, inter

alia, the district court erred by finding as a matter of law that

the Plaintiffs’ speech involved a matter of public concern; the

Plaintiffs failed to establish that the First Amendment

deprivations were the result of a policy, practice, or custom of

the Juvenile Boards; and there was no evidence, or alternatively

insufficient evidence, to support the jury’s verdict. We review de

novo the question of whether a plaintiff’s allegations state a

valid claim of retaliation for the exercise of free speech

protected by the First Amendment. See Caine v. Hardy, 943 F.2d

1406, 1415 (5th Cir. 1991)(en banc).

First, the Defendants assert the district court erred by

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finding, as a matter of law, that the speech involved a matter of

public concern. In order for speech by a public employee to enjoy

constitutional protection from retaliation by the public employer,

the speech must involve a matter of public concern.2 See Connick

v. Myers, 461 U.S. 138, 147 (1983); Wallace v. Texas Tech Univ., 80

F.3d 1042, 1050 (5th Cir. 1996). To rise to the level of public

concern, the speech at issue must have been made primarily as a

citizen rather than as an employee addressing matters only of

personal concern. See Thompson v. City of Starkville, Miss., 901

F.2d 456, 465 (5th Cir. 1990). As the Court in Connick recognized,

“When employee expression cannot be fairly considered as relating

to any matter of political, social, or other concern to the

community, government officials should enjoy wide latitude in

managing their offices, without intrusive oversight by the

judiciary in the name of the First Amendment.” Connick, 461 U.S. at

146. Whether an employee’s speech addresses a matter of public

concern, rather than a matter of personal concern, must be

determined by the content, form, and context of a given statement,

as revealed by the entire record. See id. at 147-48.

The Defendants argue that the letter to the TEA did not

involve a matter of public concern because the Plaintiffs failed to

2
This court has established a three part test to determine
whether speech by a public employee is constitutionally protected
from retaliation by a public employer. First, the speech must
involve a matter of public concern. Second, the public employee’s
interest in commenting on matters of public concern must outweigh
the public employer’s interest in promoting efficiency. Third, the
employee’s speech must have motivated the decision to discharge the
employee. See Thompson v. City of Starkville, Miss., 901 F.2d 456,
460 (5th Cir. 1990).

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disclose W.D.A.’s continuing detention order, which made the

juvenile ineligible to attend Clifton I.S.D. schools, and the

Plaintiffs had hidden allegedly self-serving motives in writing the

letter. The Defendants’ argument presumes that the speech in

question must be completely accurate and the speaker must not have

any self-interest in the speech, before such speech receives

constitutional protection. Neither the accuracy of the speech, nor

the motivation of the speaker, plays a role in determining whether

the expression involves a matter of public concern. See Gonzalez

v. Benavides, 774 F.2d 1295, 1300-01 (5th Cir. 1985)(“We do not

read Connick, however, to exclude the possibility that an issue of

private concern to an employee may also be an issue of public

concern.”). See also Rode v. Dellarciprete, 845 F.2d 1195, 1202 (3d

Cir. 1988) (“Dismissing [the plaintiff’s] speech as unprotected

merely because she had a personal stake in the controversy fetters

public debate on an important issue because it muzzles an affected

public employee from speaking out.”). Therefore, the only relevant

inquiry is whether the Plaintiffs’ letter to the TEA reporting

perceived wrongdoing on the part of Clifton I.S.D. addresses a

matter of concern to the community.

The Plaintiffs’ letter complains to the TEA about perceived

illegal action on the part of Clifton I.S.D. officials in denying

educational services to a disabled juvenile. The Plaintiffs

believed that the school district’s refusal to offer W.D.A.

admission to the public school system violated the Texas Education

Code and the Federal Individuals with Disabilities Education Act.

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This court has held that speech reporting official misconduct,

wrongdoing, or malfeasance on the part of public officials involves

matters of public concern. See Wilson v. UT Health Center, 973

F.2d 1263, 1269 (5th Cir. 1992)(reporting sexual harassment of

superiors); Schultea v. Wood, 27 F.3d 1112, 1120 (5th Cir. 1994),

superseded on other grounds, 47 F.3d 1427 (1995)(en banc)(reporting

suspected criminal activity of city council member); Brawner v.

City of Richardson, Texas, 855 F.2d 187, 192 (5th Cir. 1988)

(reporting possible police misconduct). As the letter to the TEA

reported perceived wrongdoing on the part of public officials, we

hold that letter clearly addressed a matter of public concern.

Thus, the district court did not err by finding the letter involved

a matter of public concern as a matter of law.

Second, the Defendants contend that the district court erred

by submitting the First Amendment claim to the jury because the

Plaintiffs failed to establish the First Amendment deprivation

resulted from a policy, practice or custom of the juvenile boards.

The defendants assert that in order to establish liability under 42

U.S.C. § 1983, a plaintiff must establish the alleged

constitutional violation occurred pursuant to a policy, practice or

custom of a government entity. See Monell v. New York City Dept.

of Social Services, 436 U.S. 658, 690 (1978); Jett v. Dallas

Independent School Dist., 7 F.3d 1241, 1244-45 (5th Cir. 1993). By

making this argument, the Defendants fail to acknowledge a second

recognized avenue for establishing § 1983 liability, namely, that

decisions by final policy-making bodies or officials constitute

9
official government policy. See Pembaur v. Cincinnati, 475 U.S.

469, 481 (1986). In this regard, the Court in Pembaur noted that

for purposes of § 1983 liability, “[L]iability attaches only where

the decision maker possesses final authority to establish

[government] policy with respect to the action ordered.” Pembaur,

475 U.S. at 481. Whether the government decision maker has final

policy-making authority is a question of state law to be resolved

by the court. See City of St. Louis v. Praprotnik, 485 U.S. 112,

123 (1988); Pembaur, 475 U.S. at 483; Jett, 7 F.3d at 1244.

The Defendants claim the individual judges could not be final

policy makers because their respective counties did not employ

Denton and Savage, but that the 220th Judicial District Juvenile

Board was the Plaintiffs’ actual employer. As we have already

held, the “220th Juvenile Board” has no basis in Texas law.

Consequently, any action by the alleged “220th Juvenile Board” must

be imputed to the individual county juvenile boards. In any event,

each county took official action against the Plaintiffs because the

judges, in their capacity as representatives of the individual

county juvenile boards, unanimously voted to terminate Denton and

Savage. Therefore, the individual juvenile boards of Bosque,

Comanche and Hamilton counties are liable for any illegal

employment action which results from their official acts. It

appears from the record that the individual county juvenile boards

have final policy-making authority regarding the hiring and firing

of juvenile probation officers. See, e.g., Tex. Hum. Res. Code

Ann. § 152.0008 (Vernon 1990) (providing that juvenile probation

10
officers serve at the pleasure of the appointing authority). No

other governmental body has any authority over the employment

decisions made by the county juvenile boards. Thus, as the

ultimate authority in the decision to terminate the Plaintiffs, the

individual county juvenile boards of Bosque, Comanche and Hamilton

must bear the consequences for any violation of the Plaintiffs’

constitutional rights.

Third, the Defendants claim the district court erred by

denying their rule 50(b) motion for judgment as a matter of law

because there is no evidence, or alternatively insufficient

evidence, to support the jury’s verdict regarding retaliation in

violation of the Plaintiff’s First Amendment rights. The

Defendants argue that the evidence proves the judges’ decision to

terminate was based on the Plaintiffs’ improper travel vouchers and

insubordination, and not the TEA letter. The jury, however, found

that the TEA letter was the reason for the Plaintiffs’ termination

and imposed liability on the Defendants for violations of the First

Amendment.

When reviewing the district court’s denial of a motion for

judgment as a matter of law challenging the legal sufficiency of

the evidence, the appellate court applies the same standard to

review the verdict that the district court used in first passing on

the motion. See Hiltgen v. Sumrall, 47 F.3d 695, 700 (5th Cir.

1995)(citing Bridges v. Groendyke Transport, Inc., 553 F.2d 877

(5th Cir. 1977)). Therefore, in due deference to the jury’s

determination, a verdict must be upheld unless "there is no legally

11
sufficient evidentiary basis for a reasonable jury to find" as the

jury did. See id. (citing Fed.R. Civ. P. 50(a)(1)). In this

regard, the court has stated:

A jury may draw reasonable inferences from the evidence,
and those inferences may constitute sufficient proof to
support a verdict. On appeal, we are bound to view the
evidence and all reasonable inferences in the light most
favorable to the jury’s determination. Even though we
might have reached a different conclusion if we had been
the trier of fact, we are not free to reweigh the
evidence or to reevaluate credibility of witnesses. We
must not substitute for the jury’s reasonable factual
inferences other inferences that we may regard as more
reasonable.

Rideau v. Parkem Indus. Services, Inc., 917 F.2d 892, 897 (5th Cir.

1990).

After reviewing the record and viewing the evidence and

reasonable inferences in the light most favorable to the jury’s

determination, we hold that the Plaintiffs established a legally

sufficient evidentiary basis for a reasonable jury to find that the

TEA letter motivated the decision to discharge the Plaintiffs.

Specifically, Judge Morgan testified that he was upset and

distressed by the TEA letter. Judge Morgan further testified that

the letter was a factor in the Plaintiffs’ termination because he

was concerned that it showed a lack of cooperation with the board.

Additionally, Judge Reinke testified that he was very upset and

concerned by the TEA letter. From this testimony, the jury could

infer that the TEA letter motivated the decision to terminate the

Plaintiffs. While each of the judges testified that the

Plaintiffs’ violation of the travel policy was the actual reason

for the termination, the jury was free to disregard this testimony

12
as a mere pretext for the real reason behind the Plaintiffs’

termination. Consequently, the district court did not err by

denying the Defendants’ motion for judgment as a matter of law.

IV.

The Plaintiffs claim the district court erred by granting the

Defendants’ motion for judgment as a matter of law on Denton’s

Texas Whistleblower Act claim. Specifically, Denton disputes the

district court’s interpretation of the statute as precluding a

claim by a public employee when the protected speech concerns a

violation of the law by a third party, not the Plaintiff’s

employer. Because Denton reported a perceived violation by Clifton

I.S.D. and not the three defendant juvenile boards, the court

granted the Defendants’ motion for judgment as a matter of law. We

review de novo the district court’s determination of state law.

See Salve Regina College v. Russell, 499 U.S. 225, 231 (1991).

At the time of Denton’s termination, the Texas Whistleblower

Act provided, “A state agency or local governmental body may not

suspend or terminate the employment of, or otherwise discriminate

against, a public employee who reports a violation of law to an

appropriate law enforcement authority if the employee report is

made in good faith.” Tex. Civ. Stat. Ann. art. 6252-16A § 2 (Vernon

Supp. 1992)(repealed 1993)(current version at Tex. Govt. Code. §

544.002 (Vernon Supp. 1996)). The Plaintiffs argue that the plain

language of the former version of the Whistleblower Act supports

the jury’s verdict because there was no express requirement in the

13
statute that the reported violation of the law must have been

committed by the whistleblower’s employer. Although not expressly

required, the statute has been universally interpreted to require

the whistleblower’s employer to have committed the reported

violation. See Davis v. Ector Cty., Texas, 40 F.3d 777, 786 (5th

Cir. 1994); Harris Cty. Precinct Four Constable Dept. v. Grabowski,

922 S.W.2d 954, 955 (Tex. 1996)(stating that the Whistleblower Act

protects employees who report violations by their employer);

Stinnett v. Williamson Cty. Sheriff’s Dept., 858 S.W.2d 573, 575

(Tex.App.--Austin 1993, writ denied) (“Traditionally, the

Whistleblower Act has been applied to public employees who are

fired in retaliation for reporting their employer’s violations of

law that are detrimental to the public good or society in

general.”); Castañeda v. Texas Dept. of Agriculture, 831 S.W.2d

501, 503-504 (Tex.App.--Corpus Christi 1992, writ

denied)(interpreting the phrase “reports a violation of the law” to

include any disclosure of information regarding a public servant’s

employer tending to directly or circumstantially prove a violation

of the law). Thus, it appears that in 1992, Texas law did not

recognize a cause of action where the reported violation of law did

not concern the whistleblower’s employer. Denton fails to cite any

authority where the statute is applied to protect whistleblowers

who report violations of the law by third parties. Although the

plain language of the statute does not expressly require the

whistleblower’s employer to have committed the reported violation,

we cannot disregard the overwhelming authority to the contrary.

14
 Additionally, Denton points to the recent amendments to the

Whistleblower Act, which add the requirement that the government

employer commit the violation, as proof that the earlier version of

the Act permitted claims by a whistleblower who reported any

violation of the law, including violations by third parties.3 By

amending the statute, Denton insists that the Texas Legislature

intended to narrow the scope of the law to permit only claims by

public employees who report violations of the law by their

employers. Although the Plaintiff presents a plausible

interpretation, the more likely reason for the amendment is that

the Texas Legislature intended to clarify the law to accord with

current interpretations. Consequently, we hold that the district

court did not err by granting the Defendants’ Motion for Judgment

as a Matter of Law on Denton’s Texas Whistleblower Act claim.

V.

The Plaintiffs contend that the district court erred by

improperly granting the Defendants’ Motion for Remittitur. The

jury awarded Savage past lost wages of $19,600 and Denton $117,876

in past lost wages, $110,000 for lost future wages, and $110,000

3
In 1995, the Texas Whistleblower Act was amended to provide:

A state or local governmental entity may not suspend or
terminate the employment of, or take adverse personnel
action against, a public employee who in good faith
reports a violation of law by the employing governmental
entity or another public employee to an appropriate law
enforcement authority.

Tex. Govt. Code § 554.002(a) (Vernon Supp. 1996)(emphasis added).

15
for lost pension. After finding that the jury awards were

insufficiently supported by the evidence, the district court

remitted the damages to the amount which the Plaintiffs’ expert had

testified at trial. We review the district court’s order of

remittitur for abuse of discretion. See Eiland v. Westinghouse

Electric Corp., 58 F.3d 176, 183 (5th Cir. 1995). We determine the

size of the remittitur in accordance with the “maximum recovery

rule” by reducing the verdict to the maximum amount the jury could

have properly awarded. Id. (citing Dixon v. International

Harvester Co., 754 F.2d 573, 590 (5th Cir. 1985)). Under Texas

law, remittitur orders should be upheld only when the reviewing

court determines that the evidence was factually insufficient to

support the jury verdict. See Larson v. Cactus Utility Co., 730

S.W.2d 640 (Tex. 1987).

At trial, the Plaintiffs’ economic expert, Dr. Berkman,

testified that Denton’s damages were as follows: lost income from

January 1992 until April 1993, $24,376.00; loss of future income,

$112,260.00; and lost pension, $82,620.00. Dr. Berkman testified

that Savage’s actual lost income totaled $8,640.00, and lost

pension in the amount of $42,294.4 Following deliberations, the

jury awarded Denton $117,876 in past lost wages, $110,000 for lost

pension, and $110,000 in lost future wages. The jury awarded

Savage $19,600 in lost wages. The Plaintiffs argue that the

4
On cross-examination, however, Dr. Berkman testified that
the amount of Savage’s lost pension was no longer valid because her
new employment provided better pension benefits than her former
job.

16
difference between the expert testimony and the jury verdict merely

reflects the amount of economic loss suffered by the Plaintiffs

from the time Dr. Berkman prepared his report in 1993 and the time

of trial in 1996. Therefore, the Plaintiffs contend that the jury

merely updated the amounts. The jury, however, was not given

enough information to update the amount of economic loss because

Dr. Berkman did not provide the jury with an adequate basis for

updating the numbers. When asked how he arrived at the amount of

damages for Denton, Dr. Berkman testified that he looked at the

Plaintiff’s employment history, income documents, and “where he

could have been had he remained employed.” Furthermore, when asked

whether the numbers had changed much from 1993 until 1996, Dr.

Berkman testified in the affirmative, but did not wish to speculate

to a current amount of damages. Any attempt to update the amount

of damages would have been purely speculative because the jury was

not provided with enough information to engage in the type of

economic forecasting utilized by Dr. Berkman. See Haley v. Pan

American World Airways, Inc., 746 F.2d 311, 316 (5th Cir. 1984) (“A

damage award cannot stand when the only evidence to support it is

speculative or purely conjectural.”).

In any event, the amount of damages awarded by the jury does

not correlate to the three year difference between the expert

report and trial. The evidence produced at trial indicates that

Savage immediately located substitute employment. Therefore, there

is no evidentiary basis for awarding $19,600 in past lost wages,

when Savage only accrued $8,640 in actual past lost wages. As for

17
Denton, although he remained unemployed at the time of trial, any

amount awarded for future lost wages included the three years not

covered by the report because Dr. Berkman calculated the future

lost wages from 1993 forward. Consequently, the district court did

not abuse it discretion when it found that the evidence was

insufficient to support the amount of the jury verdict.

Furthermore, the district court remitted the amount of damages to

the “maximum amount the jury could have properly awarded” because

the verdict was only reduced to the amount established by the

evidence.

V.

For the foregoing reasons, the order of the district court

denying the Defendants’ Motion for Judgment as a Matter of Law on

the Plaintiffs’ First Amendment claims; granting the Defendants’

Motion for Judgment as a Matter of Law on Plaintiff Denton’s Texas

Whistleblower Act claim; and granting the Defendants’ Motion for

remittitur is

AFFIRMED.

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