In the
United States Court of Appeals
For the Seventh Circuit
No. 14-3354
KEITH CURTIS,
Plaintiff-Appellant,
v.
COSTCO WHOLESALE CORPORATION,
et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 3432 — Samuel Der-Yeghiayan, Judge.
ARGUED SEPTEMBER 25, 2015 — DECIDED NOVEMBER 24, 2015
Before WOOD, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
BAUER, Circuit Judge. Plaintiff-appellant, Keith Curtis
(“Curtis”), appeals the district court’s order granting summary
judgment in favor of defendants-appellees, Costco Wholesale
Corporation (“Costco”) and Gail Hinds (“Hinds”), on all of
Curtis’s causes of action. These include retaliation in violation
of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601
2 No. 14-3354
et seq., (“FMLA”), a FMLA interference claim, discrimination
based on a violation of the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq., (“ADA”), and a claim for failure to
accommodate under the ADA. For the following reasons, we
affirm.
I. BACKGROUND
Costco hired Curtis in 2001. Curtis was promoted to optical
manager by Hinds, the general warehouse manager at Costco’s
Orland Park location, in 2008. In 2011, Curtis was still working
as an optical manager under the supervision of Hinds. Hinds
and Costco’s assistant warehouse manager, Leslie Ingram,
counseled Curtis in March and May 2011, regarding customer
complaints about him. Because of these complaints, Hinds
began monitoring the optical department more carefully and
determined that Curtis was failing to sufficiently schedule
workers within his department, as was Curtis’s duty as optical
manager.
In September 2011, Curtis requested and was given a
medical leave under the FMLA due to stress and anxiety.
Curtis returned to work on November 1, 2011, but his work
performance did not improve. Costco management counseled
Curtis numerous times over the next six months about the
insufficient scheduling of optical department employees and
other Costco policy violations. Due to these performance
issues, Curtis was placed on a 90-day performance improve-
ment plan (“PIP”) in April 2012.
In early May 2012, Jan Jalowiec (“Jalowiec”), an employee
working under Curtis in the optical department, informed the
Costco managerial staff that she was concerned that Curtis was
No. 14-3354 3
going to “scam” the company. She said Curtis told her he
intended to take a medical leave to secure his managerial rate
of pay and position in the event of demotion. Costco deter-
mined that, by this comment, Curtis had violated its Manager
Standard of Ethics. On May 19, 2012, Curtis was demoted from
optical manager to cashier. Two days later, Curtis requested
and was given a second FMLA leave.
On June 6, 2012, Curtis submitted a request to be trans-
ferred to the Merrillville, Indiana, Costco store. Costco refused
to transfer Curtis while he was on his FMLA leave. In January
2013, Curtis gave notice that he was released to work by his
doctor, but only to a store other than the one in Orland Park.
In July 2013, an optical position became available at the Costco
in Merrillville, Indiana, and Curtis was given the position. He
currently works in that position at that location.
In his complaint filed May 7, 2013, Curtis alleges four
causes of action against Costco and Hinds: retaliation and
interference, both in violation of the FMLA, and discrimination
based upon a disability and failure to accommodate, both in
violation of the ADA. Costco and Hinds moved for summary
judgment on all of Curtis’s causes of action. The district court
granted the motion. The district court found that Curtis had
failed to comply with Northern District of Illinois Local Rule
56.1 by submitting an insufficient response to Costco’s separate
statement of material facts.
4 No. 14-3354
II. DISCUSSION
A. Local Rule 56.1
We first determine whether the district court erred in
finding Curtis failed to comply with the requirements of
Northern District of Illinois Local Rule 56.1. The rule requires
the party moving for summary judgment to file and serve a
“statement of material facts as to which the moving party
contends there is no genuine issue and that entitle the moving
party to a judgment as a matter of law.” N.D. Ill. R. 56.1(a)(3).
Further, the party opposing the motion for summary judgment
is required to file and serve “a concise response to the mov-
ant’s statement that shall contain … a response to each num-
bered paragraph in the moving party’s statement, including, in
the case of any disagreement, specific references to the affida-
vits, parts of the record, and other supporting materials relied
upon.” N.D. Ill. R. 56.1(b)(3)(B).
“When a responding party’s statement fails to dispute the
facts set forth in the moving party’s statement in the manner
dictated by the rule, those facts are deemed admitted for
purposes of the motion.” Cracco v. Vitran Express, Inc., 559 F.3d
625, 632 (7th Cir. 2009) (citation omitted). The non-moving
party’s failure to admit or deny facts as presented in the
moving party’s statement or to cite to any admissible evidence
to support facts presented in response by the non-moving
party render the facts presented by the moving party as
undisputed. Ammons v. Aramark Unif. Servs., 368 F.3d 809, 818
(7th Cir. 2004).
Compliance with local rules like Rule 56.1 ensures the facts
material to the issues in the case and the evidence supporting
No. 14-3354 5
such facts are clearly organized and presented for the court’s
summary judgment determination.
We review a trial court’s decisions regarding compliance
with local rules only for an abuse of discretion. Cracco, 559 F.3d
at 630; Koszola v. Bd. of Educ., 385 F.3d 1104, 1108 (7th Cir. 2004).
We have routinely upheld the district court’s discretion in
requiring parties to comply strictly with local rule require-
ments. Cracco, 559 F.3d at 632 (citations omitted).
A review of Curtis’s responsive separate statement shows
the district court did not abuse its discretion. Curtis failed to
admit or deny facts and provided only boilerplate objections,
such as “relevance” and “vague and ambiguous.” The district
court did not abuse its discretion in deeming these facts
admitted. Ammons, 368 F.3d at 818; Cracco, 559 F.3d at 632.
Most importantly, Curtis failed to provide citation to any
admissible evidence in support of his denials. Curtis argues
that his references to other paragraphs within his responsive
statement or his additional separate statement are sufficient to
meet the requirement that he cite to “specific references to the
affidavits, parts of the record, and other supporting materials
relied upon” to support his denials. N.D. Ill. R. 56.1(b)(3)(B).
We disagree with Curtis for two reasons. First, in this case,
Curtis’s additional separate statement is procedurally flawed:
it is replete with legal arguments, rather than presenting clear,
undisputed material facts supported by admissible evidence.
Reference to legal arguments to support a denial of a material
fact is not contemplated by the rule. Second, and perhaps more
importantly, if we were to accept Curtis’s reasoning, we would
undermine our established precedent that district courts are
6 No. 14-3354
not required to “wade through improper denials and legal
argument in search of a genuinely disputed fact.” Bordelon v.
Chicago Sch. Reform Bd., 233 F.3d 524, 529 (7th Cir. 2000).
The purpose of Rule 56.1 is to have the litigants present to
the district court a clear, concise list of material facts that are
central to the summary judgment determination. It is the
litigants’ duty to clearly identify material facts in dispute and
provide the admissible evidence that tends to prove or dis-
prove the proffered fact. A litigant who denies a material fact
is required to provide the admissible evidence that supports
his denial in a clear, concise, and obvious fashion, for quick
reference of the court. The district court did not abuse its
discretion in finding Curtis failed to comply with Rule 56.1
requirements.
We likewise reject Curtis’s contention that the district court
should have delineated a ruling on each material fact indicat-
ing each fact as undisputed or disputed in its order on the
motion. We cannot find any legal authority to support or
impose such a duty on the district court and we decline to
establish such a duty here.
B. FMLA Claims
Turning to Curtis’s substantive claims, we review the
district court’s granting of the motion for summary judgment
de novo and construe all facts and reasonable inferences in
Curtis’s favor. Cracco, 559 F.3d at 633 (citation omitted).
Summary judgment is proper when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a).
No. 14-3354 7
Curtis argues that Costco violated the FMLA when it
demoted him and prohibited him from returning to work upon
his request in retaliation for “engag[ing] in FMLA-protected
activity.” Curtis further argues that the “FMLA-protected
activity” was his comment to his subordinate, Jalowiec, that he
was contemplating a second medical leave.
A plaintiff alleging a retaliation claim under the FMLA may
proceed under the direct method of proof or the indirect
method of proof. Cracco, 559 F.3d at 633–34. See also, e.g.,
Scruggs v. Carrier Corp., 688 F.3d 821, 826 (7th Cir. 2012); Smith
v. Hope Sch., 560 F.3d 694, 702 (7th Cir. 2009). Curtis addresses
only the direct method of proof in his opening brief. Under
the direct method of proof, Curtis was required to show:
“(1) [Curtis] engaged in a protected activity; (2) [Costco] took
adverse employment action against him; and (3) there is a
causal connection between [Curtis’s] protected activity and
[Costco’s] adverse employment action.” Cracco, 559 F.3d at 633.
We must determine whether Curtis’s comment to Jalowiec
constitutes sufficient notice under the FMLA, and whether the
comment qualifies as protected activity. The FMLA requires
employees to give notice “at least 30 days in advance” when
the need for the leave is “foreseeable.” Aubuchon v. Knauf
Fiberglass GMBH, 359 F.3d 950, 951 (7th Cir. 2004) (citations
omitted); see also, 29 C.F.R. § 825.302(a). In the event 30-days’
notice cannot be given due to extenuating circumstances,
“notice must be given as soon as practicable.” 29 C.F.R.
§ 825.302(a). If an employee fails to give proper notice, an
employer may deny the leave. Aubuchon, 359 F.3d at 951
(citations omitted). The “burden” of giving proper notice is
8 No. 14-3354
on the employee. Stevenson v. Hyre Elec. Co., 505 F.3d 720, 724
(7th Cir. 2007) (citing Aubuchon, 359 F.3d at 951).
As we explained in Aubuchon, it is the employee’s duty to
place the employer on notice by giving the employer “enough
information to establish probable cause, as it were, to believe
that [the employee] is entitled to FMLA leave,” which then
shifts the burden to the employer to request additional
information as needed. Aubuchon, 359 F.3d at 953. We held in
Aubuchon that an employee who told his employer that he
wanted to stay home with his wife and newborn, without
providing any additional information regarding complications
with pregnancy, false labor, or any other serious health
conditions as possible reasons for the leave, did not give
proper notice for FMLA purposes. Id. at 952, 953. See also,
Stevenson, 505 F.3d at 725–26 (employee who repeatedly called
in sick without providing more information did not give
sufficient notice for FMLA purposes).
Curtis’s comment to Jalowiec does not constitute sufficient
notice to Costco under the FMLA. A comment made in passing
to a subordinate employee does not equate to providing
sufficient notice to Curtis’s superiors at Costco. Curtis’s
statement, (to a subordinate employee no less), that he was
contemplating taking a “medical leave” does not give Costco
management sufficient information regarding the leave, the
duration of the leave, the timing of the leave, and his health
condition justifying the leave, to place Costco on notice.
Id. at 953. Further, prior to May 2012, Curtis had taken
a FMLA leave and was presumably aware of Costco’s proce-
dure to do so when he made the comment to Jalowiec. When
No. 14-3354 9
Curtis gave sufficient notice on May 21, 2012, Costco gave him
the leave as properly requested.
Additionally, activity that might normally receive FMLA
protection is stripped of that protection when it is fraudulent.
See, e.g., 29 C.F.R. § 825.216(d) (“[a]n employee who fraudu-
lently obtains FMLA leave from an employer is not protected
by FMLA’s job restoration or maintenance of health benefits
provisions”); see also, e.g., Smith, 560 F.3d at 702 (employee’s
submission of “false paperwork” requesting FMLA leave
rendered request “invalid,” did not constitute “statutorily
protected activity,” and employee not fired for asserting FMLA
rights); Scruggs, 688 F.3d at 826 (where employer had “honest
suspicion” that employee submitted false paperwork and
misused FMLA leave, employer did not violate FMLA by
terminating employee); Jones v. C & D Technologies, Inc., 684
F.3d 673, 679 (7th Cir. 2012) (employee not entitled to FMLA
leave where employee misused such leave). Whether or not
Curtis’s comment can be construed as providing sufficient
notice for FMLA purposes, this particular comment fell outside
the scope of protected activity, given the undisputed fact that
Costco acted on information that Jalowiec voluntarily passed
along to management – namely, her concern that Curtis
intended to “scam” the company by taking a fraudulent
medical leave.
Second, Curtis’s retaliation claim also fails under the direct
method of proof because he cannot establish the “causal
connection” between his comment to Jalowiec and his demo-
tion. Cracco, 559 F.3d at 633. We have repeatedly held that
“temporal proximity” or suspicious timing alone is rarely
10 No. 14-3354
sufficient to overcome a motion for summary judgment. See,
e.g., Simpson v. Office of Chief Judge of Circuit Court of Will Co.,
559 F.3d 706, 713 (7th Cir. 2009) (citation omitted); Daugherty v.
Wabash Center, Inc., 577 F.3d 747, 752–53 (7th Cir. 2009).
Additionally, a track record of job performance issues prior to
the employee’s protected activity does not establish circum-
stantial evidence in support of a retaliation claim. See, Long v.
Teachers’ Ret. Sys. of Ill., 585 F.3d 344, 354 (7th Cir. 2009) (“a
decline in performance before the employee engages in
protected activity does not allow for an inference of retalia-
tion”). Summary judgment for the employer is proper where
the employer provides undisputed evidence that the adverse
employment action is based upon the employee’s poor job
performance. See, e.g., Daugherty, 577 F.3d 752–53 (employer
produced undisputed evidence that employee was fired for
misconduct, after numerous job performance problems, so
“no dispute” regarding employer’s motivation for firing
employee); Cracco, 559 F.3d at 633–34 (where employer found
several performance problems with employee, employee could
not establish causal connection under direct method “because
[employer’s] actions do not suggest [employer] was acting
under a prohibited animus”).
Additionally, in Simpson, we rejected the employee’s
contention that the employer used what would otherwise be
legitimate reasons for firing her as a pretext for the employer’s
true purpose to fire her for taking FMLA leave. Simpson, 559
F.3d at 715. There, the employee was fired primarily based on
a report prepared by the County Auditor that found the
employee had engaged in a fraudulent billing scheme. Id. at
709. We held the employee’s retaliation claim failed because no
No. 14-3354 11
evidence was presented establishing the causal connection
between her FMLA leave and her termination. Id. at 717. Other
than her own unsupported allegation, the employee failed to
present any evidence that the Chief Judge did not rely on the
findings of the investigation to fire her or that there was any
animus on the part of the Chief Judge or the agencies that
conducted the investigation. Id. at 715, 717–18.
Costco has submitted undisputed evidence that prior to
Curtis’s demotion, he faced a plethora of performance issues,
including customer complaints, violation of Costco’s dress
code, and failing to perform managerial duties. Curtis’s
responsive separate statement presented no admissible
evidence to dispute the material facts related to these perfor-
mance issues. Curtis has presented no evidence of animus on
the part of Hinds or the other members of Costco’s managerial
staff who were involved in his demotion.
More importantly, Curtis has failed to deny the material
facts propounded by Costco pertaining to Jalowiec’s complaint
to Costco management about Curtis’s statement to her and the
resulting demotion. As a result, these facts are undisputed.
Curtis argues Hinds is the one with the animus, but Hinds
did not act alone. Hinds issued the demotion only after she
consulted with other Costco managers, including Leslie
Ingram, Jonathan Shue of Human Resources, and Regional
Vice President Dan McMurray. Curtis failed to produce any
evidence that Hinds, or any other Costco manager, did not rely
on the information gained from Jalowiec in deciding to demote
him. Curtis was on a 90-day PIP at the time of his comment to
Jalowiec. Costco honestly believed Curtis violated its Manager
12 No. 14-3354
Standard of Ethics by contemplating a fraudulent medical
leave, and Curtis presented no evidence to dispute this
material fact.
Curtis’s reliance on Shaffer v. American Medical Ass’n, 662
F.3d 439 (7th Cir. 2011) is misplaced, because Shaffer is factually
distinguishable. In Shaffer, the evidence established the
employer needed to downsize. The plaintiff-employee’s
supervisor asked the plaintiff-employee to recommend
elimination of a position within the plaintiff-employee’s
department, and the plaintiff-employee provided the recom-
mendation to eliminate a position, which was accepted by the
supervisor. Id. at 441–42, 444. Three weeks later, the supervisor
changed course and eliminated the plaintiff-employee’s
position. Id. at 444. The only event that occurred during that
three-week period was plaintiff-employee’s request for medical
leave for knee replacement surgery. Id. There were no allega-
tions of poor performance or disciplinary issues in Shaffer. And,
in fact, the supervisor stated in an e-mail that the department
was “already preparing for [the plaintiff-employee’s] short-
term leave … so his departure should not have any immediate
negative impact.” Id. We reasoned that, based on the evidence
presented viewed in the light most favorable to the plaintiff-
employee, an issue of material fact did exist and a “reasonable
jury could conclude that [plaintiff-employee’s] exercise of his
right to take FMLA leave was a motivating factor in the
decision to eliminate his position.” Id.
Unlike in Shaffer, Costco presented undisputed evidence
that Curtis was experiencing performance issues prior to his
demotion. In addition, Curtis failed to present any evidence
No. 14-3354 13
disputing Costco’s basis for his demotion (Curtis’s unethical
conduct) that occurred while he was on a PIP. Thus, there is no
competing evidence to weigh or inferences to draw in Curtis’s
favor.
Curtis also claims Costco retaliated against him by prohibit-
ing him from returning to work when he was out on his second
FMLA leave. Specifically, Curtis’s second FMLA leave began
on May 21, 2012, and he requested a transfer to another store
location on June 6, 2012, which Costco denied. However, Curtis
was not cleared to return to work until January 2013. He was
placed in an optical position at another location when the
position became available in July 2013.
We entertained and rejected a similar “failure-to-reinstate”
claim in James v. Hyatt Regency Chicago, 707 F.3d 775 (7th Cir.
2013). There, the plaintiff based his FMLA interference and
retaliation claims on his employer’s failure to reinstate him
when he submitted a doctor’s note releasing him to “light
duty.” Id. at 781. In rejecting plaintiff’s claims and affirming
summary judgment for the defendant employer, we held the
employer’s refusal to reinstate the plaintiff did not constitute
a materially adverse employment action. Id. at 782. “Employers
are under no obligation to restore an employee to his or her
position if the employee is unable to perform the essential
functions of the job.” Id. at 781.
Under the FMLA, eligible employees are entitled to twelve
weeks of unpaid leave annually. 29 U.S.C. § 2612(a)(1). Given
the facts of this case, Curtis’s second FMLA leave began on
May 21, 2012, and was scheduled to end on August 13, 2012.
Two weeks and two days after Curtis’s second FMLA leave
14 No. 14-3354
was granted, he requested a transfer to the other Costco
location, despite not being cleared to work until January 2013.
Following our reasoning in James, we find Costco’s failure to
reinstate Curtis, at a time when Curtis was actively on FMLA
leave and not yet cleared to work, does not constitute an
adverse employment action and, therefore, cannot sustain a
FMLA retaliation claim.
Because there is no issue of material fact, the district court
properly granted summary judgment in favor of Costco and
Hinds on Curtis’s FMLA retaliation claim.
We likewise hold the district court properly granted
summary judgment in Costco’s and Hinds’s favor on Curtis’s
FMLA interference claim. To prevail on his FMLA interference
claim, Curtis must establish: “‘(1) he was eligible for the FMLA
protections; (2) his employer was covered by FMLA; (3) he was
entitled to take leave under FMLA; (4) he provided sufficient
notice of [his] intent to take leave; and (5) [his] employer
denied [him] FMLA benefits to which he was entitled.’” James,
707 F.3d at 780 (quoting Goelzer v. Sheboygan Cnty., Wis., 604
F.3d 987, 993 (7th Cir. 2010)). Curtis has failed to show Costco
denied him any FMLA benefits to which he was entitled. Curtis
applied for and was given two separate leaves under the
FMLA; Costco did not reject his requests when made or deny
him any FMLA benefits.
On appeal Curtis argues that his demotion in May 2012 and
Costco’s refusal to allow him to return to work in June 2012
“interfered with his exercise or attempt to exercise his FMLA
rights.” Curtis requested and was provided with two FMLA
leaves of absence. One such leave was provided just days after
No. 14-3354 15
Curtis’s demotion. Curtis has failed to produce any evidence
that his demotion interfered with his use of his FMLA rights.
Likewise, Curtis’s argument that Costco interfered with his
FMLA rights when it refused to allow him to return to work
when he was on a FMLA leave fails. As discussed more
thoroughly above, in James we rejected the plaintiff-employee’s
argument that his employer interfered in his FMLA rights by
“wrongfully prohibit[ing] [him] from returning to work prior
to the expiration of his FMLA leave.” James, 707 F.3d at 780–81.
An employer does have a duty to return an employee to an
equivalent position with equivalent terms of employment, but
only after the employee is able to return to work. Id. at 780.
“However, an employer has no duty under the FMLA to
return an employee to his or her position, if that employee
cannot perform an essential function of the job.” Id. at 780–81.
Curtis had not been cleared to return to work at the time he
requested the transfer. And, once the doctor’s note was
provided releasing Curtis to work, Costco reinstated him.
Because there is no issue of material fact, the district court
properly granted summary judgment in favor of Costco and
Hinds on Curtis’s FMLA interference claim.
C. ADA Claims
We now address Curtis’s ADA claims. There are two types
of discrimination claims that may be made under the ADA.
First is a disparate treatment claim, where the plaintiff alleges
the employer treated him or her differently because of the
plaintiff’s disability. Sieberns v. Wal-Mart Stores, Inc., 125 F.3d
1019, 1021–22 (7th Cir. 1997) (citation omitted). The second is
the employer’s failure to provide a reasonable accommodation.
16 No. 14-3354
A reasonable accommodation claim derives directly from the
ADA statute; a plaintiff attempting to prove such a claim must
make out a prima facie case by establishing the statutory
elements. Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281,
1283 (7th Cir. 1996).
Curtis waived any arguments with regard to disparate
treatment by failing to present any argument in the district
court or in his opening brief on appeal. See, e.g., LaBella
Winnetka, Inc. v. Village of Winnetka, 628 F.3d 937, 943 (7th
Cir. 2010); Garg v. Potter, 521 F.3d 731, 736 (7th Cir. 2008)
(citations omitted). In his opening brief, Curtis failed to present
any substantive arguments or discussion of his disparate
treatment claim. Further, in opposing the motion for summary
judgment, Curtis simply stated he satisfied his burden under
both the direct and indirect methods of proof, directing the
district court to his FMLA claim arguments, without develop-
ing any substantive argument and without any citation to
any law or facts. Any arguments regarding Curtis’s disparate
treatment claim were therefore waived.
A plaintiff claiming failure of reasonable accommodation
must show: “‘(1) he is a qualified individual with a disability;
(2) the employer was aware of his disability; and (3) the
employer failed to reasonably accommodate the disability.’”
James, 707 F.3d at 782 (quoting Kotwica v. Rose Packing Co., Inc.,
637 F.3d 744, 747–48 (7th Cir. 2011)). See also, 42 U.S.C. § 12112.
A qualified individual with a disability is someone who is
disabled under the ADA and who can perform the essential
functions of the job, with or without reasonable accommoda-
tion. Garg, 521 F.3d at 736 (citations omitted). “It is clear that
No. 14-3354 17
a worker who cannot do the job even with a reasonable
accommodation has no claim under the ADA.” Id. (citations
omitted); see also James, 707 F.3d at 782–83 (finding no failure to
accommodate where plaintiff-employee incapable of working
according to his doctor at time plaintiff-employee requested
reinstatement).
Curtis’s claim fails on the first element because he was not
a qualified individual with a disability. The heart of Curtis’s
claim is that Costco failed to reasonably accommodate him by
denying his request for a transfer to a different location, which
was made when he was out on FMLA medical leave. However,
the undisputed evidence shows Curtis was unable to work at
the time he requested a transfer. Curtis applied for and
received his second FMLA leave on May 21, 2012. Roughly two
weeks later on June 6, 2012, Curtis submitted his transfer
request. Not until January 2013 was Curtis cleared to return to
work. When the position became available thereafter, Curtis
was given the position. See, e.g., Gile v. United Airlines, Inc., 95
F.3d 492, 499 (7th Cir. 1996) (employer has duty to assign
employee to different position as reasonable accommodation,
but only to vacant positions).
Because there is no issue of material fact, the district court
properly granted summary judgment in favor of Costco and
Hinds on Curtis’s reasonable accommodation claim.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.