United States Court of Appeals
Fifth Circuit
F I L E D
Revised August 4, 2003
July 21, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-50097
ISAIAH RUSSELL JONES; ROBERT SPARKS, JR.;
HERMAN PARKS, JR.,
Plaintiffs-Appellants,
versus
ALCOA, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
Before GARWOOD, JONES and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiffs Isaiah Russell Jones (Jones), Robert Sparks Jr.
(Sparks), and Herman Parks Jr. (Parks) filed this lawsuit October
4, 2002, against defendant Alcoa, Inc. (Alcoa), a Pennsylvania
corporation, alleging that Alcoa discriminated against them on the
basis of race, in violation of 42 U.S.C. § 1981, by assigning them
to work in areas of Alcoa’s Milam County, Texas, plant where they
were exposed to dangerous amounts of asbestos dust. The district
court granted Alcoa’s Rule 12(b)(6) motion to dismiss, finding that
the plaintiffs’ claims were time barred. We agree with the
district court, and for the reasons set forth below, we affirm.
I. Background
The plaintiffs, all African-Americans and citizens of Texas,
began working at Alcoa’s Rockdale plant in Milam County, Texas,
between 1953 and 1970. According to the plaintiffs, beginning in
the early 1950s and continuing until 1970,1 Alcoa intentionally
discriminated against them and other African-American employees by
assigning them to work exclusively in the potlining department, the
rod room, and the carbon plant, areas of Alcoa’s Rockdale plant
where employees were regularly exposed to large quantities of
asbestos dust. In addition, the plaintiffs alleged that Alcoa
engaged in other racially discriminatory acts, including denying
them access to dining and restroom facilities reserved for white
employees, denying them transfers out of the three above-mentioned
departments of the plant, and refusing to promote them to higher-
paying or supervisory positions.
Recently, all three of the plaintiffs have begun to develop
lung disorders, disorders that they attribute to exposure to
asbestos dust while assigned to the rod room, carbon plant, and
potlining department at the Rockdale plant. The plaintiffs’ suit
was filed in state court in Milam County, Texas, to recover for
1
The plaintiffs concede that any complained of
discrimination had ended by 1970.
2
their injuries, and Alcoa removed the suit to the district court
below on the basis of diversity and federal question jurisdiction.2
Thereupon, Alcoa moved to dismiss the plaintiffs’ complaint under
Federal Rule of Civil Procedure 12(b)(6), arguing that the
plaintiffs’ section 1981 claim was barred by the two-year statute
of limitations provided under Texas law for personal injury
actions. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (Vernon 2002).
The district court, applying the discovery rule and concluding that
the plaintiffs’ cause of action did not arise until they became
aware of their lung disorders, initially disagreed and denied the
defendant’s motion. Upon reconsideration, however, the district
court found that the plaintiffs’ claim was governed by the Supreme
Court’s decision in Delaware State College v. Ricks, 101 S.Ct. 498
(1980), that the discovery rule, therefore, did not operate to toll
the statute of limitations, and that the plaintiffs’ section 1981
claim was, in fact, time-barred. The court granted the defendant’s
motion to dismiss and the plaintiffs now appeal.
II.
We review de novo a district court’s grant of a motion to
dismiss for failure to state a claim, see Copeland v. Wasserstein,
Perella & Co., Inc., 278 F.3d 472, 488 (5th Cir, 2002), taking the
2
Although the plaintiffs’ theory of recovery in their
original complaint was somewhat unclear, their amended complaints
reflect that the plaintiffs pursued recovery for racial
discrimination under 42 U.S.C. § 1981.
3
actual allegations of the complaint as true, and resolving “any
ambiguities or doubts regarding the sufficiency of the claim in
favor of the plaintiff.” Fernandez-Montes v. Allied Pilots Ass’n,
987 F.2d 278, 284 (1993). However, “conclusory allegations or
legal conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.” Id. See also Taylor v.
Books A Million, 296 F.3d 376, 378 (5th Cir. 2002).
As a threshold matter, we note that the discriminatory acts
complained of long antedate the 1991 amendments to section 1981.
It is therefore highly doubtful that the plaintiffs even present a
claim cognizable under the then extant version of section 1981.
The plaintiffs’ allegations appear to challenge discriminatory
terms and conditions of their employment with Alcoa. Under
Patterson v. McLean Credit Union, 109 S.Ct. 2363 (1989), however,
the pre-November 1991 version of section 1981 relevant to the
plaintiffs’ complaint “covers only conduct at the initial formation
of the contract and conduct which impairs the right to enforce
contract obligations through legal process,” not conduct that
occurs after contract formation and that affects only the benefits,
privileges, terms, and conditions of employment. See Felton v.
Polles, 315 F.3d 470, 483 (5th Cir. 2002). Although section 1981
has since been amended to “‘legislatively reverse[ ]’ Patterson,”
we have repeatedly held that that “amendment ‘is not to be given
retroactive effect.’” Id. at 484 (quoting Nat’l Ass’n of Gov’t
4
Employees, 40 F.3d 698, 713 (5th Cir. 1994)).3
The plaintiffs do allege in their complaint that their
assignment to the pot lining department, the carbon plant, and the
rod room was a term required in the formation of their contract
with Alcoa, and therefore actionable under section 1981. And, it
is true that this court, for purposes of a motion to dismiss, will
generally accept the “pleader’s description of what happened to him
along with any conclusions that can reasonably be drawn therefrom.”
5A CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357
(2d ed. 1990). The plaintiffs’ allegation, however, is devoid of
detail, let alone any factual basis to support the conclusion that
assignment to the three areas in question was, in fact, a term
implied in the plaintiffs’ initial employment contract and not a
subsequent term or condition of employment at the Rockdale plant.
Even for purposes of a motion to dismiss however we need not accept
such conclusory statements,4 particularly where they concern the
3
The well-settled rule in this circuit that the 1991
amendments to § 1981 are not to be given retroactive effect
forecloses the plaintiffs’ argument, advanced in their second
amended complaint and in their brief, that the pre-1991 version
of § 1981 prohibited not only discrimination in formation of
employment contracts, but also in the terms and conditions of
employment contracts, and that the 1991 amendments, rather than
overturning Patterson, merely clarified the original intent of §
1981. See Nat’l Ass’n of Gov’t Employees, 40 F.3d at 713.
4
See Tuchman v. DSC Communications Corp., 14 F.3d 1061,
1067 (5th Cir. 1994) (accepting as true, for the purposes of a
Rule 12(b)(6) dismissal, well-pleaded factual allegations, but
rejecting “conclusory allegations or unwarranted deductions of
fact.”); Associated Builders v. Alabama Power Co., 505 F.2d 97,
5
legal effect of an allegation5 or involve a question of law
normally reserved for the court, such as the interpretation of an
implied term in an employment contract.6 Moreover, the plaintiffs’
efforts, discussed below, to define their injury as the
discriminatory exposure to asbestos and the denial of promotions
out of certain departments tends to undermine the claim that the
challenged discrimination occurred only in connection with the
formation of their employment contracts as required by Patterson.
There is a substantial question, therefore, whether, even apart
from the limitations issue, the plaintiffs allege a claim
cognizable under section 1981.7 See, e.g., Felton, 315 F.3d at
100 (5th Cir. 1974) (same). See also, e.g., Guidry v. Bank of
LaPlace, 954 F.2d 278, 281 (5th Cir. 1992); Taylor at 378.
5
See 5A CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1357 (2d ed. 1990) (“[T]he court will not accept
conclusory allegations concerning the legal effect of the events
plaintiff has set out if these allegations do not reasonably
follow from his description of what happened, or if these
allegations are contradicted by the description itself.”).
6
See Mississippi Power Co. v. NLRB, 284 F.3d 605, 619 n.39
(5th Cir. 2002) (noting that whether a contract is ambiguous and
the interpretation of unambiguous contracts are questions of
law); Lee v. Hunt, 631 F.2d 1171, 1180 (5th Cir. 1980) (same
under Texas law).
7
We note also that any claim of either discriminatory
assignment or exposure is open to potentially serious challenge
on the merits. Summary judgment evidence submitted by Alcoa
indicates that white, as well as African-American workers at the
Rockdale plant were exposed to asbestos. In fact, Alcoa’s
summary judgment evidence indicates that of 600 white employees,
264 were also initially assigned to work in one of the three
areas in question, the rod room, carbon plant, or potlining
department; of 161 black employees, 80 were initially assigned to
6
484–485 (holding that a claim of racial harassment, based on
conduct occurring prior to the 21 November 1991 amendments, is not
actionable under section 1981). Nevertheless, because we hold that
the plaintiffs’ claim is time-barred, we need not resolve whether
Alcoa’s discriminatory assignment of the plaintiffs to the areas of
the plant in question was a term implicit in the formation of their
contracts and therefore actionable under section 1981, or whether
that discriminatory assignment and subsequent asbestos exposure was
merely a condition of employment not actionable under the pre-1991
version of section 1981.
III.
Assuming, arguendo, that the plaintiffs have alleged a claim
cognizable under section 1981, our review focuses on the district
court’s conclusion that the plaintiffs’ claim falls outside the
relevant limitations period.
Federal civil rights actions brought under 42 U.S.C. § 1981,
which lacks an express statute of limitations, are governed by the
most closely analogous limitations period provided under state law.
one of the same three areas. Alcoa’s evidence does not, of
course, establish the respective tenure, in these departments, of
white and black employees who were initially assigned to the
areas in question. It might well not, therefore, suffice to
rebut completely any charge of discriminatory exposure that might
be cognizable under the amended § 1981. Alcoa’s unrebutted
evidence does, however, at the least reveal potential serious
problems with any claim that African-American employees were
initially assigned in disproportionate numbers, as part of the
formation of their contracts, to the rod room, carbon plant, and
potlining departments.
7
Johnson v. Railway Express Agency, Inc., 95 S.Ct. 1716, 1721
(1975); White v. United Parcel Service, 692 F.2d 1, 2 (5th Cir.
1982). Thus, where a section 1981 claim is brought in Texas, the
two-year statute of limitations for personal injury actions in
Texas controls. See Byers v. Dallas Morning News, Inc., 209 F.3d
419, 424 (5th Cir. 2000); Price v. Digital Equip. Corp., 846 F.2d
1026, 1028 (5th Cir. 1988).
The parties agree that a section 1981 claim must be brought
not later than two years after the cause of action accrues. Their
dispute, rather, concerns the date on which the plaintiffs’ claim
against Alcoa accrued. The determination of that date is, in turn,
a question of federal law. See Perez v. Laredo Junior College, 706
F.2d 731, 733 (5th Cir. 1983) (“Although state law governs the
substantive limitation period, federal law determines when a civil
rights action accrues and, therefore, when the statute of
limitations begins to run.”). Thus, we have held that “[t]he
limitations period for [section] 1981 . . . employment
discrimination cases commences when the plaintiff knows or
reasonably should know that the [challenged] discriminatory act has
occurred.” McWilliams v. Escambia County Sch. Bd., 658 F.2d 326,
330 (5th Cir. 1981).
Determining the crucial issue of when the plaintiffs knew, or
reasonably should have known that Alcoa was engaged in
impermissible racial discrimination so as to give rise to a cause
8
of action under section 1981, requires this court first to
“identify precisely” the exact “unlawful employment practice of
which [the plaintiffs] complain[ ].” See Delaware State College,
101 S.Ct. 498, 503 (1980); Perez, 706 F.2d at 733. Two competing
definitions of the relevant discriminatory act, or unlawful
employment practice, have been suggested by the parties: (1) the
discriminatory denial of promotions and assignment of African-
American workers to three specific areas of Alcoa’s Rockdale Plant;
and (2) the discriminatory exposure of African-American workers to
asbestos dust. The plaintiffs advance the latter definition,
maintaining that because Alcoa’s discriminatory act was the
exposure of its African-American employees to asbestos, they could
not have been aware of Alcoa’s discrimination until they began to
experience the harmful physical effects of asbestos exposure, and
that the statute of limitations was accordingly tolled.
We cannot, however, accept the plaintiffs’ definition of the
relevant discriminatory act, for the reason that the plaintiffs’
definition, the latter and narrower of the two above-proposed
definitions, is necessarily embraced by the former. Any
discriminatory exposure of the plaintiffs to asbestos necessarily
followed from any prior discriminatory assignment of African-
American workers to the rod room, carbon plant, and potlining
departments. There is little question that the greater physical
harm to the plaintiffs arising from such discriminatory assignment
9
was the resulting exposure to asbestos dust and to the risk of
asbestos-related disease, nor is there any question that had the
plaintiffs simply pursued a claim for personal injury, they could
probably not be charged with knowledge of that actual exposure
until they discovered its consequences upon falling ill. See,
e.g., Urie v. Thompson, 69 S.Ct. 1018 (1949) (holding that an
employee exposed to a toxic substance is injured for purposes of
the personal injury statute of limitations when the effects of the
exposure manifest themselves). It remains, however, that the
injury of asbestos exposure was occasioned only by a prior injury
also cognizable under section 1981, namely, Alcoa’s racially
discriminatory assignment of its African-American workers to the
three departments in question. The plaintiffs’ claim, therefore,
clearly implicates the rule of Delaware State College v. Ricks, 101
S.Ct. 498, 504 (1980) (holding that the limitations period for
employment discrimination claims begins to run from the date of the
unfavorable employment decision). The proper focus of the
limitations inquiry, therefore, must be on the time of that prior
discriminatory act, and “not upon the time at which the
consequences of [that act] became most painful.” Delaware State
College, 101 S.Ct. at 504.8
8
We further observe that the focus on the racially
discriminatory act is appropriate because this is a suit for
racial discrimination under § 1981, not an ordinary personal
injury suit. We further note in this connection that plaintiffs
dropped their gross negligence claim after Alcoa’s first motion
10
Having identified the relevant discriminatory act, it remains
for us to determine the point at which the plaintiffs can be
charged with knowledge of that act. “[A]n employee’s claim accrues
at the moment the employee believes (or has reason to believe) that
he is the victim of discrimination.” Ramirez v. City of San
Antonio, 312 F.3d 178, 182 (5th Cir. 2002); see also Blumberg v.
HCA Mgmt. Co., Inc., 848 F.2d 642, 645 (5th Cir. 1988) (“The
[period of prescription] begins when facts that would support a
cause of action are or should be apparent.”).
Plaintiffs’ amended complaint never alleges or even remotely
suggests that plaintiffs were not during their Alcoa employment
to dismiss which asserted that such claim would be barred by the
exclusive remedy provisions of the Texas Workers’ Compensation
Act, it being undisputed that plaintiffs were Alcoa employees
complaining of injuries sustained in the course and scope of
their employment, and that Alcoa was a subscriber under the Texas
Workers Compensation Act. Hence had this been a personal injury
suit it would be precluded by the exclusive remedy provision of
the Texas Workers Compensation Act. Tex. Lab. Code § 408.001.
See, e.g., Hoffman v. Trinity Industries, 979 S.W.2d 88, 89 (Tex.
App. Beaumont 1998, pet. dism’d by agr.).
Those similarly situated to plaintiffs would not, however,
be without a remedy, for Workers Compensation benefits would be
available provided they filed a claim within one year from when
they knew or should have known that the occupational disease was
related to their employment. See Tex. Lab. Code § 409.003:
“An employee or a person acting on the employee’s
behalf shall file with the commission a claim for
compensation for an injury not later than one year
after the date on which:
(1) the injury occurred; or
(2) if the injury is an occupational disease,
the employee knew or should have known that
the disease was related to the employee’s
employment.”
11
(and long before 1980) fully aware both of the discrimination being
practiced against them and of its obvious effects (apart from
asbestos). A statute of limitations may support dismissal under
Rule 12(b)(6) where it is evident from the plaintiff’s pleadings
that the action is barred and the pleadings fail to raise some
basis for tolling or the like. See Taylor, 296 F.3d at 378-79; see
also Kansa Reinsurance v. Congressional Mortg. Corp., 20 F.3d 1362,
1366-70 (5th Cir. 1994) (dismissing, under Rule 12(b)(6), a claim
as time barred where the claim was clearly filed after the
applicable statute of limitations had run and where it was evident
from the pleadings that the plaintiff was not entitled to the
benefit of the discovery rule); Cross v. Lucius, 713 F.2d 153, 156
(5th Cir. 1983); see also 5A CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1357 (2d ed. 1990). Indeed it is apparent
from the amended complaint that the plaintiffs then did have such
awareness.9 That is also consistent with the position taken by
9
See, e.g., the following portions of the amended complaint:
“9. The named Plaintiffs are of the African-American,
or Negro race and were employed and worked primarily in
only three departments: the pot lining department, the
carbon plant, and the rod room at Alcoa’s facility in
Rockdale, Texas.
10. All of the employees in these departments from the
1950s, when the plant opened, until the early 1970s
were of the Negro race except the supervisors or the
second classmen, i.e. crane operators, etc.
11. As Negro employees, they were not allowed to use
restroom and dining facilities utilized by the white
employees, nor were they allowed advancement to other
higher paying jobs in the other departments, rather,
they were required to continue to work in the pot
12
plaintiffs in the district court.10
Plaintiffs could certainly have pursued a section 1981 claim
decades earlier. Nor would Patterson have necessarily barred such
a claim. It is the plaintiffs, after all, who characterize their
assignment to the carbon plant and potlining department as conduct
that occurred in the formation of their contracts. Because we
conclude that the relevant unlawful employment practice must be
defined as the plaintiffs’ discriminatory assignment to, and denial
lining, the carbon plant and the rod room departments.
Alcoa utilized this employment practice in its other
similar facilities throughout the southern portion of
the United States.
. . .
16. Throughout this period of time, with the exception
noted above, Alcoa employed only employees of the Negro
race in these departments.”
10
In an affidavit attached to the plaintiffs’ response to
Alcoa’s motion for summary judgment, a former employee at the
Rockdale plant stated that
“the Negro employees, were required to use separate
restroom facilities as well as lunch room facilities.
This separate use of facilities did not change until
the early 1970s. Also black employees, even though
qualified and with seniority, were not allowed to
advance to supervisory or ‘white’ jobs in these
departments, nor were we allowed to advance to certain
jobs above the ‘red line’ which was a color line nor to
jobs out of these departments.”
Similarly, the testimony of Jones and Parks on deposition
reflects that there were positions at the plant that African-
Americans were not permitted to hold and that if they applied for
could expect to be fired, that any promotions for African-
Americans in the potlining and carbon areas were understood to be
temporary until the position could be filled by a white, that
African-American employees could not eat in the plant cafeteria
and that the plant had separate restrooms and showers for black
and white employees. Some of this testimony was cited in one of
plaintiffs’ briefs below.
13
of promotions from, the rod room, carbon plant, and potlining
departments, and because the plaintiffs were admittedly aware of
that practice long ago, we must also conclude that, under Delaware
State College v. Ricks, the plaintiffs’ section 1981 action against
Alcoa is barred by the two-year statute of limitations.
We are not unmindful, however, of the possibility that the
plaintiffs, though armed with the knowledge of Alcoa’s racially
discriminatory conduct, might have nevertheless concluded that they
did not possess a viable claim under section 1981 against a private
employer. That fact, however, cannot excuse delaying suit until
the year 2000. There were indications as early as 1968, when the
Supreme Court decided Jones v. Alfred H. Mayer Co., 88 S.Ct. 2186
(1968), recognizing a cause of action under section 1982 against
private property owners, that section 1981 would supply a remedy
against private employers for racial discrimination in contracting.
Indeed, soon after Jones v. Alfred H. Mayer Co., a number of
circuits began to apply section 1981 as a remedy for private
discrimination. See Johnson v. Railway Express Agency, 95 S.Ct.
1716, 1720 n.6 (1975) (listing five circuits that had recognized,
beginning in 1971, that section 1981 affords a remedy against
discrimination in private employment on the basis of race). And
certainly since 1975, following the Court’s decision in Johnson v.
Railway Express Agency, the plaintiffs can be said to have known
that a claim against their employer for racial discrimination might
14
lie under section 1981.11
We are also aware that statutes of limitations, by
“compel[ling] courts to determine that the defendant’s right to be
free of stale claims prevails over the plaintiff’s desire to
prosecute those claims,” may sometimes bar otherwise meritorious
actions, leaving certain conduct unpunished. See Albertson v. T.J.
Stevenson & Co., 749 F.2d 223, 232 (5th Cir. 1984). Such
limitations periods, however, reflect the valuable policy of
requiring “the prompt vindication of known rights to ensure that
the defendant is not prejudiced as a result of lost evidence,
fading memories, and disappearing witnesses.” Id. Moreover,
holding a plaintiff responsible for a failure to take timely action
to remedy known discrimination is consistent with our application
of statutes of limitations in other areas. Thus in Alberston v.
T.J. Stevenson & Co., we found, under the Jones Act, that even
where a plaintiff later discovers that an act of the defendant
caused a more serious injury than the plaintiff first realized, the
statute of limitations nevertheless will be found to have commenced
running from the first point at which the plaintiff realized that
he suffered harm, albeit minor, at the defendant’s hands. Id. at
11
We note also that there were indications, as early as
1982, that a cause of action could lie in this circuit under §
1981 for discrimination in the assignment of employees to
different tasks in the workplace. See Williams v. New Orleans
Steamship Ass’n, 673 F.2d 742, 746, 752–55 (5th Cir. 1982)
(examining a claim of discriminatory assignment of longshoremen
to deck and wharf jobs brought under Title VII and section 1981).
15
229 (“If some injury is discernable when the tortious act occurs,
the time of event rule respecting statutes of limitations applies,
and the plaintiff’s cause of action is deemed to have accrued”)
(emphasis added).
Finally, we are unpersuaded by the plaintiffs’ attempt to find
refuge in the palliative language of a footnote of the Court’s
opinion in Delaware State College v. Ricks. In an attempt to avoid
the sometime obdurate rule of Delaware State College v. Ricks, the
plaintiffs point to the penultimate footnote of Justice Powell’s
opinion for the Court, in which he noted that “limitations periods
should not commence to run so soon that it becomes difficult for a
layman to invoke the protection of the civil rights statutes.”
Delaware State College, 101 S.Ct. at 506 n.16. We of course accept
Justice Powell’s caveat as a general proposition. What plaintiffs
do not point out, however, is that in that same footnote, Justice
Powell nevertheless held Ricks’s claim to be barred since “there
[could] be no claim . . . that Ricks was not abundantly forewarned”
of the impending employment decision that ultimately formed the
basis of his suit. Like Ricks, there is no allegation or
indication that the plaintiffs here were not aware of the claimed
racial discrimination decades before they brought suit. Nor do we
see any danger that our application of the statute of limitations
in this case risks undermining the protections of the civil rights
statutes. The doctrines of equitable tolling and equitable
16
estoppel remain available to those plaintiffs who, through no fault
of their own, might otherwise be barred from bringing a claim by
operation of a statute of limitations. See Ramirez v. City of San
Antonio, 312 F.3d 178, 183 (5th Cir. 2002) (“We have found that
equitable tolling may be appropriate when ‘the plaintiff is
actively misled by the defendant about the cause of action or is
prevented in some extraordinary way from asserting his rights.’”);
Tyler v. Union Oil Co. of California, 304 F.3d 379, 391 (5th Cir.
2002) (“The doctrine of equitable estoppel ‘may properly be invoked
when the employee’s untimeliness in filing his charge results from
either the employer’s deliberate design to delay the filing or
actions that the employer should unmistakably have understood would
result in the employee’s delay.’”).12 The plaintiffs were certainly
aware, decades before they brought suit, that they had been the
victims of racial discrimination and they have never alleged
otherwise. We discern nothing in the record suggesting that they
are entitled to any type of equitable tolling.
IV.
Because we find, under the rule of Delaware State College v.
Ricks, that the plaintiffs’ claim is barred by Texas’s two-year
12
Finally, we would observe that our decision would not
leave similarly situated plaintiffs without a remedy for
asbestos-related diseases incurred in the workplace. Workers
compensation benefits would remain available. See last paragraph
of note 8 supra.
17
statute of limitations, we AFFIRM the judgment of the district
court dismissing the plaintiffs’ action for failure to state a
claim.
AFFIRMED.
18