United States District Court, N.D. Illinois
March 15, 2004.
CHARLES E. ANDERSON, Trustee on behalf of BOARD OF TRUSTEES OF THE PAINTERS' DISTRICT COUNCIL NO. 30 HEALTH AND WELFARE FUND, Plaintiff
DONNA M. DePHILLIPS Defendant
The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
Before the court is defendant's motion for summary judgment. For the
reasons set forth below, the motion is denied.
Plaintiff Charles Anderson is a Trustee of the Painters' District
Council No. 30 Health and Welfare Fund ("the Fund"). The Fund is a trust
that pays out medical, disability, and, death benefits to member
employees (and their covered dependents and beneficiaries) in accordance
with the Painters' District Council No. 30 Health and Welfare Plan. The
Fund is a multi-employer benefits plan subject to the Employee Retirement
Income Security Act of 1974, 29 U.S.C. § 1001, et
seq. ("ERISA" or "the Act"). Defendant DePhillips is a former
employee of the Fund. This action, brought by Anderson in his capacity as
Trustee, alleges that DePhillips breached her fiduciary duties under
seeks to recover financial losses to the Fund allegedly
caused by the breach.
The following facts are drawn from the parties' Local Rule 56.1
Statements and are undisputed unless otherwise noted. In November 1993,
the Fund's Board of Trustees ("the Board") hired DePhillips to supervise
the Fund's office staff and to handle various administrative matters
relating to the Fund. She reported directly and solely to the Board, an
eight-member panel which met quarterly to discuss Fund business.
DePhillips was never given a written job description. She testified at
her deposition that, when hired, she understood that her responsibilities
generally would be "managing the office, overseeing one claims adjuster,
one clerical person and a bookkeeper, answering to the trustees regarding
any business that came up." (Def's Exhibits to 56.1 Statement, Ex.
D (DePhillips Dep., p. 11).) Anderson also testified to DePhillips's
She was hired as the Fund Administrator to
interpret the plan of benefits, to enter into
contractual obligations with vendors, to deal
with our professionals and our consultants, our
actuaries, our auditors, legal counsel [.] She
was in charge of the office. She was in charge
of any special projects that came to light
through changes in Health and Welfare and/or
Pension. She had the ability to hire and fire
and to fully administer the Funds.
(Pl.'s. 56. 1 Statement, ¶ 15, Ex. M (Anderson
Dep., pp. 13-14).) DePhillips denies the last sentence of the quoted
"[s]he had the ability to hire and fire and to fully
administer the Funds." She also denies that she was hired as the "Fund
Administrator," and claims instead that she was the Fund's
"Administrative Manager." DePhillips does not contest the remainder of
In addition to the parties' deposition testimony, DePhillips proffers a
two-plus page interrogatory answer which lists her general job functions
in the following areas: office management, Fund maintenance, claims
adjuster supervision, employer audits, preparation of reports for
employer delinquency meetings and Board meetings, bookkeeping, and
dealing with consultants and vendors.
With these summaries as background, we focus on several areas of
DePhillips's responsibilities that are particularly relevant to our
analysis below. First, DePhillips had significant authority over "claims
handling, adjudication, monitoring, recordkeeping, payment and
reimbursement." (Pl.'s 56.1 Statement, ¶ 20.) With respect
to claims processing, although DePhillips had initial authority to grant
or deny claims, appeals were decided by the Board.
Second, DePhillips trained and oversaw the Fund claims adjusters. She
trained them on "not just how to use the system but how to adjust claims,
how to look at the plan and apply those what the plan rules [sic]
or how to apply it to a claim." (Pl.'s 56.1 Statement, ¶
28, Ex. D (DePhillips Dep., pp. 84-85).)
DePhillips would decide when adjusters were competent to
process claims without her help, and she would assist in processing
claims when there was a backlog.
Finally, and at the heart of this dispute, DePhillips was responsible
for monitoring and maintaining various Fund contracts. One such contract
was the Group Medical Specific Excess Risk Agreement which the Fund
maintained with Bankers Life and Casualty Company ("the Stop-Loss Policy"
or "the Policy"). By the Policy's terms, Bankers Life agreed, inter alia,
to reimburse the Fund for certain medical expenses in excess of $150,000
incurred by a Fund participant in one calendar year ("the Stop-Loss
threshold") and paid by the Fund by the end of the next calendar year
("the Agreement Period"). Under the Policy, the Fund was required to
provide notice to Bankers Life of any Stop-Loss claims within ninety days
of the end of the Agreement Period.
In 1996, three Fund participants incurred covered medical expenses
exceeding $150,000 which were paid by the Fund on or before December 31,
1997: $213,107.84 for James Flynn, $34,063.23 for Maria DeJesus, and
$146,418.23 for Christine Angelos. In 1997, two Fund participants
incurred covered medical expenses, again exceeding $150,000, and paid by
the Fund on or before December 31, 1998: $112, 234.42 for Jeffrey
Holzkampf, and $232,846.61 for Delton Robbins.
The Fund never submitted Stop-Loss claims to Bankers Life
for any of these individuals. The parties agree that the
unsubmitted claims totaled $732, 293.70.*fn1 It is undisputed that
DePhillips was responsible for submitting the Stop-Loss claims, but, in
an interrogatory response, she maintains that she was never given the
requisite information from the claims adjusters to do so:
[I]t was the responsibility of the claims
adjusters employed by the Fund to notify
DePhillips once a Stop-Loss threshold was
reached by an individual member. As claims were
paid, the claims adjusters were able to review
the aggregate amount of money paid out towards
the patient's life-time maximum on the computer
screen. Once the Stop-Loss limit was reached,
paper copies of that individual's claims should
have been pulled from the "claims batches", a
copy of that patient's Explanation of Benefits
letter for each claim should have been printed,
and all of those documents should have been
photocopied for submission to Banker's Life,
along with a Banker's Life claims form. Copies
of all photocopied information and the completed
claim form should have been provided by the
claims adjusters to DePhillips for follow-up.
(Def's. 56.1 Statement, ¶ 10, Ex. C (DePhillips
Interrogatory Answer No. 11).)
DePhillips testified at her deposition that she could not recall any
procedures used by the adjusters to monitor for potential Stop-Loss
claims. She further testified that she did not
remember ever having any conversations with any adjusters
regarding the Stop-Loss Policy.
Lastly with respect to the Policy, Anderson presents the minutes of a
June 12, 1996 Board meeting, taken by DePhillips herself, which reflect
that she was explicitly told by the Fund's attorney to notify Bankers
Life, in anticipation of a potential Stop-Loss claim, that a Fund
member's wife had recently given birth to quadruplets.
DePhillips was terminated by the Board in October 1999. Anderson's
testified that she was fired because of "problems with the members,
problems with the employees, timeliness of projects, not being
completed," and "[t]he inability for her to provide information to the
Trustees." See Def's 56.1 Statement, Ex. M (Anderson Dep., p.
23).) The record gives no indication that her termination was related to
events giving rise to this suit.
In Spring 2000, Milan Diklich, DePhillips's successor, discovered that
the Fund had failed to submit to Bankers Life the five Stop-Loss claims
that had accrued in 1997 and 1998. Diklich submitted the claims, but they
were denied for failure to provide timely notice as required under the
On October 28, 2002, Anderson, in his capacity as Trustee of the Fund,
filed this one-count complaint against DePhillips alleging that she
breached her fiduciary duty under ERISA by "fail[ing] to monitor the
amounts of medical claims of Fund
members, fail[ing] to keep adequate records to identify
payments exceeding the Stop-Loss threshold, and fail[ing] to file any
available stop-loss claims with Bankers Life. . . ."
(Compl., pp. 4-5.) DePhillips has moved for summary judgment.
Summary judgment will be entered "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c). In considering a summary judgment
motion, the court construes the evidence and all inferences that
reasonably can be drawn therefrom in the light most favorable to the
non-moving party. See Pitasi v. Gartner Group, Inc.,
184 F.3d 709, 714 (7th Cir. 1999).
The moving party has the burden of demonstrating the absence of genuine
issues of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party
meets this burden, the non-moving party must set forth specific facts
that demonstrate the existence of a genuine issue for trial.
Id. at 324. The non-movant may not rest on pleadings alone, but
must "come forward with evidence that would reasonably permit the finder
of fact to find in [the non-movant's] favor on a material question."
McGrath v. Gillis, 44 F.3d 567, 569 (7th Cir. 1995). In sum,
the court must determine "whether the evidence
presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail as a
matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Anderson's complaint raises a single legal theory, breach of fiduciary
duty under ERISA.*fn2 The Act imposes a prudent person standard of care
upon any person or entity acting as a fiduciary of an ERISA benefit plan.
See 29 U.S.C. § 1104 (a)(1)(B). A ERISA breach of
fiduciary duty claim, like its common-law counterpart, has two liability
components: a duty and a breach. And DePhillips, by her motion, contends
that there is no triable issue on either one. She argues, first, that she
is not an ERISA fiduciary and therefore not subject to its fiduciary
duties, and second, even if she were, she did not breach any of those
duties. We address these arguments in turn.
A. ERISA Fiduciary
DePhillips is right that an ERISA breach of fiduciary duty claim will
lie against her only if she qualifies as an ERISA "fiduciary." Our
starting point is the statute. Section 3(21) (A) of ERISA provides:
[A] person is a fiduciary with respect to a plan
to the extent (i) he exercises any discretionary
authority or discretionary control respecting
management of such plan or exercises any
authority or control respecting management or
disposition of its assets, (ii) he renders
investment advice for a fee or other
compensation, direct or indirect, with respect
to any moneys or other property of such plan, or
has any authority or responsibility to do so, or
(iii) he has any discretionary authority or
discretionary responsibility in the
administration of such plan.
29 U.S.C. § 1002(21)(A). A Department of Labor ("DOL") guideline
amplifies ERISA's definition:
A person who performs purely ministerial
functions . . . for an employee benefits plan
within a framework of policies, interpretations,
rules, practices and procedures made by other
persons is not a fiduciary. . . .
29 C.F.R. § 2509.75-8 D-2. Thus, "to be a fiduciary, the individual
or entity involved must exercise a degree of discretion over the
management of the plan or its assets, or over the administration of the
plan itself." Schmidt v. Sheet Metal Workers' Nat'l Pension
Fund, 128 F.3d 541, 547 (7th Cir. 1997); see also Pohl v. Nat'l
Benefits Consultants, Inc., 956 F.2d 126
(7th Cir. 1992) ("ERISA makes the existence of discretion
a sine qua non of fiduciary duty.") (citing 29 U.S.C. § 1002(21)(A)).
The Seventh Circuit has also made clear, consistent with the Act's
remedial purpose, that the term "fiduciary" is accorded a liberal
interpretation. See, e.g., Chicago Bd. Options Exch., Inc. y.
Connecticut Gen. Life Ins. Co., 713 F.2d 254
, 260 (7th Cir. 1983)
("It is clear that Congress intended the definition of fiduciary under
ERISA to be broad.").
Finally, and important here, section 3(21)(A)'s qualifying language "to
the extent" means that a person may be a fiduciary for some purposes and
not others. See 29 U.S.C. § 1002(21)(A); Plumb v.
Fluid Pump Service. Inc., 124 F.3d 849, 854 (7th Cir. 1997);
see also Am. Fed'n of Unions Local 102 v. Equitable Life Assurance
Soc'y of the United States, 841 F.2d 658, 662 (5th Cir. 1988) ("A
person is a fiduciary only with respect to those portions of a plan over
which he exercises discretionary authority or control."). In other words,
whether an individual or entity is an ERISA fiduciary is not an "all or
Therefore, in assessing whether an individual is liable for breach of
fiduciary duty, "a court must ask whether [that] person is a fiduciary
with respect to the particular activity at issue." Plumb, 124
F.3d at 854 (quoting Coleman v. Nationwide Life Ins.Co.,
969 F.2d 54, 61 (4th Cir. 1992)). Here, because the complaint's allegations
are limited to DePhillips's conduct in
relation to the Stop-Loss Policy/ the dispositive
question is whether DePhillips exercised sufficient discretionary
authority with respect to that Policy to qualify as a fiduciary.*fn3
With these principles in mind, we proceed to the merits of DePhillips's
motion. Parroting the DOL regulation, she contends that she "merely
performed ministerial services, within the framework of policies,
interpretations, rules, practices and procedures made by the Fund's Board
of Trustees, without exercising any discretionary control. . . ."
(Def.'s Mot., p. 12.) Her lack of discretionary authority is
conclusively established, she argues, by two plan documents. The
first is the governing plan agreement, titled "Restatement Agreement and
Declaration of Trust of the Painters' District Council No. 30 Health and
Welfare Fund ("the Agreement"), which provides in relevant part:
Section 7. The Trustees are empowered
to allocate fiduciary responsibilities among the
Trustees and to designate persons other than
Trustees to carry out fiduciary responsibilities
as provided in this Restated Agreement. The
power to allocate fiduciary responsibility shall
not apply to the application of the
responsibility to manage the assets of the Plan
other than the power to appoint an investment
manager or managers.
The Trustees shall have exclusive authority
to manage and control the assets of
the Trust except to the extent that such
authority to manage, acquire, or dispose of the
assets of the Plan is designated to one or more
investment managers in accordance with the
The Trustees are hereby empowered to appoint an
investment manager or managers to manage,
acquire or dispose of any assets of the Fund. An
"investment manager" is any fiduciary who has
been designated by the Trustees to manage,
acquire or dispose of any assets of the Fund,
who is registered as an investment adviser under
the Investment Advisors Act of 1940, is a bank
as defined in the Act, or is an insurance
company qualified to perform services under the
laws of more than one state, and who has
acknowledged in writing that it is a fiduciary
with respect to the Fund.
(See Def's. 56. 1 Statement, Ex.E ("the Agreement").)
DePhillips interprets this section as unequivocally stating that
only the Trustees and an appointed investment manager can be
fiduciaries of the Fund. The provision is not as simple as DePhillips
suggests. It is clear on a few things: that the Trustees are fiduciaries;
that the Trustees may delegate fiduciary responsibilities to others; and
that with respect to asset management, the Trustees may only
delegate fiduciary responsibility to a defined "investment manager."
The provision is less clear on other matters.
Specifically, does the first sentence's qualifying language "as
provided in this Restated Agreement" refer to "[t]he Trustees are
empowered to allocate fiduciary responsibilities" or does it modify
"fiduciary responsibilities"? If it is the former, then
as DePhillips urges, the provision would appear to limit delegations of
fiduciary responsibility to asset management, and then, only to
investment managers. If it is the latter, then the provision seems only
to circumscribe the limits of fiduciary grants as far asset management is
concerned, leaving grants in other areas, e.g., plan administration,
within the Trustees' discretion. See 29 U.S.C. § 1002 (21)
(A)(i) and (iii) (Fiduciary status will attach if an individual has "any
discretionary authority or discretionary control respecting
management of such plan" or "any discretionary authority or
discretionary responsibility in the administration of such plan.")
In the end, we need not resolve the ambiguity, at least within the four
corners of the Agreement. While plan documents are a good starting point
in evaluating an individual's fiduciary status, they are not, as
DePhillips would have it, the final word on the matter. We must also look
at the evidence of her actual conduct to determine whether, on the one
hand, she had discretionary authority in her responsibilities or, on the
other, simply performed ministerial functions within a framework of
procedures established by the Board. So even if the Agreement could be
interpreted to prohibit the delegation of fiduciary responsibilities to
anyone other than Trustees and "investment managers," if DePhillips
nonetheless did perform functions in
relation to the Stop-Loss Policy that were discretionary
within the meaning of section 3(21) (A), then she is a fiduciary.
See, e.g., Associates in Adolescent Psychiatry v. Home Life, Ins.
Co., 941 F.2d 561, 568 (7th Cir. 1991) (A "fiduciary" need not be
expressly named as such in the plan documents, but need only fall within
ERISA's definition of the term,); Harold Ives Trucking Co. v.
Spradley & Coker, Inc., 178 F.3d 523, 526 (8th Cir. 1999) (Plan
documents are controlling only to the extent that they are consistent
with the actual allocation of duties.).
DePhillips also refers us to a 2000 plan description, titled Painters'
District Council No. 30 Health and Welfare Plan Summary Plan Description,
2000 Edition ("the SPD"), which provides:
[A] Board of Trustees is responsible for the
operation of this Plan. Although the Trustees are
legally designated as the Plan Administrator, they
have delegated certain administrative
responsibilities to an Administrative Manager. The
Administrative Manager is responsible for
maintaining eligibility records, accounts for
employer contributions, answering participant
inquiries, processing claims and benefit payments
and handling other routine administrative
(Def's. 56. 1 Statement. ¶ 14, Ex. F (the
"SPD").) (emphasis added.) DePhillips reads the SPD as stating that the
Administrative Manager is responsible only for routine
administrative functions. She acknowledges that the SPD was drafted after
she was terminated, but nonetheless argues that
because she had the same job responsibilities as the
Fund's Administrative Manager in 2000, Milan Diklich, the SPD language
applies equally to her. Again, and wholly apart from the relevancy
problem posed by its date, the SPD can help DePhillips only if she can
show that she in fact handled only "routine administrative
It is clear, contrary to DePhillips's apparent understanding, that plan
documents, while of course relevant to her fiduciary status, cannot alone
establish that she was not a fiduciary.*fn5 The bigger problem for
DePhillips, however, is that when we look behind the plan documents to
the record on her actual
job functions, she offers little evidence to support her
contention that her role was "merely ministerial," particularly with
respect to the Stop-Loss Policy. First, she points to her interrogatory
answer which lists her general job functions, and maintains that from
that list "it is clear" that she was not a fiduciary. The list may be
helpful in determining which duties DePhillips was charged with
generally, but it does not reveal the extent of her discretion in
carrying out those duties. What is more, the list does not even
mention the Stop-Loss Policy.
Next, DePhillips maintains, and it not contested, that the Board, not
she, decided whether to grant or deny claims appeals. The mere fact,
however, that the Board had final say on appeals does nothing to
foreclose DePhillips's potential fiduciary authority over the Stop-Loss
Policy, or even claim processing for that matter. See Am. Fed'n of
Unions Local 102, 841 F.2d at 663 ("[Appellant's] fiduciary status
was not diminished by the trustees' final authority to grant or deny
claims and approve investments. The term fiduciary includes those to whom
some discretionary authority has been delegated.") (citing
H.R.Conf. Rep. No. 1280, 93rd Cong., 2d Sess., reprinted in
1974 U.S.C.C.A.N. 5038, 5103).
DePhillips has thus presented in support of her motion a smattering of
evidence plan documents, personnel titles, a boilerplate list of
functions, and marginally relevant evidence
regarding claims appeals none of which
establishes the scope of DePhillips's actual functions or authority in
relation to the Stop-Loss Policy, and certainly not conclusively so.
Indeed, when we examine Anderson's rebuttal evidence, it appears that
both parties have cast their discovery nets broadly, seemingly
in an effort to establish that DePhillips was or was not a fiduciary
generally, and not focusing on whether she was or was not a fiduciary
over the Stop-Loss Policy. We re-emphasize, then, that our inquiry is not
a general one, but focuses on "whether [the] person is a fiduciary
with respect to the particular activity at issue."
Plumb, 124 F.3d at 854 (emphasis added).
The complete record with respect to the Policy reveals only the
following: DePhillips was responsible for submitting the Stop-Loss claims
to Bankers Life; she supervised the claims adjusters who monitored for
potential Stop-Loss claims; and finally, she processed the billing for
the premiums on the Policy. (See Def.'s 56.1 Statement, ¶
10; Pl's 56.1 Statement, ¶¶ 28, 29, 41.) These isolated
facts, without more, do not tell us whether DePhillips was a fiduciary.
Is this an exhaustive list of her functions in relation to the Policy?
Moreover, did the Board give her broad decision-making authority to
manage the contract and ensure compliance with its terms as she saw fit?
See, e.g., Eaton, 581 F. Supp. at 747 (Entity was a fiduciary
when it made critical decisions regarding plan management, supervised the
systems, possessed broad latitude in setting priorities
and helped shape the agenda at board meetings.); Russo v. B&B
Catering. Inc., 209 F. Supp.2d 857, 862 (N.D.Ill. 2002) (Although
collecting premiums from employees and transferring those funds to an
insurer normally would be considered a "ministerial" function, because
defendant had control over the process and had exercised discretion in
how to earmark the funds, she was a fiduciary for that limited purpose).
Or, did DePhillips have a more mechanical function, performing
her duties in relation to the Policy under close Board supervision, or
perhaps within a set of policies and procedures set by the Board (and if
so, what were those policies and procedures)? See, e.g.,
Schmidt, 128 F.3d at 544 n. 1, 547 (Fund employee whose duties
included applying pension rules, determining amounts due under the plan,
and responding to participants' inquiries regarding benefits, but with
"no discretionary authority or control in the tasks she was assigned" was
not a fiduciary.); Beddall v. State Street Sank and Trust Co.,
137 F.3d 12, 18 (1st Cir. 1998)("[T]he mere exercise of physical
control or the performance of administrative tasks generally is
insufficient to confer fiduciary status.") (emphasis added); Landry
v. Air Line Pilots Ass'n Int'l., 901 F.2d 404, 420 (5th Cir. 1990)
(If entity's actual authority over a particular plan function was
"subordinated to and dependent upon decisions" by others, then entity was
not a fiduciary for that function.). Posing these questions another way,
surely did not have discretion on whether to get
the job done, what was the extent of her latitude on how to get
The present record leaves these questions unanswered, and therefore
does not provide the court with an adequate basis on which to rule on
DePhillips's fiduciary status as a matter of law. Accordingly, summary
judgment (for either party) would be improper.*fn6 See Sawyer v.
United; States, 831 F.2d 755, 760 (7th Cir. 1987) ("[B]ecause the
evidentiary record was incomplete and genuine issues of material fact
could exist . . . summary judgment is inappropriate.").
B. Breach of Fiduciary Duties Under ERISA
Although DePhillips has failed to show that, as a matter of law, she
was not a fiduciary, she would still be entitled to
summary judgment if she can conclusively demonstrate that
she did not breach any fiduciary duties. ERISA requires that a fiduciary
carry out its responsibilities "with the care, skill, prudence, and
diligence under the circumstances then prevailing that a prudent man
acting in a like capacity and familiar with such matters would use in the
conduct of an enterprise of like character and with like aims."
29 U.S.C. § 1104(a)(1)(B).*fn7
The complaint alleges that DePhillips breached this duty by "fail[ing]
to monitor the amounts of medical claims of Fund members, fail[ing] to
keep adequate records to identify payments exceeding the Stop-Loss
threshold, and fail[ing] to file any available stop-loss claims with
Bankers Life. . .," (Compl., pp.
DePhillips argues that, even if a fiduciary, she did not breach her
fiduciary obligations to the Fund because she was never notified by a
claims adjustor that the participants in question had exceeded the
Stop-Loss Policy's $150,000 threshold. She explains: "Once the Stop-Loss
limit was reached, paper copies of that individual's claims should have
been pulled from the `claims batches,' a copy of that patient's
Explanation of Benefits letter for each claim should have been printed,
and all of those documents should have been photocopied for submission to
Banker's Life, along with a Banker's Life claims form. Copies of all
photocopied information and the completed claim form should have been
provided by the claims adjusters to DePhillips for follow-up."
(Def's. 56.1 Statement, ¶ 10.)
DePhillips's argument must fail. Even if the claims adjusters did drop
the ball, the evidence is in genuine dispute on the extent of
DePhillips's supervisory authority over the adjusters in relation to the
Policy. If DePhillips had a fiduciary obligation to ensure that the
adjusters were reporting the Stop-Loss claims, as Anderson alleges, then
a reasonable person might find that her action, or inaction, violated
ERISA's prudent-man standard of care.*fn8 These are questions of fact,
however, and on
summary judgment, we do not try issues of fact, but only
determine whether there are issues to be tried. See, e.g., Roth v.
Sawyer-Cleator Lumber Co., 16 F.3d 915, 919 (8th Cir. 1994) (Whether
ERISA fiduciaries acted "prudently" involves a question of fact
precluding summary judgment.) Because the issue of whether DePhillips
breached her fiduciary obligations involves disputed questions of fact,
summary judgment is denied.
For the foregoing reasons, DePhillips's motion for summary judgment is
denied in its entirety.