Erica Stewart File. Use This

Case 3:16-cv-00744-CWR-LRA Document 99 Filed 06/09/17 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ERICA N. STEWART PLAINTIFF
VS. CIVIL ACTION NO.: 3:16-cv-744 (CWR)(LRA)
TAROLD DURHAM AND BELHAVEN

UNIVERSITY DEFENDANTS
DEFENDANT BELHAVEN UNIVERSITYS SUPPLEMENT

TO MOTION FOR SANCTIONS AND DISMISSAL
PURSUANT TO FED. R. CIV. P. 37(E)(2)(C)
COMES NOW Defendant Belhaven University (the University or Belhaven), by
and through its attorneys of record, and respectfully submits its Supplement to its Motion for
Sanctions and Dismissal Pursuant to FED. R. CIV. P. 37(e)(2)(C). This Supplement is provided in
light of the Magistrate Judges Order of June 8, 2017, and the report issued on June 9, 2017 by
the third-party computer forensics specialist who examined Plaintiffs iCloud and her current
iPhone.1 The report shows that the photograph produced by Plaintiff to the parties and the Court
on May 31, 2017, which was represented to the Court to be from November, 30, 2015, was
shown not to be from any 2015 data in Plaintiffs iCloud, but instead had a creation date of
August 11, 2016. The Pileum Report also showed that the image had multiple modification
dates, the most recent being shortly before 10:00 p.m. on June 7, 2017, the same day of the
hearing at which the Court ordered Plaintiffs iCloud and iPhone examined.
The examination of Plaintiffs iCloud reveals that her express representation to the Court
that the photograph was from November 30, 2015 is clearly false, in yet another example of the
deliberate spoliation and misrepresentations perpetrated by the Plaintiff in this matter. For the
reasons discussed herein and in the Universitys prior Memorandums, the University respectfully
1
As detailed in the Universitys Motion, the ESI on the iPhone that Plaintiff used to communicate with Durham has
been destroyed by the actions of Plaintiff.
1
PD.21662694.1
requests the Court grant its Motion, and sanction Plaintiff with dismissal of her action against the
University, pursuant to Fed. R. Civ. P. 37(e)(2)(C). The University also requests Plaintiff and
her counsel be assessed all attorneys fees incurred by the University as well as any other relief
the Court finds proper. In support of this Supplement, the University would show the following:
1. On May 31, 2017, Plaintiffs counsel e-mailed to counsel for all Defendants, as
well as the Magistrate Judge and District Court Judge, a photograph, which Plaintiff represents is
a selfie photograph of herself wearing only underwear, which the e-mail states she sent to
Defendant Tarold Durham on November 30, 2015.2 Plaintiff, through counsel, represents that
this purported November 30, 2015 photograph was just discovered on Plaintiffs iCloud. The
appearance of the purported 2015 photograph comes after more than six months of discovery and
after a Court-ordered sworn statement that she had already produced all relevant photographs.
2. On June 8, 2017, the Magistrate Judge granted the Universitys ore tenus Motion
to Compel, and ordered Plaintiff to provide to a third-party computer forensics specialist for
examination, her current iPhone and access information to her iCloud.3 The Order provides that
the third-party computer forensics specialist will disclose the results of the examination to
counsel for all parties.4
3. On June 9, 2017, the third-party computer forensics specialist submitted his
report, which was provided to all parties. A copy will be e-mailed to the Court for in camera
review pending leave for the Report to be filed under seal. The highlights of the Report are as
follows:
2
In its Order of June 9, 2017, the Court states it has reviewed the nearly-nude, salacious selfie which was
produced by Plaintiff, and accordingly, the University will not attach a copy as a Pacer accessible exhibit. See Pacer
Docket Entry No. 98 at 2 n.1 (Order).
3
See Pacer Docket Entry No. 92 (Order)
4
See Pacer Docket Entry No. 92 (Order)
2
PD.21662694.1
In regard to the photograph represented to the Court as having been sent on
November 30, 2015, [w]hen examining Ms. Stewarts iCloud account Pileum
discovered that Ms. Stewart had 721 photos stored in the cloud from May 13,
2015 August 17, 2016. The only photo from 2015 was a video unrelated to
communications between Ms. Stewart and Mr. Durham.5
Ms. Stewarts iCloud shows that the creation date of the photograph supplied to
the Court as being from November 30, 2016, in fact had a creation date no earlier
than August 11, 2016.6
The Pileum Report shows modifications were being made to the image as recently
as June 7, 2017 at 9:51 p. m., approximately seven hours after the Court ordered
Plaintiffs iCloud and iPhone to be forensically examined.7
The Pileum Report also shows modifications were being made to the image on
May 30, 2017 and May 31, 2017, prior to its production to the parties and the
Court on May 31, 2017.8
The Pileum Report also shows Plaintiffs iPhone was activated as a new phone on
August 20, 2016, which gives lie to Plaintiffs earlier discovery responses in
February 2017 that she was in possession of her original phone, and then
subsequently traded it in at AT&T, resulting in the destruction of the ESI.9
For all the reasons discussed herein and in is other pleads as to its Rule 37(e) Motion,
Defendant Belhaven University respectfully requests the Court grant its Motion, and sanction
Plaintiff with dismissal of her action against the University, pursuant to FED. R. CIV. P.
5
See Pileum Report at Page 22.
6
See Pileum Report at Page 23-25.
7
8
9
See Pileum Report at Page 5.
3
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37(e)(2)(C). The University also requests Plaintiff and her counsel be assessed all attorneys
fees incurred by the University in bringing the instant Motion, as well as any other relief the
Court finds proper.
THIS, the 9th day of June, 2017.
Respectfully submitted,
PHELPS DUNBAR, LLP
BY: /s/ Mark Fijman

W. Thomas Siler, Jr., MB #6791
LaToya C. Merritt, MB #100054
Mark Fijman, MB #99153
4270 I-55 North
Jackson, Mississippi 39211-6391
Telephone: 601-352-2300
Telecopier: 601-360-9777
Email: silert@phelps.com
merrittl@phelps.com
fijmanm@phelps.com
ATTORNEYS FOR DEFENDANT BELHAVEN

UNIVERSITY
4
PD.21662694.1
CERTIFICATE OF SERVICE
I, MARK FIJMAN, do hereby certify that on June 9, 2017, I electronically filed the
above and foregoing DEFENDANT BELHAVEN UNIVERSITYS SUPPLEMENT TO
MOTION FOR SANCTIONS AND DISMISSAL PURSUANT TO FED. R. CIV. P.
37(E)(2)(C) with the Clerk of the Court using the CM/ECF system which sent notification of
such filing to the following counsel of record:
Carlos E. Moore
Tucker Moore Group, LLC
306 Branscome Drive
Grenada, MS 38902-1487
carlos@tuckermoorelaw.com
Charles T. Tucker
16009 Lavender Dream Lane
Brandywine, MD 20613
charles@tuckermoorelaw.com
ATTORNEYS FOR PLAINTIFF
Gerald A. Mumford
820 North Street
Jackson, Mississippi 39202
(601) 398-2347
gerald@themumfordfirm.com
ATTORNEY FOR TAROLD

DURHAM
/s/ Mark Fijman

MARK FIJMAN
5
PD.21662694.1

NORTHERN DIVISION
V. CAUSE NO. 3:16-CV-744-CWR-LRA
TAROLD DURHAM; BELHAVEN DEFENDANTS

UNIVERSITY
ORDER
Before the Court is Tarold Durhams motion for summary judgment on the two state law
claims lodged against him: intentional and negligent infliction of emotional distress. The matter
is fully briefed and ready for review.
The background of this case was recited in an earlier Order and need not be repeated
here. See Stewart v. Durham, No. 3:16-CV-744-CWR-LRA, 2017 WL 548994 (S.D. Miss. Feb.
9, 2017). The familiar summary judgment standard applies.
Durham faces claims that his sexual advances inflicted emotional distress upon Erica N.
Stewart. In Mississippi, intentional infliction of emotional distress requires proof of severe
emotional distress as a direct result of the act/acts of the defendant. J.R. ex rel. R.R. v. Malley,
62 So. 3d 902, 906 (Miss. 2011) (italics and brackets omitted). Negligent infliction of emotional
distress requires, unsurprisingly, sufficient proof of emotional distress. Adams v. U.S.
Homecrafters, Inc., 744 So. 2d 736, 743 (Miss. 1999) (collecting cases).
Perhaps Durhams most egregious act was texting Stewart a picture of an engorged penis
along with the message, Your [job] interview will be next week. . . . Can I get something for the
interview? The advance was coarse, embarrassing, stupid, and as described by his counsel,
unbecoming of a married Christian father of twin boys. Be that as it may, the evidence does
not show that it actually caused Stewart to suffer emotional distress.

The day after Durham sent the picture of the tumescent penis, Stewart replied, you can
get [a] hug and kiss after the interview! She then added, Sooo I found myself thinking about
you. The two flirted back and forth: Durham called her boo; Stewart called him Hun. When
Durham wrote I miss you, Stewart responded I miss you too and sent an emoji blowing him
a kiss. She also revealed that she had once participated in a threesome, texting I like stuff like
that . . . so if you become my boo. Stuff like that comes with me. Later she wrote, we can
celebrate once I get the job! along with three winking emoji, and invited Durham to join her
and a friend for a drink at a local restaurant.1
Needless to say these responses do not indicate distress. Stewarts deposition testimony
confirms as much. Counsel opposite asked, Now, by telling him youll hug and kiss him, you
dont sound particularly upset in your response about receiving the penis picture; is that correct?
Stewart answered, No, Im not -- I didnt sound upset. When asked again whether she was
upset in any way over the photo, she replied no.
Stewarts most compelling evidence of emotional harm came when she described what
happened (1) after she filed her charge of discrimination with the EEOC, and (2) after she filed
this lawsuit and held a press conference with her attorney, apparently to bring public attention to
her claims. After each of those occurrences, third partiesallegedly friends of Durham
harassed her and, in at least one instance, posted revealing pictures of her on the internet.
That conduct may warrant causes of action against the responsible persons. Without
evidence that the harassment and invasion of privacy were caused by Durham, though, it is not
enough to proceed to trial against him.
1
After the briefing on this motion closed, Stewart located and produced a nearly-nude, salacious selfie she had sent
Durham. The supplemental production was vague as to the selfies date, but Stewarts deposition testimony indicates
that she sent Durham the selfie before he sent her the penis photo. In other words, Durhams pornographic photo of
a penis was sent in response to Stewarts scantily-clad selfie.
2
The question today is not whether Durhams conduct was appropriate or unsavory, the
word Durhams counsel uses to describe Stewarts conduct. Nor is it whether Durhams behavior
constituted sexual harassment in violation of Title VII. The issue is whether he intentionally or
negligently caused Stewart to suffer emotional distress. The available evidence indicates that the
answer is no.
The motion for summary judgment is granted.
SO ORDERED, this the 9th day of June, 2017.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
3

NORTHERN DIVISION
ERICA STEWART PLAINTIFF
VS. CIVIL ACTION NO. 3:16-CV-744-CWR-LRA
TAROLD DURHAM AND BELHAVEN UNIVERSITY DEFENDANTS
PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANT

TAROLD DURHAMS MOTION FOR SUMMARY JUDGMENT
COMES NOW Plaintiff, Erica Stewart, by and through her attorney of record, and files this,
Response in Opposition to Defendant Tarold Durhams Motion for Summary Judgment. Plaintiff
moves this Honorable Court to deny Defendants Motion and request a hearing on said Motion, and
as grounds therefore, would state as follows:
1. This case arises from Tarold Durhams (Defendant Durham) offensive sexual advances
towards Erica Stewart (Plaintiff).
2. Defendant Durham was employed with Belhaven University as the Director of Online
Admissions. On November 28, 2015, via Facebook, Defendant Durham contacted Plaintiff
and advised of an open receptionist position with Belhaven University. On November 30,
2015, Plaintiff met with Defendant Durham in his office at Belhaven University regarding
her resume.
3. Subsequently, Defendant Durham engaged in sexual advancements toward Plaintiff via social
media and text messages, which includes Defendant Durham forwarding an obscene
photograph of his penis with the caption, Can I get something for the interview. Plaintiff
continuously denied Defendant Durhams sexual advances and on January 7, 2016, Plaintiff
was informed that the receptionist position was no longer available.
1
4. On September 21, 2016, Plaintiff filed her Complaint against Defendant Durham asserting a
cause of action for intentional infliction of emotional distress (IIED) and negligent
infliction of emotional distress (NIED). On November 9, 2016, Defendant Durham filed
his Answer denying liability.
5. On May 4, 2017, Defendant Durham filed a Motion for Summary Judgment alleging that
Defendant Durhams conduct does not rise to the level of IIED and NIED and Plaintiff did
not suffer any injuries. Further, Defendant Durham alleges that there is no genuine dispute as
to any material fact, which would preclude the entry of summary judgment.
6. Summary judgment is appropriate if 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). A genuine dispute of material fact exists when the evidence is such that a reasonable
jury could return a verdict for the nonmoving party. Royal v. CCC & R Tres Arboles, L.L.C.,
736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
448 (1986)). [A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
7. Defendant Durhams Motion for Summary Judgment should be denied, as a matter of law,
and a jury should be afforded the opportunity to determine whether Defendant Durhams
conduct towards Plaintiff was so extreme and outrageous that it caused Plaintiff injuries. The
jury will determine that Defendant Durhams conduct was egregious and the record reflects
the same. Therefore, Defendant Durhams Motion for Summary Judgment should be denied.
8. Plaintiff relies on her Memorandum in Support of Plaintiffs Response in Opposition to
Defendant Tarold Durhams Motion for Summary Judgment.
2
9. Further, Plaintiff relies on the following exhibits:
a. Excerpts from the Deposition of Erica Stewart attached hereto as Exhibit A;
b. Message thread between Defendant Durham and Plaintiff dated November 28, [2015]
through January 7, [2016] attached hereto as Exhibit B;
c. Charge Questionnaire attached contemporaneously herewith as Exhibit C; and
d. Dismissal and Notice of Rights attached contemporaneously herewith as Exhibit D.
WHEREFORE, PREMISES CONSIDERED Plaintiffs pray that this Honorable Court will
deny Defendant Durhams Motion for Summary Judgment as his sexual conduct towards Plaintiff
was egregious and caused Plaintiff injuries. Plaintiff also prays for all other general relief this Court
deems to be fair and just.
Respectfully submitted, this the 18th day of May 2017.
ERICA STEWART
_/s/ Carlos E. Moore____________

CARLOS MOORE, MSB #100685
OF COUNSEL:
TUCKER MOORE GROUP, LLP
306 Branscome Drive
Grenada, Mississippi 38901
Telephone: 662-227-9940
Facsimile: 662-227-9941
Carlos@TuckerMooreLaw.com
I certify that a true and correct copy of the above and foregoing pleading was transmitted via
EFC, to all counsel of record.
This the 18th day of May 2017.
_/s/ Carlos E. Moore_______

Carlos Moore, MSB #100685
3

NORTHERN DIVISION
V. CAUSE NO. 3:16-CV-744-CWR-LRA
TAROLD DURHAM; BELHAVEN DEFENDANTS

UNIVERSITY
ORDER
Before the Court is Tarold Durhams motion to dismiss. Docket No. 27. The matter is
fully briefed and ready for review.
I. Factual and Procedural History
The factual allegations are drawn from the complaint and taken as true for present
purposes.
In November 2015, Erica Stewart interviewed for a job in the Online Admissions
Department of Belhaven University. Tarold Durham, the director of Online Admissions,
conducted the interview.
Stewart says that at some point in her application process Durham made sexual advances
toward her via social media and text messages. The advances culminated in Durham sending
Stewart a text message containing a photo of an erect penis. Durham allegedly wanted sexual
favors in exchange for a job offer.
Stewart refused the advances. In January 2016, she learned that the vacancy was no
longer available. She filed a claim with the EEOC, then commenced suit in this Court.
In her complaint, Stewart alleges that Durham and Belhaven are liable for sexual
harassment and retaliation in violation of Title VII, intentional and negligent infliction of
emotional distress, and negligent supervision. She takes special offense at this conduct having
occurred at a Christian university.
Durhams motion to dismiss contends that Stewart has failed to state a claim.
II. Legal Standard
When considering a motion to dismiss for failure to state a claim, the Court accepts the
plaintiffs factual allegations as true and makes reasonable inferences in the plaintiffs favor.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To proceed, the complaint must contain a short and
plain statement of the claim showing that the pleader is entitled to relief. Id. at 677-78
(quotation marks and citation omitted). This requires more than an unadorned, the defendant-
unlawfully-harmed-me accusation, but the complaint need not have detailed factual
allegations. Id. at 678 (quotation marks and citation omitted). The plaintiffs claims must also
be plausible on their face, which means there is factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. Id. (citation
omitted).
III. Discussion
Stewart concedes that her Title VII claims against Durham fail because Durham was not
an employer under the statute. What remains are her state-law claims for intentional and
negligent infliction of emotional distress.
A claim for intentional infliction of emotional distress will not ordinarily lie for mere
employment disputes. Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So. 2d 845, 851
(Miss. 2001) (citations omitted). To justify a finding that this tort has occurred, the defendants
conduct must be wanton and wilful and it would evoke outrage or revulsion. Speed v. Scott, 787
So. 2d 626, 630 (Miss. 2001) (quotation marks and citation omitted).
2
Among the kind of actions that have been found to evoke such outrage were a plot
by a girlfriend and her parents to hide the child of an unwed father, arranging for
the baby to be adopted by strangers while the father pursued a custody suit. In
another suit a car dealership forged a customers name on a sales contract and sold
the contract to a finance company, resulting in the customers credit being
damaged. Contrarily, what is not sufficient have been such actions as a law firm
breaching an employment contract with an attorney, locking him out, refusing him
secretarial support and dropping his name from the firm sign.
Id. (citations omitted). In short, a plaintiff must allege conduct that is seen as intolerable,
outrageous or revolting to an observer of ordinary sensibilities. Id. at 630-31 (quotation marks
omitted).
Durham contends that his conduct falls short of this high standard. The fact that Belhaven
is a Christian university is irrelevant to the legal standard, he adds.
Sexual advances and harassment in the workplace are nothing new. See, e.g., Moore v.
Cricket Commcns, Inc., 764 F. Supp. 2d 853, 858 (S.D. Tex. 2011) (involving display of nude
photograph to coworker); E.E.O.C. v. IPS Indus., Inc., 899 F. Supp. 2d 507, 519 (N.D. Miss.
2012) (involving unwanted physical advances); Snapp v. Ruan Transp. Corp., No. 1:05-CV-77-
M-D, 2006 WL 2455922, at *2, *15 (N.D. Miss. Aug. 22, 2006) (involving explicit photographs
and physical advances); Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 804 (11th Cir.
2010) (involving explicit photographs and vulgar conduct humiliating and degrading to
women); see also Deborah S. Brenneman, From A Woman's Point of View: The Use of the
Reasonable Woman Standard in Sexual Harassment Cases, 60 U. CIN. L. REV. 1281, 1297 (1992)
(Sexual harassment is a problem that is not only epidemic, it is pandemic, an everyday,
everywhere occurrence.).
What has changed is the technological capability to make graphic sexual advances
instantlylikely before our rational brains have a chance to understand the possible
consequences. See generally DANIEL KAHNEMAN, THINKING, FAST AND SLOW (2011). The
3
increased ease of communication may lead to more, and more unusual, disputes which inevitably
ask judges and juries to consider what kind of conduct inspires outrage in this day and age.
Durham argues that there was no job vacancy, no interview, and nothing outrageous about
(allegedly) sending a photo of an engorged penis to a person who had been engaging in
flirtatious conversation with him for weeks. But it is very difficult to accept his argument at the
motion to dismiss stage.
Stewart never alleges that the photo sharing was consensual. Nor does she allege that the
sharing took place between adults of equal status. Durham had power. He was the director of an
office, interviewed Stewart for a vacancy, appeared to have authority to hire her, and wanted sex
for the job. Under governing law, it is Stewarts allegations that must be taken as true at this
point in the case. And her allegations are backed by the shocking photograph accompanied by the
text message, Can I get something for the interview?
Durham is correct that the standard for intentional infliction of emotional distress is the
same regardless of Belhavens religious affiliation. But he is wrong about the outrageousness of
his behavior. A jury reviewing sufficient evidence may agree with Stewart that it is outrageous
and revolting to send unsolicited, non-consensual explicit photos in the employment context.
See, e.g., Moore, 764 F. Supp. 2d at 858 (finding that managers display of nude photograph of
himself to plaintiff was hostile, abusive, and indeed outrageous conduct); Snapp, 2006 WL
2455922, at *15 (accepting plaintiffs version of events at summary judgment stage and finding
that supervisors sustained and bizarre campaign of stalking, harassment and deviant behavior
would be more than sufficient to create genuine issues of material fact as to whether she is
entitled to recover against him for IIED); Smith v. City of New Smyrna Beach, No. 6:11-CV-
1110-ORL-37, 2012 WL 6721002, at *8 (M.D. Fla. Dec. 27, 2012) (Given the frequency and
4
severity of the unwelcome conduct, the humiliation, and the unreasonable interference with
Plaintiffs performance, . . . a reasonable factfinder could conclude that the harassment was
sufficiently severe.). As one article explained, unsolicited dick pics that are sent as a form of
harassment . . . [are] a serious problem. Consent is crucial when it comes to dick pics.
Unsolicited dick pics and sexts are more than an annoyancethey make recipients feel unsafe
and degraded. Alex Abad-Santos, Anthony Weiner and the Rise of Dick Pics, Explained, VOX
(Aug. 30, 2016).1
For these reasons, Stewart may proceed with her intentional infliction of emotional
distress claim.
We are left with Stewarts negligent infliction of emotional distress claim. On one hand,
Stewarts complaint presents no facts to distinguish this claim from her intentional infliction
count. On the other hand, Durham has presented no argument for dismissing this claim beyond
his reasons for dismissing the intentional infliction count. On balance the better course of action
is to deny the motion to dismiss and await further motion practice.
IV. Conclusion
The motion to dismiss is granted in part and denied in part.
SO ORDERED, this the 9th day of February, 2017.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
1
Discovery may reveal something quite different about the allegations, pictures, and text messages, but again, at this
juncture, the Court must accept the allegations as true.
5

NORTHERN DIVISION

DEFENDANT BELHAVEN UNIVERSITYS MOTION FOR

SANCTIONS AND DISMISSAL PURSUANT TO FED. R.
CIV. P. 37(E)(2)(C)
COMES NOW Defendant Belhaven University (the University or Belhaven), by
and through its attorneys of record1, and respectfully submits its Motion for Sanctions and
Dismissal Pursuant to FED. R. CIV. P. 37(e)(2)(C) because of spoliation and destruction of
relevant electronically stored information (ESI) by the deliberate and knowing disposal of
Plaintiffs phone after Plaintiffs counsel was expressly put on notice by the University to
preserve it as evidence, and would show as follows:
1. Plaintiffs sexual harassment lawsuit against the University is based on 38 days of
text messages between her and former Belhaven employee Tarold Durham. In her deposition,
Plaintiff testified that all her text communications with Durham were conducted on her phone.
2. At the very start of this litigation, counsel for the University advised Plaintiffs
counsel in writing of his obligation to preserve ESI, and expressly instructed him to
immediately preserve and sequester any and all mobile telephones and/or other digital devices
belonging to Ms. Stewart, containing any and all text messages or other communications
between Ms. Stewart and Mr. Durham, including any and all images transmitted by Ms.
Stewart.
1
Undersigned counsel represents only Defendant Belhaven University, and does not represent Defendant Tarold
Durham.
1
PD.21482888.1
3. Following the Universitys request that Plaintiffs phone be produced, Plaintiffs
counsel informed the Universitys counsel that Plaintiff no longer had the phone and had traded
it in at an AT&T store, effectively destroying any opportunity to recover ESI on the devices
hard drive.
4. Plaintiff and/or Plaintiffs counsel failed to take reasonable steps to preserve
this highly relevant ESI, and by the sequence events detailed below, it is clear that Plaintiff
and/or Plaintiffs counsel acted with intent to deprive the University of the ESI contained on
Plaintiffs phone. FED. R. CIV. P. 37(e)(2). The University has been prejudiced by Plaintiffs
deliberate destruction of the phone, which prevents examination of the actual digital ESI, and
Plaintiff should be sanctioned with dismissal of her action against the University, pursuant TO
FED. R. CIV. P. 37(e)(2)(C).
5. In addition to the Universitys contemporaneously filed Memorandum, the
University also offers the following exhibits in support of its Motion:
(a) Excerpts of Erica Stewart Deposition, Attached as Exhibit A;
(b) EEOC Charge Detail Inquiry Erica Stewart, Attached as Exhibit B;
(c) September 23, 2016 Letter to Plaintiffs Counsel Discovery Responses, Attached
as Exhibit C;
(d) Excerpt of Plaintiffs February 14, 2017 Discovery Responses, Attached as
Exhibit D;
(e) Sworn Affidavit of Erica Stewart, Attached as Exhibit E;
(f) E-Mail Chain from April 28, 2017 May 9, 2017, Attached as Exhibit F;
(g) January 4, 2016 Text Messages Produced by Plaintiff, Attached as Exhibit G.
2
PD.21482888.1
For all the reasons discussed herein and in its Memorandum, Defendant Belhaven
University respectfully requests the Court grant its Motion, and sanction Plaintiff with dismissal
of her action against the University, pursuant to FED. R. CIV. P. 37(e)(2)(C). The University also
requests Plaintiff and her counsel be assessed all attorneys fees incurred by the University in
bringing the instant Motion, as well as any other relief the Court finds proper.
THIS, the 11th day of May, 2017.
PHELPS DUNBAR, LLP
BY: /s/ Mark Fijman

W. Thomas Siler, Jr., MB #6791
LaToya C. Merritt, MB #100054
Mark Fijman, MB #99153
4270 I-55 North
Telephone: 601-352-2300
Email: silert@phelps.com
merrittl@phelps.com
fijmanm@phelps.com
ATTORNEYS FOR DEFENDANT BELHAVEN

UNIVERSITY
3
PD.21482888.1
I, MARK FIJMAN, do hereby certify that on May 11, 2017, I electronically filed the
above and foregoing DEFENDANT BELHAVEN UNIVERSITYS MOTION FOR
SANCTIONS AND DISMISSAL PURSUANT TO FED. R. CIV. P. 37(E)(2)(C) with the Clerk
of the Court using the CM/ECF system which sent notification of such filing to the following
counsel of record:
Carlos E. Moore
306 Branscome Drive
Grenada, MS 38902-1487
carlos@tuckermoorelaw.com
Charles T. Tucker
16009 Lavender Dream Lane
Brandywine, MD 20613
charles@tuckermoorelaw.com
ATTORNEYS FOR PLAINTIFF
Gerald A. Mumford
820 North Street
(601) 398-2347
gerald@themumfordfirm.com
ATTORNEY FOR TAROLD

DURHAM
/s/ Mark Fijman

MARK FIJMAN
4
PD.21482888.1
Case 3:16-cv-00744-CWR-LRA Document 69-5 Filed 05/11/17 Page 1 of 2

NORTHERN DIVISION

DEFENDANT BELHAVEN UNIVERSITYS ANSWER AND

AFFIRMATIVE DEFENSES TO PLAINTIFF'S
COMPLAINT
COME NOW Defendant Belhaven University1 (Defendant or the University), by
and through its counsel of record, and responds to Plaintiffs Complaint. To the extent the
Complaint asserts any allegations against a party other than the University, Defendant is without
information sufficient to admit or deny the allegations, and accordingly, denies same. Defendant
responds as follows:
FIRST AFFIRMATIVE DEFENSE
Plaintiffs Complaint fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
Defendant pleads all applicable statutes of limitations.
THIRD AFFIRMATIVE DEFENSE
Defendant affirmatively asserts that Plaintiff cannot establish a prima facie case of sexual
harassment or retaliation under federal law.
FOURTH AFFIRMATIVE DEFENSE
Plaintiff did not suffer an adverse employment action.
1
Undersigned counsel represents only Defendant Belhaven University.
PD.20174022.1
FIFTH AFFIRMATIVE DEFENSE
Plaintiff failed to properly exhaust administrative remedies.
SIXTH AFFIRMATIVE DEFENSE
Defendant affirmatively pleads all statutory and jurisdictional prerequisites to suit under
Title VII, including the criminal prohibition of perjury in an investigation, and all applicable
statutes of limitation and defenses available under the statute, and to the extent the Complaint
asserts or attempts to assert claims under Title VII other than those asserted by Plaintiff in a
timely charge of discrimination filed with the EEOC, such claims cannot be maintained.
SEVENTH AFFIRMATIVE DEFENSE
Defendant asserts the right to rely on the Faragher-Ellerth affirmative defense.
EIGHTH AFFIRMATIVE DEFENSE
Defendant affirmatively asserts that Plaintiff cannot establish a prima facie case of
negligent hiring, supervision and retention under Mississippi law, and cannot establish a prima
facie case of intentional/negligent infliction of emotional distress under Mississippi law.
NINTH AFFIRMATIVE DEFENSE
In regard to the actions alleged in Plaintiffs Complaint, Tarold Durham was not acting in
the course and scope of his employment with Belhaven University, and the alleged conduct
complained of was outside the course and scope of his employment with the University.
TENTH AFFIRMATIVE DEFENSE
Defendant affirmatively asserts the defense of Plaintiffs contributory negligence or
willful action.
PD.20174022.1
ELEVENTH AFFIRMATIVE DEFENSE
Even if Plaintiff sustained damages, which is specifically denied, Defendant avers that
Plaintiff failed to make reasonable efforts to mitigate her alleged damages.
TWELFTH AFFIRMATIVE DEFENSE
Defendant affirmatively asserts that Plaintiff is not entitled to any compensatory
damages, punitive damages or costs related to this lawsuit.
THIRTEENTH AFFIRMATIVE DEFENSE
Although Defendant expressly denies that Plaintiff is entitled to recover punitive
damages, Defendant affirmatively asserts that an award of punitive damages would violate the
Constitution of the United States and the State of Mississippi.
FOURTEENTH AFFIRMATIVE DEFENSE
Defendant assert the provisions of the Mississippi Litigation Accountability Act of 1988,
Miss. Code Ann. 11-55-1 et seq., including but not limited to the assessment of attorney fees
and costs against an attorney or party for a meritless action.
FIFTEENTH AFFIRMATIVE DEFENSE
Defendant asserts all affirmative defenses that are or may become available or of which
Defendant may become aware (upon further investigation or discovery) under FED. R. CIV. P.
8(c) and/or MISS. R. CIV. P. 8(c).
SIXTEENTH AFFIRMATIVE DEFENSE
12(b) and/or MISS. R. CIV. P. 12(b).
PD.20174022.1
ANSWER
Without waiving any of the aforementioned Affirmative Defenses, Defendant responds to
the Complaint as follows:
Defendant admits that Plaintiff has filed the instant Complaint but denies there is any
basis to Plaintiffs claims against the University and denies any and all remaining allegations
contained in the un-numbered Paragraph of the Complaint beginning with Comes Now. in
reference to the University.
1. Defendant is without information sufficient to admit or deny the allegations
contained in Paragraph 1 of the Complaint, and accordingly, denies same.
2. Defendant admits Tarold Durham is an adult citizen of Mississippi but denies the
remaining allegations contained in Paragraph 2 of the Complaint.
3. Defendant admits the allegations contained in Paragraph 3 of the Complaint.
4. Defendant admits the United States District Court for the Southern District of
Mississippi, Northern Division has jurisdiction over Plaintiffs claims, but denies there is any
basis to Plaintiffs claims against the University and denies any remaining allegations contained
in Paragraph 4 of the Complaint.
5. Defendant admits venue is proper in the United States District Court for the
Southern District of Mississippi, Northern Division, but denies there is any basis to Plaintiffs
claims against the University and denies any remaining allegations contained in Paragraph 5 of
the Complaint.
6. Defendant admits Tarold Durham was employed as the Director of Online
Admissions at the University but denies any remaining allegations contained in Paragraph 6 of
the Complaint.
PD.20174022.1
7. Defendant denies the allegations contained in Paragraph 7 of the Complaint.
8. Paragraph 8 of the Complaint does not appear to be directed toward the
University and the University is without information sufficient to admit or deny the allegations
contained in Paragraph 8 of the Complaint, and accordingly denies same.
9. Paragraph 9 of the Complaint does not appear to be directed toward the
University and the University is without information sufficient to admit or deny the allegations
contained in Paragraph 9 of the Complaint, and accordingly denies same.
contained in Paragraph 11 of the Complaint, and accordingly, denies same.
12. Defendant denies there was ever a position available, and is without information
sufficient to admit or deny any remaining allegations contained in Paragraph 12 of the
Complaint, and accordingly, denies same.
14. Defendant admits Plaintiff filed a Charge of Discrimination on January 13, 2015.
The remaining allegations contained in Paragraph 14 of the Complaint contain purported
statements of law and/or legal conclusions to which no response is required. To the extent any
response is required, Defendant denies the remaining allegations contained in Paragraph 14 of
the Complaint.
15. Defendant admits the EEOC conducted an investigation and issued a Dismissal
and Notice of Rights on June 22, 2016, which is a written document that speaks for itself and no
response is owed to the allegations regarding that document. Defendant denies the remaining
allegations contained in Paragraph 15 of the Complaint.
PD.20174022.1
16. The allegations contained within Paragraph 16 of the Complaint contain purported
statements of law and/or legal conclusions to which no response is required. To the extent any
response is required, the allegations contained within Paragraph 6 of the Complaint are denied.
17. Defendant repeats the responses to the foregoing Paragraphs as though fully set
forth herein in response to Paragraph 17 of the Complaint.
31. Defendant denies the allegations contained in Paragraph 31 of the Complaint,
including Sub-Paragraphs a d, to the extent it references or asserts claims against Defendant,
and further denies Plaintiff is entitled to relief of any type.
PD.20174022.1
WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that this
Court dismiss Plaintiff's Complaint and award the University costs, expenses, attorneys' fees and
any other relief that is warranted or the Court deems proper.
THIS, the 20th day of October, 2016.
PHELPS DUNBAR, LLP
BY: /s/ Mark Fijman

LaToya C. Merritt, MB # 100054
Mark Fijman, MB # 99153
4270 I-55 North
Post Office Box 16114
Telephone: 601-352-2300
Email: merrittl@phelps.com
fijmanm@phelps.com
ATTORNEYS FOR DEFENDANT

BELHAVEN UNIVERSITY
PD.20174022.1
I, MARK FIJMAN, do hereby certify that on October 20, 2016, I electronically filed the
above and foregoing DEFENDANT BELHAVEN UNIVERSITYS ANSWER AND
AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT with the Clerk of the Court
using the CM/ECF system which sent notification of such filing to the following counsel of
record:
Carlos E. Moore, MB # 100685

Moore Law Group, P.C.
306 Branscome Drive
Post Office Box 1487
Grenada, Mississippi 38902-1487
(662) 227-9940
Carlos@CarlosMooreLaw.com
ATTORNEY FOR PLAINTIFF
/s/ Mark Fijman

MARK FIJMAN
PD.20174022.1

NORTHERN DIVISION
VS. CIVIL ACTION NO. 3:16cv744 CWR-LRA
TAROLD DURHAM and

BELHAVEN UNIVERSITY DEFENDANTS
DEFENDANT TAROLD DURHAMS ANSWER, DEFENSES and

COUNTERCLAIM AGAINST ERICA N. STEWART
COMES NOW, Defendant, Tarold Durham, by and through counsel and files this, his
Answer, Affirmative Defenses and Counterclaim against Erica N. Stewart and would show unto
this Court the following:
FIRST AFFIRMATIVE DEFENSE
The Complaint fails to state a claim upon which relief can be granted against Defendant
Tarold Durham. Accordingly, Mr. Durham moves this Court for a dismissal with prejudice of
the Plaintiffs Complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.
SECOND AFFIRMATIVE DEFENSE
The Complaint is barred by the applicable statute of limitations.
THIRD AFFIRMATIVE DEFENSE
Some or all of the claims of the Plaintiff are barred by waiver.
FOURTH AFFIRMATIVE DEFENSE
Some or all of the claims of the Plaintiff are barred by her failure to exhaust
administrative remedies.
1
FIFTH AFFIRMATIVE DEFENSES
Affirmatively and alternatively, and without waiving any other defenses asserted herein,
Mr. Durham hereby pleads any and all defenses available under the Federal Rules of Civil
Procedure and United States and Mississippi.
SIXTH AFFIRMATIVE DEFENSE
Defendant affirmatively asserts that Plaintiff cannot establish a prima facie case of sexual
harassment or retaliation under federal law.
SEVENTH AFFIRMATIVE DEFENSE
The claims of the Plaintiff are barred, in whole or in part, because Plaintiff failed to
mitigate any injuries and/or damages she allegedly suffered.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff did not suffer an adverse employment action.
NINTH AFFIRMATIVE DEFENSE
Defendant affirmatively pleads all statutory and jurisdictional prerequisites to suit under
Title VII, including the criminal prohibition of perjury in an investigation, and all applicable
statutes of limitation and defenses available under the statute, and to the extent the Complaint
asserts or attempts to assert claims under Title VII other than those asserted by Plaintiff in a
timely charge of discrimination filed with the EEOC, such claims cannot be maintained.
TENTH AFFIRMATIVE DEFENSE
Defendant affirmatively asserts the defense of Plaintiffs contributory negligence or
willful action.
2
ELEVENTH AFFIRMATIVE DEFENSE
Defendant asserts the right to rely on the Faragher-Ellerth affirmative defense.
TWELFTH AFFIRMATIVE DEFENSE
Defendant affirmatively asserts that Plaintiff is not entitled to any compensatory damages,
punitive damages or costs related to this lawsuit.
THIRTEENTH AFFIRMATIVE DEFENSE
Although Defendant expressly denies that Plaintiff is entitled to recover punitive
damages, Defendant affirmatively asserts that an award of punitive damages would violate the
Constitution of the United States and the State of Mississippi.
FOURTEENTH AFFIRMATIVE DEFENSE
Defendant asserts the provision of the Mississippi Litigation Accountability Act of 1988,
Miss. Code Ann. 11-55-1 et seq., including but not limited to the assessment of attorney fees
and costs against an attorney or party for a meritless action.
FIFTEENTH AFFIRMATIVE DEFENSE
8(c) and or Miss. R. Civ. P(8).
SIXTEENTH AFFIRMATIVE DEFENSE
12 (b) and or Miss. R. Civ. p. 12(b).
3
ANSWER
Without waiving any of the aforementioned Affirmative Defenses, Defendant responds to
the Complaint as follows:
Defendant admits that Plaintiff filed the instant Complaint but denies there is any basis to
Plaintiffs claims against Tarold Durham and denies any and all remaining allegations contained
in the unnumbered Paragraph of the Complaint beginning with Comes Now . . . in reference to
Tarold Durham.
contained in Paragraph 1 of the Complaint, and accordingly, denies the same.
2. Defendant admits that he is an adult resident citizen of the State of Mississippi but
denies the remaining allegations contained in Paragraph 2 of the Complaint.
3. Defendant admits the allegations contained in Paragraph 3 of the Complaint.
4. Defendant admits the United States District Court for the Southern District of
Mississippi, Northern Division, has jurisdiction over Plaintiffs claims, but denies there is any
basis to Plaintiffs claims against Tarold Durham and denies any remaining allegations contained
in Paragraph 4 of the Complaint.
5. Defendant admits venue is proper in the United States District Court for the
Southern District of Mississippi, Northern Division, but denies there is any basis to Plaintiffs
claims against Tarold Durham and denies any remaining allegations contained in Paragraph 5 of
the Complaint.
6. Defendant admits that Tarold Durham was employed as the Director of Online
Admissions at Belhaven University but denies any remaining allegations contained in Paragraph
4
6 of the Complaint.
12. Defendant denies the allegations contained in Paragraph 12 of the Complaint as
there was never a position available.
14. Defendant admits Plaintiff filed a Charge of Discrimination on January 13, 2015.
The remaining allegations contained in Paragraph 14 of the Complaint contained purported
statements of law/or legal conclusions to which no response is required. To the extent any
response is required, Defendant denies the remaining allegations contained in Paragraph 14 of the
Complaint.
15. Defendant admits EEOC conducted an investigation and issued a Dismissal and
Notice of Rights on June 22, 2016, which is a written document that speaks for itself and no
response is owed to the allegations regarding that document. Defendant denies the remaining
allegations contained in Paragraph 15 of the Complaint.
16. The allegation contained within Paragraph 16 of the Complaint contained
purported statements of law and/or legal conclusions to which no response is required. To the
extent any response is required, the allegations contained within Paragraph 16 of the Complaint
are denied.
5
31. Defendant denies the allegations contained in Paragraph 31 of the Complaint,
including Sub-Paragraphs a - d, to the extent it references or asserts claims against Defendant,
and further denies Plaintiff is entitled to any relief whatsoever.
WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that this
Court dismiss Plaintiffs Complaint and award Tarold Durham costs, expenses, attorneys fees
and any other relief that is warranted or the Court deems proper.
6
COUNTERCLAIM
Now having fully answered the Complaint, Answering Defendant herein assumes the role
of counter claimant and would show unto this Court the following:
PARTIES
1. Counter-Plaintiff, Tarold Durham, is an adult resident citizen of Rankin County,
Mississippi.
2. Counter-Defendant, Erica N. Stewart, is an adult resident citizen of the First
Judicial District of Hinds County, Mississippi.
FACTS
3. That on or about September 21, 2016, Plaintiff, Counter-Defendant Erica N.
Stewart filed a Complaint in the above-referenced matter falsely alleging that she was
discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended,
because of Plaintiffs sex (female) in that she was subjected to continuous sexual advances which
she denied. As a result of denying Defendant Durhams sexual advances, Plaintiff was retaliated
against when she was denied employment among other false statements.
Stewart filed a Complaint in the above-referenced matter falsely alleging that On or about
November 30, 2015, Defendant Durham interviews Plaintiff for the position of Receptionist
among other false statements.
Stewart filed a Complaint in the above-referenced matter falsely alleging that Defendant
Durham had a pattern and practice of making offensive sexual advancements to Plaintiff among
other false statements.
7
Stewart filed a Complaint in the above-referenced matter falsely alleging that Defendant
Durham used his apparent authority as Director of Online Admissions to demand sexual favors
from Plaintiff and denied her employment when Plaintiff refused his sexual advances among
other false statements.
COUNT 1 - ABUSE OF PROCESS
7. Counter-Plaintiff repeats, reiterates, realleges and incorporates by reference each
and every allegation contained in paragraphs numbered 1-6 of this Counterclaim with the same
force and effect as if more fully set forth at length herein.
8. That the filing of the Complaint containing false allegations against Counter-
Plaintiff by the Counter-Defendant is a malicious perversion of a regularly issued civil process,
for a purpose and to obtain a result not lawfully warranted or properly attainable thereby.
9. That the actions of the Counter-Defendant were done with the intent to abuse the
privileges of the legal system.
10. The actions of the Counter-Defendant constitute abuse of process.
11. That as a direct and proximate result of said abuse of process, Counter-Plaintiff
has been causes to suffer damages of a personal and pecuniary nature, including but not limited
to loss of employment, out of pocket expenses, damage to reputation, attorneys fees, and other
damages to be proven at trial.
DAMAGES
12. Counter-Plaintiff repeats, reiterates, realleges and incorporates by reference each
and every allegation contained in paragraphs numbered 1-11 of this Counterclaim with the same
force and effect as if more fully set forth at length herein.
8
13. As a direct and proximate result of the Counter-Defendants actions, inactions,
refusals and omissions, the Counter-Plaintiff has suffered injuries of a personal and pecuniary
nature, including but not limited to loss of employment, out of pocket expenses, damage to
reputation, attorneys fees, and other damages to be proven at trial.
WHEREFORE, PREMISES CONSIDERED, the Counter-Plaintiff prays that the
Plaintiffs Complaint be dismissed with prejudice and that this Court award judgment to the
Counter-Plaintiff of, from, and against the Counter-Defendant, Erica N. Stewart, in a sum that
will fully compensate the Counter-Plaintiff for his loss, plus costs of court, reasonable attorneys
fees and any other relief that this Court or a jury deems just and proper.
RESPECTFULLY SUBMITTED, this the 9th day of November, 2016.
TAROLD DURHAM
/s/Gerald A. Mumford
GERALD A. MUMFORD, MSB # 101902
OF COUNSEL:
THE MUMFORD LAW FIRM, PLLC

820 North Street
Post Office Box 683
Telephone: 601-398-2347
Facsimile: 888-801-9389
Email: gmumfordlaw@gmail.com
Attorney for Tarold Durham
9
I hereby certify that on November 9, 2016, I electronically filed the foregoing Answer,
Defenses and Counterclaim with the Clerk of the Court using the CM/ECF system and that
service of such filing was made electronically to all counsel of record through such system.
/s/Gerald A. Mumford
GERALD A. MUMFORD
10

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Case 3:16-cv-00744-CWR-LRA Document 99 Filed 06/09/17 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

ERICA N. STEWART PLAINTIFF

VS. CIVIL ACTION NO.: 3:16-cv-744 (CWR)(LRA)

TAROLD DURHAM AND BELHAVEN

DEFENDANT BELHAVEN UNIVERSITYS SUPPLEMENT

COMES NOW Defendant Belhaven University (the University or Belhaven), by

counsel for all parties.4

3. On June 9, 2017, the third-party computer forensics specialist submitted his

In regard to the photograph represented to the Court as having been sent on

communications between Ms. Stewart and Mr. Durham.5

than August 11, 2016.6

Plaintiffs iCloud and iPhone to be forensically examined.7

Court on May 31, 2017.8

subsequently traded it in at AT&T, resulting in the destruction of the ESI.9

Court finds proper.

THIS, the 9th day of June, 2017.

PHELPS DUNBAR, LLP

BY: /s/ Mark Fijman

ATTORNEYS FOR DEFENDANT BELHAVEN

above and foregoing DEFENDANT BELHAVEN UNIVERSITYS SUPPLEMENT TO

MOTION FOR SANCTIONS AND DISMISSAL PURSUANT TO FED. R. CIV. P.

such filing to the following counsel of record:

ATTORNEYS FOR PLAINTIFF

ATTORNEY FOR TAROLD

/s/ Mark Fijman

IN THE UNITED STATES DISTRICT COURT

ERICA N. STEWART PLAINTIFF

V. CAUSE NO. 3:16-CV-744-CWR-LRA

TAROLD DURHAM; BELHAVEN DEFENDANTS

is fully briefed and ready for review.

9, 2017). The familiar summary judgment standard applies.

Stewart. In Mississippi, intentional infliction of emotional distress requires proof of severe

distress requires, unsurprisingly, sufficient proof of emotional distress. Adams v. U.S.

not show that it actually caused Stewart to suffer emotional distress.

and a friend for a drink at a local restaurant.1

upset in any way over the photo, she replied no.

enough to proceed to trial against him.

The motion for summary judgment is granted.

SO ORDERED, this the 9th day of June, 2017.

IN THE UNITED STATES DISTRICT COURT

ERICA STEWART PLAINTIFF

VS. CIVIL ACTION NO. 3:16-CV-744-CWR-LRA

TAROLD DURHAM AND BELHAVEN UNIVERSITY DEFENDANTS

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANT

as grounds therefore, would state as follows:

towards Erica Stewart (Plaintiff).

was informed that the receptionist position was no longer available.

infliction of emotional distress (NIED). On November 9, 2016, Defendant Durham filed

his Answer denying liability.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

8. Plaintiff relies on her Memorandum in Support of Plaintiffs Response in Opposition to

Defendant Tarold Durhams Motion for Summary Judgment.

9. Further, Plaintiff relies on the following exhibits:

a. Excerpts from the Deposition of Erica Stewart attached hereto as Exhibit A;

through January 7, [2016] attached hereto as Exhibit B;

c. Charge Questionnaire attached contemporaneously herewith as Exhibit C; and

d. Dismissal and Notice of Rights attached contemporaneously herewith as Exhibit D.

deems to be fair and just.

Respectfully submitted, this the 18th day of May 2017.

_/s/ Carlos E. Moore____________

EFC, to all counsel of record.

This the 18th day of May 2017.

_/s/ Carlos E. Moore_______