Ferguson v. Medical College (471 F. Supp. 2d 901, 2007)

DECISION AND ORDER

RANDA, Chief Judge.

Plaintiff Darrin L. Ferguson (“Ferguson”), was employed as the manager of the “PhysGen” laboratory at the defendant Medical College of Wisconsin (“Medical College”) from December 2001 until June 7, 2002, when the Medical College terminated his employment. By his first amended complaint, Ferguson alleges claims of harassment, hostile work environment, and retaliation due to his race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”) (First Cause of Action); discrimination in the termination of his employment due to his race in violation of Title VII (Second Cause of Action); and, discrimination against him in the performance, modification, enjoyment of benefits, terms and conditions and termination of his contractual relationship in violation of § 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the Civil Rights Act of 1991. (Third Cause of Action). Ferguson also alleges supplemental claims of defamation under Wisconsin law (Fourth Cause of Action) and invasion of privacy under Wis. Stat. § 896.50 (Sixth Cause of Action). Ferguson also claims negligent supervision in failing to supervise Ferguson’s superiors in the prevention of race discrimination in violation of Title VII and § 1981 (Fifth Cause of Action).

Subject matter jurisdiction over Ferguson’s federal claims is afforded by 28 U.S.C. § 1331 and supplemental jurisdiction over Ferguson’s state law claims is afforded by 28 U.S.C. § 1367. Venue is proper under 28 U.S.C. § 1391(b) as the events giving rise to this complaint took place in this judicial district.

Several motions are pending. They will now be addressed.

MOTIONS TO STRIKE

Pursuant to Federal Rule of Federal Civil Procedure 56(e) and Friedel v. City of Madison, 832 F.2d 965, 971 n. 4 (7th Cir.1987), the Medical College seeks an order striking specific inadmissable, incompetent, and/or irrelevant evidence from the record. (Docket No. 119.) The Medical College’s motion sets forth a three and a half page table listing the challenged evidence, the proposed finding or response which cites the evidence followed by the Medical College’s corresponding response or rebuttal to the proposed finding, and the basis for the Medical College’s objection. The Medical College also requests that the Court strike the Ferguson declaration and the affidavit of Austin Brill (“Brill”) “in light of the rampant deficiencies” in those documents “which extend well beyond the portions actually cited” by Ferguson. (Def.’s Mot. Strike 8.)

Ferguson filed a motion to strike the Medical College’s motion to strike. (Docket No. 133.) Ferguson objects to the motion to strike contending the motion presents arguments that should properly have been presented in the Medical College’s reply and that by filing a separate motion to strike the Medical College is evading time and space restrictions on its reply submissions. The Medical College opposes the motion to strike contending that its motion to strike merely reiterates and condenses objections made in its rebuttal to Ferguson’s response to the Medical College’s proposed findings of fact and in the Medical College’s responses to Ferguson’s proposed findings of fact in response to the Medical College’s motion for summary judgment. (Def.’s Resp. Pl.’s Mot. Strike Def.’s Mot. Strike 2.) The Medical College requests an award of costs and fees in responding to Ferguson’s motion.

Friedel, 832 F.2d at 971, acknowledges that court’s prior holdings:

that where a party fails to move to strike a defective affidavit or particular portions thereof, the party has waived any objections based on its defects and the court may consider the affidavit. Federal Deposit Insurance Corp. v. Meyer, 781 F.2d 1260, 1267 (7th Cir.1986); Klingman v. National Indemnity Co., 317 F.2d 850, 854 (7th Cir.1963); accord Williamson v. United States Department of Agriculture, 815 F.2d 368, 383 (5th Cir.1987).

Thus, Friedel provides support for the Medical College’s filing of a separate motion to strike. Additionally, in general, the Medical College’s motion to strike aggregates its prior objections. In light of the foregoing, Ferguson’s motion to strike the Medical College’s motion to strike is denied.

With respect to the Medical College’s motion to strike, Rule 56(e) of the Federal Rules of Civil Procedure sets forth the requirements for the types of evidence which may be presented in conjunction with a motion for summary judgment. Rule 56(e) provides that “affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” “Statements outside the affiant’s personal knowledge or statements that are the result of speculation or conjecture or merely conclusory do not meet this requirement.” Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir.1999) (citing Box v. A & P Tea Co., 772 F.2d 1372, 1378 (7th Cir.1985)). Proposed findings which do not meet the evidentiary standard of Rule 56(e) have not been included.

Furthermore, in determining the material and undisputed facts, the Court has disregarded those proposed findings of fact and responses that constituted legal conclusions, were argumentative or irrelevant, were not supported by the cited evidence, or were not supported by citations specific enough to alert the Court to the source for the proposal, see Pl.’s Resp. DPOF ¶ 322 (citing Ferguson Decl.).

However, the Medical College’s sweeping characterization of the entire Ferguson declaration and the entire Brill affidavit, without analysis, does not provide a basis to strike those documents. Therefore, the Medical College’s motion to strike those documents is denied.

Many of the objections raised by the Medical College’s motion are most meaningfully discussed in the context of the particular finding. Therefore, those objections are addressed in footnotes in the relevant facts section. Any objection raised by the motion to strike but not specifically discussed has been considered by the Court and resolved in accordance with the general principles applicable to evidence which may be considered on summary judgment.

MEDICAL COLLEGE’S MOTION FOR SUMMARY JUDGMENT

The Medical College seeks summary judgment dismissing Ferguson’s complaint in its entirety. (Docket No. 64.) Ferguson opposes summary judgment on his Title VII and § 1981 claims that his employment was terminated based on his race, and his § 1981 claim that he was subjected to harassment based on his race. However, Ferguson states that his federal retaliation claims may be dismissed. (Pl.’s Br. Opp’n Def.’s Mot. S.J. 34.) He also concedes that the Wisconsin courts have held that defamation and invasion of privacy claims such as he asserts in this action are barred by worker’s compensation exclusivity, and although he disagrees with the holding he will not press the issue in this action. (Id. at 35). Ferguson further states that he does not assert negligence claims independent of his Title VII claims. (Id. at 34.)

Since Ferguson does not contest their dismissal, his federal retaliation claim and his state law defamation and invasion of privacy claims are dismissed. Furthermore, any state negligence claim is dismissed. The Court will address Ferguson’s harassment and termination of employment claims.

Summary Judgment Standard

Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party “opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Doe v. Cunningham, 30 F.3d 879, 883 (7th Cir.1994) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505; also citing Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); United States v. Rode Corp., 996 F.2d 174, 178 (7th Cir.1993)).

“Material facts” are those facts that under the applicable substantive law “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute over “material facts” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The burden of showing the needlessness of a trial — (1) the absence of a genuine issue of material fact and (2) an entitlement to judgment as a matter of law — is upon the movant. In determining whether a genuine issue of material fact exists, the Court must consider the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 587, 106 S.Ct. 1348.

Failure to respond to a summary judgment motion does not automatically result in judgment against the non-moving party. See Cunningham, 30 F.3d at 883. “A party is never required to respond to a motion for summary judgment in order to prevail since the burden of establishing the nonexistence of a material factual dispute always rests with the movant.” Id. (citations omitted).

Relevant Facts

The Parties

The Medical College is a private academic institution, whose primary campus is located in Milwaukee, Wisconsin. In terms of money awarded by the National Institutes of Health (“NIH”) to medical school graduate school programs, the Medical College’s Physiology Department is the number one ranked program in the United States.

Before the NIH may award a grant, the applicant must certify that it has filed an Assurance of Compliance form with the United States Department of Health and Human Services pertaining to four nondiscrimination requirements. The Medical College has made significant efforts to attract minority employees. The Medical College’s Office of Human Resources “Equal Employment Opportunity & Affirmative Action” policy requires an “aggressive outreach and recruitment program ... [to] assure that qualified and potentially qualified minorities be given ... the ample opportunities to become employed and be able to advance.” (Dilday Dep., Ex. 4.)

Ferguson, an African-American male resident of Racine County, Wisconsin, is a former Medical College employee. His employment with the Medical College began in December 2001 and ended on June 7, 2002.

The Medical College’s PhysGen Project

In 2000, the National Heart, Lung, and Blood Institute — -part of the NIH — began funding a group of Programs for Genomic Applications (“PGAs”) across the nation to study the link between genes, function, and disease. One of these PGAs — the Physiogenomics of Stressors in Derived Consomic Rats (the “PhysGen Project”) is based at the Medical College.

The PhysGen project, funded in four-year cycles, initially was the largest research program in the Medical College’s Physiology Department. From 2000 to 2004, the annual funding for the project was about $2.2 million.

The PhysGen Project has six components: Genomics, Phenotyping, Research Services, Bioinformatics, Education, and Administration. The phenotyping component performs experiments on genetically altered rats to measure the response of genetic materials to various environmental stressors. At relevant times, the pheno-typing component was engaged in several different research protocols, including the lung, cardiac, vascular, renal, respiratory, biochemistry, and histology protocols. The resultant data is used to study the link between the 22 rat chromosomes and cardiovascular, pulmonary, renal, and blood function in three inbred strains of rats. The phenotyping component is designed to obtain and provide rapid, high throughput (volume), precise, and detailed phenotypic measurements on an industrial scale.

The data obtained from the phenotypic component is posted on the Medical College’s website and can be accessed and used by scientists throughout the nation. The project is designed to provide a new infrastructure for those studying the relationship between genes in complex function and disease.

Allen W. Cowley, Jr., Ph.D., (“Cowley”), a Caucasian who has been employed at the Medical College for about 25 years, is the Chairman of the Physiology Department and is very busy. The Physiology Department has over 300 employees. Cowley has more than 119 NIH-funded grants. At all relevant times, Cowley was the director of the phenotyping component.

Work on the phenotyping component takes place partly in the phenotyping laboratory (“PGA”). At all relevant times, the supervisors in the PGA laboratory were Kunert, a Caucasian, and Melinda Dwinell, Ph.D., (“Dwinell”), a Caucasian. Ferguson was the laboratory manager and reported to Kunert and Dwinell. Kunert and Dwi-nell reported to Cowley.

At the time the Medical College started the PhysGen project, Kunert was a tenured faculty member at Marquette University (“Marquette”) in Milwaukee, Wisconsin. During the fall of 2001, Cowley brought Kunert in to work on the PhysGen project. Effective as of April 1, 2001, Ku-nert officially became a supervisor and the Medical College entered into a subcontracting agreement with Marquette pursuant to which the Medical College provided salary support to Kunert. Effective September 1, 2001, Kunert received a faculty appointment as an Assistant Adjunct Professor at the Medical College.

At her deposition in this case, Kunert recalled that, when she started, the PGA phenotyping staff members were Jennifer Labecki (“Labecki”), Alison Kriegel (“Kriegel”), William Hutchins (“Hutch-ins”), Candace Jones (“C.Jones”), Jessia Powlas (“Powlas”), Mike Bregantini (“Bre-gantini”), Larry Crowley (“Crowley”), or some similar name, and others whom she could not recall. Before Ferguson was hired, Kunert was Kriegel’s supervisor. Kriegel went to Kunert’s office only if she had a problem such as one with her data or the laboratory equipment. Kriegel states that after Ferguson was hired, she went to Kunert’s office no more often than she had before he was hired. Kriegel never made any complaints about Kunert or any other supervisor, except Ferguson.

Dwinell joined the PhysGen project in May 2001 and received a faculty appointment as an assistant professor effective as of May 1, 2001.

Cowley believes that all of the staff and technicians in the PGA program, most of whom had just graduated from college, should be encouraged on a routine basis to better themselves, and move onward and upward to graduate or medical school or to higher better paying positions. Cowley perceives that there was a large turnover in the positions because those employees were taking advantage of opportunities for advancement.

Cowley views the hiring of qualified women and minorities as part of compliance with federal civil rights law. He is aware of the Medical College’s responsibilities in terms of civil rights for federal support of its grants.

The Medical College’s Decision to Hire Ferguson as the Laboratory Manager of the PGA Laboratory

By November and December 2000, the PGA laboratory had been set up so Kunert had only been involved in unpacking equipment and helping set up protocol stages. In January 2001, the PGA laboratory started getting the subject animals— rats — and began conducting experiments. According to Kunert, as of January 2001, the laboratory technologists had been hired and had been practicing techniques, such as inserting catheters in rats, upstairs in the physiology department laboratories.

The experiments in the PGA laboratory were conducted by laboratory and research technologists — non-supervisory staff who reported to the supervisors. As the technologists performed the experiments on individual rats, some data was automatically collected on a data acquisition computer. The technologists then downloaded the data from the data acquisition program and summarized it on an Excel spreadsheet referred to as the “phenotype list.” Kunert and Dwinell reviewed and analyzed the data, and performed mathematical computations to determine whether it was acceptable for posting. After they determined that the data was correct, Kunert or Dwinell met with Cowley and other laboratory personnel. If Cowley approved posting the data, Kunert and Dwinell would officially certify it for posting on the website.

Initially, Kunert and Dwinell were also responsible for hiring, firing and dealing with personnel issues of laboratory staff. Additionally, Kunert and Dwinell had teaching and research responsibilities that were unrelated to the PGA laboratory.

The PGA lab was designed as a high throughput laboratory. Kunert had. no experience with a high throughput lab and had never been a laboratory supervisor before her job in the PGA laboratory. Ku-nert’s only prior supervisory experience was supervising nursing assistants.

The issue of hiring a laboratory manager must have arisen in late January or in February of 2001. One of the reasons that Cowley sought to hire a manager was that the PhysGen laboratory was falling behind in 2001. Another reason was that Kunert and Dwinell would be unable to handle all the incoming data on their own. Additionally, the efficiency of the laboratory was not as high as intended because the technical staff was experiencing lower than expected success rates in performing the laboratory protocols.

The PGA laboratory had not previously had a laboratory manager. Cowley and Howard Jacob, Ph.D. (“Jacob”), the director of the genomics component of the PhysGen project, decided to hire a laboratory manager for the PGA laboratory to alleviate the pressures on Kunert and Dwi-nell.

The Medical College expected that the laboratory manager would act as the “point person” at the work bench where the experiments are conducted to help the technologists with problem solving. The Medical College wanted someone who could learn the protocols and work closely with the technologists. As initially envisioned by the Medical College, the laboratory manager also would handle personnel issues with the PGA laboratory staff. The purpose for the laboratory manger was stated in the position description as follows:

To manage the day-to-day activities of the phenotyping laboratory of the Program for Genomic Applicaations [sic] (PGA). This position places the responsibility for the organizational aspects of the laboratory in one person. This person will be responsible for the technical staff and organization of lab jobs, e.g. radiation monitor, ordering of supplies.

(Kunert Dep., Ex. 1, 1.) Cowley never intended that the laboratory manager would be the “sole boss” in the PGA laboratory. Rather, the doctorate level supervisors would need to retain some oversight particularly with respect to the scientific work.

According to Kunert, they were not looking for a Ph.D. scientist. They wanted someone who had a scientific background, some experience working with laboratory animals, and some success with experiments.

The Medical College posted the job opening on its web site. Ferguson saw an advertisement for the position in the early summer of 2001. The Medical College interviewed three candidates for the position, including Ferguson — the only African-American candidate. In his job application, Ferguson represented to the Medical College that he had a number of years of experience in research and project management.

Initially, Ferguson interviewed with Ku-nert and Dwinell, with whom he had a good discussion. Ferguson also interviewed with Julie Messinger (“Messinger”) the program coordinator for the PhysGen project. After those interviews, Ferguson was invited back to the Medical College for an interview with Cowley.

After the interviews, Cowley meet with Dwinell, Kunert and Messinger and he received a unanimous recommendation to hire Ferguson. Cowley adopted the recommendation and hired Ferguson in December 2001. Cowley signed and sent Ferguson a letter of appointment, and told Ferguson that he would be reporting to Kunert and Dwinell and the faculty co-investigators on the PhysGen project. When Cowley hired Ferguson, Cowley thought he was a very pleasant, well-spoken, well-mannered individual with experience that suggested he could succeed as the laboratory manager.

Cowley did not make the decision to hire Ferguson based on Ferguson’s scientific bench expertise. Cowley was concerned that initially Ferguson was going to be giving directives to technicians who knew more about the protocols and had more experience running them than Ferguson. Cowley believed that for Ferguson to assess how the technicians were doing, to gain their confidence and to provide help and mentoring to them, Ferguson had to familiarize himself with the protocols at the “hands on” level by actually performing each one.

At his deposition in this case, Cowley testified that:

[I]t was important that he knew how to run those protocols as well as the techs ultimately so he knew what the expectations could and should be. If you haven’t run it yourself, if you don’t know how to do it, you don’t know how much to expect from your personnel. And that’s why I felt very strongly that Darrin should go in there and spend time with each one of these protocols one-by-one as he could and learn them as well as he could, not so he could run them everyday, but so that he could appreciate what the expectations were.

(Cowley Dep. 199.)

Ferguson began his employment as laboratory manager on December 17, 2001. Ferguson did not have a faculty appointment at the Medical College and he does not have a graduate level degree.

During Ferguson’s early days on the job, Cowley observed him to be polite and non-confrontational. Cowley believed that Ferguson was not actually hired to do the protocols.

When Ferguson was first hired, Ferguson thought he reported to Cowley. Cowley maintained an open-door policy with Ferguson until he realized he did not have time to address all the details Ferguson brought to him.

When Ferguson started his employment, he understood that Kunert and Dwinell would retain some supervisory authority over the science conducted at the laboratory. Ferguson believed that Kunert’s only supervisory role over him at that time arose from the fact that she supervised several of the protocols.

Ferguson’s Introduction to the Laboratory

On Ferguson’s first day of work, Mes-singer introduced him to the people employed in the front office of the Medical College’s Department of Physiology, including the Department Administrator, Jane Brennan Nelson (“Brennan Nelson”), who takes the lead on personnel matters in the Physiology Department.

Messinger showed Ferguson the locations of the offices of the principal investigators on the research protocols for the PhysGen project. Kunert then took Ferguson through the PGA laboratory and “introduced him to the laboratory staff that was there.”

During the first couple of weeks of his employment, Ferguson attended an educational series on different components of the PhysGen project. The series, led by the principal investigators for the project, was presented for all of the laboratory staff. At that time, Ferguson had the opportunity to meet the principal investigators.

At all relevant times, the PGA laboratory had one glass fronted office located in the corner of the laboratory. When Ferguson began his employment, Kunert and Dwinell had their desks in that office. The Medical College did not have a dedicated desk and computer ready for Ferguson on his first day of work. There was other desk space that Ferguson could use. During this time, Ferguson’s superiors expected him to use the computers of others in the laboratory. During Ferguson’s early days in the laboratory, Cowley approved Ferguson’s efforts to set up his desk and computer.

Early in his employment, Ferguson discussed with Kunert, Dwinell and Cowley questions concerning when Kunert and Dwinell would move out of the laboratory and whether he could have an office outside the laboratory. Ferguson was advised that he needed to be located in the laboratory. Within one month of when Ferguson started working, he was provided with a desk.

After starting, Ferguson worked with Greg McQuestion (“McQuestion”) to determine Ferguson’s computer and software needs. Within five to six weeks of Ferguson’s starting date, Ferguson received a computer which was satisfactory to him and most of the software which he requested. The only software that Ferguson requested but did not receive — the software used to analyze data — was available on other computers in the PGA laboratory. Ferguson could not use those computers when they were being used by others but could work around the problem: Ferguson also requested and received a HP iPaq — which is a type of personal data assistant or PDA. Ferguson was the only person in the laboratory who had a PDA. (Dwinell Decl. ¶ 19.) Ferguson understood that the computer and the PDA were the property of the Medical College. Ferguson purchased his own 64 megabyte memory card for the PDA. (Ferguson Decl. ¶ 11.)

When Dwinell began working at the Medical College, Kunert and Messinger occupied the office in the PDA laboratory. Initially, Dwinell did not have a desk or computer and she did not obtain either for several weeks. Dwinell used the other computers in the laboratory, as needed, until she received her own computer. Cowley testified that it is not at all unusual at the Medical College to have such a delay in obtaining equipment and “this is the way everybody starts ... It [getting set up] takes a month.” (Cowley Dep. 215.)

The Medical College’s Expectations of Ferguson as Laboratory Manager

When Ferguson was hired he understood that the PDA lab had experienced high staff turnover and that the Medical College wanted the laboratory manager to address that issue and to improve the productivity and efficiency of the laboratory. Ferguson also recognized that as laboratory manager, he “certainly” was the “go to” person for the laboratory technologists and technicians and that he was to handle the “actual running of the lab.” (Ferguson Dep. 267, 271.) Cowley testified that he wanted Ferguson to be available “eight hours a day for the staff people if they needed help in supervision and guidance and that it was [Ferguson’s] responsibility to see that things ran smoothly.” (Cowley Dep. 164.) Similarly, Kunert expected that Ferguson would be working with the individual technologists at the bench. At her March 10, 2005, deposition in this matter, Kunert indicated, that in retrospect, the job description was not clear about Ferguson having to work at the bench with all the protocols and that the job description was not written clearly.

Ferguson had not performed the specific protocols carried out in the PhysGen laboratory before he came to the Medical College. The protocols in the phenotyping component involved measuring the physiological effects of environmental stressors on rats, often by dissecting dead rats, performing surgical operations on living rats, or drawing blood from living or dead rats.

Ferguson recognized that to address problems in the laboratory he needed to understand the protocols. From a team-building perspective, Ferguson acknowledged the value in talking to the technicians about what they did and in doing what they did. Ferguson understood at the time he started working for the Medical College that one of the priorities was to learn the protocols. Ferguson remembers the “suggestion” from Kunert and others that he actually do the protocols to become familiar with them and that such an activity would be a “benefit.”

Cowley asked Ferguson to learn to do all the protocols at least once. Kunert testified that to carry out the functions of the laboratory manager, she expected that Ferguson would need to do the protocols once or twice to see what they entailed and to identify problems.

According to Kunert, Ferguson was given an assignment to determine the efficiency of each protocol, and to identify barriers to increasing the number of successes that they obtained through the initial or secondary runs. In other words, for some protocols there were a lot of failures requiring that the groups be repeated.

Kunert was a member of the “PhysGen Phenotype Component Efficiency Task Force,” along with Dwinell, Ferguson, Messinger and McQuestion. The members of the task force collaborated as a group to make decisions that affected the laboratory. There were periods, particularly in the beginning of program, when the PGA laboratory went through long periods of time when there was a fair amount of failure. Such failures did not occur in every protocol, but in some more than others. The mechanism the laboratory implemented to determine the cause of these failures was to ask each technologist to maintain a file called “bench notes.”

Ferguson’s Early Performance as Laboratory Manager

During the early weeks of his employment Ferguson took an inventory of the PhysGen laboratory. As a result, he determined that some supply items had been purchased redundantly. Ferguson decided to reorganize the laboratory so that staff could more easily ascertain the quantity of various supplies on hand that were used for more than one protocol. This avoided the ordering of supplies in small quantities and the need for expedited ordering — both of which are costly.

Kriegel and Labecki, technicians in the PhysGen laboratory, “grumbled about” the laboratory reorganization. (Ferguson Decl. ¶ 47.) Bypassing Ferguson, they complained to Kunert and Dwinell who then confronted Ferguson with Kriegel and Labeeki’s complaints. Ferguson explained his thinking and Kunert and Dwi-nell seemed to accept it.

Neither Kunert nor Dwinell saw Ferguson spending a significant amount of time doing the protocols in the early part of his employment. Cowley did not see a “serious effort” on Ferguson’s part to learn the protocols and to convince Cowley that he could do them. (Cowley Dep. 285.) In his interactions with Ferguson, Cowley found him indirect and evasive in responding to his questions. For example, Ferguson could not provide specific numbers or details with respect to a problem.

In the first couple weeks of his employment and before he had done any of the protocols, Ferguson looked at ways to reorganize equipment and material in the laboratory, including moving a printer from one wall to another to make space for Ferguson to have a place to sit in the laboratory. Cowley thought Ferguson’s plans were premature because Ferguson did not know enough about the laboratory activities and that Ferguson was anxious to assert his authority. Cowley understood that Ferguson’s actions upset the laboratory staff. Ferguson recalled that the technicians who were doing the protocols “may have” expressed concerns about his reorganization efforts. (Ferguson Dep. 459.)

In one of Ferguson’s early conversations with Cowley, Ferguson told Cowley that he had some ideas on how to rearrange the laboratory. Cowley listened politely and told Ferguson that they would discuss these things later and make changes needed to increase efficiency if and when they were appropriate. Kunert and laboratory workers began complaining to Cowley very early in Ferguson’s employment about the changes Ferguson was making in the laboratory.

An increase in productivity in the laboratory would not automatically translate into increased compensation for the technologists, as the Medical College and the PGA grant have specific policies and requirements governing compensation within the project.

Early Complaints About Ferguson and the Laboratory Management’s Response

On January 9, 2002, several of the laboratory technologists made complaints with the Human Resources office against Ferguson for alleged inappropriate conduct. Andrea Trevett (“Trevett”), a white coworker, Kriegel, and Kathryn Privett (“Privett”) separately complained that Ferguson had changed his clothes in front of them in the lunch/work room where some lockers were located. Both men and women went into the lunch/work room which was located off of the data analysis room.

Kriegel states that she was “pretty creeped out” when she saw Ferguson changing because she saw “his underwear and chest and stuff, and that was kind of gross in a, female uncomfortability sort of way.” (Kriegel Dep. 113). Kriegel states that she saw Ferguson “partially naked and that’s — that was just weird.” (Kreigel Dep. 123.) She also testified that she saw Ferguson’s bare chest, stomach, and lower torso. Kriegel states that when Ferguson was changing his clothes, he was facing the wall, not her and she does not remember anyone else being in the room. Kriegel states that she reported Ferguson’s clothes changing to Kunert or Dwinell.

Kunert remembers being told about Ferguson’s alleged “undressing” by one of the laboratory technologists who saw him undress, she guesses. (Kunert Dep. 158). She does not remember who told her, or how many women spoke to her and said that Ferguson was undressing, or whether there was more than one person. Kunert does not remember that she received a direct complaint about Ferguson’s alleged undressing. She does not recall being talked to about it. Kunert does not recall talking to the complainants or Ferguson about the alleged undressing.

Kunert was told that Ferguson undressed in the locker room off the computer room. Kunert has no idea of the extent to which Ferguson undressed. She did not see it. Kunert and Dwinell told Ferguson that the complaints were not serious and would not appear in his personnel file.

Ferguson wore a scrub top in the laboratory and changed into the scrub top in the work/lunch room. Ferguson claims that he always wore an undershirt or T-shirt under his scrub top.

Kunert and Dwinell spoke to Ferguson concerning the complaints presented to the Human Resources office. Ferguson gave his account of how he changed into clothes to which Kunert responded, “Oh, my God. That’s what they’re complaining about.” (Brill Dep. 228.) Kunert did not understand that the technologists were claiming that Ferguson was making any kind of sexual overtures.

Ferguson indicated that he was considering leaving, but Kunert and Dwinell encouraged him to stay.

Kunert claims she never saw the complaints, including Kreigel’s claims that “Darrin was told by [Kunert] to stop ... a couple of times prior to changing in front of her. [Kriegel] feels uncomfortable around Darrin now.” (Kunert Dep., Ex. 2.) Kunert does not recall telling Krie-gel that she would speak to Darrin about undressing. Kunert does not recall if Kriegel spoke to her before going to the Human Resources office. (Kreigel told Human Resources that she had done so).

Cowley became aware of the staff complaints about Ferguson undressing when Kunert told him that a number of female employees were quite upset because Ferguson had been changing clothes with the door open in the locker room. Cowley was also verbally informed by Dwinell about these complaints. (Kunert and Dwinell were Cowley’s primary source of input about what was happening in the PhysGen laboratory while Ferguson worked there.) In January 2002, Cowley saw the complaints that had been filed with the Human Resources office about Ferguson changing his clothes in the presence of females.

Ferguson spoke to Cowley regarding the complaints. Cowley understood that the women in the laboratory were complaining that Ferguson was changing his clothes without appropriate discretion. From Cowley’s perspective, changing into scrubs from street clothes was not unusual in laboratory and hospital environments. Cowley told Ferguson that the complaints were a non-issue. Cowley did not see the undressing complaints as raising a serious issue, having worked in a laboratory for a long time, changing his clothes in them, and appreciating the scarcity of private areas common in such facilities. Cowley was not upset by the allegations made against Ferguson and did not think the complaints reflected badly on Ferguson or his managerial competence. Ferguson was never disciplined in connection with these complaints.

Cowley saw the clothes changing complaint as “overblown” and hoped that “the whole thing would go away very quickly” because he did not want the incident to reduce Ferguson’s ability to function in his job. (Cowley Dep. 234.) However, ultimately, Cowley believes the clothes changing complaint “was just one of the things that diminished the [staffs] respect” for Ferguson. (Id. at 235.)

Cowley subsequently had a meeting with all the PhysGen laboratory staff to discuss the complaints and the manner in which they were made. During the meeting Cowley was angry that the complainants had not initially discussed their concerns with Kunert or Dwinell, Messinger, or him before proceeding to the Human Resources office. Ferguson believes that the laboratory technicians took Cowley’s remarks during the meeting as a rebuke. Kunert subsequently sent an e-mail to the staff which Ferguson believed reinforced his view that the technicians needed to address personnel questions to him and obey him.

L-NAME Incident

The drug L-NAME is given to the rats for a specified number of days to precondition them for use in protocols. In late January 2002, Kunert specifically requested that Ferguson administer L-NAME to a group of rats. The practice was to start the rats on L-NAME on Friday.

Late on the Friday afternoon in question, Kunert reminded Ferguson that he needed to administer the L-NAME to the rats and pointed out that the lights in the rat housing area went off at 6:00 p.m. Ferguson assured Kunert he would accomplish the task.

But, some rats got regular drinking water, instead of water containing L-NAME. On Monday, February 4, 2002, Kunert spent a significant part of the day with Ferguson during which Ferguson did not mention any issues with the L-NAME task. However, the preceding day, Sunday, February 3, 2002, Ferguson sent a one page e-mail to Cowley reporting observations that he made on Saturday and Sunday which lead him to believe that regular water might have been substituted for the water containing L-NAME that the rats were supposed to be given.

On Tuesday, February 5, 2002, Kunert received a report that Ferguson had given the wrong drinking water to the rats and had then switched the drinking water. At his deposition in this case, when asked if he gave L-NAME to the wrong rats, Ferguson responded “[n]ot to my recollection,” and “not to my knowledge.” (Ferguson Dep. 329.) At his deposition, Brill, a PhysGen senior research technician, testified that Ferguson “scrambled to fix whatever problems, and he was always scrambling. So he made sure what ever the problem was ... fixed. And I began to take responsibility of the task and making the water for him. The L-NAME water had to be prepared.” (Brill Dep. 216.)

Based on her belief about what happened, Kunert told Ferguson that he had no integrity and that she had concerns about his work. Kunert claims that when she confronted Ferguson about not immediately disclosing the L-NAME miswater-ing to her on the Monday after it had occurred, Ferguson explained that he did not have the time because that day he had gone with C. Jones to the security department to discuss some harassing e-mails C. Jones was receiving. Kunert admits that C. Jones “was obviously having some problem with somebody,” and that it was Ferguson’s duty to address it in the manner he deemed appropriate. (Kunert Dep. 188.) Kunert testified that there was no reason for Ferguson not to tell her since he was with her all afternoon except for a few hours and that “he had plenty of time to tell me.” (Id.)

Kunert brought the incident to Cowley’s attention, indicating that her primary concern was that Ferguson was not forthright in reporting what had occurred and she felt she could not trust him. Kunert claims that she changed her mind about Ferguson being qualified for the job, when early in February 2002, she “found out from one of the laboratory technologists that ... Ferguson had given the wrong group of rats the L-NAME and that when he found out that, then he switched the drinking water, from the rats that he had given [it] to originally, to the right rats.” (Id. at 154-55.) Kunert claims she was not angry about the mistake, because mistakes happen all the time. Kunert was “angry, furious, and still is furious, that she was not told about it.” (Id. at 155.) Kunert believes that Sherri Hahn (“Hahn”), a technologist, told her about what Ferguson had done. Hahn did not provide a written report.

Kunert did not write a report. She went and talked to Cowley. Kunert did not investigate the facts before speaking to Cowley. Kunert does not know why she did not investigate the incident and acknowledges that maybe she should have done so.

Ferguson reported the problem to Cowley in detail in an e-mail. Cowley responded with a “terse” e-mail to Ferguson, stating that the problem had probably been a foul-up by the ARC staff. Cowley was trying to communicate that he was not blaming the mistake on Ferguson. Cowley perceived the L-NAME incident as a “very routine problem that occurs periodically in the laboratory.” (Cowley Dep. 254.) There were similar problems in looking after the welfare of the animals and changing drugs in the ARC on the weekends.

Cowley considered Ferguson’s e-mail to him reporting on the L-NAME difficulty as providing an explanation of what happened. To the extent that Cowley faulted Ferguson at all, it was for not taking more responsibility in the matter. Cowley did not believe that Ferguson had falsely reported the facts. The L-NAME incident was not a huge incident from Cowley’s perspective, but it was a huge incident from Kunert’s perspective. Kunert accused Ferguson of fabricating his version of the L-NAME incident to defend himself. After this incident, Cowley told Ferguson that was how Kunert was, that it was typical and it was one of the reasons there had been problems in the laboratory.

In a meeting between Ferguson, Dwinell and Kunert, on March 2, or 3, 2002, Cowley perceived tension between Ferguson, who appeared to want to work more independently and who claimed to feel undermined with the staff, and Kunert and Dwi-nell who communicated to Cowley that Ferguson lacked the familiarity with the protocols necessary to operate without their close oversight.

Cowley agreed that Ferguson was not ready to operate independently and he emphasized again the need for Ferguson to familiarize himself on a hands-on level with the protocols. Cowley made a number of notes to himself at that time:

Darrin is not working out very well for a number of reasons, but the biggest problem is the lack of any real effort to engage himself seriously in the daily activities of the experimental work. He is by no means ready to take charge after 2 months and it is unlikely he will be ready in another 4-8 weeks. This had made him angry and made it difficult for [Kunert] and [Dwinell].

(Cowley Deck, Ex. A.)

At his deposition Ferguson testified that “in a number of meetings I had critical commentary made about me,” starting “easily” within the first month of his employment. (Ferguson Dep. 605.) Ferguson concedes that there were at least some legitimate criticisms made of him during that time period.

Sometime in March 2002, Kunert asked Brill to keep an eye on Ferguson and to report to her anything out of the ordinary that he witnessed Ferguson doing.

Ferguson’s Handling of the Thyroid Study

In addition to the work on the PhysGen Project, the PGA Lab also had several collaborative projects with institutions outside the Medical College. One project involved collecting blood samples for a thyroid study at the University of Chicago. At the beginning of his employment, Ferguson was assigned the responsibility for collecting and forwarding these samples. Cowley concurred with the assignment “because it was the simplest thing [he] could ask him to do.” (Cowley Dep. 311-12.) Cowley thought that Ferguson needed to train on the simple tasks before moving on to the more complex tasks. (Id.)

The first set of samples for the thyroid study were not collected the week of January 14, 2002, as scheduled and, as a result, Messinger had to schedule more rats. Another set of samples was scheduled to be collected the week of February 25, 2002. Those samples were not collected until the following week.

In regard to that sample collection, Ku-nert received a report that Ferguson had asked Maurice Jones (“MJones”), a laboratory technologist who worked on the vascular protocol, and Brill to help him with the blood draws for the thyroid study. Kunert understood from her role in analyzing and vetting the data on the PhysGen project that M. Jones was more than a month behind in his data management on the vascular protocol at the time he assisted Ferguson. Moreover, he provided her with data that was scientifically invalid. In Kunert’s opinion, Brill also should have been working on other matters.

On Thursday, March 2, 2002, without asking Ferguson what had happened, Ku-nert sent Ferguson an e-mail which she copied to Cowley, Dwinell and others in the project. The e-mail states:

Mr. Ferguson, I have to tell you that I was not happy to hear that you managed to pull Mr. [Maurice] Jones from his protocol to help you with your thyroid protocol. Maurice is more than a month behind in his data management. He did not need to be fooling around with stuff you should have completed last week. I also understood that you had to have Austin Brill assisting you. Since when do we need three people drawing blood from a few rats[?] I just wanted to register my complaint with you in writing. [T]his is not a sign of very good or thoughtful management skills.

Mary Pat.

(Kunert Dep., Ex. 24.) Cowley was not critical of the tone of the e-mail. Cowley understood from Kunert’s e-mail — which he characterized as “very direct” and “not subtle” — that Kunert felt Ferguson had interrupted the regular schedule to do a very menial task. (Cowley Dep. 167.) Cowley describes Kunert as a “very brusque, very direct, no-nonsense individual, very competent [and] skilled.” (Id. at 169.)

At this point, Cowley was beginning to conclude that Ferguson did not have a lot of laboratory skills. Cowley considers drawing blood to be a basic task that does not require assistance. It was Cowley’s perception that the sort of tasks that Ku-nert had criticized Ferguson for not performing alone were menial tasks that Kunert could do virtually with her eyes closed. Cowley also believed that Ferguson should have known that M. Jones was behind in his work.

Ferguson responded to Kunert’s e-mail late on March 7, 2002, copying the same people she had. In his e-mail, Ferguson stated that he was unaware that M. Jones was behind in his data collection and that he was “somewhat dismayed” that Kunert had not said anything about the overdue data. (Ferguson Dep., Ex. 6.) (However, in his deposition, Ferguson indicated he had some responsibility for monitoring whether M. Jones was inputting his data on a timely basis.)

In the e-mail, Ferguson also disclaimed “ownership” of the thyroid protocol, while also indicating that he was responsible for carrying it out. (Id.) Ferguson described Kunert’s conduct as “sophomoric and unprofessional.” He also facetiously wrote, “[t]hank you for clearly demonstrating that possession of an advanced degree is not necessarily correlated with being ‘educated.’ ” (Id.) The e-mail makes no reference to race and Ferguson did not consider the e-mail as being a race discrimination complaint. At his deposition, Ferguson testified that he “simply would not have said race or whatever.” (Ferguson Dep. 176.)

Cowley chose to believe the version of the events reported by Kunert. Ferguson spoke to Cowley about the problems he was having in the laboratory with Kunert. Cowley saw the contentious situation that had developed between Ferguson, and Ku-nert and Dwinell as emblematic of Ferguson’s resentment at having to report to them.

Ferguson’s March 7, 2002, Complaint about Kunert

On March 7, 2002, Ferguson also emailed a formal written “complaint of harassment against Dr. Kunert” to Cowley. (Id. at 166, Ex.7.) Ferguson made no express mention of race.

At his deposition, Ferguson testified that the instances of harassment leading up to the March 7, 2002, complaint were the reports made by the laboratory technologists to the Human Resources office about Ferguson undressing, Kunert’s remark to Ferguson that he had no integrity and the examples set forth in his March 7, 2002, complaint. The March 2, 2002, complaint includes the example of an interchange between Ferguson and Kunert in which Ferguson asked, “What do we mean by ‘tabulate’!?]” and Kunert responded, “Tabulate. It means to count.” (Id.) The complaint also relates that during the same meeting, after a reference to a histogram, Dwinell said to Ferguson, “that’s a chart with bars on it.” (Id.) Ferguson also complained about disparaging remarks about his job performance and instances in which Dwinell and Kunert “bypassed” him in going to laboratory staff. (Id.)

Cowley responded to Ferguson’s within two hours and indicated he would attempt to resolve the matter. Ferguson’s March 7, 2002, complaint did not cause Cowley to have any concerns that race discrimination might be occurring in the PhysGen laboratory because he knew Kunert and Dwinell, and Ferguson never previously complained about race discrimination.

On March 13, 2002, Cowley, along with department administrator Brennan Nelson, met with Ferguson about his complaint. In the meeting, Ferguson apologized for having made personal comments about Kunert. Ferguson asked for clarification on where the lines of authority were drawn in the laboratory. Cowley stated that he would have Kunert, Dwinell and Messinger outline their responsibilities along with those of Ferguson. Cowley again asked Ferguson to make a personal effort to learn the protocols to gain the confidence of, and credibility with the laboratory staff.

Cowley indicated to Ferguson that from that point forward Brennan Nelson would take the lead on those types of issues. With respect to Kunert, Cowley coached her regarding the need to use appropriate language in interacting with people.

By letter dated March 22, 2002, Cowley stated that he had investigated Ferguson’s concerns and taken appropriate action, and that if Ferguson had any further concerns Ferguson should contact him.

On March 22, 2002, Ferguson met with Kunert and Dwinell. Kunert and Dwinell presented Ferguson with a document entitled “Addendum to the MCW Position Description, PhysGen Phenotyping Lab Manager Responsibilities” which listed the six essential functions contained in the original position description, and provided additional detail under each of the essential functions. The Addendum stated that “[f]or the manager’s own training needs— work with each protocol[’]s technologists long enough to learn them to the point of understanding what they do, what challenges there are in each protocol and where there are efficiency opportunities. This includes the data manipulation with each protocol.” (Ferguson Dep., Ex. 24.) The Addendum also stated that the manager needed to “[e]nsure that recruiting is initiated and pursued as soon as the manager is aware there will be a staff member, leaving, following communication with [the] project supervisor(s). Proactively manage the hiring process.” (Id.)

Kunert and Dwinell explained to Ferguson that the Addendum’s purpose was to provide clear direction as to them expectations of him. Ferguson also received a summary of the laboratory supervisors’ responsibilities (applicable to Kunert and Dwinell), a summary of the program coordinator’s job (Messinger’s position), and an organizational chart outlining the reporting lines at and above the level of Ferguson for the PhysGen project from that time forward. The chart does not show reporting lines below Ferguson.

Ferguson was told to concentrate on the vascular protocol in the week following the March 22, 2006, meeting. The second priority given to Ferguson in the March 22, 2002, meeting was to focus on laboratory staffing issues. Dwinell sent Ferguson an e-mail regarding their discussion, in which she reiterated Ferguson’s priorities for the upcoming week and stated, “[w]e are committed to helping you be successful in your role as the lab manager and ensuring the success of the lab as a whole.” (Ferguson Dep., Ex. 26.) Thereafter, Ferguson had weekly meetings with Dwinell and Brennan Nelson. (Ferguson Dep. 484.)

Ferguson’s Performance from March 22, through April 19, 2002,

In the weeks following the March 22, 2002, meeting, Ferguson met with Dwinell, Kunert and Messinger on a weekly basis to discuss his activities. Between March 22, and April 19, 2002, Ferguson understood that his supervisors were not happy with his performance in various respects.

With respect to learning protocols, Ferguson spent one week after the March 22, 2002, meeting working on the vascular protocol, but after that week he scaled back his work on that protocol. Ferguson did not perform any of the other protocols between the March 22, 2002, meeting and April 19, 2002. (Ferguson Dep. 559-60.)

In the weeks immediately following the March 22, 2002, meeting, Kunert and Dwi-nell asked Ferguson for updates on his hiring activities. Ferguson understood that because of the production schedules for the PhysGen Project, and the need to post data on the web site on a regular basis, the laboratory needed to be fully staffed.

Kriegel had advised management that she intended to attend graduate school in the fall — that development was flagged for Ferguson on March 20, 2002. In February 2002, another technologist developed an allergy to rats. By March 22, 2002, Ferguson knew that the technologist, “Andrea” was leaving the laboratory. (Ferguson Dep. 470-72.) On March 25, 2002, Kunert wrote Ferguson an e-mail regarding filling the vacant positions which stated “the faster we move the better.” (Kunert Decl. ¶ 6, Ex. A.) Starting March 18, 2002, M. Jones, a PhysGen laboratory technician, was absent and the Medical College had no indication of whether he would return or when he would return. By early April 2002, M. Jones’s employment had been terminated and Hahn had given notice of her resignation. In the first part of April 2002, Ferguson understood that he was supposed to be looking for applicants and bringing candidates in for interviews. These events left three vacancies in the laboratory, and Kriegel was scheduled to leave in a few months. As of April 17, 2002, Ferguson had brought in one person for an interview, no job offers had been extended and the Medical College was nowhere near extending a job offer.

The PGA program had a lower success rate inserting catheters into rats than other laboratories at the Medical College but Cowley did not attribute this problem to Ferguson. Between March and April 2002, issues arose concerning a change in catheters used in some of the experiments. The change was accompanied by confusion about who would make the catheters and how the catheters would be made. The confusion resulted in complaints from the technologists. Ferguson accepts some responsibility for the confusion.

During the process of switching from one type of catheter to an Australian or “new” catheter, Ferguson went into the surgical room to inquire how things were proceeding and one of the technicians asked whether they should be using the new catheters. Ferguson said they should be, but if they felt uncomfortable they could use the old ones since they had not practiced with the new ones. Privett left the room during the discussion. Ferguson completed his discussion with the rest of the technicians. Upon returning to the laboratory, Ferguson saw Privett in Ku-nert and Dwinell’s office having a very animated conversation with Kunert. Immediately after Privett exited that office, Kunert came out and accused Ferguson of not having the new catheters ready in time for the technicians to practice with them and of not having made enough catheters.

Kunert and Dwinell became involved with the issue, which they ultimately resolved by deciding to go back to the “previous catheter system.... So there was no change.” (Ferguson Dep. 568.) Cowley agrees that Ferguson was doing his job in bringing the catheter problem to Cowley’s attention and had no problem with Ferguson’s actions in this regard. Cowley thought that Ferguson was never blamed for the catheter problem.

During March to April 2002, Ferguson did not have a good working relationship with a number of the laboratory technologists, all of whom were white women. Ferguson does not contend that he did not have a good relationship with those white women because he asserts they are all racists. Ferguson agrees that at least some of the concerns the technologists expressed about him were valid and did not stem from racial bias.

On April 12, 2002, Ferguson met with Kunert, Dwinell along with Labecki and Kriegel, two of the laboratory technologists with whom Ferguson did not have a good working relationship. During the meeting, Kriegel tried to express her concerns about Ferguson but she became very upset and started to cry. In Ferguson’s presence and without him voicing any objections, Kunert asked Kriegel to write down her concerns so that they could discuss them.

Kriegel created a list which included, among others, complaints about Ferguson’s undressing in the locker room, his attempts to re-organize the laboratory when he had minimal understanding of the experimental procedures, his promise to lobby for pay raises, and his “dismissive mode” of interacting with Kriegel. (Def.’s PFOF ¶ 238.)

After the meeting, Ferguson took the list to Brennan Nelson, who had not been at the meeting and expressed concerns about the list.

Brennan Nelson discussed the issue with Dwinell, who explained the circumstances leading to the list’s creation. Subsequently, Dwinell advised Kriegel that she should keep such a document in a secure place and not circulate it among the technologists.

Between March and April 2002, Ferguson was also confronted with a conflict between the technicians on two different protocols which related to scheduling issues. As of mid-April 2002, Ferguson had not resolved the issue and he could not make any headway without Dwinell’s involvement.

Early in his employment, Ferguson was asked to handle the harvesting of spleens several times for another collaborative project with an outside institution. By mid-April 2002, Ferguson had harvested spleens several times. Nonetheless, in April 2002, while Kunert was in the middle of giving a rare tour of the laboratory to a group of nursing students, Ferguson interrupted her to ask a simple question about how to complete the protocol.

Between March and April 2002, “[f]or the most part,” Ferguson provided requested updates on a timely basis to Mes-singer. (Ferguson Dep. 577.) During that time frame, Ferguson did not give Dwinell a report of his activities that he had said he would provide by April 15, 2002.

Beginning in March 2002 through at least May 2002, the “PhysGen Phenotype Component Efficiency Task Force” met from time-to-time and kept a log of their proceedings. On March 20, 2002, the group looked at a bench notes timeline Ferguson had made for the respiratory protocol and agreed that it was a good visualization of the failures being experienced in that protocol.

Fergtison’