76 F.3d 394
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Sharon WILSON, Plaintiff-Appellant,v.UTICA PARK CLINIC, INC., Defendant-Appellee.
No. 95-5060.(D.C.No. 94-C-147-B)
United States Court of Appeals, Tenth Circuit.
Feb. 7, 1996.

Before SEYMOUR, Chief Judge;  and PORFILIO and TACHA, Circuit Judges.

ORDER AND JUDGMENT1

1
Sharon Wilson filed suit against her former employer, Utica Park Clinic, alleging racial discrimination in violation of 42 U.S.C.1981.   The district court granted summary judgment in favor of Utica Park, finding Ms. Wilson failed to present any evidence to show Utica Park's reason for termination was pretextual.   We agree and affirm.

2
The parties are well-acquainted with the facts.   Therefore, we will not reiterate them here except to the extent necessary to supplement our analysis.   From March 1990 to February 1992, Utica Park employed Ms. Wilson, an African-American, as a radiology technician.   During her twenty-three month tenure, Ms. Wilson was tardy on 288 occasions and absent 11 times.   After Ms. Wilson's eleventh absence, Helen Stopp, the Associate Director of Utica Park Clinic, fired her for excessive absenteeism and tardiness.

3
Ms. Wilson, who was eight-months pregnant at the time of her termination, contends she was the victim of disparate treatment.   In short, Ms. Wilson claims Utica Park failed to accommodate her pregnancy in the same manner as Caucasian employees.   Ms. Wilson asserts Utica Park allowed four other employees who became pregnant to use accrued sick days and vacation days to cover their absences, but did not permit her to do so.

4
This court reviews the grant of a summary judgment motion de novo, applying the same standard used by the district court.  Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).   Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991).

5
In disparate treatment cases, this circuit follows the burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  See McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1260 (10th Cir.1988).   To state a prima facie case of discriminatory termination, a plaintiff is required to show:  (1) she belongs to a racial minority;  (2) she was discharged for violating a work rule of the employer;  (3) similarly situated non-minority employees who violate the same rule were treated differently.   Id. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate "a reasonably specific, legitimate, non-discriminatory reason" for the plaintiff's termination.   Id. However, if the defendant presents a facially legitimate, non-discriminatory reason for the termination, the burden again shifts to the plaintiff.   The plaintiff must then show the defendant's reason for termination is merely a pretext for race-based discrimination.  Id. at 1261.

6
To assert a claim of disparate treatment, the plaintiff must show she was treated differently than other similarly situated non-minority employees who violated the same rule.  Elmore v. Capstan, Inc., 58 F.3d 525, 529-30 (10th Cir.1995).   Similarly situated employees are those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline.  Mazzella v. RCA Global Communications, Inc., 642 F.Supp. 1531, 1547 (S.D.N.Y.1986), aff'd, 814 F.2d 653 (2d Cir.1987).

7
Despite Ms. Wilson's contentions to the contrary, the record is bereft of any evidence she was treated differently than other similarly situated employees at Utica Park.  Indeed, the record shows Ms. Wilson actually received more favorable treatment than some of her co-workers in the radiology clinic.   During the time Ms. Wilson was employed by Utica Park, two Caucasian employees and one Hispanic employee were reprimanded and ultimately terminated for far less tardiness and absenteeism than Ms. Wilson.

8
Although Ms. Wilson compares herself to four other pregnant co-workers, nothing in the record indicates these women were similarly situated.   Ms. Wilson presented no evidence her co-workers had comparable attendance records during their pregnancies.   Furthermore, three of the women worked under different supervisors and in different departments than Ms. Wilson.   The fourth woman, unlike Ms. Wilson, suffered from preeclampsia and was accommodated under the Americans with Disabilities Act.2

9
We conclude Ms. Wilson has failed to state a prima facie case for disparate treatment under 42 U.S.C.1981.   Nevertheless, even if she had met her initial burden, we believe Ms. Wilson presented no evidence Utica Park's facially non-discriminatory reason for terminating Ms. Wilson was pretextual.

10
The record reveals Ms. Stopp fired Ms. Wilson after a total of 288 tardies and 11 absences.   Utica Park's written policies provide an employee who is absent on more than five occasions in a one year period is subject to disciplinary action up to and including termination.   Because two tardies equal one "occurrence" of absence for the purposes of disciplinary action, Ms. Wilson actually had incurred 155 occurrences of absence at the time of her termination.   Other than her own conclusory allegations, Ms. Wilson failed to present any evidence to dispute these numbers.   Accordingly, we think the record more than supports the district court's finding that Utica Park set forth a legitimate, non-discriminatory reason for Ms. Wilson's termination.

11
Contending race was a factor in her discharge, Ms. Wilson alleges her immediate supervisor, Jamie Price Rumfield, told racial jokes, refused to permit Ms. Wilson to eat breakfast with her co-workers, and referred African-American patients to Ms. Wilson because "she couldn't stand the smell."   Ms. Wilson further contends Ms. Rumfield ignored her tardiness and unapproved absences prior to her pregnancy and only commenced the disciplinary procedures after learning of it.   Ms. Wilson argues all of these events make clear she was terminated because of her race.

12
We cannot agree.   To show pretext, Ms. Wilson must demonstrate Utica Park's proffered non-discriminatory reason for her termination is unworthy of belief.  See Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir.1995).   Furthermore, Ms. Wilson must demonstrate a nexus between the allegedly discriminatory acts and Ms. Stopp's decision to terminate her.  See Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir.1994).

13
Here, the record is devoid of evidence Utica Park's facially non-discriminatory reason for Ms. Wilson's termination is unworthy of belief.   Moreover, assuming the incidents of alleged bias by Ms. Rumfield took place, she had no authority to discharge Ms. Wilson.   Moreover, Ms. Wilson has not shown any nexus between Ms. Rumfield's actions and her termination.   Ms. Stopp stated in her deposition she fired Ms. Wilson for her excessive absenteeism and tardiness, and Ms. Wilson does not allege Ms. Stopp's decision was racially motivated in any way.

14
AFFIRMED.

1
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.   The court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.  R. 36.3

2
 Ms. Wilson's own physician, Dr. Martha Dannenbaum, testified Ms. Wilson suffered no disability during her pregnancy requiring an accommodation under the ADA


736 F.2d 747
237 U.S.App.D.C. 138
TENNESSEE GAS PIPELINE COMPANY, A DIVISION OF TENNECO, INC.,Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
No. 83-1925.
United States Court of Appeals,District of Columbia Circuit.
Argued March 8, 1984.Decided June 1, 1984.

Kathleen T. Puckett, Houston, Tex., with whom Michael R. Waller, Houston, Tex., Terence J. Collins and Douglas L. Corbett, Washington, D.C., were on the brief, for petitioner.
Arlene Pianko Groner, F.E.R.C., Washington, D.C., with whom Stephen A. Melton, Acting Gen. Counsel, Barbara J. Weller, Deputy Sol., and A. Karen Hill, F.E.R.C., Washington, D.C., were on the brief, for respondent.  Joanne Leveque, F.E.R.C., Washington, D.C., also entered an appearance for respondent.
Before GINSBURG, BORK and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge:

1
In Middle South Energy, Inc., 23 FERC (CCH) p 61,277 (May 24, 1983) (hereafter, Middle South ), an adjudicatory proceeding under the Federal Power Act, 16 U.S.C. Secs. 791a-828r (1982) (FPA), the Federal Energy Regulatory Commission (Commission or FERC) rendered a novel decision.  Rejecting a longstanding position on which a Commission interpretative rule (18 C.F.R. Sec. 2.4 (1983)) rested, FERC held it had authority to suspend initial rates filed under the FPA.  FERC's Middle South adjudication is now pending our decision on judicial review.1   On the day FERC released its revised FPA interpretation in the Middle South adjudication, the Commission also amended two interpretative rules.  See Interpretation of Authority to Suspend Initial Rate Schedules, III FERC STATUTES & REGULATIONS (CCH) p 30,456 (May 24, 1983) (final rules);  24 FERC (CCH) p 61,205 (Aug. 1, 1983) (order denying rehearing).  FERC conformed its FPA interpretative rule to its holding in Middle South.  See 48 Fed.Reg. 24,361 (1983) (to be codified at 18 C.F.R. Sec. 2.4).  In addition, FERC made a corresponding change in the parallel Natural Gas Act, 15 U.S.C. Secs. 717-717w (1982) (NGA), interpretative rule.  See 48 Fed.Reg. 24,361 (1983) (to be codified at 18 C.F.R. Sec. 2.52).  This case, pursued by Tennessee Gas Pipeline Company (Tennessee), involves a challenge to the Commission's NGA interpretative rule change.

2
FERC presents a threshold objection to Tennessee's petition for review.  The Commission states that its new NGA interpretative rule has "no definitive impact on the rights of anyone" and is therefore not an independently reviewable action.  Brief for the Respondent Federal Energy Regulatory Commission at 15 n. 5 (FERC Brief).2   We conclude that the alleged "hardship" imposed on Tennessee by FERC's action lacks the concrete quality and immediacy necessary to invoke judicial review of an agency's bare interpretative statement on the meaning of a statutory text.   See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967);  Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967);  Gardner v. Toilet Goods Association, Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967);  see also South Carolina Electric & Gas Co. v. ICC, 734 F.2d 1541 (D.C.Cir.1984);  Baltimore Gas & Electric Co. v. ICC, 672 F.2d 146 (D.C.Cir.1982).  We therefore dismiss Tennessee's petition for want of a question ripe for review.

3
We recognize, however, as does the Commission, FERC Brief at 15 n. 5, that the FPA and NGA are similarly designed statutes.  A court determination in an FPA adjudication may bear significantly on the appropriate construction of the NGA.   See, e.g., Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577 n. 7, 101 S.Ct. 2925, 2930 n. 7, 69 L.Ed.2d 856 (1981).  Because Tennessee has an evident interest in the latter statute's construction and application, we will accept Tennessee's presentation in this case as the submission of an amicus curiae in our review of FERC's Middle South adjudication.

4
Two, now black letter, criteria govern ripeness determinations:  "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration."   Abbott Laboratories v. Gardner, 387 U.S. at 149, 87 S.Ct. at 1515;  see Air New Zealand, Ltd. v. CAB, 726 F.2d 832, 835-37 (D.C.Cir.1984);  Arkansas Power & Light Co. v. ICC, 725 F.2d 716, 724-26 (D.C.Cir.1984).  Tennessee's petition does not focus on particular NGA applications;  it addresses the agency's attempt to locate congressional intent with regard to the NGA's governance of initial rates generally, and thus meets the "fitness ... for judicial decision" criterion.   See Abbott Laboratories v. Gardner, 387 U.S. at 149, 87 S.Ct. at 1515 (legal issues fit for review where "both sides have approached [the] case as one purely of congressional intent");  Baltimore Gas & Electric Co. v. ICC, 672 F.2d at 149 (same).  But the "fitness" of an agency's interpretative ruling for abstract review, while a commonly-met factor when administrators state their advice on what a statute means, does not serve as the critical test in cases of this kind.  Mindful of the Constitution's "case or controversy" limitation on our authority, see Regional Rail Reorganization Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 355, 42 L.Ed.2d 320 (1974),3 we must attentively inquire whether Tennessee has shown current "hardship" to its operations as a result of FERC's newly-made interpretation.   See South Carolina Electric & Gas Co., supra, at 1544-1547.

5
Tennessee argues that the Commission's officially-announced view--that, under section 4 of the NGA, it can suspend initial rate schedules, set interim rates during the suspension period, and subject once-suspended or interim rates to contingent refund obligations--has a significant immediate impact on Tennessee's planning "because of the uncertainties which the new interpretation adds to the regulatory process in general and to the acceptability of certificates of public convenience and necessity issued to Tennessee, in particular."    Brief of Petitioner Tennessee Gas Pipeline Company at 13.  Tennessee describes elaborately the uncertainties it urges in support of judicial review in advance of any Commission attempt to apply the new rule to Tennessee.  See id. at 33-37;  Reply Brief of Petitioner Tennessee Gas Pipeline Company at 3-10.

6
Prior to offering a new gas transmission service, a pipeline company is generally required to apply for a certificate of public convenience and necessity authorizing the new service.  As Tennessee points out, under section 7(e) of the NGA, 15 U.S.C. Sec. 717f(e) (1982), the Commission has discretionary authority to condition the grant of certificates on initial prices that are "in keeping with the public convenience and necessity."   Atlantic Refining Co. v. Public Service Commission, 360 U.S. 378, 391, 79 S.Ct. 1246, 1255, 3 L.Ed.2d 1312 (1959).  The typical price condition authorizes a particular initial rate and further provides that, if the authorized initial rate is ultimately found unreasonable, overcharges will be refunded.  See, e.g., Tennessee Gas Pipeline Co., 21 FERC (CCH) p 61,199, at 61,456 (Nov. 26, 1982).  Once a pipeline company accepts a certificate authorized by the Commission, it becomes obligated to provide the service and to do so under the conditions stated in the certificate.

7
Under this scheme, with section 7(e) as the sole provision in point, Tennessee can be secure in the initial price it charges.  If it receives an unconditioned certificate, whatever initial rate Tennessee subsequently files with FERC will govern.  If the certificate is conditioned, Tennessee will be positioned to accept or reject it in light of the price the Commission authorizes, and the pipeline company's known exposure to refund obligations.

8
FERC, in its new interpretation, maintains that, in addition to its section 7(e) authority to condition certificates, it has authority under section 4 to suspend initial rates.  If FERC is correct, Tennessee urges, pipeline companies must factor a new risk into their decision whether to accept a certificate.  Tennessee hypothesizes this series of events:  it accepts a certificate and files an initial rate schedule;  FERC, exercising its newly-asserted authority, both suspends the rate and requires the pipeline to charge a lower rate during the up to five month suspension period;  the initially filed rate is ultimately found just and reasonable.  If this series of events comes to pass, "Tennessee will be exposed to ... a nonrecoverable loss."    Brief of Petitioner Tennessee Gas Pipeline Company at 35.4   The risk of this potential loss, Tennessee asserts, impacts on its current planning and establishes the requisite "hardship."

9
There are many "ifs" in Tennessee's nonrecoverable loss scenario.  The Commission will visit this potential loss upon Tennessee only if first, the Commission initially by-passes its section 7(e) certificate conditioning authority and then invokes, post-certificate, its recently claimed section 4 suspension power;5  second, the Commission requires a lower rate to take effect during a suspension term that covers a significant period of the pipeline's operation;  third, Tennessee eventually proves the initial rate just and reasonable.  Nothing Tennessee presents suggests that the series of events it hypothesizes as exposing it to a sizable potential loss is sufficiently probable to affect investment decisions, and thereby to harm Tennessee "in a concrete way."   Abbott Laboratories, 387 U.S. at 148, 87 S.Ct. at 1515.

10
On the contrary, FERC has stated repeatedly in these proceedings that it anticipates invocation of its interpretative rule in the natural gas area "only infrequently" because section 7(e) arms it with "sufficient authority to protect the public interest in most situations."    FERC Supplemental Memorandum at 1.6   The Commission noted, specifically, that in the ten months since it issued the NGA interpretative rule, it "has confined exercise of [the newly-asserted] suspension authority to situations arising under a new regulatory program that the Commission adopted without reserving its usual section 7(e) authority to ensure that initial rates are in the public convenience and necessity."    Id. at 2.  Tennessee asserts no current or even projected involvement in the "new regulatory program" FERC described.7

11
In addition to the "iffiness" of the loss scenario Tennessee asserts as an inhibition to capital investment,8 another factor contributes to our assurance that this case is not ripe for review.  Should FERC in fact invoke section 4 to suspend one of Tennessee's initial rates, Tennessee would have immediate recourse to the judiciary to contest FERC's statutory authority.  The Supreme Court so indicated in Trans Alaska Pipeline Rate Cases (TAPS), 436 U.S. 631, 98 S.Ct. 2053, 56 L.Ed.2d 591 (1978).  The High Court there reviewed an order suspending an initial rate to determine whether Congress had authorized the agency's action.  The Court stated explicitly:  "[C]ourts have jurisdiction to review suspension orders to the limited extent necessary to ensure that such orders do not overstep the bounds of Commission authority."   Id. at 638 n. 17, 98 S.Ct. at 2058 n. 17.9   While the Court's reference in TAPS was to the Interstate Commerce Commission (ICC), it is solidly established that the review criteria applicable to ICC suspension orders apply as well to rate suspensions ordered by FERC.   See Exxon Pipeline Co. v. FERC, 725 F.2d 1467, 1470-73 & n. 9 (D.C.Cir.1984);  Papago Tribal Utility Authority v. FERC, 628 F.2d 235, 242-43 & n. 19 (D.C.Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980);  Municipal Light Boards v. FPC, 450 F.2d 1341, 1349-52 (D.C.Cir.1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972).

12
In sum, the application of FERC's NGA interpretative rule to Tennessee remains hypothetical.  If the Commission in fact invokes the rule against Tennessee, that action will be subject to judicial review in time to block "nonrecoverable loss" to Tennessee.  The planning insecurity Tennessee advances does not set its case apart from the mine run of situations in which an enterprise confronts official interpretations and policy statements regarding projected application of regulatory or fiscal legislation.  Were we to entertain anticipatory challenges pressed by parties facing no imminent threat of adverse agency action, no hard choice between compliance certain to be disadvantageous and a high probability of strong sanctions, see Arkansas Power & Light Co. v. ICC, 725 F.2d at 726, we would venture away from the domain of judicial review into a realm more accurately described as judicial preview.  No roving preview function has been assigned to courts in the federal system.   See South Carolina Electric & Gas Co. v. ICC, supra, at 1546-1547.

13
For the reasons stated, we dismiss Tennessee's petition for review of FERC's revised NGA interpretative ruling, but accept Tennessee's submission as an amicus curiae presentation in the review, currently pending, of the Commission's Middle South adjudication.

1
 Middle South and the instant petition were consolidated for March 8, 1984, oral argument

2
 Section 19(b) of the NGA, 15 U.S.C. Sec. 717r(b) (1982), provides for judicial review on the petition of any party "aggrieved by an order issued by the Commission."

3
 See generally G. GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 1655-66 (10th ed. 1980)

4
 A pipeline company cannot recover revenue forgone during a suspension period even if the suspended rate is later found to be just and reasonable.   See FPC v. Tennessee Gas Co., 371 U.S. 145, 152, 83 S.Ct. 211, 215, 9 L.Ed.2d 199 (1962);  Belco Petroleum Corp. v. FERC, 589 F.2d 680, 682 (D.C.Cir.1978)

5
 Tennessee could suffer the same loss if the Commission, having included a rate condition in the certificate, subsequently chose to suspend the initial rate authorized therein.  The prospect that FERC would suspend a rate it had approved during the licensing process, however, appears remote

6
 The Commission's order adopting the final rule addressed the matter in a footnote:
The Commission expects the suspension of initial rates under the NGA will not frequently occur because of the Commission's certificate authority under section 7(e) of the NGA.  Under section 7(e), the Commission may condition a certificate with an adjustment to the proposed initial rate to ensure that service is initiated under rates consistent with the public interest.  Refunds of amounts collected under temporary certificates may also be conditions of permanent certification.
III FERC STATUTES & REGULATIONS at 30,553 n. 2;  see also 24 FERC (CCH) at 61,489 (order denying rehearing) (in view of "authority to condition the grant of certificates under section 7(e) of the NGA," Commission anticipates "infrequent need" to suspend initial rates "in the natural gas area").

7
 Moreover, the Commission's stated policy is that "[a] shortened suspension period is warranted" for rates filed under this program.  ANR Pipeline Co., 26 FERC (CCH) p 61,170, at 61,420 (Feb. 10, 1984) (one-month suspension);  see Columbia Gas Transmission Co., 25 FERC (CCH) p 61,652 (Nov. 18, 1983) (one-day suspension).  A nonrecoverable loss of significant size is therefore unlikely under the program

8
 Cf. Air New Zealand, Ltd. v. CAB, 726 F.2d at 837-38 (case not ripe for review where realization of alleged risk created by agency order appeared too improbable to deter primary conduct);  South Carolina Electric & Gas Co. v. ICC, supra, at 1546 (case not ripe for review where it is "highly implausible that the existence of [the adopted] rule will affect petitioners' conduct in [contract] negotiations" with the rule's target)

9
 The court can maintain the status quo during the period of review by staying the suspension order on the condition that the monies collected by the pipeline company remain subject to refund.   See, e.g., Mobil Alaska Pipeline Co. v. United States, 434 U.S. 949, 98 S.Ct. 475, 54 L.Ed.2d 309 (1977)


                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                                No. 09-4040

UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

AARON POSLEY,

                  Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:08-cr-00295-LO-1)

Submitted:    October 9, 2009                 Decided:   November 13, 2009

Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Norman K. MOON, United States District Judge for the Western
District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Rachel S.
Martin, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia; Richard D. Kelley, REED
SMITH, LLP, Falls Church, Virginia, for Appellant.      Dana J.
Boente, United States Attorney, Inayat Delawala, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     In this appeal, the appellant, Aaron Posley, challenges a

special condition of his probation, namely, that he serve a six-

month     continuous    term    of     imprisonment,      which   was    imposed

following his conviction for driving while intoxicated (DUI) on

Pentagon property in Arlington, Virginia.                For the reasons that

follow, we affirm.

                                         I

     On    February     17,    2008,    Officer   Jason    Cummiskey    of   the

Pentagon Police Department conducted a traffic stop after he

observed    Posley     making    an     illegal   left     turn   on    Pentagon

property.     During the traffic stop, Officer Cummiskey determined

that Posley was intoxicated and arrested him.               After his arrest,

Posley failed a breath test, which measured his breath alcohol

concentration at .225 and .219, almost three times the legal

limit.

     Posley    was     cited    for    numerous   traffic    violations,     but

ultimately pled guilty to DUI and driving without an operator’s

license.     His conviction on the instant DUI offense represented

his fifth DUI conviction since 1998.

     On July 24, 2008, Posley was sentenced by a United States

Magistrate Judge.       Posley received a $40 fine for his conviction

of driving without an operator’s license, and that conviction is

                                       - 2 -
not at issue in this appeal.               Posley’s DUI conviction, 32 C.F.R.

§ 234.17(c)(1)(ii), was a Class B misdemeanor under federal law,

id. § 234.19, also known as a “petty offense.”                           18 U.S.C. § 19.

Class B misdemeanors are punishable by no more than six months’

imprisonment, id. §§ 3559(a)(7), 3581(b)(7), are not subject to

the imposition of supervised release, id. § 3583(b)(3), and are

not subject to application of the Sentencing Guidelines, U.S.

Sentencing      Guidelines        Manual    § 1B1.9.            The    magistrate      judge

sentenced Posley to two years of probation with several special

conditions,       including       participating          in     an    alcohol     education

program    as     directed    by    the     Probation          Office.        The    special

condition    at    issue     in    this    appeal        is    the    one    in   which    the

magistrate      judge   directed      that      Posley         serve    “six      months    in

prison.”    (J.A. 20).       According to the magistrate judge:

      I am going to protect the public from you.    You are
      going to kill somebody, but not for a period of six
      months.   I impose the maximum sentence.   I hope you
      get the treatment you need, but it is not going to be
      at the expense of the public.

Id.

      Posley appealed his sentence to the district court.                                   In

particular, he challenged his sentence on the basis that the

magistrate judge did not order that he serve the six months of

imprisonment      “during     nights,       weekends,          or    other   intervals      of

time,” as set forth in 18 U.S.C. § 3563(b)(10), which statutory

subsection      constitutes        one     of      the        twenty-three        enumerated

                                           - 3 -
discretionary conditions of probation that a court may impose in

addition to certain mandatory conditions.

      In     response,      the     government       presented    two       arguments.

First,      the    government      argued     that     18   U.S.C.       § 3561(a)(3)

authorized the magistrate judge to impose a six-month continuous

term of imprisonment on Posley at the same time he sentenced him

to   probation.        Alternatively,        the   government     argued      that   18

U.S.C. § 3563(b)’s catch-all provision, which broadly requires

that a defendant “satisfy such other conditions as the court may

impose,”      18   U.S.C.     § 3563(b)(22),       authorized      the      magistrate

judge to impose a six-month continuous term of imprisonment as a

special condition of probation.

      On December 23, 2008, in a memorandum opinion, the district

court      concluded   that       the   special    condition      of    a   six-month

continuous term of imprisonment was permitted under § 3563(b)’s

catch-all     provision.          In    so   concluding,    the    district     court

expressly did not reach the § 3561(a)(3) issue.

      On January 6, 2009, Posley filed a timely notice of appeal.

Two days later, he finished serving his six-month continuous

term of imprisonment.             Posley currently is serving his two-year

term of probation. *

      *
       We note that the present appeal is not moot even though
Posley has served the six-month continuous term of imprisonment.
Cf. Kitt v. United States, 138 F.2d 842, 843 (4th Cir. 1943)
(Continued)
                                         - 4 -
                                             II

     Posley contends that the magistrate judge erred when he

imposed as a condition of his probation a six-month continuous

term of imprisonment.           In so contending, Posley posits that the

district     court      erred    in        relying       on    § 3563(b)’s      catch-all

provision,    § 3563(b)(22),          to    uphold       the   special     condition   at

issue.

     We need not decide whether the district court’s reliance on

§ 3563(b)(22)      was    in    error,      as     any    error   here     is   harmless.

Unquestionably, the magistrate judge had the statutory authority

under § 3561(a)(3) to sentence Posley to a term of six months of

continuous imprisonment plus probation.                         See id. § 3561(a)(3)

(“A defendant who has been found guilty of an offense may be

sentenced     to    a    term    of    probation          unless--    . . .     (3)    the

defendant     is     sentenced        at     the     same      time   to    a   term   of

imprisonment for the same . . . offense that is not a petty

offense.”).        Critically, we do not have an over incarceration

problem in this case, because Posley has not served one day of

imprisonment over the six-month maximum term of imprisonment for

(holding that court of appeals is not limited to striking the
excess of a sentence beyond the maximum authorized by statute
and allowing valid portion to remain, but could remand the case
for an entirely new resentencing where that appeared to be the
wiser course).

                                           - 5 -
a DUI offense.          Moreover, there is no indication in the record

that Posley’s ultimate sentence would have been any different

had the magistrate judge believed that he could not have given

Posley    the    six-month    continuous       term   of    imprisonment    as    a

special condition of his probation.              Under these circumstances,

any error with regard to the catch-all provision is harmless.

                                        III

    For the reasons stated herein, the judgment of the district

court is affirmed.         We dispense with oral argument because the

facts    and    legal    contentions   are     adequately    presented     in    the

materials before the court and argument would not aid in the

decisional process.

                                                                         AFFIRMED

                                       - 6 -


298 F.3d 1178
GRAIN DEALERS MUTUAL INSURANCE COMPANY, Plaintiff-Appellant,v.FARMERS ALLIANCE MUTUAL INSURANCE COMPANY, Defendant-Appellee.
No. 01-6225.
United States Court of Appeals, Tenth Circuit.
June 13, 2002.

Mort G. Welch (Sherry L. Smith with him on the brief) of Welch & Smith, Oklahoma City, OK, for Plaintiff-Appellant.
Donald R. Wilson (Michael S. McMillin with him on the brief) of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, OK, for Defendant-Appellee.
Before SEYMOUR, ALDISERT,* and EBEL, Circuit Judges.
ALDISERT, Circuit Judge.

1
This appeal requires us to interpret a farmowners-ranchowners insurance policy clause that excludes coverage for "bodily injury or property damage arising out of business pursuits," when the sequela of conducting a legitimate business activity on the property was the enhancement of the farm property covered by the policy. To do this, we must apply Oklahoma law in a dispute between two companies that have issued insurance policies.

2
Robert and Mary McQuary, husband and wife, purchased a farmowners-ranchowners policy from Farmers Alliance Mutual Insurance Company, which covered a tract of thirty-three acres on which their dwelling is located. The policy named Robert and Mary McQuary as the insureds.

3
Mr. and Mrs. McQuary are the sole shareholders and officers of R&M Fleet Services ("R&M"), a company located on the same property as their dwelling. When R&M entered into a contract to purchase and transport fly ash, the McQuarys then directed their insurance agent to purchase a second insurance policy — a commercial policy which covered their business operations. The agent placed it with Grain Dealers Mutual Insurance Company, who issued a commercial lines policy to Robert and Mary McQuary d/b/a/ R&M Services. The same agent placed both insurance policies for the McQuarys.

4
R&M then contracted with Dowell Schlumberger, Inc. (hereinafter "Dowell") for the removal and transportation of fly ash. Under the contract, R&M would remove fly ash from Dowell's facility and then transport and dump the ash in a ravine on the McQuarys' property. The ravine was essentially unusable, consisting of steep terrain and large rocks. The McQuarys intended to fill the ravine with fly ash and then cover it with top soil. The operation commenced in 1995 and continued until 1998 without incident.

5
Herman and Mary Pieratt live on acreage adjacent to the McQuarys' property. In March 1998, Herman Pieratt complained that fly ash and top soil from the McQuarys' property had washed onto and damaged his property as a result of heavy rains earlier that year. Thereafter, he filed suit against McQuary and Dowell in the District Court of Creek County, Oklahoma (hereinafter, "the predicate lawsuit"). The complaint alleged that Dowell was operating a dump on the McQuarys' property by depositing fly ash, which was "a nuisance" and had "caused Plaintiff and his property harm and damage." It is the defense of this lawsuit that caused the flash point of controversy between the two insurance companies.

6
In the predicate lawsuit, Grain Dealers assumed responsibility under its commercial lines policy and then requested Farmers to participate as well. Farmers refused, relying on clauses in the policy excluding coverage for damages caused by "business pursuits" or pollutants. Grain Dealers then filed the present litigation in the district court, requesting a declaratory judgment requiring Farmers to assist in the defense of the predicate lawsuit. The district court granted summary judgment in favor of Farmers, holding that under the policy, Farmers had no duty to defend because of the two exclusionary clauses. Grain Dealers now appeals. We affirm.

7
The district court originally had jurisdiction in this diversity action, which is governed by Oklahoma law. 28 U.S.C. § 1332. An appeal was timely filed under Rule 4(a)(1) of the Federal Rules of Appellate Procedure. We have jurisdiction pursuant to 28 U.S.C. § 1291.

8
"The Court reviews a district court's decision to grant summary judgment de novo, applying the standard set forth in Fed.R.Civ.P. 56(c)." Wright v. Abbott Lab., Inc., 259 F.3d 1226, 1231 (10th Cir.2001); Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure.

I.

9
In the predicate lawsuit, Pieratt alleged that fly ash had "left the property owned by ... McQuary and has entered, migrated, washed, and run onto property owned by Plaintiff, causing harm and damage to Plaintiff's property, including a five-acre lake." Pieratt v. Dowell, CJ-98-220, Petition at 1. Pieratt's expert testified that the fly ash contaminated his lake such that livestock could not drink the water, sports activities were adversely affected, and excess levels of thallium could negatively impact the fish.

10
Fly ash is a naturally occurring inorganic material produced in microscopic particles as a residual of burning coal, often in coal-powered generating plants. It is comprised primarily of oxides of silica, iron, aluminum, calcium and magnesium. The marketing of fly ash is prevalent enough to have generated litigation concerning the contracts to buy and sell it. Mineral Res. Tech. L.L.C. v. Grand River Dam Auth., 97 F.Supp.2d 1266 (N.D.Okla.1999).

11
The Oklahoma Department of Environmental Quality ("DEQ") determined that depositing fly ash on the McQuarys' property did not require a special permit, and explained that fly ash "is a non-hazardous industrial waste which must be disposed of in a landfill permitted to accept such waste." Aplt.App. at 691-692. DEQ conditioned its subsequent approval on the McQuarys' assurance that neither the fly ash, nor surface water with which it came in contact, would discharge from their property.2 Id. at 671-673.

12
On December 20, 1995, and April 25, 1996, R&M entered into contracts with Dowell to purchase fly ash for $1.60 a cubic yard and to remove the fly ash from the Dowell facility for a specified price. Under the contract dated December 20, 1995, Dowell would pay R&M $18.37 per cubic yard for removal of the fly ash, and under the contract dated April 25, 1996, Dowell would pay R&M $19.60 per cubic yard.

13
Prior to transporting the fly ash, R&M prepared the ravine by hiring a bulldozer operator to construct an earthen dam, cut down the sides of the fill sites, and remove trees. R&M then hired independent contractors with dump trucks to haul the fly ash from Dowell's facility to the McQuarys' property. The deposited fly ash was then covered with top soil to stabilize it. The McQuarys estimate that between 1994 and 1998, approximately 12,000 cubic yards of fly ash were transported from Dowell's facility and then deposited in their ravine.

14
The hauling and transportation of the fly ash created revenues of over $200,000 for R&M. Had R&M transported the amount originally anticipated — 100,000 cubic yards — R&M would have received over $2,000,000 in revenues. It was specifically for the purpose of covering these fly ash operations that R&M purchased a commercial lines insurance policy from Grain Dealers, effective June 25, 1997 to June 25, 1998.

II.

15
In section two of the Farmers policy, entitled "Personal Liability Coverages," the policy clearly states that it does not apply:

16
d. to bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to non-business pursuits or farming ...

17
Aplt.App. at 532-533. The same section of the Farmers policy contains a pollution exclusion endorsement which also states that the policy does not apply to:

18
(1) bodily injury or property damage which results from the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of Pollutants into or upon land, water or air.

19
Id. at 534-535 (emphasis in original). It also defines pollutants as:

20
a. any solid, liquid, gaseous or thermal irritant or contaminant, including acids, alkalis, chemicals, fumes, smoke, soot, vapor and waste. Waste includes materials to be recycled, reclaimed or reconditioned, as well as disposed of.

21
Id. at 582-583.

22
At this point, the realities of the insurance industry are worth noting. Because business pursuits exclusions have the effect of reducing the amount of potential insurance claims, they also reduce premium rates. See generally Krings v. Safeco Ins. Co. of America, 6 Kan.App.2d 391, 628 P.2d 1071, 1074 (1981); Bartel v. Carey, 127 Wis.2d 310, 379 N.W.2d 864 (1985). See also 35 A.L.R. 5th 375 for a discussion of business pursuits exclusions generally. The district court applied both the business pursuits exclusion and the pollution exclusion to rule in favor of Farmers. Under the view we take, we need discuss only the business pursuits exclusion.

III.

23
The controlling issue is thus whether the transportation of the fly ash from Dowell's facility to the McQuarys' property should be treated as a "business pursuit" under section two of the Farmers policy.

A.

24
Grain Dealers first challenges the district court's ruling on the ground that, although R&M may have been involved in a business pursuit, the McQuarys were not. Grain Dealers correctly points out that R&M is not an insured under the Farmers policy, and thus its business pursuits are irrelevant to the exclusion's applicability.

25
Even assuming that the McQuarys are entitled to the protective benefit of the corporate form they chose for R&M, the McQuarys nevertheless were engaged in a business pursuit because their involvement in the fly ash operation flowed from their for-profit employment with R&M. At his deposition, Robert McQuary testified that he personally hauled the fly ash and covered it with dirt at the disposal site, and that this work was pursuant to his employment with R&M. Aplt.App. at 905. An employee's role in a business pursuit is sufficient to bring the employee within the exclusion's scope, given that "business" is defined as "a trade, profession or occupation." Id. at 120; see also Continental Ins. Co. v. Thompson, 356 F.Supp. 560, 563 (N.D.Okla.1972) (applying the exclusion where damage was caused by work performed by a gas station owners' non-salaried son because he "was engaged in a business pursuit for his parents as their agent servicing automobiles at their service station for a profit"). Further, Robert McQuary testified that he and his wife, as the sole shareholders of R&M, would receive the corporate profits resulting from the fly ash operations. Aplt.App. at 909. Even if the McQuarys were not paid directly for the fly ash disposal, their involvement in the operation was based on "a profit motive," which turns "an activity [into] a business pursuit." Wiley v. Travelers Ins. Co., 534 P.2d 1293, 1295 (1974). Because of the McQuarys' involvement in the fly ash disposal operation, Farmers is not prevented from invoking the business pursuits exclusion.

B.

26
Grain Dealers argues also that the business exclusion does not apply because the purposes of the fly ash hauling contract was to improve the condition of the real estate covered by the homeowners-ranchowners policy. They contend that the fly ash was purchased for the purpose of filling the ravine on the McQuary property.

27
In approaching this question, we do not write on a clean slate. Rather, we must defer to the cumulative experience of the Oklahoma judiciary.

28
Parties to insurance contract[s] are at liberty to contract for insurance to cover such risks as they see fit and are bound by terms of contract and courts will not undertake to rewrite terms thereof. The construction of an insurance policy should be a natural and reasonable one, fairly construed to effectuate its purpose, and viewed in light of common sense so as not to bring about an absurd result. Am. Iron & Mach. Works Co. v. Ins. Co. of North Am., 375 P.2d 873 (Okla.1962).

29
Wiley, 534 P.2d at 1295-1296 (Okla.1974).

30
"[T]he addition of a profit motive to an activity makes it a business pursuit." Id. at 1295. Moreover, "[t]he object to be accomplished by the homeowner's policy [is] to insure a home and not a business." Id. Finally, "[p]rofit motive, not actual profit, makes a pursuit a business pursuit." Id. at 1295.

31
The Wiley case involved a plaintiff who sustained injuries when she was bitten by a dog on the insured's premises. The plaintiff had entered the insured's premises in response to a classified ad in anticipation of purchasing a St. Bernard puppy. The homeowner's policy provided that coverage would not apply "to bodily injury or property damage arising out of business pursuits of an Insured ..." Wiley, 534 P.2d at 1294. The court stated: "We would agree the word `pursuit,' as used in the exclusion, has only its ordinary sense, i.e., to go after, seek, chase, strive for, or engage in an avocation, hobby or the like." Id.

32
The court held that the business exclusion would apply even though the dog operation was only part-time and the insured earned in excess of $10,000 a year from his main occupation as a traveling salesman. Because the language of the policy in Wiley tracks precisely that of the Farmers policy, we are bound by the foregoing interpretation of the Oklahoma Supreme Court.

33
Robert McQuary testified in his deposition that he entered into the fly ash contract with Dowell because "it seemed like a profitable venture." Aplt.App. at 625-626. Farmers argues that because McQuary's motives were profit-oriented, the operation thus qualifies as a business pursuit under Oklahoma case law. Grain Dealers v. Farmers, CIV-00-370-T, Order at 7 (W.Dist.Okla.2001) (hereinafter "Order"). We agree.

34
The district court reasoned that while "[the McQuarys] received the incidental benefit of reclaiming a ravine ... the task was undertaken as a long-term business enterprise, and not a property improvement project." Order at 8 (internal citations omitted). As such, "what Grain [Dealers] refers to as the [McQuarys'] `maintenance of the fly ash on their property' cannot be segregated from the rest of the business operation." Id.

35
We deem that the provisions and expectations of the fly ash contract — together with Robert McQuary's uncontradicted testimony that he entered the fly ash operation with a profit motive — inform and control our analysis. The rule of law announced in Wiley in construing the phrase "arising out of business pursuits," the very clause we interpret here, is that "profit motive, not actual profit, makes a pursuit a business pursuit." 534 P.2d at 1295. The rule serves as the major premise of the categorical deductive syllogism that we must follow here.

36
From here we move to the next premise: whether the profit motive was implicated. Transporting 12,000 cubic yards of fly ash to the McQuarys' premises resulted in gross revenues to R&M of over $200,000. If the operation would have continued as planned, and R&M had transported and disposed 100,000 cubic yards — the amount of material originally anticipated — R&M would likely have grossed approximately $2,000,000. Order at 7. Add to this McQuary's statement of his motive for profit. From these premises we must logically conclude that the fly ash operation came within Farmers' business pursuits exclusion.

37
Grain Dealers nonetheless insists that the damage to Pieratt's property was merely a side-effect of the fly ash operation, and not the result of a core business pursuit. The district court correctly found that the "business" of depositing fly ash did not cease when the fly ash arrived at the McQuarys' property line.

38
Grain Dealers' contention is also undercut by reviewing the very nature of its policy which R&M purchased. The Grain Dealers' policy was a commercial lines policy that R&M purchased specifically to insure the fly ash operation. That the McQuarys incurred the additional expense of purchasing a commercial lines policy justifies their subjective belief that the fly ash operation itself — a profit-motivated business pursuit — would not be covered by their existing policy. This inference is especially solidified considering the fact that the same insurance agent was retained by the McQuarys for the purchase of both the Farmers and Grain Dealers policies.

39
* * * * * *

40
In light of the view we take in this case, it is not necessary to meet the other issues presented: whether there was an occurrence during the 1996 policy period which damaged the Pieratt's property, whether the migration of fly ash to the adjacent property was a "personal injury" for purposes of tort law, whether fly ash qualifies as a statutory pollutant, whether the incident was sudden and accidental, and whether the pollution exclusion in the contract entirely eliminates the duty to defend.

41
We affirm the summary judgment of the district court.

Notes:

*
 Ruggero J. Aldisert, Senior United States Circuit Judge for the Third Circuit, sitting by designation

2
 DEQ's requirements for the operation were that:
(1) Neither this material, nor any run-on or run-off surface waters that directly contact this material, shall be allowed to discharge from the McQuary property. Although there are no hazardous constituents of concern based upon the analyses provided, the material may have a potential to negatively impact water quality. Therefore, this material should be covered with soils directly after placement.
(2) The material planned for this use shall be monitored on a consistent basis. Any change in the composition of fly ash purchased, or in the use, handling, or storage of such material by Dowell Schlumberger which has a potential to change the chemical composition of such material shall be reported to the Department. In this event, transport of the material off-site shall cease until further written approval is granted from this Department.
(3) The DEQ retains the right to inspect the property where the material is being deposited at any reasonable time.
Aplt.App. at 671-672.


567 A.2d 854 (1989)
Ronald G. DIXON, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.
Supreme Court of Delaware.
Submitted: August 29, 1989.
Decided: November 9, 1989.
Michael J. Hood, Asst. Public Defender, Office of the Public Defender, Wilmington, for appellant.
Timothy J. Donovan, Jr., Deputy Atty. Gen., Dept. of Justice, Wilmington, for appellee.
Before MOORE, WALSH and HOLLAND, JJ.
WALSH, Justice:
The defendant, Ronald G. Dixon ("Dixon"), was charged with Robbery in the First Degree and Conspiracy in the Second Degree as the result of a robbery that occurred on May 29, 1987. Following a jury trial in Superior Court, Dixon was convicted on the charge of Robbery and found not guilty on the charge of Conspiracy. In this appeal, he contends that the trial court erred in not suppressing evidence seized as the result of a nighttime search, in that the application and warrant were not in accordance with the requirements of 11 Del.C. §§ 2308 et seq. He also contends that the evidence introduced at trial was insufficient to support a finding of guilt on the charge of Robbery. Finding no error in the proceedings below, we affirm the conviction.

I
According to testimony at trial, the following events took place on the evening of May 29, 1987. The victim, Stephanie Brown ("Brown"), and her friend, Susan Lalor ("Lalor"), parked their car, and were walking down the street to a nearby restaurant when they noticed that two young men were walking toward them. As Brown passed the two men she was hit on the head and knocked to the sidewalk by one of them, later identified as Dixon. When she fell, she dropped her purse. Despite pleading with Dixon to "[t]ake it [the purse] and go," he repeatedly kicked her. Eventually, Dixon ceased his attack, picked *855 up the purse, and ran off with the other man. Brown and Lalor called the police. When the police responded, Brown and Lalor described the two men to them. Of particular note was that one of the men, later identified as Derris Brooks ("Brooks"), wore a distinctive bill-less cap emblazoned with the letter "Q." The following day a police officer noticed two men fitting the general description of the perpetrators. In particular, the officer noticed that one of the men (Brooks) was wearing the distinctive "Q" cap described by the victim. Dixon and Brooks were arrested. Although both claimed they had been at places other than the scene of the crime, there was noticeable conflict in their respective stories. The two men were placed in a physical lineup and separately viewed by Brown and Lalor. Brown was not able to make a positive identification. However, Lalor positively identified Dixon as the attacker and Brooks as the one who wore the "Q" cap. Following the identification, the police again questioned the two alleged perpetrators. Dixon, when told that he had been identified by an eyewitness, became hostile and the interrogation ended. Brooks, however, gave a second statement, consistent with the version of the crime recounted by Brown and Lalor. Brooks stated that when he and Dixon passed the two women, Dixon knocked one of the women to the ground, grabbed her pocketbook and ran. Brooks also ran from the scene because he was on probation and wished to avoid even a tangential association with criminal activity. Dixon met Brooks in a bar a short time thereafter, told him that there had been five or six dollars in the pocketbook, and then gave him two dollars.
Dixon contacted the police two months after his arrest and said he wished to make a statement. Dixon claimed that it was Brooks who without warning struck the victim and stole her purse. Dixon stated that he had played no role in the planning or commission of the offense and received none of the proceeds.
On the night of the arrest of the two perpetrators, following Lalor's eyewitness identification of the suspects and Brooks' statement admitting involvement, the police applied for a nighttime warrant to search Dixon's apartment for proceeds of the robbery and clothing worn by the robbers. In the affidavit accompanying the application for the warrant, the police stated in the final two paragraphs of the affidavit that:
[B]oth Dixon and Brooks have been arrested on the charges of Robbery 1st Degree and Conspiracy 2nd. Both suspects are presently awaiting [sic] to have bail set on those charges.
That your affiants request that a nighttime search warrant be granted due to the fact that either suspects [sic] may be able to make bail and could therefore respond to the residence of 1802 West Street, Apartment L and destroy or tamper with any evidence that is listed above.
The search warrant authorization, granted by a Municipal Court Judge, contained the following form language:
This warrant my [sic] be executed in the nighttime as requested in the application, probable cause being shown for the issuance of a nighttime warrant by the attached affidavit.
The police officers executed the warrant at 12:50 a.m. that night. Detectives found a blue warm-up jacket with red, white and blue stripes on the sleeves. The jacket was taken as evidence. At trial, defense counsel moved to suppress the jacket as evidence, arguing that the request for the nighttime warrant was not constitutionally sound and that the warrant itself did not contain the statutory language set forth in 11 Del.C. § 2310(c). The Superior Court denied the motion to suppress and the jacket was admitted into evidence. At trial Lalor testified that Brown's attacker wore a navy blue warm-up jacket with red, white and blue stripes on the sleeves. Lalor stated that the seized jacket admitted into evidence looked like the jacket worn by Brown's assailant. Brown testified that her attacker wore a brightly colored running jacket.

*856 II
Defendant relies on Mason v. State, Del.Supr., 534 A.2d 242 (1987) to support his argument that the trial court erred in not suppressing evidence seized as the result of the nighttime search, in that the application was not in accordance with the dictates of 11 Del.C. § 2308. Section 2308 currently provides:
A search warrant shall not authorize the person executing it to search any dwelling house in the nighttime unless the judge, justice of the peace or magistrate is satisfied that it is necessary in order to prevent the escape or removal of the person or thing to be searched for, and then the authority shall be expressly given in the warrant....
11 Del.C. § 2308.
In Mason, we held that this provision was clear and unambiguous and that it requires a showing of more than probable cause. "It requires a determination that such action is necessary `to prevent the escape or removal of the person or thing to be searched for.'" Mason, 534 A.2d at 251 (citing 11 Del.C. § 2308). Here, defendant argues that the application for the warrant did not demonstrate that a nighttime search was necessary to prevent the escape or removal of the person or thing to be searched for. However, defendant's reliance upon Mason is misplaced. A case more factually analogous to the circumstances in the case at bar is Jensen v. State, Del.Supr., 482 A.2d 105 (1984). There, the State submitted that since the defendant was presently in police custody and therefore aware of police involvement in the incident, he would likely seek to destroy or remove any evidence linking him to the crime upon release. In Mason, however, the police had no valid reason to believe that any evidence would be destroyed. In Mason, the defendant (Mason) had supplied another man (Barnett) with a quantity of cocaine. Barnett sold this cocaine to police officers, who immediately placed Barnett under arrest. Mason was not in the vicinity of the arrest, there was no objective evidence tending to support the assertion of the police that Mason would learn of the arrest before morning, and the police had no support for their contention that evidence would be destroyed if a nighttime search was not conducted. In fact, the only evidence known to exist in Mason's apartment was marked money used to purchase an amount of cocaine earlier that evening. The Court found that Mason, even if he knew of police surveillance, was unlikely to have a desire to destroy money. Mason, 534 A.2d at 252.
Thus, this case is closer factually to Jensen. Here, the defendants were in custody at the time the police applied for the search warrant. They knew that the police suspected them of the crime. Given the possibility that the defendants would make bail during the night, the police had a reasonable basis to believe that if the search warrant were not executed that evening the evidence would be destroyed. We find that the police alleged with particularity facts sufficient for a neutral judicial officer to find probable cause to believe that a nighttime search was necessary to prevent the removal of the object of the search, as required by 11 Del.C. § 2308.
Defendant also cites Mason in support of his argument that the warrant issued failed to contain the language necessary to comply with 11 Del.C. § 2308. In Mason the facts in the affidavit accompanying the application for a nighttime search warrant were insufficient to support a finding that a nighttime search warrant should be issued. In Jensen we found that the application was sufficient to support a finding that a nighttime search warrant should be issued. Thus, Jensen's holding necessarily reached the issue of whether the language of the warrant satisfied the mandate of section 2308, whereas in Mason it was unnecessary to reach this issue. In Jensen we held that where a warrant states "`[a] search in the nighttime is expressly authorized for the reasons set forth in the affidavit attached hereto'[,] [the Court] must consider this reference to the affidavits together with the allegations contained therein." Jensen, 482 A.2d at 113.
*857 In the case at bar, the warrant authorized a nighttime search, "probable cause being shown for the issuance of a nighttime warrant by the attached affidavit." The application and the affidavits attached to the warrant were sufficient to support a finding that a nighttime search was "necessary in order to prevent the escape or removal of the person or thing to be searched for," as required by section 2308. Therefore, it is evident that the warrant was not defective.
Defendant also contends that Mason mandates that the specific language of 11 Del.C. § 2310(c) be used. While we stated in Mason that "the form of the search warrant to be issued when a nighttime search for a dwelling has been authorized is prescribed by statute. 11 Del.C. § 2310(c)," Mason, 534 A.2d at 253, we did not rule that form should control over substance. The warrant in Mason, when considered together with the attached affidavits, failed to make "a specific finding of necessity for a nighttime search of a residence, by a neutral magistrate," as required by statute. Id. In addition, several substantive provisions of the warrant in Mason differed from the provisions of the form warrant at 11 Del.C. § 2310(c). For example, the warrant in Mason allowed for execution within ten days, while section 2310(c) requires execution within three days. Id. at 254. We also noted that the warrant used "more closely follow[ed] the `form of search warrant where search of a dwelling house in the nighttime is not authorized.'" Id. at 253 (quoting 11 Del.C. § 2310(b)). The search warrant in this case does not suffer from these defects.
The warrant here, like the warrant in Jensen,[1] when considered in conjunction with the attached affidavits, made a showing of necessity for a nighttime search warrant sufficient to meet the mandates of 11 Del.C. §§ 2308 et seq. Defendant's contention that Mason mandates the form of warrant at 11 Del.C. § 2310(c) as the sole form of warrant for a nighttime search of a dwelling house is unpersuasive. The statute itself states "The following shall be sufficient form of search warrant where search of a dwelling house in the nighttime is authorized." 11 Del.C. § 2310(c) (emphasis added). By its terms it is clear that the form presented by section 2310(c) is not the sole form of warrant which will satisfy the dictates of 11 Del.C. § 2308. Here the warrant, by reference and incorporation of the attached affidavits, alleged sufficient facts and made a showing of necessity adequate to authorize a nighttime search warrant of a dwelling house. Moreover, without reference to the accompanying affidavits, the warrant expressly authorized a nighttime search. Thus the warrant met the requirements of 11 Del.C. §§ 2308 et seq., and the trial judge committed no error in refusing to suppress the evidence recovered in the execution of the warrant at issue.

III
Defendant's contention that the evidence at trial was insufficient to support a finding of guilt is also without merit. The standard for review of such a contention is "whether, after viewing the evidence in the light most favorable to the prosecution, [including all reasonable inferences to be drawn therefrom,] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We mirrored this language in Davis v. State, Del.Supr., 453 A.2d 802, 803 (1982).
At trial, Dixon argued that the robbery was committed by Brooks. He renews that contention on appeal, pointing to the following facts: (1) that the victim was unable to make a positive identification of him at the physical lineup, (2) that the initial police report lists the man in the "Q" cap as "suspect one" (the attacker), and (3) that a witness testified that Dixon was not wearing the red, white and blue striped jacket on the night of the offense. He argues that when considered together, these facts cast a reasonable doubt on whether he or *858 Brooks was the active participant. The jury apparently decided that the initial police report erroneously listed Brooks (the man in the "Q" cap) as "suspect one" and rejected Dixon's version of the incident in favor of those of Brown, Lalor and Brooks. "It has long been our law that the jury is the sole judge of the credibility of the witnesses and responsible for resolving conflicts in the testimony." Tyre v. State, Del.Supr., 412 A.2d 326, 330 (1980). The jury, as sole trier of fact, was entitled to make such a determination as to the credibility of evidence submitted. Since the verdict was supported by the evidence, it will not be disturbed on appeal.
The judgment of the Superior Court is AFFIRMED.
NOTES
[1]  In Jensen the warrant stated, "A search in the nighttime is expressly authorized for the reasons set forth in the affidavits attached hereto." Jensen, 482 A.2d at 113.


884 P.2d 906 (1994)
131 Or. App. 492
STATE of Oregon, Respondent,
v.
Craig S. BYBEE, Appellant.
TM93-0815; CA A83054.
Court of Appeals of Oregon.
Argued and Submitted October 14, 1994.
Decided November 23, 1994.
*907 Richard L. Wehmeyer, Corvallis, argued the cause and filed the brief for appellant.
Janet A. Klapstein, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.
Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.
LEESON, Judge.
Defendant appeals his conviction for driving under the influence of intoxicants (DUII). ORS 813.010. He assigns error to the trial court's denial of his motion to suppress evidence and to the trial court's denial of his petition for DUII diversion. We affirm without discussion the trial court's denial of his diversion petition and write only to address his motion to suppress. We review for errors of law, ORS 138.220, and affirm.
The facts are not in dispute. At about 1:40 a.m. on April 13, 1993, the Corvallis police department received a call from an employee of a convenience store. The caller said:
"[I] wanted to report a drunken driver. [I'm] working down here at Ninth Street 7-11. He came in just a minute ago. He's driving a blue, looked like a MG, an older little sports car convertible rag top."
The caller then stated that the vehicle's license number was "RYG 126" and said that the car was "heading south on Ninth." Before hanging up, the caller gave his name and telephone number to the dispatcher.
A few minutes later, Officer Claxton of the Corvallis Police Department received a call from the police dispatcher conveying the above information. Claxton drove north on Ninth Street and saw a small blue convertible Triumph heading south on the same street. He observed no unusual driving pattern of the car and stopped it solely because of the report he had received from the dispatcher. He reported by radio that the correct license plate number was "RYC 126." Claxton arrested defendant for DUII.
Before trial, defendant filed a motion to suppress evidence of the stop on the ground that the officer lacked reasonable suspicion to stop his car. The trial court denied the motion. Defendant was convicted following a stipulated facts trial.
*908 On appeal, defendant argues that the trial court erred in denying his motion to suppress. His first contention is that Claxton lacked reasonable suspicion to justify the stop, because the informant was not sufficiently reliable. ORS 131.615(1) provides:
"A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that the peace officer is a peace officer, make a reasonable inquiry."
Reasonable suspicion requires a belief that is "reasonable under the totality of the circumstances existing at the time and place the peace officer acts." ORS 131.605(4).
When reasonable suspicion is based solely on a citizen informant's report, that report must contain some indicia of reliability. State v. Shumway, 124 Or.App. 131, 133, 861 P.2d 384 (1993), rev. den. 318 Or. 459, 871 P.2d 122 (1994). In State v. Black, 80 Or. App. 12, 721 P.2d 842 (1986), we identified three factors that are important in determining the reliability of a citizen informant's report. One is whether the informant is exposed to possible criminal and civil prosecution if the report is false. That factor is satisfied if the informant gives his or her name to law enforcement authorities or if the informant delivers the information to the officer in person. See State v. Koester, 117 Or.App. 139, 843 P.2d 968 (1992), rev. den. 315 Or. 644, 849 P.2d 524 (1993). The second factor is whether the report is based on the personal observations of the informant. An officer may infer that the information is based on the informant's personal observations if the information contains sufficient detail that
"it [is] apparent that the informant had not been fabricating [the] report out of whole cloth * * * [and] the report [is] of the sort which in common experience may be recognized as having been obtained in a reliable way * * *." Spinelli v. United States, 393 U.S. 410, 417-18, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969). State v. Shumway, supra, 124 Or.App. at 136, 861 P.2d 384. The final factor is whether the officer's own observations corroborated the informant's information. The officer may corroborate the tip either by observing the illegal activity or by finding the person, the vehicle and the location substantially as described by the informant. State v. Vanness, 99 Or.App. 120, 124, 781 P.2d 391 (1989).
In this case, the store clerk gave his name, location and telephone number to the police. He thereby exposed himself to possible criminal and civil liability if his report was false. His report indicated that he personally saw defendant ("he came in just a minute ago"), saw him driving ("he's driving") and saw him drive in a particular direction ("he was heading south on Ninth").
Claxton's observations also corroborated the information reported by the store clerk. He saw a small blue convertible sports car, in the precise area where it had been reported to be going.[1] Defendant's car was the only car that Claxton observed traveling south on Ninth street after receiving the report over his police radio.
We conclude that the informant's report had sufficient indicia of reliability to support the stop of defendant's vehicle under ORS 131.615(1). Under the totality of the circumstances, a police officer could reasonably have concluded that defendant was driving while intoxicated. The stop was therefore lawful, and the trial court did not err in denying defendant's motion to suppress the evidence.
Defendant also argues that it was error to deny the motion to suppress, because the report of a "drunken driver" is a conclusion or opinion that "prevent[s] a reviewing judge from determining facts creating reasonable suspicion."
In State v. Rand, 166 Or. 396, 111 P.2d 82 (1941), the Supreme Court held that whether a person is under the influence of alcohol is a *909 matter of common knowledge and a question that a witness who is not an expert is competent to answer. The witness' opinion is admissible at trial if the witness demonstrates that he or she had an "opportunity to observe and did observe that person's condition." 166 Or. at 401-02, 111 P.2d 82. (Citations omitted.)
In Brown v. Bryant, 244 Or. 321, 417 P.2d 1002 (1966), a guest passenger in a car sued the defendant driver for personal injuries resulting from an accident that the plaintiff claimed was caused by the defendant's gross negligence and intoxication. A police officer testified at trial that he could detect the smell of alcohol on the defendant's breath, that the defendant was unsteady on his feet and that his speech was slurred. The trial court refused to allow the officer to give an opinion as to whether the defendant was intoxicated. The Supreme Court held that it was error not to permit either party to ask a witness whether, in the witness' opinion, the defendant was intoxicated. 244 Or. at 323, 417 P.2d 1002.
Taken together, Rand and Bryant stand for the proposition that whether a person is under the influence of alcohol is a matter of common knowledge about which a lay witness is competent to render an opinion. Those cases involved testimony by witnesses who were subject to cross-examination and impeachment. Here, we are presented with a police officer relying on an informant's statement that the suspect is a "drunken driver."
In State v. Lichty, 313 Or. 579, 835 P.2d 904 (1992), the manager of a convenience store discovered a wallet left on the counter by a customer. When the manager opened the wallet to determine its owner, a plastic bag containing white powder fell out. The manager gave the wallet to a nearby police officer stating: "I just found this wallet in the store; * * * a bag of coke fell out of it." Moments later, the defendant drove back and his companion shouted, "[T]hat's our wallet." The defendant moved to suppress the evidence, arguing, as defendant does here, that the stop was illegal, because the officer lacked reasonable suspicion that the defendant was committing or had committed a crime. The Supreme Court noted that "[p]eople often speak in the shorthand of opinions or conclusions, not in the form of a recitation of pure fact." 313 Or. at 585, 835 P.2d 904. The court first decided that members of society have a general knowledge regarding the appearance of cocaine. It then held that the store manager's statement to a police officer that a bag of cocaine fell out of a wallet found in his store was sufficient to give the officer reasonable suspicion to stop the defendant.
We hold that, because members of the general public have a common knowledge about whether a person is under the influence of alcohol, a statement from a named informant, based on his own personal observations, that a person is a "drunken driver" conveys sufficient information to allow a reviewing judge to determine that the facts created reasonable suspicion.
Affirmed.
NOTES
[1]  There were only minor differences between the information provided by the store clerk and what the officer observed. The store clerk reported the license plate number as "RYG 126" and the officer reported it as "RYC 126." The store clerk thought the car was an MG, while defendant's car was a Triumph. However, defendant's car was a small, blue convertible sports car with a rag top, as described by the clerk.


328 F.Supp.2d 313 (2004)
NEW YORK STATE ELECTRIC AND GAS CORPORATION, Plaintiff,
v.
SYSTEM COUNCIL U-7 OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Defendant.
No. 3:04CV194FJSDEP.
United States District Court, N.D. New York.
August 4, 2004.
*314 Hinman, Howard & Kattell, LLP (James S. Gleason, Esq., of Counsel), Binghamton, NY, for Plaintiff.
Creighton, Pierce & Johnsen (Catherine Creighton, Esq., of Counsel), Buffalo, NY, for Defendant.

MEMORANDUM-DECISION AND ORDER
SCULLIN, Chief Judge.

I. INTRODUCTION
Plaintiff filed its complaint on February 23, 2004, requesting that this Court vacate an arbitration award and enjoin enforcement of the award under 29 U.S.C. § 185.[1] Defendant counterclaimed and sought interest, fees, and backpay, asserting that Plaintiff has violated the collective bargaining agreement ("CBA") between the parties by refusing to comply with the arbitration award.
Presently before the Court is Defendant's motion for summary judgment and Plaintiff's cross-motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant also seeks attorneys' fees on the ground that Plaintiff's complaint is frivolous. The Court heard oral argument in support of, and in opposition to, these motions on April 23, 2004, and reserved decision at that time.[2] The following constitutes the Court's written decision with regard to the pending motions.

II. BACKGROUND
Plaintiff is a New York corporation headquartered in Kirkwood, New York. Defendant has represented Plaintiff's production and clerical employees since the 1950s; the most recent CBA between the parties is effective from July 1, 2000, through June 30, 2005.
On January 30, 2003, Plaintiff terminated Stephen Brzezinski, a production employee. Plaintiff stated that it terminated Mr. Brzezinski because he violated Plaintiff's Code of Conduct; more specifically, Mr. Brzezinski repeatedly expressed a desire to harm certain managerial and supervisory employees at Plaintiff's facility.[3] Defendant grieved the termination on Mr. Brzezinski's behalf; the parties could not reach an agreement and proceeded to arbitration on December 4, 2003.[4]
*315 The parties submitted the following issues to the arbitrator: "Did [Plaintiff] have proper cause to discharge the grievant, Stephen Brzezinski? If not, what is the remedy?" See Opinion and Award of Arbitrator Stuart M. Pohl ("Pohl Award"), Exhibit "C" to Complaint, at 3. Arbitrator Pohl allowed both parties to present witnesses and cross-examine each other's witnesses; he then issued a written decision on February 13, 2004, which sustained the grievance in part and denied it in part. At the conclusion of the arbitration, Arbitrator Pohl ordered Plaintiff to reinstate Mr. Brzezinski without backpay or benefits on a last-chance basis. Arbitrator Pohl further ordered Mr. Brzezinski to submit to a psychological evaluation of his fitness for duty at Plaintiff's request. Plaintiff has refused to reinstate Mr. Brzezinski.

III. DISCUSSION

A. Summary Judgment Standard
A court should grant a motion for summary judgment only if "there is no genuine issue as to any material fact and when, based upon facts not in dispute, the moving party is entitled to judgment as a matter of law." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)); see also Fed.R.Civ.P. 56(c). In making this determination, the court must resolve all ambiguities and draw all reasonable inferences in a light most favorable to the non-moving party. See id. (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam)).
With these standards in mind, the Court will address Plaintiff's claims.

B. The Award
Federal courts have established a clear preference for upholding arbitration awards, particularly in the context of labor-management disputes. See, e.g., Local 97, Int'l Bhd. of Elec. Workers v. Niagara Mohawk Power Corp., 196 F.3d 117, 124 (2d Cir.1999) ("Niagara Mohawk II") (quoting United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)). Courts will uphold an arbitrator's decision so long as it "'"draws its essence from the collective bargaining agreement...."'" Id. (quotation omitted). With respect to the requirement that an arbitrator's decision draw its essence from the CBA, courts do not review an award's correctness; rather, the courts only review whether an award "is plausibly grounded in the parties' agreement." Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29, 32 (2d Cir.1997). Moreover, the arbitrator's factual findings, contract interpretation and suggested remedies also bind the parties. See Niagara Mohawk II, 196 F.3d at 124 (citation omitted).
Despite this policy of "nearly total deference," a court may not enforce an arbitrator's award if the award is clearly contrary to public policy. Niagara Mohawk II, 196 F.3d at 125 (quoting W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber Workers, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983)). An award contravenes public *316 policy only when it "'"create[s][an] explicit conflict with other laws and legal precedents" and thus clearly violates an identifiable public policy.'" Id. (quotation omitted). The party asserting that the award contravenes public policy bears the burden of establishing that the public- policy exception applies. See id. (citation omitted). Even where an arbitrator's award is "`clearly erroneous,'" the award will not necessarily meet the public-policy exception. Int'l Bhd. of Elec. Workers, Local 97 v. Niagara Mohawk Power Corp., 950 F.Supp. 1227, 1231 (N.D.N.Y.1996) (quotation and other citation and footnote omitted).
The Second Circuit first attempted to identify the contours of the public-policy exception in Int'l Bhd. of Elec. Workers, Local 97 v. Niagara Mohawk Power Corp., 143 F.3d 704 (2d Cir.1998) ("Niagara Mohawk I"). In Niagara Mohawk I, the employer sought to have the court vacate an arbitrator's conditional reinstatement of an employee who deliberately adulterated his mandatory drug test and subsequently tested positive for cocaine. See id. at 706. The Second Circuit declined to overturn the arbitrator's award, even though the employer cited Nuclear Regulatory Commission safety regulations which require owners of nuclear facilities to screen employees periodically to ensure that they are both trustworthy and reliable. See id. at 714. Moreover, the Second Circuit cautioned that, in reviewing an arbitration award for a violation of public policy, a court must focus on the result of the award and not the reasoning or fact finding that underlies the award. See id. at 716 (citing [United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 43, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987)]).
Plaintiff argues that Arbitrator Pohl's reinstatement of Mr. Brzezinski violates the well-established public policy of not permitting violent individuals to return to the workplace. [5] As support for its assertion that prevention of workplace violence is a well-defined public policy, Plaintiff contends that the Occupational Safety and Health Administration ("OSHA") has promulgated fact sheets and guidelines that reflect its growing activism in the area of workplace violence. In further support of its position, Plaintiff cites several cases, such as G.B. Goldman Paper Co. v. United Paperworkers Int'l Union, Local 286, 957 F.Supp. 607 (E.D.Pa.1997), which held that workplace safety is a "`well defined and dominant' public policy," id. at 620 (quotation not attributed), as well as New York cases which show that employers have a common law duty to protect against employees who deliberately cause harm to others.[6] Moreover, Plaintiff attempts to distinguish this case from that of the reinstated employee in Eastern Associated Coal Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000), by contending that Mr. Brezezinski poses a more serious threat to other employees.
Although Plaintiff is correct that G.B. Goldman Paper Co. held that workplace safety and the prevention of violence constitute a dominate public policy, the G.B. Goldman Paper Co. court stated that
[i]n addressing whether to vacate an arbitration award on workplace safety public policy grounds, a court must first *317 accept the facts as found by the arbitrator to gauge how dangerous the grievant-in-question is. Secondly, the court must then determine on the facts of that case the chance of harm that the grievant might pose to other people in the workplace if reinstated.
957 F.Supp. at 620. In this case, unlike others that fall within the public-policy exception, Arbitrator Pohl did not find that Mr. Brzezinski's behavior was violent or dangerous or that he posed a threat to his co-workers.[7] With respect to Plaintiff's argument that Mr. Brzezinski posed a more immediate threat than the employee in Eastern Associated Coal, weighing the respective dangers of certain types of workplace conduct is not within the scope of this Court's review.
Considering the specificity of Mr. Brzezinski's threats, Plaintiff's reluctance to permit him to return to work is understandable. [8] Nevertheless, the law does not support a finding that Arbitrator Pohl's decision is contrary to public policy. Although Plaintiff's submissions illustrate that OSHA, and employers in general, are concerned about workplace violence, Plaintiff's submissions acknowledge that no agency has implemented any specific legal regulations governing the issue. As a result, Plaintiff's case is actually somewhat weaker than the employers' respective arguments in Niagara Mohawk I and Niagara Mohawk II, in which a specific regulatory framework existed. In this case, Arbitrator Pohl's decision violated no specific provision of any law or regulation. OSHA has not promulgated any express rules or regulations that require an employer to terminate an employee who has simply made verbal threats. Although the common law establishes that employers have a duty to protect employees, such a generalization does not meet the standards of Niagara Mohawk I or Niagara Mohawk II or Eastern Associated Coal. Rather, this case closely parallels others in which courts have refused to apply the public-policy exception to disturb an arbitration award.
Finally, since case law requires the Court to look at an arbitrator's final decision, this Court's review is limited to the question of whether reinstating an employee who has threatened others violates existing "laws and legal precedents." Niagara Mohawk II, 196 F.3d at 125. Plaintiff has not met the burden of providing any specific laws and legal precedents which the award violates. Accordingly, the Court denies Plaintiff's cross-motion for summary judgment and grants Defendant's motion for summary judgment.

C. Defendant's request for attorneys' fees and sanctions under Federal Rule of Civil Procedure 11(b)(2)
Federal Rule of Civil Procedure 11(b)(2) permits a court, in its discretion, to impose sanctions on a party when it has asserted frivolous claims. See Fed.R.Civ.P. 11(b)(2); 11(c). To initiate a motion for sanctions against an opposing party, the moving party must make a separate motion *318 that describes the offending conduct. See id. The moving party may not file the motion with the court until it has given the non-moving party twenty-one days to withdraw the allegedly frivolous claim. See id.
According to Defendant, it is entitled to attorneys' fees because Plaintiff's request for vacation of the award is frivolous. Defendant does not cite any Second Circuit law in support of its contention but cites Dreis & Krump Mfg. Co. v. Int'l Ass'n of Machinists & Aerospace Workers, Dist. No. 8, 802 F.2d 247 (7th Cir.1986), to support its assertion that a union is entitled to attorneys' fees where an employer has frivolously contested an arbitrator's award.
The Court cannot address the merits of Defendant's argument, however, because, as Plaintiff points out, Defendant has failed to comply with Rule 11(b)(2)'s procedural prerequisites.[9] Accordingly, the Court denies Defendant's motion for sanctions and fees.

D. Defendant's request for backpay
Defendant has requested that this Court award backpay to Mr. Brzezinski from February 13, 2004, the date of Arbitrator Pohl's award, onward. Plaintiff has objected, contending that the period of back-pay should exclude, at a minimum, the period of time between this Court's decision and the date on which Plaintiff receives a satisfactory psychiatric evaluation of Mr. Brzezinski. Since Arbitrator Pohl directed Mr. Brzezinski to submit to the examination, the Court orders that Arbitrator Pohl file a written clarification with this Court indicating the date on which Plaintiff's obligation to award backpay to Mr. Brzezinski begins to run.

IV. CONCLUSION
After carefully considering the file in this matter, the parties' submissions and oral arguments, and the applicable law, and for the reasons stated herein as well as at oral argument, the Court hereby
ORDERS that Defendant's motion for summary judgment is GRANTED with regard to all issues except for the issue of backpay; and the Court further
ORDERS that Plaintiff's cross-motion for summary judgment is DENIED in its entirety; and the Court further
ORDERS that Defendant's motion for fees and sanctions pursuant to Rule 11(b)(2) of the Federal Rules of Civil Procedure is DENIED; and the Court further
ORDERS that, within thirty days of the date of this Order, Arbitrator Pohl is to submit a written clarification with the Court, and serve a copy of the same on counsel for both parties, indicating the date on which Plaintiff's obligation to award backpay to Mr. Brzezinski begins to run.[10]
IT IS SO ORDERED.
NOTES
[1]  Section 185 provides that

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of  the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185.
[2]  The Court also provided the parties with an opportunity to submit additional briefing on the issue of backpay.
[3]  The relevant provision of Plaintiff's Code of Conduct ("Code") states that Plaintiff "strictly prohibits acts of physical intimidation, assaults or threats of violence by employees." See Energy East Code of Conduct, Exhibit "B" to Complaint, at 9. The Code further states that "[e]mployees who violate law and regulations, or [Plaintiff's] Code of Conduct, will be subject to disciplinary action, up to and including discharge ...." See Opinion and Award of Arbitrator Stuart M. Pohl ("Pohl Award"), Exhibit "C" to Complaint, at 3.
[4]  Article XVII of the parties' CBA governs grievances and arbitration. See July 1, 2000  June 30, 2005 CBA, Exhibit "A" to Complaint, at 44-45. Article XVII states, in pertinent part,

[i]f any dispute arises between [Defendant] and [Plaintiff] as to any unadjusted grievance or as to the rights of either party under this  Agreement, both parties shall endeavor to settle such matter in the simplest and most direct manner ....
Article XVII then sets forth a four-step process for the settlement of grievances. The first step of the process allows a supervisor and aggrieved employee to work together to settle the grievance. The second step of the process allows Defendant's grievance committee to meet with a supervisor to settle the grievance. The third step allows the parties to create a System Council Committee, whose members meet with Plaintiff's vice president or other authorized representative. If the grievance does not settle during any of the preceding steps, the parties must convene an arbitration board composed of one representative from each of the parties and a third, impartial arbitrator. The decision of a majority of the board of arbitrators binds both parties.
[5]  Plaintiff does not argue that the award exceeds the scope of the issue that the parties submitted to the arbitrator, nor does it argue that the award contradicts the express language of the CBA or fails to draw its  essence from the CBA.
[6]  Plaintiff contends that the graphic nature of Mr. Brzezinski's threats, coupled with the fact that he did not stop making threats even after a demand from a supervisor, shows that he is foreseeably dangerous.
[7]  Defendant has objected to the content of Plaintiff's Statement of Material Facts. See Dkt. No. 9. Since the Second Circuit counsels deference to an arbitrator's factual findings, the Court has relied on Arbitrator Pohl's factual findings with respect to this analysis.
[8]  Defendant argues that Plaintiff has misconstrued Arbitrator Pohl's decision, as Arbitrator Pohl did not specifically find that Plaintiff had threatened other employees. However, Arbitrator Pohl essentially did find that Plaintiff made the threats, as he stated in his decision that "[t]he statements were wrong. Particularly in today's environment of terrorist attacks and work place violence, employees should avoid making such comments at all times. Grievant exercised extremely poor and immature judgment...." See Pohl Award at 13.
[9]  Even if the Court were to reach the merits of Defendant's motion, considering the seriousness of the allegations against Mr. Brzezinski, Defendant has not met its burden of showing that Plaintiff's challenge to the award was unjustified.
[10]  Once it reviews Arbitrator Pohl's clarification on the issue of backpay, the Court will enter an Order regarding that issue and will also order that the Clerk of the Court enter a judgment in this case at that time.