Opinion
8:99CV186
October, 2000
ORDER
This matter is before me on cross motions for summary judgment (Filing Nos. 14 and 25) and plaintiff's motions to strike (Filing Nos. 24 and 37). Plaintiff contends that the City of Omaha, Firefighters Division, refused to promote him to the position of Battalion Chief, for the sole reason that he is white. Plaintiff argues that the promotion was given to a black male on the basis of race. I conducted a hearing on August 28, 2000, wherein the parties were permitted to argue their respective positions and submit evidence. I have thoroughly reviewed the evidence presented in this case including all indices of evidence, the briefs of the parties, and the relevant case law. I find that the motion for summary judgment filed by the City of Omaha (Filing No. 14) and the motion for summary judgment filed by the plaintiff (hereinafter Baughman) (Filing No. 25) should be denied at this time, although the parties are free to assert appropriate motions during the trial in this case. The motions to strike shall be denied as moot.
STANDARD OF REVIEW Summary Judgment
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court grants summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter; rather, the court must determine whether a genuine issue exists for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If no rational trier of fact could find for the nonmoving party, then summary judgment is appropriate." McCormack v. Citibank, N.A., 100 F.3d 532, 537 (8th Cir. 1996). The Eighth Circuit has recognized that primarily legal issues and particularly questions of contract interpretation are issues amenable to summary disposition. See, e.g., Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995); Mumford v. Godfried, 52 F.3d 756, 759 (8th Cir. 1995); and Crain v. Board of Police Comm'r, 920 F.2d 1402, 1405-06 (8th Cir. 1990).
If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256; Krenik v. County of LaSueur, 47 F.3d 953, 957 (8th Cir. 1995).
Affirmative Action Plans — Strict Scrutiny
The standard of review for determining the validity of an affirmative action plan is one of strict scrutiny. Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). The Supreme Court has stated, "[A]ll racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed under strict scrutiny." Adarand Constructors, Inc. v. Pena, 515 U.S. 220, 227 (1995). Strict scrutiny means that "[f]ederal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest." Id. at 235. This Court must determine if this "`purportedly remedial affirmative action plan is bona fide, that is, whether it is indeed remedial.'" Maitland v. University of Minn., 155 F.3d 1013, 1016 (8th Cir. 1998), citing Donaghy v. City of Omaha, 933 F.2d 1448, 1458 (8th Cir. 1991).
As hereinafter discussed, the City of Omaha contends that the plan in this case has already been subjected to that standard and approved by the Eighth Circuit. Warsocki v. City of Omaha, 726 F.2d 1358 (8th Cir. 1984). Under the strict scrutiny standard, an affirmative action plan must be both remedial in nature as well as narrowly tailored. Johnson v. Transportation Agency, 480 U.S. 616 (1987). The Court in Warsocki stated:
"although other evidence demonstrates a racially imbalanced workforce in the Omaha Fire Division, statistical evidence alone supported this finding. Morever, the court found that the plan is remedial. In addition, the district court determined that the forty per cent referral formula was reasonably related to the plan's objective and that it did not unnecessarily trammel the rights of non minority applicants. The trial court concluded that "`defendant's treatment of Plaintiff was a direct consequence of the defendant's implementation of a bona fide affirmative action plan and there [was] no evidence that the plan was not remedial or that it exceeded its remedial purpose.'"726 F.2d at 1360.
FACTS A. The Plan
On September 14, 1971, the City Council of Omaha adopted, by ordinance, an Affirmative Action Plan (hereinafter "Plan"). The Plan was amended in 1972, 1975, 1979, 1983, 1989, and 1990. The 1990 Plan is the subject of this lawsuit. (Affidavit of Fredricka Minton, Personnel Technician II for the City of Omaha, ¶ 3; Ex. 108). The Omaha Municipal Code § 23-8 defines the City's Affirmative Action Plan as equal employment opportunity. (E107). The City contends that the Plan is unique, because it is "voluntary" and provides only for a "referral" process. The Plan allows, under certain conditions where there is underutilization, for the Personnel Director to suggest names of minorities and females. However, the Department Director has the exclusive right to decide who to hire. (E102 Sec. 23-221 — 23-232).
All positions in the City are divided into "EEO Categories." (Affidavit of Minton, p. 2). The Plan compares the percentage of available qualified minorities and females to the total number of individuals eligible to promotion by position in each EEO category. Based on the 1990 Affirmative Action Plan, the category containing Battalion Chief was set at 5.4% for hiring blacks into that position. Exhibit 108 is the City's Affirmative Action Plan. The City contends that there are fourteen City of Omaha departments in the Plan, that each department has its own EEO categories based on the positions in the department. Within each EEO category there is a breakdown by minorities: black, Hispanic, female, and other minorities.
To be eligible to test for the position of Battalion Chief, all candidates must meet the prerequisite of ten years of service within the Fire Division, and at least two of these years must be served as Fire Captain. Candidates are initially tested and are then ranked on an eligibility list (hereinafter referred to as the "List"). Thereafter, additional points are added for length of service (seniority points) and college attendance (college points). Once the list is compiled, all hires for the position must be made from the List. The list is valid for two years pursuant to the Collective Bargaining Agreement. The Personnel Director is responsible for providing the department head with the List.
For all departments, the Personnel Director uses a referral system, established by Section 23-232 of the Omaha Municipal Code, known as the "Rule of Three." When a single promotion occurs, the Personnel Director is required to submit the three highest ranking names. When more than one vacancy occurs, the Personnel Director must submit twice as many names, in rank order, as vacancies.
However, the Personnel Director compares the goals set by the Plan with the workers in that particular job category. (Affidavit of Minton at 5). This process is known as the "Affirmative Action Utilization Analysis." (See E109). If the Personnel Director determines that the minority goals have not been met ("underutilization"), she may then refer up to twice as many affirmative action candidates as there are vacancies. (Affidavit of Minton at 5). However, those referred candidates must be qualified individuals from the Eligibility List.
The List is then provided to the Department Head. That person makes all final hiring decisions within the department. The Department Head is entitled to hire any of those names on the List and is not required to hire in rank order. For example, from 1984 to 1997 32 out-of-rank-order candidates were promoted/hired within the Fire Department. (Affidavit of Michael Mendenhall, Employment Manager for the City of Omaha, at 5). These 32 out-of-rank promotions/hires were for reasons other than affirmative action. Consequently, lower-ranking white employees have been hired over higher ranking white employees.
The City contends that the Plan ends for a particular position when the goal for the position is met. (Affidavit of Mendenhall at 4). Consequently the City argues that when no underutilization exists in a particular job category, no affirmative action referrals are made. The Personnel Director will ask that the Plan be vacated. Id.
B. Baughman
Baughman is a white Fire Captain employed by the City and was a member of the Professional Firefighters Association and covered under the Collective Bargaining agreement between the Union and the City. In 1996 Baughman applied for a promotion from Fire Captain to Battalion Chief. He completed the testing process and was ranked number seven on the promotion list. Over the next two years, pursuant to the Collective Bargaining Agreement between the City of Omaha and the Professional Firefighters of Omaha Local 385, all promotions were made from this list of 22 candidates. During this two-year period of time, seven promotions were made. The first six names on the list were promoted. When an opening arose for the seventh promotion, Mark Lane, a black male who was number 19 on the list, was promoted. Baughman was not promoted. Chief Tom Graeve testified in his deposition that he was heavily pressured by the Mayor of Omaha to choose Lane, because he was black. (Depo. Graeve 30:25-32:10). However, it should be noted that Chief Graeve made 72 promotions during his tenure as Chief. There were 21 affirmative action referrals for those promotions. Chief Graeve chose to make only 3 affirmative action appointments from the 21 referrals.
The list in question in this lawsuit expired after two years. Baughman did not receive consideration for the position of Battalion Chief in the next two-year list, as he did not pass the test the second time around.
C. Fire Department
From 1985-1998 there were 442 promotions in the Fire Department; 24 (5.7%) affirmative action referrals were made for the promotions; 15 of the referrals resulted in promotions. Therefore, in the last thirteen years 3.6% of the fire department promotions were sworn black firefighters. (Affidavit of Minton, at 10).
Under the 1990 Plan the goal for Battalion Chief was and remains today at 5.4%. The goal was established by comparing the percentage of the "available" or qualified minorities with the total number of individuals eligible for promotions to the job grouping. The job grouping in this case included the positions of Battalion Chief, Fire Marshal and Drill Master. (Affidavit of Minton at 3).
In February of 1996, William Dunbar was the only black Battalion Chief out of the 26 Battalion Chiefs, 1 Drill Master, and 1 Fire Marshal, roughly 3.5%. (Affidavit of Minton at 7). The City had met the goal of one black, and consequently the Personnel Department made no additional affirmative action referrals for a number of years.
However, in 1998 the Millard Fire Department and the Omaha Fire Department merged. As a result, an increase in the number of Battalion Chiefs went from 26 to 29. (Affidavit of Minton at 8). According to the City, the increase in the number of Battalion Chief positions left the Department underutilized by one black Battalion Chief. The next promotional opportunity arose, and the Personnel Department referred two affirmative action candidates, Mark Lane and Gregory Alvoid. (E105). Chief Graeve did not promote either of those two candidates. Thereafter, William Dunbar retired. The result of his retirement, according to the City, was that there no longer was a black person in the position of Battalion Chief, Fire Marshal or Drillmaster. The City contends that the Fire Department was now underutilized by two black Battalion Chiefs. Baughman contends that there was not underutilization, as the utilization goal had been previously met.
A promotional examination was conducted by the City for the position of Battalion Chief on June 24, 1996. The written portion was scored, and an initial group of 18 candidates were referred to the Assessment Center portion of the examination. None of these 18 people were black. However, two blacks, Lane and Alvoid, and two additional Hispanic candidates, were referred as Affirmative Action candidates to the Assessment Center part of the examination. Mark Lane was ranked number 19 on this list.
Lane and Alvoid were again referred by the Personnel Department in October of 1998 for the next two promotional opportunities. Baughman was also referred. The Chief chose to promote Lane rather than Baughman.
ANALYSIS A. Baughman's Arguments
Baughman claims that the City has violated his rights to equal protection pursuant to the Fifth and Fourteenth Amendments to the Constitution of the United States. (Plaintiff's Complaint, ¶¶ 1-14). He argues that the Plan is not remedial, has no ending date, and is not narrowly tailored.
He contends that the facts of this case show that the Plan is not remedial which is required by Maitland v. University of Minnesota, 155 F.3d 1013 (8th Cir. 1998), citing Donaghy v. City of Omaha, 933 F.2d 1448, 1458 (8th Cir. 1991). Baughman relies on the case of Dallas Firefighters v. City of Dallas, 885 F. Supp. 915, 921 (N.D.Tex. 1995), aff'd 150 F.3d 438 (5th Cir. 1998), in support of his argument that the Plan is not narrowly tailored nor remedial.
The Dallas Firefighters case involved a lower ranked affirmative action candidate who was hired over the higher ranked applicant. However, the court in Dallas Firefighters was asked to determine first if there was a need for affirmative action. The Fifth Circuit concluded that the record contained no proof of a history of racial discrimination, stating that the record on discrimination was "minimal." 150 F.3d at 441. Second, the court also found that the alternative remedies had been effective, although slow. Id.
The court likewise found problems with the lack of an end to the Affirmative Action Plan. Baughman argues that the Plan in this case likewise never ends. And finally, the District Court in Dallas Firefighters found that policy of skipped promotions was not tailored sufficiently. 855 F. Supp. at 923. Baughman asks this Court to apply these same factors and determine that the City of Omaha Affirmative Action Plan is unconstitutional.
Baughman also argues that the Plan in this case is not really "voluntary." He refers to the language of the Plan which states:
The department directors will;
1. Implement the action oriented plans of the Affirmative Action Plan as it applies to the respective departments.
2. Be accountable for attaining the goals this Plan is designed to attain or showing the goals were not attainable in that director's department. . . .
(Exhibit 108, p. 6, ¶ c). Baughman contends that this Plan was not voluntary as the Chief was pressured to hire an affirmative action candidate. Further, Baughman argues that because this Plan was imposed on him, an affirmative action candidate, eleven ranks lower on the list, received the promotion. There is no authority, asserts Baughman, for supporting the City's argument that this voluntary Plan is a constitutional one.
Baughman also urges the Court to find that the Warsocki case has no application to this case. Baughman suggests that Warsocki, decided in 1979, dealt with a 40% referral requirement, that does not relate to the current method of EEO categories and differentiation between distinct minority groups. The present Plan does not end, says Baughman, but instead, it "hibernates until underutilization appears and the Plan kicks back into action." (Baughman's brief at 22). Thus, he argues, the retirement of Bill Dunbar and the merger of the Millard Fire Department, without a finding of discrimination, caused a race-based decision after the goals had been met.
Baughman asks the Court to review Exhibit 108, the City's Affirmative Action Plan, and determine that there is no underutilization in any EEO category within any grouping. (Page 18). Further, Baughman argues that this exhibit shows 304 EEO groupings, and only 52 of these EEO category groupings were underutilized at the time in question in this lawsuit.
B. City of Omaha's Arguments
The City contends that it has put before this Court evidence of statistical imbalance in the firefighters' workforce, and a showing that the City has failed to meet its affirmative action goals. Additionally, the City offered anecdotal evidence of continuing discrimination in recruitment and promotion of minority firefighters.
The City argues that Baughman, but for seniority points, would have ranked lower on the eligibility list than would Lane. Lane and Baughman both received a score of 71.96% on the multiple choice examination. (Affidavit of Mendenhall at para. 10). On the Assessment Center portion, which was the practical application, Baughman scored 66.59, but Lane scored 69.05. Id. Baughman received 5.67 points for college and 10 points for seniority for a total of 84.68. Lane received 1.42 points for college and 1.73 points for seniority for a total score of 73.51. Id. Although the City has tried to discard the use of seniority points, the Fire Union has vehemently opposed this. The City notes that the Court specifically found in the Dallas Firefighters that the City of Dallas no longer adds seniority points to the promotional exam scores. 885 F. Supp. at 921. Further, the Circuit Court in the Dallas Firefighters case suggests that reliance on statistical imbalance alone is not enough to show "egregious or pervasive conduct." 150 F.3d 438, 441.
The City further argues that it has tried to find alternatives to affirmative action. First, it has attempted to eliminate seniority points, and the Firefighter's Union has resisted such a change. Second, all examinations for hiring and promotion have been validated in accordance with EEOC standards. Further, the City has actively recruited and marketed for minority candidates. Additionally, pre-assessment tutorials are available for some promotional positions, as are some study guides and other reference materials. Also, the structured interviews minimize the importance of prior experience which benefits women and minorities. (See Affidavit of Michelle Frost, Personnel Director for the City of Omaha, at paras. 5B, C and E).
The City argues that the Plan is voluntary and that is why the goals have not yet been achieved. Further, the City contends that the voluntariness of the Plan is what sets it apart from the Dallas plan. The Fire Chief is under no obligation to make an affirmative action promotion, and on numerous occasions, he has chosen not to make those appointments. The City views this Plan as a referral only plan, which distinguishes it from numerous other mandatory plans that have been struck down by other courts as unconstitutional. Further, the City argues that the Plan ceases to operate by its terms and as a matter of law when there is no longer underutilization. (Affidavit of Frost at para. 8, and Ex. B). Once the goal is met, argues the City, the Personnel Director has no authority to make minority referrals for that position.
The City argues that the affirmative action referrals have minimal impact on the other applicants. For example, between 1985 and October 17, 1998, there were 422 promotions in the Fire Department. Only 15 promotions (3.6%) of blacks resulted from affirmative action referrals. During that same period of time there were 131 black referrals, and again, only 15 were promoted. (Affidavit of Minton at para. 3C). From 1985 to 1999 there were 42 promotions made to the position of Battalion Chief. Nine referrals of black candidates were made to the Chief. Only two black promotions were made, including Lane's promotion. Id. The City argues that the overall impact was minimal to white candidates, as only two Battalion Chief spots have been adversely affected, one being the plaintiff herein, and only 15 persons overall throughout the department have been adversely affected.
Last, the City cites an arbitration decision concerning a grievance filed by the International Association of Firefighters Local 385 on behalf of its members against the City of Omaha in 1990. The grievance was virtually identical to the one in this case. The arbitrator determined that no contractual violation occurred as a result of the City promoting out-of-rank minorities as part of the Affirmative Action Plan. (Ex. 23/114). Baughman argues that this Court is not bound by the arbitrator's decision, as he is entitled to a decision by the courts on his equal protection claims. Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 (Note 1) (1974). The City also cites the recent case of Klauschie v. City of Omaha, No. 954-978 (D. Ct. Neb. Aug. 17, 2000), as support for its belief that the Plan is valid. In Klauschie, the district court for the State of Nebraska addressed the same Plan as in the case before me. The plaintiff sued for reverse discrimination, because a Hispanic male who was ranked lower on the eligibility list received a promotion over the plaintiff, a white male. The Court held that the Affirmative Action Plan was adopted for remedial purposes, is a referral program, and is narrowly tailored. Id. at 6. The Court upheld the Plan.
C. Findings
Applying what appears to be the strict scrutiny test, the Warsocki court adopted the findings of the district court clearly stating that the Affirmative Action Plan in this case is both remedial and narrowly tailored. 726 F.2d 1358, 1360. Further, the district court found the statistical imbalance to be sufficient to justify a finding of past discrimination that supported implementation of the Affirmative Action Plan. The Eighth Circuit held:
We agree that the City of Omaha met its dual burden and that appellant failed to show that some reason other than a remedial one motivated the City when implementing the affirmative action plan or that the plan adopted unreasonably exceeds its remedial purpose.726 F.2d at 1361. However, that finding was based on the 1983 Plan (or a prior Plan). Additionally, Warsocki focused on recruitment, not promotion, of black persons. The Plan in question in this lawsuit focuses on promotions, not recruitment, and the Plan in question was passed by the City Council in 1990. Consequently, Warsocki supports the early Plan in finding evidence of discrimination in recruitment.
I now turn to the evidence of statistical disparity that existed in 1990 and at the time in question in this lawsuit, and I must apply the strict scrutiny test in my analysis. Croson, 488 U.S. 469; Adarand Constructors, Inc. v. Pena, 515 U.S. 227 (1995). The City must present evidence to this Court that the purpose of the Plan is to remedy past discrimination. Maitlin, 155 F.3d 1016. The burden then shifts to Baughman to show that the City was not trying to remedy past discrimination. Wygant v. Jackson Board of Education, 476 U.S. 267, 292-93 (1986) (O'Connor concurring); Warsocki, 726 F.2d 1360-61. If this burden is met, the City must further show that the Plan does not unnecessarily trammel the rights of white persons and must be narrowly tailored to achieve the remedial goals. Wygant, 476 U.S. at 279-81. Finally, the intent of the Plan must be to attain a balance, not maintain one.
Exhibit 108, p. 50, shows that certain categories in the Fire Department remained underutilized in 1990. However, the position of Battalion Chief was not one of those categories. Baughman interprets Exhibit 108 differently than does the City. He argues that in 1990 only 51 EEO Category groupings out of a possible 304 had any underutilization at all. He contends that this number is not significant to show a conspicuous racial disparity. The Court is unclear how Baughman arrived at these numbers. The City also submitted recent evidence with regard to the current state of the Plan. The statistical evidence as it existed in 1997, which was based on the 1990 goals, shows that the City of Omaha has not yet met its 1990 goals. Further, the City argues that it has never reached its department-wide goals, and that currently it is underutilized in every rank. In summary, the City contends that Warsocki supports the valid existence of the original Plan; that there is still in existence today a statistical imbalance; and that the goals have never been reached on a department-wide basis.
In addition, the City argues that out of the last six fire recruit classes, from 1996-99 (the time of the Baughman consideration), the Fire Department hired 129 recruits. Only four of those 129 recruits were black. There were no black recruits hired in the last two classes. (Affidavit of Frost, at para. 7). Further, the interview panels used for hiring are often composed of three white Assistant Chiefs. (Affidavit of Gordon Sims, at para. 3). However, the arguments by the City with regard to the current statistics still beg the question as to the legitimacy of the 1990 Plan.
No additional evidence was presented by the City to the Court that the 1990 Plan was passed to remedy past discrimination, and although there is an imbalance in 1990, no evidence was presented that the imbalance was significant, so as to require implementation of the 1990 Plan. I believe that there is a material fact as to whether there existed a "conspicuous imbalance" at the time of the1990 Plan. Donaghy, 933 F.2d 1459; Maitland, 155 F.3d 1018.
Another controverted and material fact involves the voluntariness of the Plan. Michelle Frost, in her Affidavit, contends that the Plan in this case is voluntary and referral only. The defendant rejects this contention and argues language from the City Affirmative Action Plan shows that the directors are required to meet the Affirmative Action goals. Michelle Frost further alleges that the Plan ceases to operate when no underutilization exists. Baughman argues that is not correct, that even after utilization is achieved in a category, the underutilization occurs in the future when a black person no longer fills that position. Baughman is correct that the City admits that there was no underutilization of Battalion Chiefs from 1989-1999. No Affirmative Action referrals of blacks were made to the EEO category during that time. (Answers to Interrogatories, Attachment E). Baughman's argument that the facts appear to support a finding that this is a reservation of jobs creates a disputed and material fact. In addition Baughman's concerns about the longevity of the Plan (originally 29 years ago and the current one has been in effect in excess of ten years). He argues that the Plan appears to be self-perpetuating, and it appears, he argues, to reserve positions for minorities, rather than simply eradicating past discrimination.
I find that there exist disputed facts that require me to deny both motions for summary judgment at this time. Both sides have presented sufficient evidence to meet their burdens for going forward with trial, although neither side has presented evidence sufficient for me to rule on this case as a matter of law. For example, evidence exists that the City had not met its goals in 1990 in the Fire Department. However, the evidence is not sufficient for me to determine the basis for the 1990 Plan, the changes from the Warsocki Plan to the EEO compliance plan, or whether the conspicuous racial imbalance still existed. Additionally, there is conflicting evidence as to when the Plan ends. Does a goal end when the position reaches its goal, or does the goal end only when the entire Department reaches its goal, or does the goal end when the City reaches its goal? How does the Plan end? Although it is clear that a disparity in numbers existed with the addition of the Millard fire department, was the disparity one that resulted from historical discrimination in the Millard fire department or Civil Service so as to require additional minority promotions? Were there discriminatory findings in this regard? The record is not sufficiently developed at this point to convince me as a matter of law that the 1990 Plan was remedial in nature. Yet, the record as presented does not convince me that it was not remedial in nature. Also, a material dispute exists between the parties as to whether the Plan is designed to "attain" or "maintain" goals, the prior being constitutional and the latter being unconstitutional.
A final point, although I have not been asked here today to determine the constitutionality of the addition of seniority points, it is clear from the evidence presented that seniority points are adverse to those who were hired last. Because Warsocki specifically found that the City discriminated in recruitment of minorities, it is clear that the benefit of seniority points will help those previously hired and hinder those who were hired at later dates. Had discrimination not occurred in the first instance, this disparity between current and previous employees would not be significant. However, because minorities were not recruited due to their race in the first instance, they clearly do not have an equal opportunity as required by the City EEO policies at promotions, when seniority points are factored into the equation.
Because I find that both motions for summary judgment should be denied, I need not address the motions to strike (Filing Nos. 24 and 37).
THEREFORE, IT IS ORDERED ADJUDGED AND DECREED:
1. That plaintiff's motion for summary judgment (Filing No. 25) should be and hereby is denied;
2. That defendant's motion for summary judgment (Filing No. 14) should be and hereby is denied; and
3. That the plaintiff's motions to strike (Filing Nos. 24 and 37) are hereby denied as moot.