01972175
02-03-2000
Jane C. Morgan, Complainant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Jane C. Morgan v. Department of the Navy
01972175
February 3, 2000
Jane C. Morgan, )
Complainant, )
) Appeal No. 01972175
v. ) Agency No. 94-00024-010
)
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
retaliation based on prior EEO activity and discrimination based on sex
(female) and mental disability (anxiety and depression/panic disorder),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791, et seq.<1> Complainant alleges she was
subjected to discrimination based on mental disability when she was (1)
issued a Letter of Requirement (LOR) on January 31, 1994; subjected
to discrimination based on mental disability and sex when she was (2)
placed on Absence Without Leave (AWOL); subjected to discrimination
based on mental disability and to retaliation when she was (3) rated
"minimally successful" on April 26, 1994, (4) removed from timekeeping
duties on May 13, 1994, (5) issued a Letter of Caution for inaccurate
recording of time and attendance, and (6) required to report her daily
activities to her supervisor when others where not required to do so;
and subjected to discrimination based on sex when she (7) experienced
sexual harassment based on a hostile work environment.. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the FAD is AFFIRMED AS CLARIFIED.
ISSUES PRESENTED
The issues on appeal are whether complainant proved her claims of
discrimination or retaliation by a preponderance of the evidence.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Program Assistant, GS-344-07, in the Deep Submergence Systems
Program, PMS 395, Naval Sea Systems Command, Arlington, Virginia.
Believing she was a victim of discrimination, complainant sought
EEO counseling and, subsequently, filed a complaint on May 23, 1994.
At the conclusion of the investigation, complainant initially requested
a hearing before an Administrative Judge (AJ), but subsequently withdrew
her request, and the agency issued a FAD.
The FAD concluded that complainant failed to establish a prima facie
case of disability discrimination because she did not establish that
she was an "individual with a disability" within the meaning of the
Rehabilitation Act.
The FAD further concluded that complainant did establish a prima facie
case of retaliation with respect to incidents (3) and (5), because she
demonstrated that she had engaged in prior EEO activity (initiating EEO
Counselor contact), her supervisors were aware of it, and she subsequently
received a "minimally successful" performance appraisal and a Letter
of Caution. The FAD concluded that complainant had not established a
prima facie case of retaliation with respect to incidents (4) and (6),
because she had been relieved of her timekeeping duties and required to
report on her daily activities prior to her contact with the EEO office,
and therefore these adverse actions could not have been motivated by
her subsequently-occurring EEO activity..
The FAD further concluded that complainant failed to establish a prima
facie case of discrimination based on sex, finding that although she
alleged males were entitled to longer smoking breaks and lunch hours, she
failed to present evidence that similarly situated individuals not in her
protected classes were treated differently under similar circumstances.
Specifically, the FAD concluded that the males allegedly treated more
favorably were not similarly situated to complainant, because complainant
was the only employee who had been consistently late to work and who
was under a Letter of Requirement for leave abuse. In addition, with
respect to the particular extended lunch cited by complainant, the FAD
concluded that the civilian employees present had all used leave time
in order to attend.
The FAD further concluded that even assuming complainant had established
a prima facie case of disparate treatment based on sex or disability,
and notwithstanding that complainant had established a prima facie case
of reprisal, the responsible management officials articulated legitimate,
non-discriminatory, non-retaliatory reasons for the decisions at issue.
Specifically, the FAD concluded:
(1) complainant was issued an LOR because she continued to be tardy
after having been counseled numerous times, and having been offered a
later starting time as an accommodation after she advised her supervisor
that she suffered from morning anxiety attacks, complainant failed to
respond to her supervisor's requests for a letter from a medical doctor
to substantiate the need for repeated tardiness, but her attendance
improved substantially after issuance of the LOR ;<2>
(2) complainant was tardy on the days she was charged with AWOL,
and although she contended others were also tardy due to poor road
conditions and were not charged with AWOL, she failed to identify any
such individuals;
(3) complainant's "minimally successful" performance appraisal was
issued based on the appraisal elements of Organizational Support and
Communication, and Execution of Duties, because while complainant's
two supervisors during the relevant period found her work to generally
be "fully successful," certain problems in November 1993 and March
1994 warranted the lower rating, including complainant's tardiness,
allegedly combative and hostile attitude, insubordinate behavior toward
her supervisor, insulting behavior toward co-workers, and yelling,
slamming and throwing papers, questioning work assignments, and missing
deadlines, and her supervisor had noted such problems to her verbally
and by e-mail during her mid-year review in November, 1993;
(4) complainant's frequent absences or tardiness made her unfit for
timekeeping duties, because time card preparation was done at the
beginning of the day, and complainant had incorrectly recorded that she
was present at work on December 29, 1993;
(5) complainant was issued a Letter of Caution because on May 3, 1994
she arrived at work thirty minutes late and left thirty minutes early,
but indicated on her time card that she arrived and left on time;
(6) complainant's supervisor required complainant and a co-worker to
report their daily activities due to untimely and inaccurate preparation
of financial documents, and he removed the requirement for the co-worker
because the documents at issue were not her main duty, and because her
completion rate far exceeded complainant's rate.
The FAD found that as to each of these six incidents, complainant
had failed to demonstrate that management's proffered legitimate
non-discriminatory and non-retaliatory reasons for its actions were
pretextual.
Finally, the FAD concluded that complainant failed to establish a prima
facie case of sexual harassment based on a hostile work environment
resulting from (a) the posting of offensive pictures with offensive
captions on the wall above a co-worker's desk, (b) widespread use of
vulgar language by co-workers, and (c) an instance where a co-worker
allegedly rubbed the front of his body against complainant's side.<3>
The FAD found that (a) complainant conceded that once she complained
about the offensive pictures with captions, the captions were removed,<4>
(b) a hostile work environment resulting from profanity and sexual
innuendo did exist in complainant's office prior to June, 1993, but
effective corrective action was taken at that time, whereas the instant
complaint concerns actions allegedly occurring from November, 1993,
through May 20, 1994, and (c) the alleged incident in which a co-worker
rubbed his front against complainant's side was uncorroborated, and
complainant did not report it to her supervisor. The FAD also found
that complainant had not reported the alleged physical contact by her
co-worker, notwithstanding that she had reported an incident of unwelcome
sexual contact by a different co-worker in 1991, and therefore was aware
of reporting requirements and procedures for alleged sexual harassment.
The FAD also found that even if complainant had reported the incident,
it was a single incident and therefore did not constitute severe or
pervasive conduct as required to establish sexual harassment based on
a hostile work environment.
On appeal, complainant contends, inter alia, that (1) a GS-318-06
secretary who did not have a disability was permitted to take excessive
sick leave and advanced annual leave; (2) her anxiety condition was
caused by years of sexual harassment at the agency, in response to
which she had unsuccessfully requested to change her desk location; (3)
she was not counseled regarding tardiness prior to receiving the LOR;
(4) she was not given anything in writing regarding poor performance
at the time of her mid-year performance review; (5) she inadvertently
signed in for December 29, 1993, because weekends and holidays were not
blocked off on the sign-in sheet for that week; (6) she was not allowed
to lock up the facility, and thus was forced to leave early if authorized
personnel were leaving early; (7) she was not officially informed when
her timekeeping duties were removed; (8) her tardiness on February 22
and 24, 1994, deemed AWOL, was weather-related, and she was fifteen
minutes rather than thirty, which she states is "an excusable tardiness";
(9) management's assertion that all civilian employees had to use leave
time for an extended lunch does not account for military personnel, who
did not use leave time for the extended lunch but were not disciplined,
and a secretary was permitted to use sick leave for the extended lunch;
(10) her prior performance appraisals were all "outstanding" or "exceeds."
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas
v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission agrees with the agency that complainant failed to
establish a prima facie case of discrimination based on sex or disability,
and that even assuming she had, she has not proven discrimination by a
preponderance of the evidence. Similarly, while the Commission agrees
that complainant has established a prima facie case of retaliation,
we find that she has not proven retaliation by a preponderance of the
evidence.<5> However, in reaching this conclusion, we clarify several
points in the agency's analysis, as follows.
Disability Discrimination
The FAD appears to confuse two separate issues: (1) whether complainant
satisfied her legal burden, in support of the instant complaint, to
establish that she is an "individual with a disability" within the
meaning of the Rehabilitation Act;<6> and, (2) whether complainant
provided sufficient information to management in support of her request
for disability accommodation.
In order to raise a disability discrimination claim under the
Rehabilitation Act, a complainant must establish that she is an
"individual with a disability" within the meaning of the statute.
An "individual with a disability" is one who (1) has a physical or
mental impairment that substantially limits one or more major life
activities, (2) has a record of such impairment, or (3) is regarded as
having such an impairment. 29 C.F.R. �1630.2. Major life activities
include activities such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. �1630.2(i). Complainant must further demonstrate that she is a
"qualified" individual with a disability, meaning that she can perform the
essential functions of the "position such individual holds or desires."
EEOC Regulation 29 C.F.R. �1630.2(m).
The record contains a letter complainant submitted to management from
a Licensed Clinical Social Worker (LCSW) dated November 29, 1993,
stating that complainant was receiving treatment from the LCSW and
her primary care physician for Panic Disorder, that complainant's
anxiety levels were often intense in the early morning hours of the
day, that her condition was improving, and stating "[t]hank you for
any assistance you can give her as she works to bring her symptoms
under control." ROI at 59. The LCSW's letter does not specify what
particular type of accommodation that is medically indicated, if any.
Complainant's first-line supervisor asserts that complainant told him
at the time she requested accommodation of her panic disorder that she
had not yet sought treatment. As the FAD notes, according to a letter
from complainant to members of Congress, complainant contends she began
taking medication for her panic disorder in December, 1993, during the
time frame at issue in the complaint.<7> Although it is not referenced
in the FAD, the record also contains a letter from complainant's medical
doctor, dated March 31, 1994, stating that "[d]ue to a medication change
in January, 1994, [com[lainant's] health and overall functioning improved
significantly by the end of the same month."
We concur with the FAD's conclusion that complainant has not met her
burden to establish that she is an "individual with a disability."
The documentation in the investigative record fails to establish that,
at the time in question, complainant's panic disorder substantially
limited her in any major life activity.
As a separate matter, although it does not affect the disposition of
this case, we note that management was incorrect in advising complainant
that her accommodation request must be supported by a letter medical
doctor rather than an LCSW. The EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans With Disabilities
Act, No. 915.002 (March 1, 1999) (Guidance), at question 6, provides:
[T]he employer may ask the individual for reasonable documentation about
his/her disability and functional limitations . . . An employer may
require that the documentation . . . come from an appropriate health care
professional. The appropriate professional in any particular situation
will depend on the disability and the type of functional limitation
it imposes. Appropriate professionals include, but are not limited to,
doctors (including psychiatrists), psychologists, nurses, physical
therapists, occupational therapists, speech therapists, vocational
rehabilitation specialists, and licensed mental health professionals.
Thus, an LCSW can be an appropriate health care professional to provide
documentation depending upon the case. The Commission notes that the
agency should train its managers accordingly.<8>
Sexual Harassment
The Supreme Court has established that sexual harassment in the
workplace violates Title VII and is actionable as a form of sex
discrimination. Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). To
establish a prima facie violation of Title VII based on sexual harassment,
appellant must show: (1) that she belongs to a statutorily protected
group; (2) that she was subjected to sexual harassment in the form of
unwelcome sexual advances, requests for sexual favors, or other verbal or
physical conduct of a sexual nature; (3) that the harassment complained of
was based on sex; and (4) that submission to such conduct was made either
explicitly or implicitly a term or condition of appellant's employment
or was used as a basis for employment decisions affecting appellant,
or the conduct unreasonably interfered with her work performance or
engendered an intimidating, hostile or offensive working environment. 29
C.F.R. � 1604.11(a); Quintero v. United States Postal Service, EEOC
Appeal No. 01960836 (April 21, 1998); Jones v. Flagship International,
793 F.2d 714, 719-722 (5th Cir. 1986); Henson v. City of Dundee, 682 F.2d
897, 903-905 (11th Cir. 1982); see also Bundy v. Jackson, 641 F.2d 934
(D.C. Cir. 1981); Katz v. Dole, 709 F.2d 251 (4th Cir. 1983).
Regarding the fourth element, it is well-settled that, unless the conduct
is very severe, a single incident or a group of isolated incidents
will not be regarded as creating a discriminatory work environment. See
Walker v. Ford Motor Company, 684 F.2d 1355, 1358-9 (11th Cir. 1982);
Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981). However,
as is set forth in the EEOC Policy Guidance on Current Issues of Sexual
Harassment, N-915-050, No. 137 (March 19, 1990), "a single, unusually
severe incident of harassment may be sufficient to constitute a Title
VII violation." Our guidance states further:
The Commission will presume that the unwelcome, intentional touching of a
charging party's intimate body areas is sufficiently offensive to alter
the conditions of her working environment and constitute a violation
of Title VII. More so than in the case of verbal advances or remarks,
a single unwelcome physical advance can seriously poison a victim's
working environment.
Id. In order to avoid liability for hostile environment sexual
harassment, the agency must show one of the following: (1) the acts or
conduct complained of did not occur; (2) the acts or conduct complained
of were not "unwelcome;" (3) the alleged harassment was not "sufficiently
severe or pervasive" to alter the conditions of the victim's employment
and create an abusive working environment; (4) immediate and appropriate
corrective action was taken as soon as the employer was put on notice;
and/or (5) there is no basis for imputing liability to the employer
under agency principles. Quintero v. United States Postal Service, EEOC
Appeal No. 01960836 (April 21, 1998). See also Meritor Savings Bank,
F.S.B. v. Vinson, 477 U.S. 57 (1986); EEOC Policy Guidance on Current
Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990).
With respect to (4) above, we note that the Commission's Regulations
provide that "[w]ith respect to conduct between fellow employees, an
employer is responsible for acts of sexual harassment in the workplace
where the employer (or its agents or supervisory employees) knows
or should have known of the conduct, unless it can show that it took
immediate and appropriate corrective action." 29 C.F.R. � 1604.11(d). When
an employer becomes aware of alleged sexual harassment, the employer has
the duty to investigate such charges promptly and thoroughly. See EEOC
Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137
(March 19, 1990); see also Katz v. Dole, 709 F.2d 251, 255-6 (employer
is on notice of alleged harassment once an employee lodges a complaint
and is liable unless it then takes prompt and adequate remedial action).
The FAD concluded that complainant had failed to prove that the incident
in which a male employee rubbed the front of his body against her side
in fact occurred. However, the record contains no contrary affidavit
from the alleged harasser, whom the agency identified as unavailable.
Moreover, whereas the FAD states that the witness identified by
complainant did not corroborate the incident, in fact the witness
did corroborate that he saw the alleged harasser "hug" complainant,
"but not in a sexual or offensive manner." ROI at 133. The legally
relevant issue is whether or not this conduct was unwelcome from the
standpoint of a reasonable person in complainant's position.
Assuming arguendo that the occurrence of this corroborated physical
conduct does meet the elements of a prima facie case of sexual harassment,
complainant has nonetheless failed to establish liability because she
concedes that she did not complain to her management chain of command
regarding this incident, but rather brought it to the attention of the
EEO Counselor handling the instant matter. ROI at 144. With respect to
sexual harassment by a co-worker as opposed to a supervisor, management
was not obligated to take prompt remedial action absent notice of the
harassment.
As the FAD notes, complainant concedes that the offensive photograph
captions were taken down as soon as complainant complained about
them, and that she did not find the photographs, absent the captions,
to be offensive. ROI at 134. Accordingly, we cannot conclude that
management failed to take prompt, remedial action once put on notice
of the sexual harassment at issue in this complaint. Finally, with
respect to complainant's allegation of repeated use of vulgarity, the
evidence is disputed, and thus remains in equipoise. Accordingly,
complainant has not met her burden of proof with respect to the claim
of sexual harassment.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, the FAD is AFFIRMED AS
CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE
FILED WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30)
CALENDAR DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR
DAYS OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
2/3/00
_______________ ___________________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at WWW.EEOC.GOV.
2Complainant denied that her supervisor ever requested a letter from
a medical doctor. Record of Investigation (ROI) at 139. The FAD also
noted that while complainant advised the EEO Counselor that she believed
the LOR was issued in retaliation for her questioning a decision made
by her supervisor, not in retaliation for prior EEO activity. The FAD
also noted that in a letter complainant wrote to a member of Congress,
she stated that she was told that her supervisor began preparing the
LOR in November, 1993, prior to complainant's EEO activity at issue.
3We note that the Record of Investigation (ROI) contains a redacted report
by the agency's Inspector General regarding numerous other allegations of
sexual harassment of complainant by another individual. ROI at 150-172,
and a redacted letter from the Inspector General's office to Congress
regarding the report's findings. ROI at 92 et seq. Although a history
of additional alleged incidents of sexual harassment are referenced in
these documents, these additional incidents are not referenced in the
agency's notice of acceptance of the complaint, complainant's counsel's
response thereto, or any requested amendment. ROI at Tabs C-2 and C-3.
Accordingly, these incidents may be viewed as background evidence in
support of complainant's claims.
4The photographs in question, as identified by the employee who posted
them, are contained in the Record of Investigation at 132.
5Complainant also asserts that the FAD "admit[s]" that she proved her
"case of discrimination based on prior protected activity," apparently
mistaking the FAD's holding that she proved a prima facie case for a
finding that she had proven her case on the merits. As noted in the FAD
at pages 4-5, establishing a prima facie case is only the first step in
the indirect evidence method of proof, and is not equivalent to proving
the claim at issue.
6Pursuant to the Rehabilitation Act Amendments of 1992, the ADA's
employment standards apply to all nonaffirmative action employment
discrimination claims filed by federal applicants or employees with
disabilities under section 501 of the Rehabilitation Act. Pub. L.
No. 102-569 � 503(b), 106 Stat. 4344 (1992) (codified as amended
at 29 U.S.C. � 791(g) (1994)). The Rehabilitation Act regulations
governing reassignment of federal employees with disabilities,
which were promulgated several months prior to the enactment of the
Rehabilitation Act Amendments, differ in several respects from the ADA's
requirements. Compare 29 C.F.R. � 1614.203(g) with 29 C.F.R. � 1630.2(o),
(p), and � 1630.9. For non-discrimination purposes, federal agencies
must follow the ADA standards.
7Since the time the agency issued its FAD, the Supreme Court has held that
the determination of whether a person has a "disability" must be based on
his or her actual condition at the time of the alleged discrimination, and
therefore must take into consideration whether the person is substantially
limited in a major life activity when using a mitigating measure, if any,
such as medication. Sutton v. United Airlines, Inc., 119 S. Ct. 2139
(1999); Murphy v. United Parcel Service, Inc., 119 S. Ct. 2133 (1999).
8We note that complainant's first-line supervisor advised the
EEO Counselor that he would like more training regarding reasonable
accommodation issues. See Record of Investigation at 16 (EEO Counselor's
Report at 9, �5).