Opinion
IP 99-1946 C-T/K
January 29, 2002
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Defendants have filed a Motion for Summary Judgment. Plaintiff opposes the Motion. This court now GRANTS Defendants' Motion.
I. Factual and Procedural Background
These facts are not disputed. Additional facts may be set forth in the Discussion section as necessary. That section also will address various disputes about factual submissions proffered by Muse.
Tyrone Muse began working for Service Supply on November 8, 1993. Muse was a member of UAW Local 1983 ("Local 1983"). The International Union, UAW, and Local 1983 ("the Unions") represented the bargaining unit employees at Service Supply. The collective bargaining agreement in effect during the majority of Muse's employment with Service Supply provided for a three-step grievance procedure. Step one involved submitting a oral grievance and then a written grievance to the employee's supervisor; step two had Local 1983 present the grievance to upper management; and step three required the union to appeal by submitting the grievance to the Board of Arbitration, and if no resolution was forthcoming, eventually a neutral arbitrator. The collective bargaining agreement also contained an absenteeism and tardiness procedure. This policy provided for two unexcused absences per quarter with no repercussions, and then increasing penalties until the sixth unexcused absence which resulted in discharge. If an employee entered the disciplinary phase under the plan (i.e., had more than two absences), the employee was required to present medical verification for any absences due to illness or be excused in advance by his foreman.
Muse was familiar with this policy and received discipline on numerous occasions for absences, tardiness, failure to return after lunch, and failure to work mandatory overtime. Muse disputed two of these incidents. Local 1983, represented by the chief steward, Claude Catron, filed grievances for him, and the discipline was removed from Muse's record. On August 27, 1997, Muse received a written warning for three unexcused absences. On September 12, Muse received discipline for his fourth unexcused absence.
He did not contest his discipline for these absences. In January of 1998, Muse was injured in a fall and had to miss work. On February 9, Muse returned to work, but left for a physical therapy appointment around eleven o'clock. The parties dispute whether Muse returned to work after his appointment and asked for permission to leave for the rest of the day or whether he just went home after his appointment. Muse was assessed a fifth unexcused absence for this incident. On February 12, Muse left for a court appearance in small claims court. After court, Muse was either returning to work or heading home when his car ran out of gas. In any event, Muse never returned to work that day. Muse asked his supervisor to excuse his absence for court, but the company refused. On February 16, Muse, with Local 1983 representative Linda Sweatt present, was fired because of his sixth unexcused absence.
On February 18, Catron met with Muse, examined his paperwork, prepared a handwritten statement of the grievance, and prepared a grievance. Muse signed the grievance and Catron presented the grievance and grievance statement the next day to Jim Weir, Vice President of Human Resources for Service Supply. Based on his overall attendance record, Weir refused to reinstate Muse. Catron called Muse's doctor and physical therapist in an attempt to get them to provide a medical excuse for his failure to return to work on February 9. Neither would provide an excuse. Catron also presented the argument that discipline for his sixth absence could not commence because Muse was never disciplined for his fifth absence. Service Supply rejected Catron's argument based on Article XI, section 5 of the contract, which allows Service Supply five working days "after the Company first became aware of the fact" to administer discipline. After Catron's investigation, he determined that Service Supply's actions did not violate the collective bargaining agreement.
In February of 1998, Service Supply announced it was selling the business to Wurth Group. As a prerequisite of the sale, Service Supply was required to resolve all of its outstanding grievances. Weir then proposed that Service Supply would make a monetary settlement to Muse in lieu of reinstatement. Weir proposed $2000, which Catron relayed to Muse and Muse rejected. The Unions and Service Supply later agreed that the grievance would be withdrawn for a payment of $4000 to Muse and no reinstatement.
The parties dispute what actually occurred. Catron claims that Muse rejected the $2000, but was willing to settle the grievance for $4000. Muse claims that he never agreed to settle the grievance for $4000 and would not settle for less than $40,000. In any event, this dispute is not material for the purposes of this Motion for Summary Judgment.
Muse refused to sign the release. Catron then consulted with International representative Tony Long, who reviewed the grievance and concluded that Muse could not win because there was no contract violation and no mitigating circumstances. Long was also concerned that any arbitration award would not be enforceable against Wurth. Based on his belief that the amount offered by Service Supply was fair and that Muse had little chance of success on the merits, Catron agreed to dismiss the grievance in exchange for $4000, which would remain open should Muse later decide to accept it. Local 1983 then signed an agreement with Wurth where Wurth continued the terms of the collective bargaining agreement except for the attendance plan. As part of this agreement, Local 1983 agreed to withdraw all outstanding grievances with prejudice.
On July 8, Muse filed a charge of race discrimination against UAW. On September 29, the EEOC issued a notice of a right to sue. On December 28, 1999, Muse filed a complaint against the Unions alleging race discrimination under Title VII. On January 30, 2001, Defendants filed this Motion for Summary Judgment. In support of their Motion, Defendants submitted the declarations of Tony Long, the International Representative of UAW, and Claude Catron, the Local 1983 president and chief Steward from 1986 to 2000.
On March 29, Plaintiff filed a Brief in Opposition to the Motion for Summary Judgment. In support of his brief, Plaintiff filed affidavits from himself, Vernon Wells, a retired Service Supply employee and former civil rights chairman of Local 1983, and Eric Trammel Taylor, a former employee of Service Supply and a former union member. This court now rules as follows.
II. Summary Judgment Standard
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The motion should be granted only if no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the party opposing the motion bears the burden of proof at trial on an issue, that party can avoid summary judgment only by setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). When ruling on a motion for summary judgment, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255. Speculation, however, is not the source of a reasonable inference. See Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir. 1998) (noting that the court is not required to draw every conceivable inference from the record in favor of the non-movant, but only those inferences that are reasonable).
III. Racial Discrimination and Unions
Muse claims that his union failed to represent him because of his race. The United States Code provides that:
It shall be an unlawful employment practice for a labor organization — (1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin; (2) to limit, segregate, or classify its membership . . . in any way which would deprive or tend to deprive any individual of employment opportunities, or would . . . otherwise adversely affect his status as an employee . . . because of such individual's race, color, religion, sex, or national origin;. . . .42 U.S.C. § 2000e-2(c).
A Title VII plaintiff can prove intentional discrimination in one of two ways: (1) he may present direct evidence of discriminatory intent, or (2) he may use the familiar burden-shifting method of proof established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Direct evidence is "evidence which if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption." Plair v. E.J. Brach Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997) (citation omitted). Direct evidence is the actions or statements made by the Unions and its members in representing Muse. There is no evidence that the Unions or any of its members said that Muse's charge was settled because of his race. See, e.g., Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374, 379 (7th Cir. 2000). Muse has no direct evidence of discriminatory intent and therefore relies on the indirect method of proof. Under the McDonnell Douglas framework, Muse must establish a prima facie case of racial discrimination. See Freeman, 231 F.3d at 379.
To establish a prima facie case, Muse must show: (1) that Service Supply Company violated the collective bargaining agreement between the union and the company, (2) that the Union let the breach go unrepaired, thus breaching its own duty of fair representation; and (3) some evidence indicating animus against African-Americans. Greenslade v. Chicago Sun-Times, Co., 112 F.3d 853, 866-67 (7th Cir. 1997).
Assuming that Muse can establish a prima facie case on the first element, that the collective bargaining agreement was breached, summary judgment must still be granted for Defendants because Muse cannot establish a prima facie case for the last two elements.
A. Duty of Fair Representation
As to the second element, Muse claims that he must only show that the Union let the breach of the collective bargaining agreement go unrepaired. (Pl.'s Br. in Opposition to Summary J. Mot. at 8.) In support of this contention, he cites no authority save the statute itself, which does not discuss the elements of the indirect method of proving discrimination. Because there is no support for Muse's formulation of the second element of the indirect method of proving discrimination, this court chooses not to adopt it.
Instead, the second prong of the prima facie case for racial discrimination requires the Plaintiff to establish that the Defendants let the breach of the collective bargaining agreement go unrepaired thus breaching their duty of fair representation to the Plaintiff. A union breaches its duty of fair representation when its actions are arbitrary, discriminatory, or in bad faith. Trnka v. Local 688, UAW, 30 F.3d 60, 61 (7th Cir. 1994). A union's actions are arbitrary "only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a wide range of reasonableness as to be irrational." Air Line Pilots Ass'n Int'l v. O'Neill, 499 U.S. 65, 67 (1991) (citations omitted). A union does not breach its duty when its actions are based on a reasonable or good faith evaluation of the merits of the plaintiff's grievance. Reed v. UAW, 945 F.2d 198, 202 (7th Cir. 1991). To establish discrimination or bad faith, courts look at the union's subjective intent. Specifically, the plaintiff must show subjective hostility toward the plaintiff or the plaintiff's class and that the hostility adversely affected the union's representation. Adams v. Budd Co., 846 F.2d 428, 433-34 (7th Cir. 1988).
In this case, Muse can establish none of these things. In his brief, Muse concludes that "[w]hen racial discrimination occurs, the union's behavior is per se `so far outside a wide range of reasonableness as to be irrational.'" (Id. at 10.) Although this may be true, Muse has not established that the Unions engaged in racial discrimination. Local 1983 filed a grievance for Muse, investigated his claim, and argued for his reinstatement.
Service Supply was firm in its refusal to rehire Muse. Both Catron and Long made a good faith evaluation that Muse's grievance lacked merit and would not succeed at arbitration. (¶¶ 107-110.) Catron negotiated a settlement with Service Supply for $4000. These actions are not arbitrary, discriminatory, or in bad faith.
Muse acknowledges that Catron believed his decision was fair, but contends that this belief was colored by racial animus. This contention is unsupported by any evidence and therefore cannot create a genuine issue of material fact. Muse further claims that Catron's decision was influenced by Muse's race based on the affidavits of Wells, Muse, and Taylor. Defendants respond that these affidavits should be stricken for a number of reasons.
First, Defendants claim that Wells' affidavit is not based on personal knowledge. Rule 56(e) requires that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Wells is a former employee of Service Supply and former union member of Local 1983. In his affidavit, he explained what is an excused absence under the attendance policy, the failure of Local 1983 to consult him, and his opinions about Muse. Wells claimed no special familiarity or expertise with the collective bargaining agreement or Muse's situation. Because Wells' opinion is not based on personal knowledge, but on pure speculation, his interpretation of the collective bargaining agreement terms is not admissible.
Furthermore, Wells' statements are conclusory, with no factual support. For example, Wells contends that, "[w]hen grievance came to Local 1983, the same consideration did not seem to be given by Claude Catron to people of color." He offers no specific examples of this and the statement is not a firm statement of fact, but rather Wells' interpretation of events. See Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir. 1998) ("[N]one of the conclusory statements made by the affiants demonstrated, with sufficient particularity, that they actually knew whether younger, white employees were treated better than [plaintiff]; their statements were merely conjecture based on rumor."). In another example, in paragraph eleven of his affidavit, Wells claims that "Tyrone Muse clearly had legitimate grievances that were not pursued by Local 1983." Wells has no personal knowledge about Muse's grievances and is not qualified to offer an opinion on them. Wells' statement is insufficient to satisfy Rule 56(e). See Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991) (Although personal knowledge includes inferences and opinions, "the inferences and opinions must be grounded in observation or other first-hand personal experience. They must not be flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience.").
Three of Wells' statements (other than his introduction) are based on personal knowledge: (1) ¶ 3, discussing Catron's refusal to consult with him on charges of racial discrimination, (2) ¶ 4 discussing Catron's refusal to discuss Muse's situation, and (3) ¶ 13 discussing his belief that no Caucasian was fired and given only $4000. The first two of these statements are irrelevant to the litigation. Muse makes no claim of racial discrimination by Service Supply with respect to his dismissal and it does not appear that discussing these claims or Muse's claim with Wells was essential, or a requirement of any union procedure or rule. Catron was charged with advocating for Muse regarding his absences, not on a claim of racial discrimination. The final statement may be admissible, but does not establish anything. It merely says that Wells knows of no Caucasian who was fired and given $4000. There is no reason to assume that Wells would know of every person fired or the compensation provided to them. Because Wells' affidavit is conclusory, irrelevant, and not based on personal knowledge, it should be stricken.
In fact, according to Catron, the chairman of the civil rights committee serves internal unions functions. (Catron Dep. ¶ ¶ 12, 14.)
Paragraphs one, two, and thirteen are arguably admissible, but as discussed above, do not create genuine issues of material fact. Paragraphs one and two establish Wells' credentials and paragraph thirteen discusses his belief on the compensation provided to terminated Caucasians.
Defendants also contend that Taylor's affidavit should be stricken as conclusory and irrelevant. Taylor is a former employee of Service Supply. The first forty-nine paragraphs of his affidavit detail his numerous run-ins with Service Supply based on what he felt was racial discrimination. In those paragraphs, he claims that Local 1983 did not file several grievances that he desired, did file several others, and that Catron pursued many grievances for him, but did not pursue his charges of discrimination and allowed him to sign a statement claiming no discrimination when he settled grievances with Service Supply. (Pl.'s Submission of Ex., Ex. C ¶ ¶ 15, 26, 35-37.) These allegations establish nothing other than that the Union did not file a grievance for every claim brought to it. This hardly shows that the Union acted arbitrarily, with discriminatory intent, or in bad faith.
In paragraph fifty, Taylor claims that "Local 1983 discriminated against African-Americans because the discrimination was obvious, it had been complained about many times by multiple African-Americans, and yet Local 1983 refused to pursue the issue."
This statement is conclusory and not based on any specific facts. Taylor has failed to prove that Service Supply engaged in discriminatory conduct and therefore, the conclusion that the Union discriminated is unsubstantiated. The final seven paragraphs include such comments as "Claude Catron made comments that had racial innuendoes" and "Inadequate effort was taken to enforce the collective bargaining for Buford Hooten, Tyrone Muse, and myself." (¶ ¶ 55, 56.) These statements are also conclusory. They do not identify specific incidents, times, or places and merely state legal conclusions. Because Taylor's affidavit is irrelevant and conclusory, it should be stricken.
The only exception might be paragraph 51, which states that "Even when Local 1983 pursued a grievance and won, Claude Catron allowed there to be language `admitting' that no discrimination was involved." However, this is not enough to show that the Union or Catron were influenced by Muse's race or that the Union acted arbitrarily or in bad faith.
Finally, Defendants challenge Muse's affidavit as conclusory and inconsistent with previous his previous testimony. Paragraphs thirty-four and thirty-five discuss Muse's plans to return to work after his court date. This contradicts his deposition testimony that he was on his way home when he ran out of gas. The Seventh Circuit has held that a conflict between a party's deposition and a later affidavit does not create a material dispute requiring a trial. Pries v. Honda Motor, Co., 31 F.3d 543, 545 (7th Cir. 1994). "A party may not wriggle out of a concession after its legal consequence becomes clear." Id. Therefore, this portion of Muse's affidavit cannot be a basis for denying summary judgment.
Defendants also contend that paragraphs twelve through nineteen contradict documentary evidence and Muse's former statements. This dispute appears to center on whether after a physical therapy appointment on February 9, Muse asked permission to leave work or just left. Either way, this fact does not create a genuine issue of material fact, because even assuming that Muse's fifth absence was justified and the collective bargaining agreement violated, Plaintiff has still not established that the Unions breached their duty of fair representation or other elements necessary to establish a prima facie case. Muse also testified that Catron shared a racist joke around Service Supply sometime before 1998. This is insufficient to show that several years later, he was motivated by racial discrimination to discount Muse's claim and does not account for Long's similar appraisal of the merits of Muse's claim. Defendants also challenge Muse's affidavit as conclusory. Paragraph seventy claims that "Service Supply Company discriminated against African-Americans in assignments of jobs and job duties." However, Muse offers no support for this claim and it must be stricken.
Because Wells and Taylor's affidavits are stricken and Muse's affidavit offers no support for his claim that Catron was motivated by Muse's race, Muse has not presented any support for his claim that Catron's actions were based on racial animus. The Unions, including Catron, investigated Muse's claim, argued on his behalf, and obtained a settlement for him, although not the one he desired. Muse cannot establish that the Unions acted arbitrarily, with discriminatory motive, or in bad faith and therefore cannot show that they violated their duty of fair representation.
B. Racial Animus
Nor can Muse establish the third element of his prima facie case: that Defendants' actions were motivated by racial animus. Muse claims that a prima facie case of racial animus can be established by: (1) Local 1983's history of neglecting to take action against racial discrimination, (2) Catron's change in support of Muse's charge, (3) the requirement that African-Americans sign statements that wrongful actions were not the result of racial discrimination, (4) two other African-Americans who were wrongly discharged and who the Union did not sufficiently represent, (5) the Union's policy of pursuing grievances of Caucasian employees, (6) Catron's racial jokes and remarks, (7) Local 1983's failure to use its own civil rights representative, (8) Wells' opinion that Muse's termination violated the agreement, (9) Catron's refusal to discuss Muse with Wells and (10) the fact that all three African-American employees who he claims were wrongly discharged received some settlement from Service Supply without union help. As discussed above, the affidavit testimony of Wells, Taylor, and Muse concerning racial discrimination was conclusory and has been stricken. Therefore, there is no support for the first contention.
Further, Muse has not established that either he or the other two African-Americans were wrongly discharged, and at least in this case, the union negotiated a settlement with the company for Muse. Muse has presented testimony that Catron made one isolated comment, a far cry from showing racial animus. Wells' opinion about the merits of Muse's claim has been stricken and, as discussed above, is pure speculation. Furthermore, the failure to consult Wells for civil rights claims does not prove or even hint at a racial animus. Muse has not shown that his dispute with Service Supply had anything to do with race or this case or that consultation with Wells was even required by any union rule or regulation.
Finally, and perhaps most telling, Muse claims that Caucasian employees have received better treatment from the union, but has failed to present specific, concrete examples to support his conclusion. See Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1398 (7th Cir. 1997) ("What is true is that if a plaintiff has only the McDonnell Douglas formula to stave off summary judgment — if he has no other evidence of discrimination — he must show that another, and similarly situated, employee, in this case an employee of a different national origin, was treated more favorably than he."). This court agrees with Plaintiff's contention that "[d]iscrimination in today's society is much more subtle. It is the giving of less weight to dispute assertions made by members of one race . . . weighing the word of someone of color with more skepticism than usual." (Pl.'s Br. at 11.) However, this is not a case of subtle discrimination. Plaintiff has presented nothing to make out a prima facie case of racial animus on the part of the Unions.
C. Legitimate Reason
Even if Muse could make out a prima facie case of discrimination, the burden of production then shifts to the Unions to articulate some legitimate, nondiscriminatory reason for its employment action. See McDonnell Douglas, 411 U.S. at 802. If the Unions discharge this burden, then Muse must demonstrate that the articulated reason was a pretext for race discrimination, by presenting direct evidence that his race played a role in the challenged action or indirectly by creating a genuine issue of material fact regarding the sincerity of the proffered reasons for that action. Abioye, 164 F.3d at 368; see also McDonnell Douglas, 411 U.S. at 804.
To prove that the Unions' articulated reason is pretextual, Muse must come forward with sufficient evidence from which a rational jury could infer that the Unions lied about the reason for their dismissal of his grievance. See, e.g., Bell v. E.P.A., 232 F.3d 546, 551 (7th Cir. 2000); Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000). In deciding whether a proffered reason is pretextual, the court focuses on the honesty of the reason, not whether it was accurate, wise, or well-considered. Stewart, 207 F.3d at 378; Jackson v. E.J. Brach Corp., 176 F.3d 971, 983-84 (7th Cir. 1999). The courts only concern is whether the legitimate reason provided by the union is in fact the true one. Stewart, 207 F.3d at 378. To demonstrate pretext, Muse must show that the Unions' legitimate nondiscriminatory reason for settling his grievance is unworthy of credence, thus raising the inference that the real reason is discriminatory. Essex v. United Parcel Serv., Inc., 111 F.3d 1304, 1309 (7th Cir. 1997). Pretext means "a lie, specifically a phony reason for some action." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). Indirect evidence of pretext attacking the sincerity of the articulated reason may include evidence that the articulated reason is without basis in fact, did not actually motivate the challenged action, or was insufficient to motivate the action. See, e.g., Freeman, 231 F.3d at 379.
The ultimate burden of proof remains at all time with Muse. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993). Muse has produced no evidence to create a reasonable inference that the Unions did not honestly believe that they settled his claim because it was meritless and unlikely to succeed in arbitration.
In this case, the Unions claim that they decided to withdraw Muse's grievance because they had negotiated an agreement for Service Supply to pay Muse $4000, which remained open after withdrawal of the grievance, believed the settlement was fair, and did not believe that Muse would win an arbitration on his grievance. The Unions also claim that there were time constraints to resolve the grievance before the sale of Service Supply. (Defs.' Mem. in Support of Mot. for Summary J. at 23.) Plaintiff does not address this claim in his Response. The undisputed facts establish that Catron reviewed Muse's attendance records, reviewed Service Supply's reports of its investigation, spoke to Muse's doctors and therapists, and argued with Service Supply that Muse should not be fired. Service Supply refused to reinstate Muse and instead agreed to pay Muse $4000. Catron, who had fourteen years of experience dealing with these matters, then consulted with Long and both concurred that Muse could not win his grievance in arbitration. Catron eventually withdrew the grievance based on his and Long's belief that the amount offered was fair.
Plaintiff does not dispute that Catron believed that the settlement was fair and that his grievance would not succeed, but contends in an objection to Defendant's Material Fact 113 that this belief was colored by racial animus. Plaintiff offers no support for this contention, and, pursuant to Local Rule 56.1(f) requiring citation to appropriate authorities in objections, this court overrules this objection. Plaintiff's own conclusory and unsupported belief that the settlement of his grievance was because of his race is insufficient to raise a genuine issue. See DeLoach v. Infinity Broad., 164 F.3d 398, 402 (7th Cir. 1999) (the nonmoving party is not entitled to rely on conclusory allegations, unsupported by the record.).
Muse claims that settlement of his grievance was because of his race, but he has no admissible evidence to support this claim. His own conclusory and unsupported belief in this regard fails to raise a genuine issue for trial. The Unions have come forward with a legitimate, nondiscriminatory reason for their actions, and Muse has not raised a reasonable inference that this reason is a pretext for race discrimination. This provides yet another reason why the Unions should be granted summary judgment on the Title VII race discrimination claim.
IV. Conclusion For the foregoing reasons, the Defendants' Motion for Summary Judgment is GRANTED.