Davis v. Tri-County Metropolitan Transportation District (45 F. Supp. 3d 1222, 2014)

United States District Court for the District of Oregon 2014-09-08

Citations

Full opinion text

OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

Plaintiff Debra Davis (“Davis”) asserts ten claims against her employer, TriCounty Metropolitan Transportation District of Oregon (“TriMet”). Davis alleges that TriMet: (1) failed to give her the proper veteran’s preference in hiring as required under Oregon Revised Statutes (“O.R.S.”) § 408.230; (2) discriminated and retaliated against her for filing a worker’s compensation claim, in violation of O.R.S. § 659A.040; (3) failed to reemploy her in a suitable position, in violation of O.R.S. § 659A.046; (4) discriminated against her because of her disability, in violation of Oregon’s Rehabilitation Act, O.R.S. § 659A.103 et seq.; (5) discriminated and retaliated against her because of her race, in violation of O.R.S. § 659A.030; (6) discriminated against her because of her disability, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112; (7) retaliated against her because she engaged in activity protected under the ADA, in violation of the ADA; (8) violated her rights under the Family and Medical Leave Act (“FMLA”); (9) violated her rights under the Oregon Family Leave Act (“OFLA”); and (10) wrongfully discharged her in violation of Oregon common law.

TriMet moves for summary judgment against all of Davis’s claims. For the reasons that follow, TriMet’s motion is granted in part and denied in part. TriMet’s motion is granted with respect to Davis’s failure to reemploy claim and wrongful discharge claim. TriMet’s motion with respect to the other eight claims is largely denied, although the Court grants Defendant’s motion with respect to certain alleged adverse actions and other matters, as set forth below.

STANDARDS

A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir.2001). Although “[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of the plaintiff’s position [is] insufficient....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and quotation marks omitted).

Where the non-moving party bears the burden of proof at trial, the movant need only point out an absence of evidence supporting the non-moving party’s case to satisfy the movant’s burden on summary judgment. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. After the, moving party satisfies its initial burden, the burden shifts to the non-moving party to “ ‘designate specific facts showing that there is a genuine issue for trial.’ ” Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1189 (9th Cir.2013) (quoting Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548). The moving party is entitled judgment as a matter of law “[i]f the non-moving party fails to make this showing.” Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.2006); Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 (“The moving party is ‘entitled to a judgment as a matter of law1 because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.”).

BACKGROUND

This section sets forth broad, general facts relevant to the pending motion. Facts specifically relevant to a particular claim are discussed in more detail in the analysis of that claim.

A. The Parties

TriMet is a mass transit district established under O.R.S. Chapter 267. Davis is an African-American woman and a veteran. She served in the military from 1984 through 1992, when she was honorably discharged. While in the military, Davis worked in positions equivalent to, among others, a superintendent of transportation, a transportation-maintenance supervisor, a garage supervisor, and a driver supervisor.

B. Davis’s Work at TriMet

Davis began working at TriMet in July, 1993 as a Maintenance Helper. She held several positions of increasing responsibility, including as a Journeyman Mechanic, until she was promoted to Assistant Manager, Field Operations in March 2007. In July 2009, TriMet reduced its managerial workforce and laid off approximately 21 managerial and other non-union employees, including Davis. Davis was able to revert to her previous union position of Journeyman Mechanic when she was laid off from her managerial position.

Throughout her career at TriMet, Davis attended many leadership courses, training courses, and program-specific courses in her field. She obtained two Associate’s degrees, a Bachelor’s degree, and numerous specialized certificates in the rail and transportation fields. As relevant to this lawsuit, Davis applied for several supervisory and managerial positions at Tri Met from May 2009 through March 2012. She was not hired for any of those positions.

C. Davis’s Injury and Worker’s Compensation Claim

On August 13, 2009, Davis suffered an on-the-job injury. She invoked the Worker’s Compensation system for this injury. On August 25, 2009, she was released to work modified duty with certain restrictions. TriMet offered her certain “light duty” short term positions, some of which Davis worked at for a few days and others she declined because they were not consistent with her medical restrictions.

On November 19, 2009, Davis’s worker’s compensation claim was closed. TriMet determined, based on a report from Derrick H. Yoshinga, D.O., that Davis’s continuing physical limitations relating to her back were caused by a pre-existing condition and not the on-the-job injury. TriMet then stopped offering Davis “light duty” work.

Davis appealed the worker’s compensation denial. On April 25, 2011, an Administrative Law Judge (“ALJ”) concluded that the November 19, 2009 denial was procedurally invalid and remanded the denial to TriMet for processing according to law. This opinion was affirmed by the Worker’s Compensation Board on April 2, 2012, and by the Oregon Court of Appeals on January 23, 2014.

On February 22, 2010, Davis obtained a report from Dr. Patrick Tester, concluding that Davis’s ongoing back problems were due to her on-the-job injury. Davis sought to re-open her worker’s compensation claim, and on March 19, 2012, a different ALJ denied Davis’s request. This decision was upheld by the Worker’s Compensation Board and Davis did not appeal it to the Oregon Court of Appeals.

Davis consulted with Dr. Paul Puziss. On January 12, 2013, Dr. Puziss authored a letter in which he diagnosed Davis with facet syndrome and opined that it was caused by her workplace injury. Dr. Puz-iss diagnosed Davis with four different back-related problems and opined that all of them were caused by her workplace injury. Dr. Puziss further opined that Dr. Yoshinga had misdiagnosed Davis. On February 5, 2013, Davis requested TriMet accept or deny these four back conditions, claiming that they were related to her August 2009 workplace injury. TriMet denied this request and Davis has appealed that denial. That appeal is currently pending.

D.Davis’s Requests for Accommodation

From November 2009 through February 2010, Davis obtained medical releases to work with restrictions and repeatedly requested that accommodations be made for those physical restrictions. TriMet did not engage in discussions relating to any such accommodations until February 2010, after Davis had used all of her sick leave, vacation time, and protected leave, and had begun taking unpaid leave.

In March and April 2010, TriMet scheduled an ergonomics assessment for Davis and complied with all of the recommended accommodations except the purchasing of a particular tool, which TriMet believed was covered under TriMet’s tool allowance given to Davis pursuant to the labor agreement between TriMet and the union representing Davis. On March 23, 2010, Davis returned to her former position as a Journeyman Mechanic.

Davis continued to have ongoing physical restrictions and problems related to her back injury. On several occasions she requested additional ergonomic assessments and accommodations. She continued to use her available sick, vacation, and protected leave, and she took unpaid leave time when her paid leave was exhausted. TriMet regularly sent letters to Davis documenting her absences, notifying her that she was in violation of TriMet’s attendance policy, and informing her that she needed to meet with her supervisors to address her absenteeism. In June, July, and September 2012, TriMet issued to Davis escalating warnings and reprimands for absenteeism. In September 2012, concerned that she would be terminated for absenteeism, Davis applied for permanent disability, and her application was accepted on October 22, 2012, with an effective date of March 12, 2012.

DISCUSSION

Davis alleges ten claims for relief and TriMet moves for summary judgment against all of them. Each claim is discussed below, in turn.

A. First Claim for Relief—Veteran’s Preference

Davis alleges that TriMet failed properly to give Davis the veteran’s preference points she' is entitled to under O.R.S. § 408.225 et seq. (“Veteran’s Preference Statute”). TriMet argues that it was not required to give Davis veteran’s preference points before January 1, 2010, because TriMet was not a “public employer” as defined by the Veteran’s Preference Statute until the statute was amended, effective January 1, 2010. TriMet also argues that for the jobs to which Davis applied after January 1, 2010, TriMet properly applied the necessary veteran’s preference points at one stage in the hiring process, which is all that the statute requires.

Davis responds that TriMet was a “public employer” before the January 1, 2010 amendment, and that pursuant to the statutory requirements throughout the relevant time period, TriMet was obligated, and failed, to provide Davis veteran’s preference points at each stage of the hiring process. Davis argues that the Veteran’s Preference Statute does not permit employers to choose only one stage of the hiring process at which to apply preference points, but that the employer must instead apply preference points at each stage of the hiring process. The Court begins its analysis by interpreting the Veteran’s Preference Statute.

1. Statutory construction

The Court interprets the Veteran’s Preference Statute and other relevant statutes applying Oregon statutory interpretation principles. Powell’s Books, Inc. v. Kroger, 622 F.3d 1202, 1209 (9th Cir.2010) (a federal court interpreting Oregon law “interprets] the law as would the Oregon Supreme Court”) (quotation marks omitted). Under Oregon law, the “paramount goal” of statutory interpretation is to discern the legislature’s intent. State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009). To best attain this goal, “the first step” of statutory interpretation is an examination of the text and context of the statute, which is the best evidence of the legislature’s intent. Id. “After examining the text and context,” the court may consult the legislative history, if there is legislative history that is useful to the court’s analysis. Id. at 172, 206 P.3d 1042. If the legislature’s intent remains unclear after examining text, context, and legislative history, the court may “resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.”- Id.

a. Whether TriMet was a “public employer” under the Veteran’s Preference Statute throughout the relevant time period

TriMet asserts that before the Veteran’s Preference Statute was amended in 2009, effective January 1, 2010, changing the definition of a “public employer,” TriMet was not a “public employer” under that statute and was therefore not required to provide Davis any veteran’s preference points until January 1, 2010 and after. '

In 2007 the Veteran’s Preference Statute was amended, effective June 20, 2007. This amendment removed the requirement that veteran’s preference points only had to be provided for positions in which a civil service examination was given, and added that veteran’s preference points had to be provided by a “public employer” for a “vacant civil service position.” Or. Laws 2007, Ch. 525, §§ 1-2 (codified at former O.R.S. §§ 408.225(c) and 408.230 (2007)). With this amendment, a public employer was defined as “the state or any agency or political subdivision of the state.... ” Or. Laws 2007, Ch. 525, § 1 (codified at former O.R.S. § 408.225(c) (2007)). TriMet asserts that it is not a “political subdivision” of the state, but offers no authority for that proposition.

The Oregon statute relating to the creation and power of mass transit districts, although not specifically enumerating the Veteran’s Preference Statute, defined a mass transit district at all relevant times as both a “public employer” and a “political subdivision” for certain enumerated Oregon statutes, without stating that those statutes are the only contexts in which a mass transit district serves in either of those capacities. O.R.S. § 267.200. Courts have found TriMet to be a political subdivision of the state outside the contexts of the statutes enumerated in § 267.200. See Gugler v. Baker Cnty. Educ. Serv. Dist., 305 Or. 548, 554, 754 P.2d 891 (1988) (discussing Girt v. TriCnty. Metro. Transp. Dist. of Or., 4 Or. Tax 92, 1970 WL 598 (1970) and noting that because TriMet was a political subdivision of the state, it could levy a payroll tax under a statute that authorized a political subdivision to levy such a tax); Ballard v. TriCnty. Metro. Transp. Dist. of Or., 2011 WL 1337090, at *18 (D.Or. Apr. 7, 2011) (finding TriMet exempt from the Labor Management Relations Act because it is a political subdivision of the state); Feist v. Dep’t of Revenue, 18 Or. Tax 471, 475, 2003 WL 22319430 (Or.T.C.2003) (finding TriMet a political subdivision of the state for purposes of the Amtrak Act and stating that “[i]t is the court’s conclusion that the Oregon Legislature intended mass transit districts like Tri-Met be considered political subdivisions of the state”). TriMet points to no case, and the Court has found none, where a court held that TriMet was not a political subdivision of the state.

Additionally, TriMet admitted in a Request for Admission (“RFA”) propounded by Davis during discovery that “[f]rom March 1, 2007 to the present [TriMet] was a political subdivision of the State of Oregon.” RFA 264. TriMet is bound by that admission. See Fed.R.Civ.P. 36(b). TriMet’s argument that it did not need to give any veteran’s preference points to Davis before January 1, 2010, because TriMet was not a political subdivision of the state and, thus, not a “public employer” for purposes of the Veteran’s Preference Statute is, therefore, rejected. Under the circumstances of this case, the Court finds that throughout the relevant time period TriMet was a political subdivision of the state and thus a “public employer” for purposes of the Veteran’s Preference Statute.

In addition to limiting the application of the Veteran’s Preference Statute to “public employers,” the statute also limits its applicability to a “vacant civil service position.” TriMet argues that because it did not use civil service examinations it did not have “civil service positions” as required in the Veteran’s Preference Statute. This argument also is unavailing. When the Veteran’s Preference Statute was amended in 2007, it expanded its applicability to civil service positions that did not require a civil service examination. Thus, the fact that TriMet does not use civil service examinations does not mean that its positions are not civil service positions. TriMet offers no authority, and the Court has found none, supporting TriMet’s proposition. The term “civil service position” was not defined in the statute until 2010, but the fact that “civil service position” was not defined in the statute until 2010 does not mean that before that date it had the meaning attributed to it by TriMet.

Webster’s Third New International Dictionary defines civil service as, among other things, “the whole body of public servants employed by a government other than those in the armed services.” Webster’s Third New International Dictionary 418 (3d ed.2002). As discussed above, TriMet was a political subdivision of the state of Oregon fdr purposes of the Veteran’s Preference Statute. And, as conceded by TriMet, mass transit districts are defined as a “unit of local government.” O.R.S. § 267.200. Thus, TriMet is a branch of government other than the armed services, and its employees are therefore civil servants. Additionally, the text and context of the Veteran’s Preference Statute, as amended in 2007, demonstrate that the amendment was intended to broaden the statute’s reach beyond positions in which a civil service examination was given. Further, when “civil service position” was defined in the Veteran’s Preference Statute, the legislature defined it broadly to encompass positions or promotions to positions for which the “decision is made or required to be made based on the results of a merit-based, competitive process that includes, but is not limited to, consideration of an applicant’s or employee’s relative ability, knowledge, experience and other skills” and that positions need not be labeled civil service positions to be considered civil service positions for purposes of the Veteran’s Preference Statute. O.R.S. § 408.225(l)(a)(A)(B). The Court finds that TriMet has not demonstrated that its positions were not civil service positions as contemplated by the Veteran’s Preference Statute.

b. Whether veteran’s preference points had to be given at each stage of the hiring process during the relevant time period

After the 2007 amendment, the Veteran’s Preference Statute established that preference shall be given to veterans as follows:

(1) A public employer shall grant a preference to a veteran or disabled veteran who successfully completes an initial application screening or an application examination or who successfully completes a civil service test the employer administers to establish eligibility for a vacant civil service position. The employer shall grant the preference in the following manner:

(a) For an initial application screening used to develop a list of persons for interviews, the employer shall add five preference points to a veteran’s score and 10 preference points to a disabled veteran’s score.

(b) For an application examination, given after the initial application screening, that results in a score, the employer shall add preference points to the total combined examination score without allocating the points to any single feature or part of the examination. The employer shall add five preference points to a veteran’s score and 10 preference points to a disabled veteran’s score.

(c)For an application examination that consists of an interview, an evaluation of the veteran’s performance, experience or training, a supervisor’s rating or any other method of ranking an applicant that does not result in a score, the employer shall give a preference to the veteran or disabled veteran. An employer that uses ah application examination of the type described in this paragraph shall devise and apply methods by which the employer gives special consideration in the employer’s hiring decision to veterans and disabled veterans.

former O.R.S. § 408.230(1) (2007).

TriMet argues that the Veteran’s Preference Statute requires preference be given at only one stage in the hiring process because of Section (l)’s use of the phrases “a preference” and “the preference,” use of the word “or” between the types of preference to be given, and requirement that a candidate “successfully” complete an application or an application screening.

The Court disagrees with TriMet’s reliance on the use of “or” as establishing that only a single preference need be given. The use of “or” merely establishes that preference must be given if any of the listed conditions are met, as opposed to the use of “and,” which would require that all of the listed conditions must be met before any veteran’s preference be given. That would be an illogical reading of the statute and inconsistent with the text and context of the statute. The listed conditions may be mutually exclusive. Additionally, one of the listed conditions is the taking of a civil service test, and it is clear from the text and context of the 2007 amendment to the statute that it was intended to expand the reach of the statute beyond positions for which a civil service test is required. Thus, if the legislature had used “and” instead of “or” in the 2007 amendment, the statute would only reach positions for which there was a civil service test given, plus an application examination, plus an initial application screening, which would have made the statute applicable to fewer positions than it was before it was amended. The Court rejects the contention that the use of “or” in Section (1) necessarily requires that the employer give veteran’s preference at only one stage of the hiring process.

The Court also does not interpret the requirement in Section (1) that a candidate “successfully” complete an initial screening or application examination as requiring that the preference only be given at one phase in the hiring process. The statute continues in subsections (l)(a)-(c) by explaining how the preference points are given at each stage of the hiring process. The logical meaning of the requirement that a candidate “successfully” complete the phases, in light of the text and context of the statute, is that after a candidate applies for a position, if the candidate meets the minimum qualifications and would be considered to move forward in the application process, the candidate is to be given the preference points at the initial phase to see if the candidate scores highly enough to move on to the next phase. If the candidate does not meet the minimum qualifications and would not be considered to move forward in the application process, the candidate has not “successfully” applied for the position and no preference points need be given. The statute’s requirement that a candidate “successfully” complete a particular phase does not support TriMet’s argument that veteran’s preference points need only be given at one phase in the hiring process.

Finally, the use of “a preference” and “the preference” may mean that only one preference be given throughout the hiring process, or it may mean that only one preference be given at each stage of the hiring process. Notably, after using “the preference” and “a preference,” the Veteran’s Preference Statute continues by describing how preference must be given at three different phases of the hiring process. The text of the statute does not conclusively establish that an employer may choose only one of the three listed stages of the hiring process in which to give veteran’s preference, and need not give preference at any other stage. If the Oregon legislature intended that the benefits of a veteran’s preference be given at only one stage and that an employer could choose which stage to give the preference, the legislature could have, and likely would have, said so more clearly.

Although the Court does not interpret the Veteran’s Preference Statute as unambiguously establishing that only one preference need be given during hiring process, the statute also does not unambiguously establish that a preference need be given at each stage of the hiring process. There is an Oregon Administrative Rule promulgated by Oregon’s Bureau of Labor and Industries (“BOLI”), however, that unambiguously states that veteran’s preference points must be given at each stage. The relevant rule explains that “[a]t each stage of the application process a public employer will grant a preference to a veteran.... ” Former Or. Admin. R. 839-006-0450 (2010) (emphasis added). TriMet argues that this rule is not a proper interpretation of the Veteran’s Preference Statute and does not comport ■with the statutory text.

When disputed statutory text is part of a regulatory scheme to be administered by an administrative agency, a court must first determine whether the disputed text is “exact,” “inexact,” or “delegative.” Blachana, LLC v. Bureau of Labor and Indus., 354 Or. 676, 687, 318 P.3d 735 (2014) (citing Springfield Educ. Ass’n v. Sch. Dist., 290 Or. 217, 223, 621 P.2d 547 (1980)). These terms are described by the Oregon Supreme Court as:

“Exact” terms are terms of precise meaning. “Inexact” terms communicate a complete policy statement, but the words used may be imprecise, requiring further interpretation. Finally, “delega-tive” terms require the agency to make policy determinations in the first instance.

Id. (citations omitted). The Court finds that the text of the statute describing the preference to be given is “inexact.” It embodies a complete legislative policy, but is not so precise as to be an “exact” term—the words are capable of more than one meaning. Inexact text is reviewed by a court as a matter of law. Edwards v. Riverdale Sch. Dist., 220 Or.App. 509, 513, 188 P.3d 317 (2008).

The Court thus must review BOLI’s interpretation expressed in Or. Admin. R. 839-006-0450 (2010) “to ensure that it is consistent with the legislature’s intent.” Blachana, 354 Or. at 687, 318 P.3d 735; Springfield, 290 Or. at 228, 621 P.2d 547. “The dispositive question of law ... is whether the agency action is within the legislative policy which inheres in the statutory term.” Springfield, 290 Or. at 227, 621 P.2d 547. BOLI’s interpretation is not entitled to deference per se, Blachana, 354 Or. at 687, 318 P.3d 735, but “may be given an appropriate degree of assumptive validity if the agency was involved in the legislative process or if [the court] infer[s] that [the agency] has expertise based upon qualifications of its personnel or because of its experience in the application of the statute to varying facts.” Springfield, 290 Or. at 227-28, 621 P.2d 547.

The Court finds that BOLI has a level of expertise and experience that warrants giving Or. Admin. R. 839-006-0450 a degree of assumptive validity. The Veteran’s Preference Statute establishes that failure to give veteran’s appropriate deference is an unlawful employment practice and that an aggrieved veteran may file a complaint with BOLI. See former O.R.S. § 408.230(7) (2010). The text and context of the statute is consistent with BOLI’s interpretation. The Court also notes that the summary of Senate Bill 822, as introduced, which is the amendment to the Veteran’s Preference Statute in 2007 expanding the statute’s reach, notes that the amendment to the statute “[p]ermits [a] veteran or disabled veteran to use preference more than once.” Accordingly, the Court finds that BOLI’s interpretation is consistent with the legislature’s intent in expanding the statute.

TriMet argues that Or. Admin. R. 839-006-0450 is not instructive because it does not apply to the positions applied to by Davis. TriMet argues that instead Or. Admin. R. 839-006-0455, as in effect in 2009, applies. This rule stated, in relevant part, that

(1) A public employer will grant a preference to a person seeking promotion and who is employed by the public employer in a permanent civil service position only if the person:

(a) Was granted military leave by the public employer to serve in the Armed Forces of the United States;

(b) Returned from the military leave to the civil service position;

(c) Qualified as a veteran or disabled veteran, as defined in OAR 839-006-0440(5) and (2), by reasons of the person’s service during the military leave or otherwise;

(d) Successfully completed a test or examination for the promotional position; and

(e) Meets the minimum qualifications and any special qualifications for the promotional position.

Former Or. Admin. R. 839-006-0455 (2009). This rule was amended in 2012 and currently states that “[ a] public employer will grant a preference to a person seeking a promotion in the manner described at OAR 839-006-0450.”

TriMet’s argument that the previous version of the rule establishes that Davis was not entitled to veteran’s preference points is unavailing. The language of the rule is ambiguous as to what a “promotion” is—it could mean seeking a promotional title or salary increase versus applying for a vacant position that would be considered a promotion. To the extent the rule was meant to encompass the latter, such as the positions to which Davis applied, it is contrary to the text of the Veteran’s Preference Statute, which expressly establishes the statute is applicable to any vacant civil service position. The text of the rule does not supersede the statutory language that renders the Veteran’s Preference Statute applicable to an existing employee applying for a vacant position. See Blachana, 354 Or. at 687, 318 P.3d 735.

Moreover, Davis served in the military before she began working at TriMet and did not seek leave from TriMet to serve in the military, as is required under former Or. Admin. R. 839-006-0455(l)(a). To the extent the rule was intended to establish that persons applying for promotional positions who served in the military before beginning work for the public employer are not entitled to veteran’s preference but persons who were granted leave from the public employer and returned to the same job and then applied for a promotional position are entitled to veteran’s preference, such an interpretation by BOLI would be contrary to the legislative intent of the Veteran’s Preference Statute and is rejected. Blachana, 354 Or. at 687, 318 P.3d 735. The Court’s rejection of this interpretation is supported by the fact that Or. Admin. R. 839-006-0445 in effect in 2009 established that a veteran is eligible for preference for any application within 15 years of discharge, and that for disabled veterans, there is no time limit on the application of the preference. Former Or. Admin. R. 839-006-0445 (2009). It is also supported by the fact that in 2012, rule 839-006-0455 was changed to clarify that applications for promotions are not treated differently under the Veteran’s Preference Statute.

The Court interprets the Veteran’s Preference Statute as requiring that a preference be given at both the initial screening phase and the next phase, the “application examination.” The Court also finds that the Veteran’s Preference Statute applied to the positions to which Davis applied throughoút the relevant time period.

2. Davis’s claims relating to the jobs to which she applied before January 1, 2010

Between June 20, 2007 and January 1, 2010, Davis unsuccessfully applied for several positions at TriMet. Without specifying precisely which positions are at issue in this claim, Davis asserts generally that TriMet failed to award her all of the veteran’s preference points to which she was entitled under the Veteran’s Preference Statute. TriMet admits that it did not give Davis veteran’s preference points before January 1, 2010, but argues that because it was not a public employer under the statute, the Veteran’s Preference Statute did not apply to TriMet before that date.

The Court has held that TriMet was a public employer under the Veteran’s Preference Statute as that term was defined before the January 1, 2010 amendment. Because TriMet, under the facts of this case, was subject to the Veteran’s Preference Statute after June 2007 and admits that it did not begin to give Davis any veteran’s preference points until January 1, 2010, there is an issue of fact as to whether, if Davis had received the veteran’s preference points to which she was entitled for the positions she applied to before January 1, 2010, she would have received the applied-for job or jobs.

3. Davis’s claims relating to the jobs to which she applied after January 1, 2010

TriMet agrees that it was subject to the Veteran’s Preference Statute after January 1, 2010, but argues that it properly applied the required veteran’s preference points. The evidence submitted by TriMet shows that it applied ten veteran’s preference points to Davis’s application, which would comply with the Veteran’s Preference statute if TriMet had only one hiring phase.

a. Whether TriMet has only one hiring phase

TriMet argues that its hiring only had one phase. Davis responds that TriMet’s hiring process encompassed two phases— an initial application screening process and an “application examination” that consisted of an interview. To determine whether Trimet had an “application examination” phase, the Court interprets what is encompassed by the term “application examination” in the Veteran’s Preference Statute. Subsection (l)(b) of the Veteran’s Preference Statute in effect at the relevant time, which involves scored “application examinations,” does not define “application examination.” Subsection (l)(c), however, which involves unscored “application examinations” does provide examples of what the term “application examination” is meant to encompass for purposes of the Veteran’s Preference Statute. The term has a broad meaning for purposes of the statute and includes interviews, an evaluation of a veteran’s performance, experience, or training, a supervisor’s rating, or other methods of ranking an applicant. Former O.R.S. § 408.230(l)(c) (2010).

The evidence in this case shows that TriMet’s initial application screening process includes scores for some combination of education, experience, computer skills, attendance, performance and discipline, or supplemental questions. Those scores are added together to reach a subtotal. The top scorers from this subtotal are then given interviews, which are also scored, and the combined top scorer is offered the position. The Court, therefore, finds that TriMet has two phases in its hiring process—the initial screening phase which reduces the applicant pool to only a select few who move on to the interview phase, which is the “application examination” phase. TriMet provided Davis with the required ten veteran’s preference points during the initial screening phase. TriMet did not, however, provide any veteran’s preference points during the “application examination” phase, ie., the interview.

b. Application of veteran’s preference for post-January 1, 2010 positions

For two of the post-January 1, 20Í0 positions to which Davis applied, application of the ten veteran’s preference points at the “application examination” stage would not have made her the top-scoring candidate. For one position, however, the Assistant Manager, Field Operations, the application of the ten veteran’s preference points in addition to an adjustment of Davis’s score of zero based on attendance issues that may have been related to her disability, on-the-job injury, or protected leave (discussed further below), would have made Davis the second highest-scoring candidate. The person with the highest score declined the position and the position was then given to the candidate with the second-highest score. Thus, there is an issue of fact as to whether TriMet’s failure to provide Davis with the required veteran’s preference points resulted in a loss of a position to which she otherwise would have been entitled.

Additionally, the Court may order in-junctive or other equitable relief, and reasonable attorney’s fees and costs, to a plaintiff who prevails on a claim brought under the Veteran’s Preference Statute. O.R.S. 659A.855(l)-(2). Thus, even if Davis would not have been awarded any position but for TriMet’s alleged violations of the Veteran’s Preference Statute, Davis may still seek other relief for TriMet’s alleged violations, which include TriMet’s alleged failure to provide the necessary preference points as required under O.R.S. § 408.230(l)-(2) and TriMet’s alleged failure to provide to Davis in writing the reasons for the decision not to appoint Davis to positions to which she applied, in violation of O.R.S. § 408.230(5).

4. Conclusion

TriMet’s motion for summary judgment on Davis’s claim that TriMet violated O.R.S. § 408.230 is denied with respect to positions for which Davis applied after June 2007.

B. Second Claim for Relief—Injured Worker Discrimination and Retaliation

Davis alleges that TriMet discriminated and retaliated against her for invoking the worker’s compensation system by sending her “time loss” letters that were disciplinary in nature and counting time she missed at work as a result of her on-the-job injury against her when considering her for promotion, in violation of O.R.S. § 659A.040. This statute provides:

It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS chapter 656 or has given testimony under the provisions of those laws.

O.R.S. § 659A.040O). Although O.R.S. § 659A.040 mentions only “discrimination,” courts have analyzed claims under the statute as claims for “retaliation” or “discriminatory retaliation.”. See Anderson v. Hibu, Inc., 26 F.Supp.2d 1019, 2014 WL 2619641 (D.Or. June 12, 2014); Dunlap v. Liberty Nat’l Prods., Inc., 2013 WL 6177855 (D.Or. Nov. 25, 2013); Herbert v. Altimeter, Inc., 230 Or.App. 715, 218 P.3d 542 (2009); Elek v. Safeway, Inc., 2009 WL 483186 (D.Or. Feb. 25, 2009); Williams v. Home Depot U.S.A., Inc., 2006 WL 1005076 (D.Or. April 13, 2006); Kirk-wood v. Western Hyway Oil Co., 204 Or. App. 287, 129 P.3d 726 (2006); Granville v. City of Portland, 2005 WL 1113841 (D.Or. May 10, 2005).

To establish a prima facie case for worker’s compensation discrimination under O.R.S. § 659A.040, Davis must show the following elements: (1) Davis invoked the worker’s compensation system, (2) TriMet discriminated or retaliated against Davis in hiring or the tenure, terms, or conditions of Davis’s employment, and (3) TriMet discriminated or retaliated against Davis because she invoked of the worker’s compensation system. Williams v. Freightliner, LLC, 196 Or.App. 83, 90, 100 P.3d 1117 (2004). The amount of evidence necessary to establish a prima facie case is “minimal.” Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir.2000).

The parties do not dispute that the first element of O.R.S. § 659A.040 is satisfied, but TriMet disputes whether Davis met her prima facie burden for the second and third elements. The Court applies the burden shifting framework established in McDonnell Douglas Corp. v. Green, to claims brought under O.R.S. § 659A.040. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1090-94 (9th Cir.2001); Dunlap, 2013 WL 6177855, at *9. Under McDonnell Douglas, after a plaintiff proves a prima facie case of retaliation, the employer must present evidence of a legitimate, non-retaliatory reason for the adverse action. Snead, 237 F.3d at 1093-94. If the employer successfully carries this burden, then the plaintiff must show that the non-retaliatory reason given by the employer was merely pretext for discrimination. Id.

1. Whether TriMet discriminated or retaliated against Davis in hiring or the tenure, terms, or conditions of Davis’s employment

Davis argues that the second element of a claim under O.R.S. § 659A.040 is satisfied by the time loss letters TriMet sent Davis warning her that she was in violation of TriMet’s attendance policy and by TriMet’s refusal to hire or promote Davis into a managerial position. She contends that she was not hired or promoted into that position based, at least in part, on an attendance score of “zero”, that resulted from time she missed at work due to her on-the-job injury. TriMet responds that the time loss letters do not constitute adverse employment actions because they did not affect the tenure, terms, or conditions of Davis’s employment with TriMet. Although TriMet disputes its reason for not hiring or promoting Davis into managerial positions, it does not dispute that it did not do so.

The parties dispute whether the second element of a claim under O.R.S. § 659A.040 requires an employment action that affects the terms and conditions of employment, or whether an employment action that would deter or dissuade a reasonable employee from exercising his or her rights under O.R.S. 659A.040 suffices. This dispute tracks the distinction between what constitutes an “adverse employment action” under an “antidiscrimination” statutory provision versus an “antiretaliation” provision.

In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), the United States Supreme Court analyzed what constitutes an adverse employment action in the context of Title VII of the Civil Rights Act of 1964’s antidiscrimi-nation and antiretaliation provisions, 42 U.S.C. §§ 2000e-2 to -3 (“Title VII”). The Supreme Court distinguished between the scope of Title VII’s antidiscrimination and antiretaliation provisions based on their respective texts. The antidiscrimi-nation provision makes it unlawful to

fail or refuse to hire or to discharge ... or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify ... employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or 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(a). The antiretaliation provision, in contrast, makes it unlawful to

discriminate against ... any individual ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Id. § 2000e-3(a).

The Supreme Court noted that the text of the antidiscrimination provision “explicitly limit[s] the scope of that provision to actions that affect employment or alter the conditions of the workplace” whereas “[n]o such limiting words appear in the antire-taliation provision.” Burlington, 548 U.S. at 62, 126 S.Ct. 2405. The Court held that for retaliation claims, an adverse employment action need not affect the terms and conditions of employment, but is actionable if “a reasonable employee would have found that challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68, 126 S.Ct. 2405 (citation and quotation marks omitted).

The Supreme Court went on to discuss why this distinction was appropriate in light of the differing purposes of the anti-discrimination and antiretaliation provisions of Title VII:

The antidiscrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. The antiretaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, ie., their status. The antire-taliation provision seeks to prevent harm to individuals based on what they do, ie., their conduct.

To secure the first objective, Congress did not need to prohibit anything other than employment-related discrimination. The substantive provision’s basic objective of “equality of employment opportunities” and the elimination of practices that tend to bring about “stratified job environments,” would be achieved were all employment-related discrimination miraculously eliminated.

But one cannot secure the second objective by focusing only upon employer actions and harm that concern employment and the workplace. Were all such actions and harms eliminated, the an-tiretaliation provision’s objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace. A provision limited to employment-related actions would not deter the many forms that effective retaliation can take. Hence, such a limited construction would fail to fully achieve the antiretaliation provision’s “primary purpose,” namely, “Maintaining unfettered access to statutory remedial mechanisms.”

Id. at 68-64, 126 S.Ct. 2405 (citations omitted) (emphasis and alterations in original).

O.R.S. § 659A.040 is substantively an antiretaliation statute, because it seeks to protect employees for what they do— their conduct in invoking or otherwise utilizing Oregon’s worker’s compensation system—and not for who they are. The purpose of the statute would appear to comport with the antiretaliation provision of Title VII, supporting the application of Burlington’s broader definition of an adverse employment action for claims under O.R.S. 659A.040. The fact that the statute is substantively an antiretaliation statute, however, is not dispositive of the issue of what constitutes actionable conduct by an employer under the statute. The Court must first review the text of the statute.

The text of O.R.S. § 659A.040 defining actionable employer conduct contains similar limitations as the text in the antidis-crimination provision of Title VII relied on by the Supreme Court in determining that the more narrow definition of an adverse employment action applies. O.R.S § 659A.040 provides that it is an unlawful employment action “to discriminate against a worker with respect to hire or tenure or any term or condition of employment.” Thus, although the statute is substantively an antiretaliation statute, and, as noted above, courts have consistently analyzed claims brought under the statute as claims for retaliation, the Court is constrained by the text of the statute to accept as actionable only employment actions with respect to hiring, tenure, or a term or condition of employment. See Wilier v. Tri-Cnty. Metro. Transp. Dist., 2008 WL 3871744, at *7 (D.Or. Aug. 19, 2008) (holding that the text of the Oregon statute “limited the scope of actionable conduct under the anti-discrimination provision to acts that affect employment or alter the conditions of the workplace”) (quotation marks and citation omitted).

This interpretation is supported by decisions of the Oregon Court of Appeals, which although not analyzing claims under 0.R.S. § 659A.040 in terms of “adverse employment actions,” have established as an element of a prima facie claim that a plaintiff must show that he or she “was discriminated against in the tenure, terms, or conditions of employment.” See, e.g., Williams, 196 Or.App. at 90, 100 P.3d 1117. Davis points to no Oregon state court case, and the Court could find none, where an alleged action by an employer in a claim under O.R.S. § 659A.040 was analyzed using the broader “retaliation” definition of an adverse employment action, 1.e., whether the alleged action would have dissuaded a reasonable employee from in-yoking Oregon’s worker’s compensation system.

There have been cases before this Court that have analyzed alleged adverse employment actions in cases brought under O.R.S. § 659A.040 using the broader retaliation definition of an adverse employment action. See, e.g., Anderson, 26 F.Supp.3d at 1025-26, 2014 WL 2619641, at *4; Elek, 2009 WL 483186, at *2. Those cases, however, did not address the specific text of O.R.S. § 659A.040 that expressly limits actionable employer conduct to conduct affecting hiring, tenure, or other terms and conditions of employment (analogous to the “discrimination” definition of an adverse employment action).

The time loss letters discussed the possibility of putting Davis on an absentee plan or other repercussions, but those possibilities did not come to pass. There is no evidence that the terms or conditions of Davis’s employment were affected by the absentee letters. Thus, they are not actionable under O.R.S. § 659A.040.

TriMet’s refusal to hire or promote Davis into managerial positions, however, amounts to potentially actionable discrimination under O.R.S. § 659A.040. “Refusal to hire or promote” an employee because the employee invoked the worker’s compensation system is considered an unlawful employment action under O.R.S. § 659A.040. Or. Admin. R. 839-006-0117. The evidence in the record shows that Davis applied for multiple managerial positions with TriMet after filing her worker’s compensation claim and was not hired or promoted into any of them. The evidence also shows that for the position of Assistant Manager, Field Operations, Davis was given an attendance score of zero. Thus, Davis meets her burden of showing that the second element of a claim under O.R.S. § 659A.040 has been met with respect to TriMet’s failure to promote her.

2. Whether the alleged discriminatory acts were “because of’ Davis’s use of the worker’s compensation system

To meet the third element, Davis must show that the alleged discriminatory and retaliatory actions against her were taken because she invoked the worker’s compensation system. In other words, she must show that her invocation “of the workers’ compensation system was a substantial factor in [TriMet’s]” alleged adverse actions. Herbert, 230 Or.App. at 726, 218 P.3d 542; see also Anderson, 26 F.Supp.3d at 1026, 2014 WL 2619641, at *5. “[T]o be a substantial factor, the employer’s wrongful purpose must have been ‘a factor that made a difference’ in the [adverse employment action].” Estes v. Lewis & Clark Coll., 152 Or.App. 372, 381, 954 P.2d 792 (1998) (quoting Nelson v. Emerald People’s Utit. Dist., 116 Or.App. 366, 373, 840 P.2d 1384 (1992), aff'd in part, rev’d in part, 318 Or. 99, 862 P.2d 1293 (1993)).

The degree of proof necessary to establish a prima facie case of a causal link on summary judgment is “minimal” and a plaintiff need only prove an inference of discrimination. Snead, 237 F.3d at 1089-91. Thus, a causal connection can be established either (1) “indirectly, by showing that the protected activity was followed closely by discriminatory treatment,” or (2) “directly, through evidence of retaliatory animus directed against a plaintiff by the defendant.” Boynton—Bums v. Univ. of Or., 197 Or.App. 373, 380, 105 P.3d 893 (2005) (emphasis in original).

Davis was injured on the job on August 13, 2009. On November 19, 2009, her worker’s compensation claim was closed, and TriMet issued her a partial denial of her claim. Davis continued to be absent from work after the closure of her worker’s compensation claim and disputed the partial denial of her claim. An administrative law judge (“ALJ”) found TriMet’s partial denial of Davis’s claim to be procedurally invalid and TriMet has continued to litigate that decision until as recently as January 2014, when the Oregon Court of Appeals upheld the ALJ’s determination.

Davis also submitted evidence that her ongoing problem with her lumbar spine is a result of her on-the-job injury and, thus, her continued absences caused by that medical issue were related to her on-the-job injury. Davis is currently litigating the accepted conditions of her worker’s compensation claim in an attempt to have her lumbar spine issues added to the claim. Thus, although her worker’s compensation claim was only open from August 13, 2009, to November 19, 2009, Davis and TriMet continue to litigate Davis’s worker’s compensation claim through the worker’s compensation system.

The evidence supports an inference that giving Davis a score of “zero” for attendance during the hiring process relating to the position of Assistant Manager, Field Operations, for which she applied in September 2010 was because of her invocation of the worker’s compensation system. The record does not show what absences were considered in giving her the score of zero and whether the absences relating to her worker’s compensation claim were considered. Further, it is disputed whether her other absences, not considered by TriMet to be caused by her on-the-job injury, were, in fact, caused by her on-the-job injury, rendering all of her absences for which points were detracted from her score to be related to her worker’s compensation injury. These are issues for the fact-finder to determine. The attendance score of “zero” is sufficient evidence of causation regarding Davis’s failure to be promoted to the position of Assistant Manager, Field Operations to meet her minimal prima facie burden.

3. TriMet’s assertion of a legitimate non-discriminatory reason for its conduct

TriMet does not offer any explanation for why giving Davis a score of zero for attendance in the application process for the Assistant Manager, Field Operations was not a violation of O.R.S. 659A.040. There is no évidence in the record that Davis’s absences as a result of her workplace injury were not considered. Thus, TriMet fails to rebut Davis’s prima facie case regarding this alleged adverse employment action.

4. Conclusion

Because TriMet did not rebut Davis’s prima facie case for worker’s compensation discrimination and retaliation under O.R.S. § 659A.040 based on the adverse employment action of giving Davis a score of “zero” during the application process for the Assistant Manager, Field Operations position, TriMet’s motion for summary judgment is denied with respect to this alleged adverse employment action. TriMet’s motion for summary judgment against Davis’s claims under O.R.S. § 659A.040 is granted with respect to all other alleged adverse employment actions.

C. Third Claim for Relief—Failure to Reemploy

In order to state a prima facie case of failure to reemploy under O.R.S. § 659A.046, an employee must show that (1) the employee suffered a compensable on-the-job injury, (2) the employee was disabled from performing the duties of her former position, (3) the employee made a timely demand for reemployment, (4) at the time of that demand a suitable position was available, and (5) the employer failed to reemploy the employee in the available suitable position. O.R.S. § 659A.046. The parties do not dispute that the first element is satisfied by Davis’s on-the-job injury that occurred on August 13, 2009. The remaining elements are discussed in turn.

To preserve her right to reemployment, an eligible employee must make a demand for reemployment within seven days of receipt of notice that a doctor has cleared the employee to return to work from her employer’s insurer. § 659A.046(3)(e). If no suitable position is available at the time of a timely demand for reemployment, it is the employer’s ongoing responsibility to alert an injured employee to the availability of a suitable position. Unless another condition specified in § 659A.046(3)(a)-(f) occurs, an employee’s right to reemployment terminates three years after the date of her compensable, injury; in this case, that date is August 13, 2012. § 659A.046(3)(f).

An available position is one that is vacant. A suitable position is “one that is most similar to the former position in compensation, duties, responsibilities, skills, location, duration ... and shift” and it must “meet[] the injured worker’s medical restrictions.” Or. Admin. R. 839-006-0145(4). An employee’s right to reemployment is also subject to any seniority provisions and other employment restrictions contained in a valid bargaining agreement. O.R.S. § 659A.046(4). An employer is neither required to nor prohibited from reemploying an injured employee in a position that would be a promotion. Or. Admin. R. 839-006-0145(5).

1. Disabled from performing the duties of former position

TriMet argues that because the medical evidence available at the time indicated that Davis’s restrictions due to her on-the-job injury had resolved and any inability to perform the functions of her former position were due to a preexisting condition, it only had a duty to reinstate Davis to her former position under O.R.S. § 659A.043, not to reemploy her in a different position under O.R.S. § 659A.046. Davis responds that the medical opinions of Dr. Hokansan, Dr. Puziss, and Dr. Tester, obtained after the closure of her worker’s compensation claim, establish that her ongoing restrictions were, in fact, due to her on-the-job injury. Thus, although the parties agree that Davis suffered a com-pensable injury on August 13, 2009, the scope of that injury and its concomitant restrictions on Davis’s ability to perform her job functions are disputed.

The issue before the Court on this element is whether the facts that gave rise to Davis’s workplace injury are sufficient to permit a reasonable inference that the workplace injury resulted in the lumbar spine injuries as claimed by Davis, and, thus, limited her from performing the essential duties of her job. See Petock v. Asante, 351 Or. 408, 422, 268 P.3d 579 (2011). Summary judgment is appropriate only if the facts show that “no reasonable juror” could find that Davis’s workplace injury caused the harm that she alleges. Id. “[A]n injured worker need not establish in a workers’ compensation proceeding that he or she suffered a compensable injury before bringing a reinstatement” or reemployment claim. Id. at 423, 268 P.3d 579. In fact, a plaintiff can separately bring a reinstatement or reemployment claim and need not bring any worker’s compensation benefit claim. See id.; Armstrong v. Rogue Fed. Credit Un., 328 Or. 154, 162-63, 969 P.2d 382 (1998).

Here, Davis submits evidence from Dr. Puziss, in which he opines that Davis’s workplace injury of August 13, 2009 caused a herniated disc that was not properly diagnosed by her doctors at that time. Dr. Puziss further opines that:

My medical opinion is that [Davis] has right lumbosacral facet syndrome; .an aggravation of 1-4-5 pre-existing degenerative disc disease; a herniated disc at 1-4-5; and an annular tear at 1-4-5 with discogenic pain [that] were caused by the on the job injury of August 13, 2009. These conditions did not preexist the on the job injury the herniated disc, caused by the workplace injury, and that this caused her lumbar spine injuries.

The conditions that caused a period of inability to pursue her regular work included the annular tear of the L4-5 herniated disc and right lumbosacral facet syndrome.

Declaration of Dr. Paul Puziss ¶¶ 52, 55. This is evidence from which a reasonable jury could find that Davis’s workplace injury caused the spinal injuries that resulted in Davis being unable to perform her regular job and, thus, triggering the reemployment requirements of O.R.S. § 659A.046.

2. Timely Demand for Reemployment

TriMet argues that Davis has not presented any evidence that she made a timely demand for reinstatement. A demand is timely if it is made within seven days of a doctor’s clearing the employee to work under certain conditions. TriMet’s argument is not well taken.

The Notice of Closure of Davis’s claim was sent on November 19,