Florida Cases June 08, 2023: Walker v. Operations LLC

Case Description

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OPINION AND ORDER

Before the Court are Defendant 777 Ninth Street North Operations LLC's (“Ninth Street”) Motion for Summary Judgment (Doc. 33), Plaintiff Chrissandra Walker's Response in Opposition (Doc. 42), and Ninth Street's Reply (Doc. 43). For the below reasons, the Court grants Ninth Street's Motion.

BACKGROUND

This is an employment dispute case. Defendant runs multiple nursing and rehabilitation facilities, including Heritage Healthcare and Rehabilitation

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Center in Naples, Florida (“Heritage”). Walker worked as Executive Director (“ED”) at Heritage from March 2013 to June 2020. It is undisputed Walker was qualified for her job and was a good employee for most of her tenure. Ninth Street says that changed in 2020.

By June 2020, the COVID-19 virus had struck nursing homes quickly and hard. Walker says she did everything she could to protect the residents in her care. She also claims her then-supervisor Maria Seger thwarted her efforts. Specifically, Walker says she originally refused to admit two patients who arrived without face masks and who had not been tested for COVID. But Seger forced her to admit them over her objections.

This is not the first issue Walker had with Seger. Seger became Walker's supervisor in 2018. Sometime in 2019, or earlier, a higher up at Ninth Street, Chris Bryson, met with Walker, concerned about the company's struggle to retain administrators. Bryson asked Walker what would make her leave. Walker recounted a time when Seger interfered with Walker's hiring of a new Director of Nursing (“DON”). An African American woman had just left the position with a salary of $87,000. Seger hired a white woman without consulting Walker for $95,000-over the amount Walker had budgeted for that position. Following this conversation with Bryson, Seger spoke with Walker in front of a Human Resources (“HR”) employee. Seger told Walker she was aware of Walker's conversation with Bryson, and she was sorry if she had

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offended Walker. But Walker says tension and hostility still increased between her and Seger after her conversation with Bryson.

Returning to June 2020, COVID-19 came with federal reporting requirements for Heritage. The Centers for Medicaid and Medicaid Services (“CMS”) required nursing homes to report COVID information weekly to CMS through the National Health Safety Network (“NHSN”). On June 8, CMS issued a letter saying that Heritage was noncompliant with this reporting, was penalized $1000.00, and had to submit the required report. (Doc. 33-8 at 7-11). On June 15, CMS issued another letter that Heritage was noncompliant and increased the penalty to $1500.00. (Doc. 33-1 at 22-26). Heritage had 10 days to dispute both letters. (Doc. 33-8 at 9).

Between June 8 and June 17, Ninth Street tried to address the noncompliance. On June 10, Ninth Street emailed Seger that Heritage and three other Ninth Street facilities received these CMS letters. (Doc. 33-8 at 1). Ninth Street acknowledged a potential reason for late reporting-EDs had trouble logging into NHSN. This was the reason Walker was late. That same day, Ninth Street and Seger instructed the EDs at facilities who were late for this reason, including Walker, to write a dispute letter explaining the situation and attach supporting documents. (Doc. 33-8 at 1). Walker sent such a dispute letter to Ninth Street and Seger five days later, on June 15, but without supporting documents. (Doc. 33-8 at 27-28). On June 16 and 17, Seger followed

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up with Walker requesting supporting documents. (Doc. 33-8 at 29, 31). Walker provided them on June 17, and that same day Ninth Street confirmed Walker's dispute letter looked good and could be submitted. (Doc. 33-8 at 39). Around the same time, the Department of Health (“DOH”) visited Heritage. Ninth Street claims that when DOH visited, it found 99 areas of concern related to COVID. (Doc. 33-1 at 8).

On June 18, 2020, Ninth Street fired Walker. It says it did so for Walker's willful and gross negligence in the performance of her duties related to COVID, which endangered the lives of residents and staff. (Doc. 33-1 at 89). Ninth Street takes issue with Heritage's noncompliance with CMS reporting, and DOH's “99 areas of concern” that it says show Walker's failure to implement a required COVID plan. Id .

Walker vehemently disputes this. She says that DOH visited in the first place because Seger forced her to admit the two patients, who were COVID positive. (Doc. 33-3 at 63:3-23, 64:12-67:13). The DOH reached out and offered her a “VA team” with medical staff to help limit COVID in the facility. She accepted the help and the “99 areas of concern” are just a brainstorm of changes that Walker could, and did take, to limit COVID outbreaks. (Doc. 33-3 at 64:12-67:13).

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Nothing about her actions were negligent and she did not endanger the lives of residents and staff.

Instead, Walker claims she was fired and faced other adverse employment actions because Ninth Street discriminated against her due to her race, age, and disabilities, and retaliated against her for reporting race discrimination. Walker is African American, was 61 years old when fired, has diabetes, and walks with a limp from a stroke. Such discrimination and retaliation would violate Title VII of the Civil Rights Act (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”).

LEGAL STANDARD

“A party may move for summary judgment, identifying each claim or defense . . . on which summary judgment is sought. The court shall grant 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). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A fact is material if it may “affect the outcome of the suit under the governing law.” Id. “[A] mere scintilla of evidence” does not create a genuine issue of material fact, so a nonmoving party may not simply say, “the jury might, and legally could, disbelieve the moving

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party's evidence.” Hinson v. Bias , 927 F.3d 1103, 1115-16 (11th Cir. 2019) (internal quotation marks and citation omitted).

For issues the movant must prove, the “movant must affirmatively show the absence of a genuine issue of material fact, and support its motion with credible evidence demonstrating that no reasonable jury could find for the nonmoving party on all of the essential elements of its case.” Landolfi v. City of Melbourne, Fla. , 515 Fed.Appx. 832, 834 (11th Cir. 2012) (citation omitted). But for issues the non-movant bears the burden, the movant has two options: (1) point out a lack of evidence to support the nonmoving party's case; or (2) provide “affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial.” United States v. Four Parcels of Real Prop. In Green and Tuscaloosa Cntys. , 941 F.2d 1428, 1437-38 (11th Cir. 1991) (citation omitted). “The burden then shifts to the non-moving party, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material facts exists.” Porter v. Ray , 461 F.3d 1315, 1320 (11th Cir. 2006) (citation omitted).

Courts may not make credibility determinations or weigh the evidence when reviewing the record. See Latimer v. Roaring Toyz, Inc. , 601 F.3d 1224, 1237 (11th Cir. 2010). Courts view evidence and draw all reasonable inferences in the nonmoving party's favor. Rojas v. Florida , 285 F.3d 1339, 1341-42 (11th Cir. 2002). But an “inference is not reasonable if it is ‘only a

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guess or a possibility,' for such an inference is not based on the evidence but is pure conjecture and speculation.” Id. at 1324.

DISCUSSION

Walker's claims are brought under different statutes with similar and often, though not always, identical elements. The Court first discusses the alleged adverse employment actions Walker faced and then tackles each of Walker's claims.

A. Adverse Employment Action

Walker's claims all require her to have faced an adverse employment action. For Title VII race discrimination, ADEA age discrimination, and ADA disability discrimination claims, an adverse employment action must rise to “a sufficient level of substantiality.” Monaghan v. Worldpay US, Inc. , 955 F.3d 855, 860 (11th Cir. 2020). Some events-ones that affect continued employment or pay like terminations, demotions, and pay raises or cuts-are substantial enough alone to be actionable. Id . Other adverse treatment that does not rise to this level is actionable only if it is “sufficiently severe or pervasive that it can be said to alter the terms, conditions, or privileges of employment.” Id . at 861 (cleaned up). For a Title VII retaliation claim, a material adverse employment action is “one that might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

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Johnson v. Miami-Dade Cnty. , 948 F.3d 1318, 1326 (11th Cir. 2020) (cleaned up).

It is clear Walker's termination is an adverse employment action and there is no dispute Ninth Street fired her. See Freytes-Torres v. City of Sanford , 270 Fed.Appx. 885, 894 (11th Cir. 2008). But Walker's other alleged adverse employment injuries fall short.

First, Walker says Seger denied her vacation to New Orleans. But Walker admits that Seger approved it initially and then told her she couldn't go because her director of nursing's mother had recently passed away and was out. This one-time denial of vacation for a specific reason does not rise to the level of an adverse employment action, even under the more relaxed Title VII retaliation standard. See Jackson v. Hall Cnty. Gov't , 518 Fed.Appx. 771, 773 (11th Cir. 2013) (finding a supervisor's cancellation of a single vacation did not constitute an adverse employment action for Title VII retaliation).

Second, Walker says she was denied FMLA benefits. But Walker's own account belies this claim. Walker says she texted Seger the day before she was fired that she had to leave early to attend her father's hospice meeting. Walker neither mentioned needing FMLA leave nor did she contact anyone in HR about needing time off. Seger never responded to the text. When Walker finally left that evening, Seger saw Walker and told her she was sorry and that

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she hadn't seen the text. The next day, Walker was fired. This does not amount to a denial of an FMLA request.

Third, Walker fails to present evidence of other alleged adverse actions. She says other EDs who worked during COVID received a $5,000 bonus she did not receive. But Walker points to no employment records or sworn statements to show this was happened, and she admits the bonuses were not paid until after her termination. (Doc. 33-4 at 8). Walker also says she did not receive all her pay in her last paycheck. Again, she points to no evidence of days she worked that her paycheck did not cover. And Ninth Street attaches personnel records that show Walker was paid for all days worked. (Doc. 33-1 at 74). The same issue exists with COBRA information. Walker says she never received this information when she was fired. But Walker's personnel file shows it was sent out. (Doc. 33-1 at 41-54). So the Court will focus on Walker's termination as the adverse employment action she faced and evaluate each claim in turn.

B. Title VII Retaliation

Title VII prohibits Ninth Street from retaliating against Walker for reporting race discrimination in the workplace. Walker has no direct evidence of retaliation, so the Court evaluates her claim under the burden-shifting McDonnell Douglas framework. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-05 (1973); Lowe v. Exel, Inc. , 758 Fed.Appx. 863, 866 (11th Cir. 2019).

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Walker establishes a prima facie case of retaliation by showing she: (1) engaged in a statutorily protected activity; (2) suffered an adverse employment action; and (3) established a causal link between the protected activity and the adverse action. Ingram v. Sec'y of the Army , 743 Fed.Appx. 914, 918 (11th Cir. 2018).

If Walker can establish a prima facie case, the burden shifts to Ninth Street to articulate a legitimate, nondiscriminatory reason for her termination. Patterson v. Georgia Pac., LLC , 38 F.4th 1336, 1345 (11th Cir. 2022). If Ninth Street does, Walker must show that that reason is merely pretext and that the real reason is retaliation. Id . Retaliation must be the but-for cause of her termination for her to succeed. Univ. of Texas Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 362 (2013).

Walker's Title VII retaliation claim fails for two reasons. First, she cannot establish a prima facie case of retaliation because she lacks evidence she engaged in a statutorily protected activity, which would include a complaint of race discrimination. Walker claims her statutorily protected activity is her conversation with Bryson, a higher up at Ninth Street, sometime in 2019. She complained to Bryson that Seger had interfered with her hiring of a nursing director. Seger hired a Caucasian nursing director-without consulting Walker. And she paid the new person more money than Walker had budgeted for the position and more than African American person who had voluntarily left the position.

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Even if everything happened as Walker says, there is still no complaint of race discrimination. On its face, Walker never hinted at race discrimination. Nor is there any indication Seger hired a white candidate over an African American candidate, offered a white candidate a salary higher than an African American one, or forced the last African American nursing director to leave her job. Rather, Walker admits the predecessor left voluntarily because she was promoted. What's more, Walker presents no evidence she told Bryson she believed the increased salary Seger offered to the new nursing director was because of race. See Ingram v. Sec'y of the Army , 743 Fed.Appx. 914, 918 (11th Cir. 2018) (finding no statutory protected activity when emails complaining of a work conflict did not suggest the conflict was motivated by racial animus). In sum, Walker's conversation with Bryson does not qualify as Title VII statutorily protected activity.

Walker also cannot establish a prima facie case of retaliation because she lacks evidence her firing was even causally connected to her conversation with Bryson. See Nassar , 570 U.S. at 362. The only evidence Walker points to connecting the two is that she sensed an increased tension and hostility from Seger after the conversation. But the conversation happened in 2019, or earlier, and Walker was fired in June 2020. While Walker cannot remember when in 2019 the conversation took place, at least six months passed between the conversation and Walker's firing. Such a lengthy time without more

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prevents Walker from showing the conversation was causally linked to her termination. See Thomas v. Cooper Lighting, Inc. , 506 F.3d 1361, 1364 (11th Cir. 2007) (finding a three-to-four-month period between the statutorily protected expression and the termination was too long to show causation); McNeal v. Int'l Paper , No. 21-12672, 2022 WL 5434274, at *5 (11th Cir. Oct. 7, 2022) (“McNeal's allegedly protected activity, her grievance, occurred five months before her termination, a gap too distant to support a causal relationship.”). Because Walker cannot establish a prima facie Title VII retaliation case, the Court grants Ninth Street's motion as to that claim.

C. Title VII Race Discrimination

Title VII prohibits race discrimination, and Walker claims she was fired because of her race and color. Because Walker has no direct evidence of race or color discrimination, the Court evaluates her discrimination claim using the McDonnell Douglas framework.

Walker first must present a prima facie case of race discrimination by showing four elements: (1) she is a member of a protected class; (2) she was subject to an adverse employment action; (3) Ninth Street treated similarly situated employees outside her protected class (“comparators”) more favorably; and (4) she was qualified to do the job. Davis v. Postmaster Gen. , 550 Fed.Appx. 777, 779 (11th Cir. 2013). Even if Walker fails to show a comparator, Walker may present a convincing mosaic of circumstantial evidence to meet her prima

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facie burden. McPhie v. Yeager , 819 Fed.Appx. 696, 699 (11th Cir. 2020). The circumstantial evidence must be sufficient to raise a reasonable inference that the employer discriminated against her. Id .

If Walker presents a prima facie case, the burden of production shifts to Ninth Street to articulate a legitimate, nondiscriminatory basis for her firing. See Bartell v. Fulton Cnty , 753 Fed.Appx. 830, 834 (11th Cir. 2018).

If Ninth Street does, then Walker must present evidence that creates a triable issue about Ninth Street's discriminatory intent. In other words, Walker must present evidence that Ninth Street's proffered reason is pretext for unlawful discrimination. Ingram v. Sec'y of the Army , 743 Fed.Appx. 914, 916 (11th Cir. 2018) (explaining the plaintiff always retains the ultimate burden of persuading a court she has been the victim of intentional discrimination).

To show pretext, Walker may rely on the same evidence to make a prima facie case. Ingram, 743 Fed.Appx. at 916. She need only show that the motive to discriminate was one of Ninth Street's motives, even if it had other lawful motives as well. Id . To be clear, Walker need not show race discrimination was the but-for cause of her firing. Nassar , 570 U.S. at 343. But her pretext burden for Title VII discrimination is not perfunctory. That's because “merely quarreling with [Ninth Street's] reason is insufficient.” Id . Walker must show that Ninth Street's reason for firing her was false, and that racial animus was

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a motivating factor. See Davis , 550 Fed.Appx. at 779 (“A showing that the defendant's proffered reason is unpersuasive or obviously contrived is not enough, on its own, to establish a showing of pretext. Pretext requires the plaintiff to demonstrate that the employer took the action on account of a prohibited motivation, such as race[.]”).

Here, Walker's Title VII discrimination claim fails because she lacks evidence of a similarly situated comparator for a prima facie case, nor can she show racial animus was a motivating factor in her firing for pretext.

Presenting evidence of a similarly situated employee, who was not African American and treated more favorably than Walker, is a required prima facie element of a disparate treatment discrimination claim under McDonnell Douglas . Such a comparator must be “similarly situated in all material respects” to Walker. Lewis , 918 F.3d at 1218. Ordinarily, a similarly situated comparator will have “engaged in the same basic conduct (or misconduct) as the plaintiff,” be under the same supervisor, and “share the plaintiff's employment or disciplinary history.” Id. at 1227-28. The test turns on substantive likeness: a plaintiff and her comparatives “must be sufficiently similar, in an objective sense, that they cannot reasonably be distinguished.” Id . at 1228.

Walker does not articulate a specific comparator for her Title VII discrimination claim. Rather, she generally points to her deposition where she

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“outlines how she was treated differently from other administrators” and states how Ninth Street “admits that Plaintiff identified at least four employees who Plaintiff believed were treated more favorably[.]” (Doc. 42 at 8-9) . Walker fails to explain how they are comparators. So the Court looks to the four employees Walker and Ninth Street have identified: Seger, Edier Leon, Dawn Standfield, and Shelly Grimes.

Walker seems to claim Seger, Leon, and Grimes are comparators because Leon and Grimes were also EDs at Ninth Street facilities and Seger stepped in for a time to run a facility when it had no ED and all facilities struggled generally with COVID. But more than the being in the same position is required to be a comparator. Lewis , 918 F.3d at 1227-28. All three proposed comparators fail because they lack Walker's COVID issues that Ninth Street says was the reason for her termination. Even reading the evidence in the light most favorable to Walker, Heritage was noncompliant with CMS reporting and DOH visited Heritage and pointed out improvements Heritage could take. Walker has no evidence this happened at Leon's or Grimes' facilities or the one Seger temporarily ran. (Doc. 33-5; Doc. 33-7).

Further, Seger and Grimes as comparators fail for other reasons. Seger was Walker's supervisor with the role and responsibilities of Regional Vice President compared to Walker's role and responsibilities as ED of one facility. See Anthony v. Georgia , No. 21-13561, 2023 WL 3729639, at *6 (11th Cir. May 31, 2023)

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(finding employees not similarly situated in all material respects when they held different ranks); Earle v. Birmingham Bd. of Educ., 843 Fed.Appx. 164, 167 (11th Cir. 2021) (finding a difference in employment history a material difference foreclosing the use of the person as a comparator); Willis v.Koch Agronomic Servs., LLC , 846 Fed.Appx. 787, 797 (11th Cir. 2021) (finding significant differences in leadership responsibilities prevented any difference in treatment being probative of pretext). And Grimes is African American so within Walker's same protected class. Lewis , 918 F.3d at 1224.

Stanfield comes closest as a comparator. Stanfield is a white ED whose facility also received the CMS letter about noncompliance with COVID reporting requirements at the same time Walker did and needed follow up from Seger on June 15 about submitting the dispute letter. (Doc. 33-8 at 17). But there are at least two problems with Stanfield as Walker's comparator. First, Walker presents no evidence DOH visited Stanfield's facility and pointed out improvements it could take.

Second, and most damning, Ninth Street fired Stanfield within weeks of firing Walker. (Doc. 33-6). Ninth Street says it fired Stanfield because a federal survey team entered and the facility was not ready, and this presented issues like the DOH visit to Walker's facility. Id . Thus, like Walker, Ninth Street fired Stanfield for willful or gross negligence in performing her assigned duties and for violating safety or health safety rules or practices and engaging

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in conduct that created a safety or health hazard. Id . With Stanfield being treated like Walker and fired, she fails as a comparator. See Lewis , 918 F.3d at 1221.

Even if Walker has a comparator (or other way) to establish a prima facie case of race discrimination, she cannot show race was a motivating factor for her firing.

Ninth Street has said it fired Walker because she failed to comply with the CMS reporting requirement and DOH's “99 areas of concern” showing Walker failed to implement a required COVID plan. Together, this led Ninth Street to conclude Walker had “willful or gross negligence in performance of assigned duties” and “endangered a resident/patient, an employee, or a visitor.” (Doc. 33-1 at 8). Ninth Street points to Walker's own testimony and personnel records as evidence.

Viewing the evidence in the light most favorable to Walker, a reasonable jury could determine Ninth Street's reasons for her termination were false. But falsity is not enough on its own. Reeves v. Sanderson Plumbing Prod., Inc.

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530 U.S. 133, 148 (2000). Walker needs to show that her race was a motivating factor for her firing. See Davis , 550 Fed.Appx. at 779. Here Walker falls short.

Through Walker's testimony, and two affidavits of former co-workers, Walker only shows that Seger was (1) rude and nasty, (2) didn't value Walker's input, (3) micro-managed Walker, (4) excluded her from meetings and decisions, and (5) fired her without cause. (Doc. 33-3 at 95:21-96:11; Doc. 422; Doc. 42-6). At most, she offers evidence that Seger treated Walker poorly and unprofessionally. But nothing Walker puts forward indicates why Seger did so. See Ingram v. Sec'y of the Army , 743 Fed.Appx. 914, 916 (11th Cir. 2018) (finding employee's ongoing and unresolved personal conflict did not demonstrate racial animus motivated a negative reassignment). And when asked why she thought Seger's treatment of her was based on her race, Walker responded, “Because it was. I mean, you look at how many blacks have been terminated without cause, how many whites have been terminated or not terminated and there was cause there.” (Doc. 33-3 at 99:15-99:21). Unfortunately, Walker doesn't provide this evidence. Nor does she submit

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documents or testimony from Ninth Street or Seger to support her contention that race was a motivating factor.

But Walker testified about other potential reasons for Seger's negative treatment aside from race. Walker described it as Seger's “lifestyle. That's how she treated people. No matter what, that's how she treated people.” (Doc. 33-3 at 89:15-90:11). She also said Seger's behavior “started” toward Walker after she spoke with Bryson and that Seger “didn't like the idea that I did, but I answered his questions.” (Doc. 33-3 at 95:21-96:11). So Walker even admits to non-race motivated reasons for Seger's actions.

In sum, Walker's evidence that race was a motivating factor for her termination boils down to the fact that she, and two co-workers, believe it was. But pure speculation is not enough to survive summary judgment. See Ave. CLO Fund, Ltd., et al. v. Bank of Am., N.A. , 723 F.3d 1287, 1294 (11th Cir. 2013) (“[A]n inference based on speculation and conjecture is not reasonable.”) (cleaned up). At best, Walker has shown that Seger may have treated her unfairly. But unfair treatment alone does not equal race discrimination. Ninth Street may fire Walker “for a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.” Minard v. Sam's E., Inc. , No. 21-11494, 2022 WL 854541, at *4 (11th Cir. Mar. 23, 2022).

D. ADEA and ADA Discrimination

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The ADEA and ADA prohibit Ninth Street from discriminating against Walker because of her age and disabilities. In cases alleging age and disability discrimination, courts again use the McDonnell Douglas burden-shifting framework. Lowe , 758 Fed.Appx. at 867; Raytheon Co. v. Hernandez , 540 U.S. 44, 53 (2003). So Walker needs to show a prima facie case of discrimination. If she does, the burden shifts to Ninth Street to give a legitimate, nondiscriminatory reason for her firing. If it does, Walker needs to show the reason is pretext and discrimination was the but-for cause of her firing. Grossv. FBL Fin. Servs., Inc. , 557 U.S. 167, 176 (2009); Collier v. Harland Clarke Corp. , 820 Fed.Appx. 874, 878-79 (11th Cir. 2020).

For purposes of summary judgment, the Court assumes, without deciding, that Walker met her prima facie burden on her ADEA and ADA claims, and that Ninth Street articulated legitimate, nondiscriminatory reasons for firing her. See Alvarez v. Royal Atl. Devs., Inc. , 610 F.3d 1253, 1265 (11th Cir. 2010) (“It matters not whether [plaintiff] has made out a prima facie case if she cannot create a genuine issue of material fact as to whether [defendant's] proffered reasons for firing her are pretext masking discrimination.”). The ADEA and ADA claims fail for the same reason her Title VII race discrimination claim does. Walker has no evidence the reason for Seger's negative treatment and firing was her age or disabilities, much less

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evidence a reasonable jury could use to find her age or disabilities were the but-for cause of her firing. So Walker's ADEA and ADA claims cannot succeed.

The Court grants Defendant's Motion for Summary Judgement (Doc. 33).

Accordingly, it is now

ORDERED:

1. Defendant's Motion for Summary Judgment (Doc. 33) is GRANTED .

2. The Clerk is DIRECTED to enter judgment, deny any pending motions, terminate all deadlines, and close the case.

DONE and ORDERED.