Opinion
02 Civ. 9567 (KNF)
October 17, 2003
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiff Gwendolyn Daniels ("Daniels") commenced this action against, inter alia, St. John's Riverside Hospital ("St. John's") and Pamela LaFrance ("LaFrance") (collectively "defendants"). Before the Court is the defendants' motion to dismiss made pursuant to Fed.R.Civ.P. 12(b)(6). The defendants urge that all claims asserted by the plaintiff against them be dismissed for failure to state a claim upon which relief may be granted. Specifically, the defendants seek dismissal of plaintiff s causes of action alleging interference with right of contract, defamation, prima facie tort, intentional infliction of emotional distress, fraudulent misrepresentation and injurious falsehood. Plaintiff opposes the motion; it is addressed below.
According to the defendants, Pamela LaFrance was incorrectly named in the complaint as Pamela LeFrance.
II. BACKGROUND
Daniels was employed by St. Luke's — Roosevelt Hospital Center ("St. Luke's") as a licensed practical nurse on March 14, 1977. See Complaint, ¶ 18. In 1981, Daniels became a registered nurse ("RN") and continued working at St. Luke's in that capacity until she was terminated on July 15, 2002. Plaintiff had an implied contract with St. Luke's during the period of her employment pursuant to which she retained her job as long as she performed satisfactorily and the facility had a need for nurses with her qualifications. Plaintiff also had an express contract with St. Luke's insofar as each was bound by the facility's policies, rules and regulations. In addition, plaintiff was a third party beneficiary of the contract between The New York State Nurse's Association (the "Union") and St. Luke's. During the period of her employment, plaintiff acted as a representative for the members of the Union who worked at St. Luke's. See id.
During the period January 2002 through June 2002, plaintiff also worked on a part-time basis at Yonkers General Hospital ("Yonkers General"), which is operated by St. John's. See id., ¶ 32. In June 2002, St. Luke's disciplined plaintiff for allegedly working at Yonkers General on days that she had been scheduled to work at St. Luke's but had taken leave. Three days were at issue: February 25, 2002, March 22, 2002 and March 31, 2002. See id.
In order to determine the dates upon which plaintiff had worked at Yonkers General, Bart Metzger ("Metzger"), Corporate Vice President for Human Resources at St. Luke's, contacted defendant LaFrance, Chief Human Relations Officer at St. John's. See id., ¶ 33. In response to Metzger's inquiry, LaFrance provided a list of dates, covering the period January 2002 through June 2002, on which plaintiff had worked at Yonkers General. The list contained thirty-seven (37) dates, including the three dates February 25, March 22 and March 31, 2002. See id.
At a first step grievance hearing held on June 26, 2002, plaintiff submitted to the hearing officer copies of her payroll timekeeping records from Yonkers General for the pay periods covering the three dates at issue. See id., ¶ 39. These records showed that plaintiff had worked at Yonkers General on March 22, 2002, but not on February 25 or March 31, 2002. However, in a letter notifying the Union of the final decision to terminate plaintiff, a labor relations analyst for St. Luke's stated that managerial personnel at the hospital had not considered the payroll timekeeping records submitted by plaintiff to be authentic because they were not dated or signed. See id., Ex. 8. For this reason, plaintiff was asked to provide written authorization enabling St. Luke's to obtain her payroll records from Yonkers General. Plaintiff refused to provide such authorization because, as stated in her complaint, she thought St. Luke's "would misuse the authorization since they had already obtained payroll records surreptitiously, and the records they stated they had were incorrect and were being used against [me]." Id., ¶ 40. On July 15, 2002, plaintiff attended a second step grievance hearing; thereafter, she was terminated from her position at St. Luke's. See id., ¶ 46 and Ex. 8.
On July 17, 2002, plaintiff obtained a letter from Roberta Burkhardt ("Burkhardt"), the payroll coordinator at St. John's, confirming that, of the three dates at issue, plaintiff had worked at Yonkers General only on March 22, 2002. The letter, which was addressed to the Human Resources Department at St. Luke's, stated, in pertinent part:
To Whom It May Concern:
The above person [Daniels] is employed at St. John's Riverside Hospital Park Care Pavilion as a Per Diem RN. This is to verify [that] Ms. Daniels did not work on February 25, 2002 or March 31, 2002. She did work on March 22, 2002.Id., ¶ 39, Ex. 12 (emphasis in original).
A third step grievance hearing was held by St. Luke's on July 31, 2002. At that hearing, Daniels presented Burkhardt's letter to the hearing officer. The next day, August 1, 2002, the hearing officer issued a decision confirming St. Luke's termination of plaintiff. In his decision, the hearing officer stated that he found Burkhardt's letter "not sufficiently reliable to contradict the evidence provided by Mr. Metzger." Id., Ex. 8. The decision also stated: "The fact that the letter was not provided before the hearing to Management so that it could have been investigated makes it of little value and casts doubt upon its veracity." Id.
III. DISCUSSION
Standard of Review for Motion to Dismiss
A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6) only if "it appears beyond doubt that [a] plaintiff can prove no set of facts in support of his claim which will entitle him to relief." Woodford v. Community Action Agency of Greene County, Inc., 239 F.3d 517, 526 (2d Cir. 200n (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99). In considering the motion, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins, v. Merrill Lynch Co., 32 F.3d 697, 700 (2d Cir. 1994). Furthermore, the court may consider all papers and exhibits appended to the complaint as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). "A complaint should not be dismissed simply because a plaintiff is unlikely to succeed on the merits." Baker v. Cuomo, 58 F.3d 814, 818 (2d Cir. 1995).
Tortious Interference With Contract
In her complaint, plaintiff asserts that St. John's and LaFrance interfered with her right to contract with St. Luke's by providing to Metzger a list of dates on which plaintiff allegedly worked at Yonkers General. According to the plaintiff, the communication between LaFrance and Metzger was undertaken without plaintiff's authorization and without proper verification by the internal payroll department at Yonkers General.
Under New York law, in order to establish a claim of tortious interference with contract, a plaintiff must show the existence of a valid contract between the plaintiff and a third party, the defendant's knowledge of that contract, the defendant's intentional inducement of the third party to breach that contract and damages. See Foster v. Churchill, 87 N.Y.2d 744, 749-50, 642 N.Y.S.2d 583, 586 (1996); Murray v. Sysco Corp., 273 A.D.2d 760, 761, 710 N.Y.S.2d 179, 181 (App.Div.3d Dep't 2000); Hoag v. Chancellor, Inc., 246 A.D.2d 224, 228, 677 N.Y.S.2d 531, 533 (App.Div. 1st Dep't 1998). Economic interest is a defense to an action for tortious interference with contract unless there is a showing of malice or fraudulent or illegal means. See Foster, 87 N.Y.2d at 750, 642 N.Y.S.2d at 586-587. "Where the contract of employment between plaintiff and a third party is terminable at will . . . the plaintiff must also show that defendant employed wrongful means, such as fraud, misrepresentation or threats to effect the termination of employment." Murray, 273 A.D.2d at 761, 710 N.Y.S.2d at 181.
The defendants assert that plaintiff has failed to allege or establish the third element of her tortious interference with contract claim, namely, in this case, the defendants' intentional inducement of St. Luke's to breach its employment contract with the plaintiff. The defendants contend that plaintiff has alleged, at most, negligence on their part. Therefore, the defendants argue, plaintiff has failed to state a claim of tortious interference with contract.
In her opposition papers, the plaintiff offers a "clarification" of her claim, stating that it was "by providing an unverified, uncertified list of dates that contained at least two erroneous material representations (dates) that [defendants] interfered with plaintiff's contract rights." Plaintiff states that she believes that LaFrance knew that the purpose of Metzger's request was to obtain information to be presented at plaintiff's upcoming grievance hearing(s), at which the plaintiff's employment history at Yonkers General was to be put in issue, and also that LaFrance knew that the grievance hearing(s) could lead to plaintiff's termination from St. Luke's. Therefore, plaintiff argues, LaFrance, in supplying the list of dates, acted with the requisite intent to interfere with plaintiff's right of contract. The defendants' actions went beyond mere negligence, plaintiff maintains, evidencing a reckless disregard from which malice or ill will can be inferred.
Plaintiff has failed to make a sufficient evidentiary showing in opposition to the instant motion. Assuming, arguendo, that the information LaFrance provided to Metzger was unverified or contained errors, there is no evidence in the record that LaFrance's conduct in disclosing this information went beyond mere negligence and constituted deliberate interference with plaintiff's contract rights. In addition, plaintiff has alleged no facts in support of her belief that LaFrance was aware of Metzger's purpose in seeking information concerning plaintiffs schedule of work at Yonkers General. However, even if, as plaintiff contends, LaFrance was informed about the purpose for which the information was sought, without more, the Court cannot reasonably infer that LaFrance intended to induce plaintiffs termination from St. Luke's.
Since the defendants have not offered a defense of economic interest, the plaintiff need not show that they acted with malice or employed fraudulent or illegal means. In any case, the record does not support plaintiffs claim that LaFrance displayed a reckless disregard from which malice toward the plaintiff can be inferred.
In their reply papers, the defendants assert that plaintiff was an at-will employee of St. Luke's and, therefore, must show that the defendants used wrongful means such as fraud, misrepresentation or threats to induce St. Luke's to terminate her employment. Although the complaint states, inter alia, that plaintiff had an implied contract with St. Luke's, the record in this case does not establish whether, as defendants maintain, her employment contract must be deemed terminable at will. In any event, plaintiff has not alleged the use of wrongful means by the defendants to effect the termination of her employment. Under the circumstances, the Court finds that plaintiff has not established a necessary element of her claim of tortious interference with right of contract. Accordingly, this branch of the defendant's motion to dismiss is granted.
Defamation
Under New York law, the elements of a defamation cause of action are: (i) a defamatory statement of fact concerning the plaintiff, (ii) publication to a third party by the defendant, (iii) falsity of the defamatory statement, (iv) some degree of fault, and (v) special damages or per se actionability (defamatory on its face). See Dillon v. City of New York, 261 A.D.2d 34, 37-38, 704 N.Y.S.2d 1, 5 (App.Div. 1st Dep't 1999); Celle v. Filipino Reporter Enters, Inc., 209 F.3d 163, 176 (2d Cir. 2000). As a general rule, a statement is defamatory per se if it "tends to disparage a person in the way of his office, profession or trade." Celle, 209 F.3d at 179 (emphasis in original); see also Aronson v. Wiersma, 65 N.Y.2d 592, 594, 493 N.Y.S.2d 1006, 1008 (1985). If a statement is defamatory per se, injury is assumed and the statement is actionable without proof of special damages. Special damages are those which flow directly from the injury to a plaintiffs reputation caused by the defamation and which involve the loss of something having economic or pecuniary value. See Celle, 209 F.3d at 179 (citing Matherson v. Marchello, 100 A.D.2d 233, 235, 473 N.Y.S.2d 998, 1000 [App. Div.2d Dep't 1984]).
The plaintiff in a defamation case must identify a plausible defamatory meaning of the statement at issue. See Haugh v. Schroder Inv. Management North America Inc., No. 02 Civ. 7955, 2003 WL 21136096, at *2 (S.D.N.Y. May 15, 2003). If the statement is susceptible of only one meaning or interpretation, then the court determines whether that meaning is defamatory. See id.; Aronson, 65 N.Y.2d at 593, 493 N.Y.S.2d at 1007. If the words are susceptible of more than one meaning, then it is for "the trier of fact, not for the court acting on the issue solely as a matter of law, to determine in what sense the words were used and understood."Celle, 209 F.3d at 178. If a plaintiff cannot identify a plausible defamatory meaning for a statement, then the claim may be dismissed. See Haugh, 2003 WL 21136096, at *2.
Plaintiff claims that she was defamed by the communication sent by LaFrance to Metzger providing the dates upon which plaintiff allegedly worked at Yonkers General. In her opposition papers, plaintiff identifies the following paragraph in the complaint as having set forth "the particular words" that defamed her:
Ms. LaFrance notified Bart Metzger, Corporate Vice President for Human Resources (without authorization from Plaintiff Daniels) by facsimile, stating that Ms. Daniels had worked at [Yonkers General] in 2002 on the following dates: January 5, 12, 13, 27, 28; February 6, 21, 24, 25; March 9, 10, 11, 16, 22, 23, 24, 31; April 1, 2, 6, 7, 11, 13, 20, 21, 23, 27, 29; May 3, 4, 7, 13, 17, 25, 28; June 1, 8.
Complaint, ¶ 33. According to the complaint, the communication was "made in a grossly irresponsible manner" and LaFrance was negligent in her failure "to use reasonable care under the circumstances to verify the accuracy" of the information she conveyed to Metzger. According to plaintiff, the defendants defamed her "insofar as they stated facts that were untrue about [her], causing her to be perceived as a liar to her employer and those in her professional circle, exposing her to discipline, ridicule and disgrace, and ultimately costing [her] her job."
The defendants assert that plaintiffs defamation claim should be dismissed because plaintiff has failed to comply with Rule 3016(a) of New York's Civil Practice Law and Rules ("CPLR") by quoting verbatim the particular words defaming her. The defendants also maintain that plaintiff has failed to plead special damages or to show that the alleged defamatory statement injured her in her profession so as to constitute defamation per se.
CPLR Rule 3016(a) requires that, in a defamation action, "the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally." The defendants are correct that, under New York law, judicial interpretation of this rule requires that the defamatory words be set forth in haec verba, and that mere paraphrases of the words spoken or written, such as the plaintiff presents here, fail to meet the requirements of CPLR Rule 3016(a). See, e.g., Conley v. Gravitt, 133 A.D.2d 966, 968, 520 N.Y.S.2d 672, 674 (App.Div.3d Dep't 1987). However, when a defamation claim is brought in federal court, the pleading standard set forth in Rule 8 of the Federal Rules of Civil Procedure, namely, that averments should be "simple, concise, and direct," governs the action.See Odom v. Columbia Univ., 906 F. Supp. 188, 196-97 (S.D.N.Y. 1995). "Pursuant to Fed.R.Civ.P. 8, a complaint is not required to contain the defamatory statements in haec verba as long as it affords defendant sufficient notice of the communications complained of to enable him to defend himself." Id. (internal quotation marks omitted). In the case at bar, to the extent that the complaint adequately identifies the allegedly defamatory communication, it satisfies the requirements set forth in
Fed.R.Civ.P. 8. However, since the plaintiff cannot identify a plausible defamatory meaning for the statement at issue, her claim must be dismissed.
Construing the statement at issue in this case in the context of the entire communication as a whole, "tested against the understanding of the average reader," and avoiding a "strained or artificial construction,"Aronson, 65 N.Y.2d at 594, 493 N.Y.S.2d at 1007, as a matter of law, the communication provided by LaFrance to Metzger, stating the dates upon which plaintiff worked at Yonkers General, cannot be read as defamatory. Even if the facsimile transmission described in the complaint incorrectly identified some of the dates at issue, the mere reporting of such information cannot reasonably be understood to have exposed the plaintiff to "public contempt, ridicule, aversion or disgrace. . . ." Foster, 87 N.Y.2d at 751, 642 N.Y.S.2d at 587.
Moreover, the communication at issue does not constitute defamation per se because it does not, on its face, defame the plaintiff in her trade, business or profession. Plaintiff appears to suggest that the statement might be rendered defamatory with respect to plaintiffs trade, business or profession if reference is made to the circumstances surrounding plaintiffs termination from St. Luke's. However, a statement cannot be defamatory per se if reference to extrinsic facts is necessary to give it a defamatory meaning. See Aronson, 65 N.Y.2d at 594-95, 493 N.Y.S.2d at 1008. Furthermore, plaintiffs attempt to plead special damages in her opposition papers does not suffice. Plaintiffs assertion that she suffered the loss of her position as an RN at St. Luke's does not identify her economic loss with sufficient particularity. Moreover, since the statement at issue has not been shown to have a defamatory meaning, plaintiff cannot establish that any alleged special damages flowed directly from that statement. Therefore, for the reasons set forth, the Court finds that plaintiffs defamation claim fails to state a claim upon which relief may be granted. Accordingly, the defendants' motion to dismiss is granted with respect to this claim.
Prima Facie Tort
"Prima facie tort is designed to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy." Curiano v. Suozzi, 63 N.Y.2d 113, 118, 480 N.Y.S.2d 466, 469 (1984). The elements of a cause of action for prima facie tort are: "(1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful." Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142-43, 490 N.Y.S.2d 735, 741 (1985);see also Oxvn Telecomms., Inc. v. Onse Telecom, No. 01 Civ. 1012, 2003 WL 22271224, at *9 (S.D.N.Y. Sept. 30, 2003). A plaintiff must allege and prove special damages, that is, a specific and measurable loss, see Freihofer, 65 N.Y.2d at 143, 490 N.Y.S.2d at 741, and also must show that the alleged defamatory statement was motivated solely by malevolence, see Landor-St. Gelais v. Albany Int'l Corp., 307 A.D.2d 671, 673, 763 N.Y.S.2d 369, 371 (App.Div.3d Dep't 2003).
The defendants assert that plaintiffs claim of prima facie tort must be dismissed because plaintiff has failed to show either the intentional infliction of harm or special damages. In her opposition papers, plaintiff argues that she has stated the elements of a claim of prima facie tort because she has shown that the defendants supplied false statements with "a wanton disregard for the truth so as to infer malice," and acted with the requisite malevolence and ill will. Plaintiff also contends that "special damages are shown in that [p]laintiff lost her job as a [RN] with St. Luke's."
There is nothing in the record to support plaintiffs assertion that the sole motivation for the communication from LaFrance to Metzger was "disinterested malevolence." See Curiano, 63 N.Y.2d at 117, 480 N.Y.S.2d at 469. Even if, as plaintiff contends, the communication at issue contained inaccurate information concerning the dates plaintiff worked at Yonkers General, plaintiff has alleged no facts establishing that the defendants, in providing such information to St. Luke's, acted with "the sole intent to harm." Oxvn Telecomms., Inc., 2003 WL 22271224, at *9. Nor has plaintiff shown that she suffered "specific and measurable loss," so as to constitute a sufficient pleading of special damages. Freihofer, 65 N.Y.2d at 143, 490 N.Y.S.2d at 741; see also Silverman v. City of New York, No. 98 Civ. 6277, 2001 WL 218943, at *10 (E.D.N.Y. Feb. 2, 2001). Plaintiffs assertion that she lost her job as a result of the defendants' conduct both fails to allege special damages with the requisite particularity and is unsupported by the record evidence in this case. Accordingly, plaintiffs claim of prima facie tort against the defendants is dismissed.
Intentional Infliction of Emotional Distress
In order to state a claim for intentional infliction of emotional distress, a plaintiff must establish: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. See Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 353 (1993); Chimarey v. TD Waterhouse Investor Servs., Inc., No. 01 Civ. 7120, 2003 WL 22070536, at *4 (S.D.N.Y. Sept. 4, 2003). The requirements of the rule, especially the element of extreme and outrageous conduct, are rigorous and difficult to satisfy. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Howell, 81 N.Y.2d at 122, 596 N.Y.S.2d at 353-54 (quoting Murphy v. American Home Prods., Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 236).
The defendants contend that plaintiff cannot establish a claim of intentional infliction of emotional distress because she cannot make the requisite showing of either extreme and outrageous conduct or intent to cause emotional distress.
Plaintiff, in her opposition papers, contends that she has made the requisite showing of extreme and outrageous conduct because LaFrance, by furnishing false information concerning the dates of plaintiff s employment without first verifying such information, engaged in such conduct. Plaintiff also asserts that the defendants' wanton disregard of her rights, which caused her to lose her job as a result of a grievance related to her attendance records at Yonkers General, is evidence that defendants intended to cause her emotional distress.
Based on the facts alleged in this action, plaintiff cannot sustain her claim of intentional infliction of emotional distress. The defendants' conduct falls far short of the requirements for a finding of liability on this ground. Even if defendants acted negligently in providing false information to St. Luke's, this clearly does not amount to conduct so extreme as to "go beyond all possible bounds of decency." Moreover, as defendants note, St. John's attempted to remedy what was perceived as an error on its part by providing to plaintiff a letter from its payroll coordinator stating that plaintiff had not worked on two of the three dates at issue. As defendants point out, this letter was given to St. Luke's by the plaintiff before her termination became final. Furthermore, plaintiff has adduced no evidence in support of her claim that defendants acted intentionally to cause her emotional distress. Therefore, under the circumstances, the Court finds that plaintiff has failed to establish a claim for intentional infliction of emotional distress. Accordingly, the instant motion is granted with respect to this claim.
Fraudulent Misrepresentation
In her opposition papers, plaintiff seeks to withdraw her cause of action for fraudulent misrepresentation. Therefore, the Court will not address this branch of the instant motion. The plaintiffs claim of fraudulent misrepresentation is, accordingly, dismissed.
Injurious Falsehood
"The utterance or furnishing of false and misleading information may be actionable if done maliciously or with the intention to harm another, or so recklessly and without regard to its consequences, that a reasonably prudent person should anticipate that damage to another will naturally follow." Penn-Ohio Steel Corp. v. Allis-Chalmers Mfg. Co., 7 A.D.2d 441, 444, 184 N.Y.S.2d 58, 61 (App.Div. 1st Dep't 1959). The elements of a claim of injurious falsehood, which is also called product disparagement or trade libel, are: (i) falsity of the alleged statements; (ii) publication to a third person; (iii) malice; and (iv) special damages. See Drug Research Corp. v. Curtis Publishing Co., 7 N.Y.2d 435, 440, 199 N.Y.S.2d 33, 37 (1960); Computech Int'l Inc. v. Compaq Computer Corp., No. 02 Civ. 2628, 2002 WL 31398933, at *5 (S.D.N.Y. Oct. 24, 2002). The requirement of pleading and proving special damages is applied strictly. See id. at *6. Thus, a motion to dismiss a claim of injurious falsehood may be granted for failure to allege special damages with the requisite specificity. See id.: Drug Research Corp., 7 N.Y.2d at 440-41, 199 N.Y.S.2d at 37-38.
Plaintiffs claim of injurious falsehood, like her other claims against the defendants, is premised on the fact of the communication between LaFrance and Metzger concerning plaintiffs employment history at Yonkers General. Plaintiff maintains that LaFrance conveyed false information to Metzger concerning the dates on which plaintiff worked at Yonkers General, that the alleged falsehood caused the plaintiff to lose her job, and that malice on the part of the defendants can be inferred from LaFrance's recklessness in disclosing this information.
Even if plaintiff could establish the other elements of her allegation of injurious falsehood, the claim must be dismissed because the plaintiff has failed to allege special damages with sufficient particularity. Plaintiffs special damages claim, premised on her loss of employment and the salary therefor, is not "fully and accurately stated," as required under New York law. Drug Research Corp., 7 N.Y.2d at 440-41, 199 N.Y.S.2d at 37-38 (finding that special damages were not adequately alleged where the damage claim was a round figure [$5,000,000] with no attempt at itemization);see also Rail v. Hellman, 284 A.D.2d 113, 114, 726 N.Y.S.2d 629, 632 (App.Div. 1st Dep't 2001) (finding that complaint was deficient because it failed to identify special damages with sufficient particularity). Therefore, the Court finds that plaintiffs claim of injurious falsehood cannot survive the instant motion to dismiss.
IV. CONCLUSION
For the reasons set forth above, the defendants' motion to dismiss, made pursuant to Fed.R.Civ.P. 12(b)(6), is granted.