Buck v. Thycotic Software LLC

• Court: District Court, W.D. Washington
• Decided: September 1, 2022
• Docket: 2:20-cv-01721
• Status: Unknown

Opinion

5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE

7 DAVID BUCK,

8 Plaintiff, No. 2:20-cv-01721-BJR 9 v. ORDER GRANTING IN PART AND 10 THYCOTIC SOFTWARE, LLC, DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12

13 I. INTRODUCTION 14 Plaintiff David Buck (“Plaintiff” or “Buck”) filed this lawsuit against Thycotic Software, 15 LLC (“Defendant” or “Thycotic”), asserting claims of retaliation in violation of Title VII of the 16 Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3(a), and the Washington Law Against 17 Discrimination (“WLAD”), RCW § 49.60.210(1), arising from the termination of his employment 18 with Thycotic. Plaintiff also asserts a claim for breach of contract arising from the same events. 19 20 Presently before the Court is Defendant’s motion for summary judgment on all of Plaintiff’s claims 21 (“Motion” or “Mot.,” Dkt. 20). Having reviewed the Motion, the record of the case, and the 22 relevant legal authorities, the Court GRANTS in part and DENIES in part the Motion. The 23 reasoning for the Court’s decision follows. 24

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ORDER - 1 1 II. BACKGROUND 2 A. Factual Background 3 Buck had been employed by Thycotic, a cyber security software company, as a technical 4 writer beginning in April 2019. Michelle Hayes Declaration (“Hayes Decl.,” Dkt. 22) ¶¶ 2-3. In 5 November 2019, a dispute arose between Buck’s colleagues, Heather Fazio and Will Sprunk, as 6 to Sprunk’s covering of certain work for Fazio while she was on paid time off. See, e.g., Fazio 7 Dep. Tr. at 36:8-16. Upon Fazio’s return to work, Sprunk wrote her an email on November 12 8 9 criticizing the work she had left him to complete. Sarah Macklin Declaration (“Macklin Decl.,” 10 Dkt. 21), Ex. B. He wrote, among other things: “I’m not sure what the disconnect was, but the 11 [document] was nowhere near ready to be published …. My understanding was that I was going 12 to deal with any last-minute changes …. I wound up having to do a lot more ….” Id. at 3-4. 13 On November 14, after having argued with Sprunk over email about his criticism (see 14 Macklin Decl., Ex. B at 1-3), Fazio wrote Buck a message over an instant messaging program, 15 16 Slack, complaining about Sprunk’s email: “I returned to a particularly nasty email from [Sprunk] 17 telling me … that he had to do a ton more work because of me …. It was a very nasty exchange 18 and I don’t know how to feel about any of it.” Id., Ex. C; see Fazio Dep. Tr. 31:14-33:2. In 19 response, Buck recommended to Fazio that she report Sprunk’s email to Fazio’s superior, Tucker 20 Hall: “You really must let Tucker know about the nasty email. It is unprofessional ever to make 21 another coworker feel terrible, even inadvertently, and I hope you will not put up with it.” Macklin 22 Decl., Ex. C. Fazio testified at deposition that, in writing her Slack message to Buck, she had not 23 24 intended to convey that Sprunk had been sexually harassing her, and did not understand Sprunk’s 25 email to have been of that nature. Fazio Dep. Tr. at 37:16-24. Buck similarly testified that he did 26

ORDER - 2 1 not understand Fazio’s Slack message to be complaining about sexual harassment. Buck Dep. Tr. 2 at 41:21-42:22, 50:7-51:21. 3 While Fazio testified that she could not recall having any further conversations with Buck 4 about Sprunk’s behavior before Buck’s eventual termination (Fazio Dep. Tr. at 44:16-47:9, 64:4- 5 14, 82:17-83:15), Buck testified that he had two such conversations with Fazio over the phone. 6 Buck Dep. Tr. at 51:22-52:14. In the first, according to Buck, Fazio “overtly declared … that she 7 was being sexually harassed,” and mentioned “inappropriate language, comments on her 8 9 appearance during calls, words and jokes that made her very uncomfortable, she felt were 10 inappropriate, sexual.” Id. at 53:15-54:22. In response, he told Fazio that she was “right to be 11 upset” and advised her to report Sprunk’s behavior to Hall. Id. at 56:1-57:6. Buck testified that, 12 in the second conversation, which took place shortly after the first, Fazio told him that she had 13 decided against reporting Sprunk’s behavior and asked Buck not to tell anyone about their 14 conversations. Id. at 58:1-25. Buck, in response, advised her to report her complaints to Human 15 16 Resources. Id. 17 Fazio testified that Buck was “pivotal” in encouraging her eventually to report her 18 complaints about Sprunk to Human Resources. Fazio Dep Tr. at 83:25-84:10. To that end, on 19 November 25, 2019, Fazio sent Michelle Hayes, Thycotic’s Vice President of Human Resources, 20 a letter detailing numerous instances in which, according to Fazio, Sprunk had violated the 21 company’s “Sexual and Other Unlawful Harassment and Discrimination” policy. Robert Fulton 22 Declaration (“Fulton Decl.,” Dkt. 23-2), Ex. C.1 Fazio also included in her letter – along with 23 24 25 26 1 While most of those instances related to comments Fazio perceived as sexual harassment, a few related to other types of behavior Fazio believed were inappropriate (e.g., political comments about race). See Fulton Decl., Ex. C. ORDER - 3 1 screenshots of eleven Slack exchanges between Fazio and Sprunk – a screenshot of her November 2 14 Slack exchange with Buck. Id., Ex. C at 11. In addition, she explained in the letter: 3 I had a private Slack conversation with a colleague about the email and expressed my concern about [Sprunk’s] behavior towards me in this instance, and in personal 4 slack discussions. While I did not provide details of the Slack conversations, I did 5 let this colleague know that I felt like an island and very alone with no one to talk to. 6 I asked this colleague to keep the conversation between he and I private. The 7 colleague was proud of me for standing up for myself and said there have been ‘occasional’ instances where [Sprunk] has said obnoxious things on Slack channels 8 …. 9 I would like to keep this colleague anonymous as he is the only person I have felt comfortable speaking with …. 10 Fulton Decl., Ex. C at 10-11. Fazio and Hayes spoke later on November 25, during which time, 11 according to Fazio’s testimony and Hayes’s declaration, Fazio identified Buck as the other 12 13 individual participating in the November 14 Slack exchange. Hayes Decl. ¶¶ 7-8; Fazio Dep. Tr. 14 67:8-68:8, 81:8-82:16. Hayes declares – and no party disputes – that neither she nor anyone at 15 Thycotic contacted Buck or otherwise involved him in investigating Fazio’s complaint, which has 16 since been resolved. Hayes Decl. ¶¶ 9-10. 17 On January 16, 2020, Buck’s supervisor issued him a Performance Improvement Plan 18 (“PIP”)2 for having “on more than one occasion provided incomplete documentation updates for 19 product releases.” Hayes Decl. ¶ 12, Ex. 4. The PIP lists, in addition to three such occasions of 20 21 observed performance issues, various actions and goals intended to help Buck correct those issues. 22 In response, Buck submitted an extensive “Rebuttal” denying the PIP’s claims of inadequate 23 performance, and stating that he “cannot sign the PIP due to thoroughly untruthful content that 24 25 26 2 A PIP is, according to Thycotic’s Employee Guide, a plan “requiring the employee’s immediate and sustained corrective action” to address observed work performance or conduct issues. Hayes Decl., Ex. 2. ORDER - 4 1 misrepresents my performance and entirely redefines my job duties.” Id. ¶ 13, Ex. 5. Buck’s 2 employment with Thycotic was then terminated. Id. ¶ 14. 3 B. Procedural History 4 Plaintiff filed this lawsuit on July 13, 2021, asserting claims for retaliation under Title VII 5 and WLAD, as well as a claim for breach of contract. See Complaint (“Compl.,” Dkt. 1). 6 Defendant filed the Motion on August 17, 2021, seeking summary judgment on all of Plaintiff’s 7 claims. Plaintiff filed an opposition (“Opp.,” Dkt. 23) and Defendant replied (“Rep.,” Dkt. 24). 8 9 On August 8, 2022, this case was reassigned to this Court. 10 III. STANDARD OF REVIEW 11 “The standard for summary judgment is familiar: ‘Summary judgment is appropriate when, 12 viewing the evidence in the light most favorable to the nonmoving party, there is no genuine 13 dispute as to any material fact.’” Zetwick v. County of Yolo, 850 F.3d 436, 440 (9th Cir. 2017) 14 (quoting United States v. JP Morgan Chase Bank Account No. Ending 8215, 835 F.3d 1159, 1162 15 16 (9th Cir. 2016)). A court’s function on summary judgment is not “to weigh the evidence and 17 determine the truth of the matter but to determine whether there is a genuine issue for trial.” 18 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If there is not, summary judgment is 19 warranted. 20 IV. DISCUSSION 21 A. Plaintiff’s Retaliation Claims 22 Plaintiff’s retaliation claims are premised on his allegations that he was issued a PIP, and 23 24 eventually fired, because he “persuaded Ms. Fazio to report [Sprunk’s] harassment to Human 25 Resources.” Compl. ¶ 19; see id.; ¶¶ 22-36; Opp. 4-8. To establish a prima facie case of retaliation 26 under Title VII and WLAD, a plaintiff must show that (1) “he undertook a protected activity,”

ORDER - 5 1 (2) “his employer subjected him to an adverse employment action,” and (3) “there is a causal link 2 between those two events.” Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2003) 3 (articulating requirements under Title VII); see Currier v. Northland Servs., Inc., 182 Wash. App. 4 733, 742 (Wn. Sup. Ct. 2014) (articulating same requirements under WLAD). Defendant contends 5 that Plaintiff fails to demonstrate the first and third of these requirements. See Mot. at 11-16. 6 1. Whether Plaintiff Undertook a Protected Activity 7 To establish that he “undertook a protected activity” under Title VII, Plaintiff relies on the 8 9 opposition clause of 42 U.S.C. § 2000e-3(a), which makes it unlawful “for an employer to 10 discriminate against any of his employees … because he has opposed any practice made an 11 unlawful employment practice by this subchapter.” See Opp. at 5-6. To do so under WLAD, 12 Plaintiff similarly relies on the opposition clause of RCW § 49.60.210(1), which prohibits 13 employers from “discharg[ing] expel[ling], or otherwise discriminat[ing] against any person 14 because he or she has opposed any practices forbidden by this chapter.” See Opp. at 5-6. “In 15 16 actions involving opposition of discriminatory conduct related to other employees’ claims of 17 discrimination,” as Plaintiff brings here, the plaintiff “must actually support or encourage those 18 other employees to file complaints of discrimination.” Heneage v. DTE Energy Servs., Inc., No. 19 3:11-cv-0686, 2018 WL 834598, at *4 (D. Nev. Feb. 10, 2018) (citation and quotation marks 20 omitted). Further, under both Title VII and WLAD, the plaintiff’s opposition can constitute a 21 “protected activity” even if the employer’s practices were not discriminatory, so long as his belief 22 in the unlawfulness of those practices was reasonable. See Maner v. Dignity Health, 9 F.4th 1114, 23 24 1127 (9th Cir. 2021) (“our precedents have long recognized that the statute protects an employee 25 who opposes employer conduct in the mistaken but reasonable belief that the conduct is 26 unlawful”); Ellis v. City of Seattle, 142 Wash. 2d 450, 460 (Wn. Sup. Ct. 2000) (“In the retaliatory

ORDER - 6 1 discharge context, Washington law has recognized a cause of action where an employee has an 2 objectively reasonable belief an employer has violated the law.”). 3 Defendant contends that the evidence demonstrates that Buck did not believe – reasonably 4 or otherwise – that he was opposing discriminatory practices when he recommended to Fazio, 5 during their November 14 Slack exchange, that she report Sprunk’s November 12 email to Hall. 6 See Mot. at 11-15. On this point, Defendant is correct. The November 14 Slack exchange lacks 7 any indication that Fazio was complaining about, or Buck was recommending she report, sexual 8 9 harassment or discrimination. See Macklin Decl., Ex. B. Moreover, as noted above, both Fazio 10 and Buck testified that the November 14 Slack exchange did not relate to sexual harassment. See 11 Fazio Dep. Tr. at 37:16-24; Buck Dep. Tr. at 41:21-42:22, 50:7-51:21. Therefore, this Court agrees 12 with Defendant that the undisputed evidence shows that Buck’s November 14 recommendation 13 does not constitute an action undertaken to oppose a discriminatory practice. 14 However, there is evidence in the record that the November 14 Slack conversation was not 15 16 the extent of Buck and Fazio’s conversations about Sprunk’s sexual harassment. As discussed 17 above (see supra at 3), Buck testified that, following the Slack exchange, he had two conversations 18 with Fazio during which she explicitly told him that she felt sexually harassed by Sprunk’s 19 “inappropriate language, comments on her appearance during calls,” and “words and jokes that 20 made her very uncomfortable.” See Buck Dep. Tr. at 51:22-52:14, 53:17-54:22, 58:1-25. During 21 each of those conversations, according to Buck, he advised her to elevate her complaints – first, to 22 her manager, and then, to Human Resources. See id. at 56:1-57:6, 58:1-25. While Fazio did not 23 24 recall those conversations having taken place, she testified that Buck was “pivotal” in encouraging 25 her to report her complaints about Sprunk to Human Resources. See Fazio Dep Tr. at 83:25-84:10. 26 The Court finds that, based on this evidence, a reasonable juror could conclude that Plaintiff

ORDER - 7 1 supported Fazio in reporting Sprunk’s sexual harassment and that, by doing so, he had a reasonable 2 belief that he was opposing a discriminatory practice. Accordingly, there is a genuine issue as to 3 whether Plaintiff undertook a protected activity under Title VII and WLAD. 4 2. Whether Plaintiff Demonstrates a Causal Link Between His Actions 5 and His Termination 6 “To establish a causal connection between opposition to employer conduct and a retaliatory 7 action, the plaintiff must show ‘the defendant was aware that the plaintiff had engaged in protected 8 activity.”’ Maner, 9 F.4th at 1127 (quoting Raad v. Fairbanks N. Star Borough Sch. Dist., 323 9 F.3d 1185, 1197 (9th Cir. 2003)). Both the Ninth Circuit and the Washington Supreme Court have 10 “adopted the ‘knew or suspected’ standard” for determining whether defendants possessed the 11 requisite awareness. Black v. Grant Cnty. Pub. Util. Dist., No. 2:17-cv-365, 2019 WL 2617236, 12 13 at *9 (E.D. Wash. June 26, 2019) (citing Cornwell v. Microsoft Corp., 192 Wash. 2d 403, 417 14 (Wn. Sup. Ct. 2018), Hernandez, 343 F.3d at 1113), rev’d in part on other grounds, 820 F. App’x 15 547 (9th Cir. 2020). Accordingly, to establish causation under Title VII and WLAD, the plaintiff 16 “must demonstrate the offending actor had actual knowledge of the protected activity or suspected 17 the employee engaged in protected activity.” McMinimee v. Yakima Sch. Dist. No. 7, No. 1:18- 18 cv-3073, 2019 WL 11680199, at *14 (E.D. Wash. Aug. 7, 2019) (citation and quotation marks 19 omitted); see Minhnga Nguyen v. Boeing Co., 809 F. App’x 380 (9th Cir. 2020) (reviewing Title 20 21 VII and WLAD retaliation claims under the “knew or suspected” standard). 22 Defendant contends that Plaintiff cannot establish a causal link between his protected 23 activity (his advice to Fazio) and the adverse employment action (Thycotic’s termination of his 24 employment) in the absence of any evidence that Thycotic was aware that Buck encouraged Fazio 25 to report what she perceived as Sprunk’s sexual harassment. See Mot. at 15-16. Specifically, 26 Defendant asserts that “[t]he only notice Thycotic received about Buck’s ‘involvement’ was the

ORDER - 8 1 November 14 Slack conversation,” which did not relate to sexual harassment. See id.; Rep. at 2- 2 4. In response, Plaintiff argues that, given the nature of Fazio’s letter to Human Resources, and 3 her identification to Hayes of Buck as the colleague who encouraged her to formally complain 4 about Sprunk (see Hayes Decl. ¶¶ 7-8; Fazio Dep. Tr. 67:8-68:8), “a trier of fact could reasonabl[y] 5 infer that Thycotic’s HR department suspected that Mr. Buck had participated and supported Ms. 6 Fazio in opposing sexual harassment.” Opp. at 8. 7 While Plaintiff’s opposition does not demonstrate that Thycotic had actual knowledge that 8 9 Buck encouraged Fazio to report her complaints about sexual harassment, the Court finds that 10 there is sufficient evidence to create a genuine issue of fact as to whether Thycotic at least 11 suspected it. It is true that the only specific conversation between Buck and Fazio identified in 12 Fazio’s letter was the November 14 Slack exchange (see Fulton Decl., Ex. C at 10-11), which 13 Fazio and Buck testified did not relate to sexual harassment. See Fazio Dep. Tr. at 37:16-24; Buck 14 Dep. Tr. at 41:21-42:22, 50:7-51:21. Moreover, Hayes declares that “Thycotic did not read that 15 16 Slack conversation as being related to any sexual harassment complaint,” and “Fazio did not 17 disclose any other conversation she had with Buck.” Hayes Decl. ¶¶ 9, 11. Further, the parties 18 agree that Buck himself never disclosed any conversations with Fazio to Thycotic. See id. ¶ 9; 19 Buck Dep. Tr. 69:25-70:7, 72:16-18. This evidence certainly supports Defendant’s assertion that 20 Thycotic was only aware that Buck had encouraged Fazio to report what she perceived to have 21 been an inappropriate, but not discriminatory, email from Sprunk. 22 Nonetheless, a reasonable juror could infer from Fazio’s letter that Thycotic suspected that 23 24 Buck’s conversations with Fazio extended beyond the November 14 Slack exchange, and included 25 him supporting her to formally complain about sexual harassment. As an initial matter, Fazio’s 26

ORDER - 9 1 letter references comments made by Buck that do not appear in the November 14 Slack exchange,3 2 indicating that Fazio discussed her complaints about Sprunk’s behavior with Buck on other 3 occasions. Moreover, Fazio explained in her letter that Buck was “the only person I have felt 4 comfortable speaking with” (see Fulton Decl., Ex. C at 10-11), which can fairly be interpreted as 5 implying that Fazio had confided with Buck generally about the nature of her workplace 6 difficulties. Finally, Fazio’s letter makes clear – by relating Buck’s comment that he “was proud 7 of [Fazio] for standing up for [herself],” and his advice that she report Sprunk’s November 12 8 9 email (see id.) – that Buck had been supportive of Fazio formally complaining about Sprunk. In 10 light of the letter’s description of Fazio’s relationship and discussions with Buck, and given that 11 the letter’s purpose was primarily to report Sprunk’s sexual harassment, a reasonable juror could 12 infer that Fazio’s letter caused Thycotic to suspect that Buck encouraged her to complain about 13 sexual harassment. 14 “What-did-he-know-and-when-did-he-know-it questions are often difficult to answer, and 15 16 for that reason are often inappropriate for resolution on summary judgment.” Hernandez, 343 F.3d 17 at 1113-14. Here, the Court finds that the question of whether Thycotic suspected that Buck 18 encouraged Fazio to report Sprunk’s sexual harassment is best reserved for the jury. Therefore, 19 the Court rejects Defendant’s contention that there is no triable issue as to causation on the ground 20 that Thycotic lacked notice of Buck’s protected activity. Accordingly, the Court declines to grant 21 summary judgment to Defendant on Plaintiff’s retaliation claims. 22

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26 3 For example, the letter’s references to Fazio’s request that Buck “keep the conversation … private,” and Buck’s comment that he “was proud of [Fazio] for standing up for [herself],” are not reflected in the Slack exchange. See Fulton Decl., Ex. C at 10-11. ORDER - 10 1 B. Whether the PIP Constitutes an Enforceable Contract 2 Plaintiff asserts a claim for breach of contract premised on his allegations that Defendant 3 “failed to adhere to the PIP contract.” Compl. ¶¶ 37-42. Specifically, Plaintiff claims that Thycotic 4 breached the PIP’s “promise” to “give Mr. Buck an opportunity to correct the alleged ‘problem 5 areas’” by firing Buck immediately upon receipt of his Rebuttal. Id. In the Motion, Defendant 6 contends that Plaintiff’s breach of contract claim fails at the outset because the PIP did not 7 constitute an enforceable contract. Mot. at 16-18. Defendant is correct. 8 9 Plaintiff does not dispute that he never actually agreed to the PIP, having refused to sign 10 it. See Hayes Decl., Ex. 5 at 6. Plaintiff also does not dispute that his employment with Thycotic 11 was “at will” and that, when he was hired, he signed a form acknowledging that Thycotic “may 12 terminate [his] employment at any time for any reason, with or without cause or notice.” Hayes 13 Decl., Ex. 1; see Burnside v. Simpson Paper Co., 123 Wash. 2d 93, 104 (Wn. Sup. Ct. 1994) 14 (“Generally, employment contracts indefinite as to duration may be terminated by either the 15 16 employer or the employee at any time, with or without cause.”). He argues, however, that the PIP 17 “contractually modified” his at-will relationship with Thycotic by virtue of the actions and goals 18 outlined therein for his job performance improvement. Opp. at 8-10; see, e.g., Hayes Decl., Ex. 4 19 at 3 (“Weekly 1-on-1 meetings to review implemented process improvements.”). In support of his 20 argument, Plaintiff points to Thompson v. St. Regis Paper Co., 102 Wash. 2d 219 (Wn. Sup. Ct. 21 1984), wherein the Washington Supreme Court held that an “employer’s act in issuing an 22 employee policy manual” enunciating a “specific policy or practice” concerning the employment 23 24 relationship can lead to obligations modifying the terminable at-will relationship. Id. at 229-30 25 (reasoning that “promises of specific treatment in specific situations” may induce an employee to 26 remain on the job (emphasis in original)). There, the court found that the employer’s policy

ORDER - 11 1 documents creating a probationary period for all employees, and stating that terminations “will be 2 processed in a manner which will at all times be fair, reasonable and just,” created such obligations. 3 Id. at 222, 229-30. 4 The Court finds that the PIP did not create any contractual obligations modifying 5 Thycotic’s at-will employment relationship with Buck. Unlike in Thompson, the PIP did not 6 introduce any “specific policy or practice” concerning the employment relationship. It purports 7 only to set out a plan intended to help Buck improve his work performance, and contains no 8 9 language guaranteeing him the opportunity to accomplish that plan or promising he would retain 10 his job if he did so. See Hayes Decl., Ex. 4 at 3. Moreover, the Discipline Policy & Procedures 11 section of Thycotic’s Employee Guide, which sets out Thycotic’s policy concerning the use and 12 consequences of PIPs, expressly states: 13 Nothing in this policy provides any contractual rights regarding employee 14 discipline or counseling, nor should anything in this policy be read or construed as modifying or altering the employment-at-will relationship between Thycotic and 15 its employees. 16 Hayes Decl., Ex. 2 at 3. As the court recognized in Thompson, employers will not be bound by 17 statements in employment manuals if they “specifically state in a conspicuous manner that nothing 18 contained therein is intended to be part of the employment relationship.” Thompson, 102 Wash. 19 2d at 230. Having expressly stated that PIPs would not modify Thycotic’s employment 20 21 relationship with its employees, Thycotic made clear that the PIP issued to Buck would not lead 22 to contractual obligations modifying their at-will relationship. Therefore, the Court finds that the 23 PIP does not constitute an enforceable contract. Accordingly, the Court will grant Defendant 24 summary judgment on Plaintiff’s claim for breach of contract. 25

ORDER - 12 1 V. CONCLUSION 2 For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendant’s 3 |) motion for summary judgment (Dkt. 20). The Court grants summary judgment to Defendant on 4 Plaintiff's claim for breach of contract, but declines to grant summary judgment on Plaintiff's ° retaliation claims under Title VII and WLAD. SO ORDERED.

g Dated: September 1, 2022 9

Barbara J acobs Rothstein U.S. District Court Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

ORDER - 13