               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0229n.06

                                     Case No. 13-3984
                                                                                 FILED
                         UNITED STATES COURT OF APPEALS                     Mar 27, 2014
                              FOR THE SIXTH CIRCUIT                     DEBORAH S. HUNT, Clerk

CARL RHOADES,                                     )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )     ON APPEAL FROM THE UNITED
v.                                                )     STATES DISTRICT COURT FOR
                                                  )     THE NORTHERN DISTRICT OF
STANDARD PARKING CORP.,                           )     OHIO
                                                  )
       Defendant-Appellee.                        )


       BEFORE: GRIFFIN, WHITE, and STRANCH, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Carl Rhoades appeals the district court’s grant of

summary judgment to his former employer, Defendant Standard Parking Corporation, in this

wrongful termination action brought under the Age Discrimination in Employment Act (ADEA)

and Ohio law. PID 5-6. We agree with the district court that Rhoades presented insufficient

evidence of pretext to survive summary judgment, and AFFIRM.


                                             I.


       Standard Parking manages and maintains parking facilities for its clients, provides

employees to operate those parking facilities, and performs services including bookkeeping.

Standard Parking’s Cleveland office hired Rhoades as a parking lot attendant in 2002, when he

was 63 years old, and he worked at the Cleveland Clinic Foundation lot until he and

approximately 175 other employees were laid off in May 2009 when Standard Parking lost its
Case No. 13-3984, Rhoades v. Standard Parking Corp.

service contract with the Cleveland Clinic Foundation. PID 96, 98-99, 170, 172-77, 197-98, 207,

416.


       In March 2010, Standard Parking rehired Rhoades. One of Standard Parking’s clients,

the Playhouse Square Foundation, owns both the Hermit Club lot at which Rhoades worked and

a nearby parking garage, the Playhouse Square Garage.         PID 90-91.     Standard Parking

terminated Rhoades’s employment on May 10, 2010, based on its determination that Rhoades

violated company policy during an exchange between Rhoades and a Playhouse Square

Foundation employee, and because the Playhouse Square Foundation executive responsible for

managing the Standard Parking contract demanded that Rhoades be removed from the lot

following that exchange. Rhoades filed a grievance pursuant to company procedures, which was

denied. PID 15. He later filed a discrimination charge with the Equal Employment Opportunity

Commission (EEOC), which issued a right to sue letter in October 2011. PID 11, 13.


                                              A.

       Rhoades filed this age-discrimination action in December 2011.1 PID 1.   Following

discovery, Standard Parking moved for summary judgment, arguing that Rhoades could not

establish a prima facie case of age discrimination and, assuming he could, the incontrovertible

evidence demonstrated that it terminated Rhoades’s employment for two legitimate, non-

discriminatory reasons—because his conduct on May 7, 2010 violated the company’s customer

service policy and because the Playhouse Square Foundation executive responsible for managing

the Standard Parking contract demanded Rhoades be removed from the Hermit Club lot as a

result of the May 7th incident. PID 73-83.
1
  Although Rhoades’s complaint alleged that his layoff in 2009 was discriminatory in that
Standard Parking “retained several significantly younger, similarly-situated employees due to
their age,” PID 2, he has abandoned that claim on appeal.
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Case No. 13-3984, Rhoades v. Standard Parking Corp.


                                            II. Pretext

        Because Standard Parking does not dispute for purposes of this appeal that Rhoades

established a prima facie case of age discrimination and Rhoades does not dispute that Standard

Parking’s proffered reasons for terminating his employment are legitimate and non-

discriminatory, we address only the issue of pretext. See Standard Parking Br. at 18, Rhoades

Br. at 14.

        We review the district court’s grant of summary judgment de novo, viewing the facts and

inferences therefrom in the light most favorable to the nonmoving party. Chattman v. Toho

Tenax Am., Inc., 686 F.3d 339, 346 (6th Cir. 2012). To demonstrate pretext at the summary

judgment stage, the plaintiff must show by a preponderance of the evidence either 1) that the

employer’s proffered reasons for the adverse employment action had no basis in fact, 2) that the

proffered reasons were not the true reason, or (3) that they were insufficient to motivate

discharge. See, e.g., Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003);

Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994), abrogated on

other grounds by Gross v. FBL Fin. Servs., 557 U.S. 167 (2009), as recognized in Geiger v.

Tower Auto., 579 F.3d 614, 621 (6th Cir. 2009).


        Rhoades maintains that he presented sufficient evidence of pretext to survive summary

judgment under either the first or third prong of the pretext test.


    A. Whether Standard Parking’s proffered reasons for terminating
       Rhoades’s employment had a basis in fact

        “The first type of showing [of pretext] is easily recognizable and consists of evidence that

the proffered bases for the plaintiff’s discharge never happened, i.e., that they are factually

false.” Manzer, 29 F.3d at 1084 (emphasis and internal quotation marks omitted).

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Case No. 13-3984, Rhoades v. Standard Parking Corp.

       Standard Parking’s customer service policy is set forth in its Employee Handbook:


       Your conduct, reflecting the guidelines below, is the most visible and important
       measure that the public has in evaluating our performance. Your attention to each
       point is, therefore, extremely important. Violations of these guidelines may result
       in disciplinary action up to and including discharge.
       ....
       Customers expect and deserve to be treated with respect at all times. Courteous
       conduct with customers is essential. Under no circumstances are you
       permitted to argue with a customer, even if you know you are correct. Use of
       profanity to a customer is strictly forbidden. Regardless of the circumstances,
       any lack of courtesy on your part may result in discharge.
       ....
       Examples of offenses that warrant disciplinary action up to and including
       immediate suspension and/or discharge include, but are not limited to the
       following:
       ....
       Being discourteous to customers, swearing or use of abusive or obscene language
       with, or within proximity of customers.


PID 135, 139, 145/2007 Employee Handbook for Hourly Employees (emphasis added).

Rhoades acknowledged on deposition that he knew “from day one” of his employment that

Standard Parking’s policy was that an employee’s lack of courtesy to a customer could result in

discharge. PID 576.


       Appended to Rhoades’s complaint was the sworn affidavit of Madora Funderburk, a

Standard Parking auditor/bookkeeper who witnessed the exchange that led to Rhoades’s

discharge. Funderburk’s affidavit stated that she had supervised Rhoades for years, that he was

always a good employee and never had trouble with customers or co-workers, and that she often

received good reports from customers about Rhoades’s excellent customer service. PID 16.

Funderburk’s affidavit summarized the May 7, 2010 incident at the Hermit Club lot:

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Case No. 13-3984, Rhoades v. Standard Parking Corp.

       On May 7, 2010, Carl [Rhoades] and I were each responsible for one-half of the
       parking lot at 1600 Chester Avenue. At around 9:30-10:00 AM, the customer
       who complained about Carl, a monthly fee customer, pulled into my half of the
       lot. When he pulled in, I told him the lot was full and asked if he would use the
       neighboring garage that is also owned by Standard Parking. This is a standard
       practice when the parking lot was full. The customer then told me that the garage
       was full.
       So, I asked Carl [Rhoades] to radio Cheryl Yarlettes [sic], another Standard
       Parking employee, who worked at the parking garage. He did and Cheryl said
       that the garage was not full. The customer said he would go to the garage and
       began pulling out of the lot. At that time, Carl noticed a second customer leaving
       the lot. So, Carl began driving another vehicle in to the newly vacant parking
       space. When the first customer saw the open space, he immediately pulled his car
       into it, even though he knew that Carl was in the process of parking another car
       into that same space.
       Carl got out of his car and told the customer that he was trying to park the car in
       to that space. The customer refused to move and said, “I am a monthly parker and
       I paid for parking.” Carl said, “OK. I’ll remember that.” The customer replied,
       “You do that.” I was standing right there and there was no profanity or raised
       voices used by either Carl or the customer. I apologized to the customer and he
       said “That’s OK, no problem.” That was the end of the incident.
PID 16-17.
       Rhoades’s testimony on deposition was in accord with Funderburk’s account.            He

testified that the Hermit Club lot was full to capacity on May 7, 2010, with cars double-parked.

Rhoades testified that Brian Hrivnak pulled into the vacated space before Rhoades could,

disregarding Rhoades’s taps on the horn. PID 238, 311, 327-30. Rhoades and Funderburk then

approached Hrivnak and asked him to park in the Playhouse Square Garage. Hrivnak said “no,”

and “I pay to park in this lot.” Rhoades explained that Hrivnak needed to move his car, just for

that day, because too many cars were double parked. Hrivnak refused. At that point, Rhoades

said to Hrivnak, “I’ll remember that.” PID 242, 573-74, 327-30.


       Hrivnak testified on deposition that when he pulled into the Hermit Club lot and parked,

Rhoades told him he could not park there and to park in the nearby garage, that they “had a few

words,” that Rhoades swore at him, slammed his hand on Hrivnak’s car, and said to Hrivnak,

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Case No. 13-3984, Rhoades v. Standard Parking Corp.

“I’ll remember that.” Hrivnak responded by saying “you do that.” PID 291. Hrivnak testified

that he felt threatened by Rhoades, PID 277-78, 288-89, 291, and that he walked over to the

office of John Hemsath, Director of Theater Operations for the Playhouse Square Foundation and

Standard Parking’s primary contact there. Hemsath was not there, but about an hour later

Hrivnak and Hemsath walked over to the garage to talk to Standard Parking’s Facility Manager

Cheryl Yarletts about the exchange. PID 289-90, 433. Hrivnak testified that Hemsath told

Yarletts that he (Hemsath) wanted Rhoades “out of there.” PID 292.


       Yarletts, Rhoades’s direct supervisor, testified that Hemsath and Hrivnak lodged a

complaint with her on the afternoon of May 7, 2010. Yarletts testified that Hrivnak “said that

Carl [Rhoades] had argued with him, swore at him. And then John [Hemsath] stated he did not

want Carl there – to work there anymore. And I said I would take care of it.” PID 264-65.

Yarletts testified “If a client doesn’t want an employee, I mean I can’t keep him there.” PID 267.

Yarletts testified that she relayed the complaint to Standard Parking’s Senior Manager, Matthew

Neuman. PID 271, 432.


       Neuman testified on deposition that Facility Manager Yarletts called him on the day in

question and reported that John Hemsath and Brian Hrivnak had complained to her regarding “an

altercation between Brian and Carl on the Hermit Club Lot.” PID 432. Yarletts told Neuman

that Hemsath and Hrivnak “were very angry, very upset.” PID 432. Neuman testified that he

called Hemsath soon after and asked him to explain what happened. Hemsath said “that there

was a dispute over a parking space and that Carl put his hand on Brian’s car, was very loud and

aggressive, used quite a bit of profanity and was very threatening in nature, and this was not the

first incident or report they’ve had regarding Carl at the Hermit Club Lot and he wanted him

gone immediately.” PID 435. Neuman testified that “he’s our client and we have a valuable

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Case No. 13-3984, Rhoades v. Standard Parking Corp.

contract with them [the Playhouse Square Foundation] and we have no reason to doubt what the

client tells us.” PID 436. After conferring with corporate headquarters in Chicago, Neuman

terminated Rhoades’s employment on May 10, 2010. PID 438. Neuman testified that he did not

speak directly to Madora Funderburk about the incident, but that Yarletts did on several

occasions. PID 439-40. When asked why Rhoades “was terminated as opposed to being moved

to another lot,” Neuman responded:


       Based on the aggressiveness, the vulgarity and the placing the hands on the car,
       basically just based on the severity of his outburst and approach to the customer
       of a threatening nature, me and [Chicago Human Resources] agreed that a
       termination was warranted . . .” PID 441.
When asked why he did not get Rhoades’s side of the story before terminating his employment,

Neuman responded:


       His side of the story is really not relevant. If the client says that . . . one of our
       employees treated a customer poorly, then we’re gonna act on it. We’re in the
       customer service business.
PID 444, 447.


                                                1.

       Rhoades argues that he and Funderburk, two of the three witnesses to the exchange at

issue, testified that Rhoades’s conduct did not violate company policy and that this alone

demonstrates the existence of a genuine issue of material fact that Rhoades did not argue with

Hrivnak, was not discourteous, and did not violate company policy.             Rhoades Br. at 20.

Rhoades’s version of the facts is that he politely tapped on the horn several times to get

Hrivnak’s attention before Hrivnak pulled his car into the open parking space; that once Hrivnak

pulled in, Rhoades approached Hrivnak and nicely asked him three times to park in the garage;




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Case No. 13-3984, Rhoades v. Standard Parking Corp.

that Hrivnak refused and that Rhoades then said to Hrivnak, quietly and dejectedly, “I’ll

remember that.” See Pl.’s Br. at 16-19.


       We agree with the following observations of the district court:


       The employee handbook, which Plaintiff readily admits receiving, states that
       employees are not permitted to argue with customers and any lack of courtesy
       may result in discharge. . . . In addition to honking his horn at him, Plaintiff’s
       deposition shows he asked Hrivnak to move three times, each one followed by a
       “no.” (Rhoades Dep. at 120). Regardless of whether there was any yelling,
       swearing, or slapping the hood of a customer’s car, there is enough other evidence
       to show that Plaintiff violated the company policy of being courteous and
       refraining from arguing with a customer. Defendant’s decision was based on
       facts.
PID 641. The district court properly concluded that Standard Parking’s proffered reasons for

discharging him had a basis in fact.


B. Whether Standard Parking’s proffered reasons for terminating Rhoades’s
employment were sufficient to warrant his termination


       Rhoades also argues that he presented sufficient evidence of pretext to survive summary

judgment under the third prong of the pretext test, i.e., that Standard Parking’s proffered reasons

for discharging him were insufficient to motivate the discharge.

       To establish the insufficiency of Standard Parking’s proffered reasons, Rhoades is

required to show by a preponderance of the evidence that “other employees, particularly

employees not in the protected class, were not fired even though they were engaged in

substantially identical conduct to that which the employer contends motivated its discharge of

[Rhoades].” Manzer, 29 F.3d at 1084.




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Case No. 13-3984, Rhoades v. Standard Parking Corp.

       The district court concluded that Rhoades did not make the required showing, in part

because none of the comparable employees Rhoades pointed to had been the subject of a client’s

demand for discharge:


       While Plaintiff points to other employees who violated various policies of
       Standard Parking, including being argumentative with customers, none of those
       involved an apparent client demand for the removal of that employee. See
       Funderburk Aff. ¶ 7 and 20. While there is no direct testimony from Hemsath,
       the client’s liaison who allegedly demanded Plaintiff’s removal, there is plenty of
       evidence to support the notion that multiple people involved in the decision to
       terminate Rhoades were under the impression that a client had demanded the
       removal of Plaintiff. See Hrivnak Dep. 68-69, 74-76; Radovan [Yarletts] Dep. 41.
       “As long as an employer has an honest belief in its proffered nondiscriminatory
       reason for discharging an employee, the employee cannot establish that reason
       was pretextual simply because it is ultimately shown to be incorrect.”
PID 641–42.


                                               1.

       Rhoades argues that since Standard Parking offered only the testimony of its employees

to prove that Hemsath demanded Rhoades’s discharge, that testimony is inadmissible hearsay

and there thus was a genuine issue of material fact as to whether any Standard Parking client

demanded Rhoades’s termination. Rhoades Br. at 21-22.


       A court cannot rely on unsworn inadmissible hearsay when ruling on a motion for

summary judgment. Hoover v. Walsh, 682 F.3d 481, 491 n.34 (6th Cir. 2012). But, as the district

court found in the instant case, Standard Parking did not offer Hemsath’s demand that he wanted

Rhoades gone immediately for its truth, but rather, to show that several Standard Parking

managers involved in the decision to discharge Rhoades were under the impression that Hemsath

demanded Rhoades’s discharge. PID 641. A statement that is not offered to prove the truth of

the matter asserted but offered to show its effect on the listener is not hearsay. See Biegas v.


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Case No. 13-3984, Rhoades v. Standard Parking Corp.

Quickway Carriers, Inc., 573 F.3d 365, 379 (6th Cir. 2009). All but one of the cases Rhoades

relies on are distinguishable, since they involve statements offered for the truth of the matter

asserted. See e.g., Owhor v. St. John Health-Providence Hosp., 503 F. App’x 307, 313 (6th Cir.

2012) (out of court third-party statement constituted inadmissible hearsay because it was offered

to prove the truth of the matter asserted; that the defendant defamed the plaintiff); Ford v.

Securitas Sec. Servs. USA, Inc., 338 F. App’x 483, 487—88 (6th Cir. 2009) (district court

improperly accepted Lawson’s statement, offered through Durkee’s testimony, for its truth);

Quinn-Hunt v. Bennett Enters., Inc., 211 F. App’x 452, 458 (6th Cir. 2006) (the plaintiff’s

allegation that a hotel guest told her that another employee stole cash from their employer and

was suspended is inadmissible hearsay, as it was offered for its truth). At argument Rhoades also

relied on Shazor v. Professional Transit Management, Ltd., __ F.3d __, No. 13-3253, 2014 WL

627406 (Feb. 19, 2014) (reversing grant of summary judgment to the defendant employer on the

basis that there was a material issue of fact whether the employer’s proffered reason for the

plaintiff’s discharge, that she lied to Board members, was pretextual). But Shazor also involved

statements offered for their truth and is thus inapposite. 2014 WL 627406, at *10.2


       In the lone case Rhoades cites that did not involve a statement offered for its truth,

Michigan First Credit Union v. Cumis Insurance Socitey, Inc., 641 F.3d 240 (6th Cir. 2011), this


2
   Rhoades also relies on Shazor as supporting his argument that Standard Parking insufficiently
investigated his purported misconduct. The employer in Shazor investigated the plaintiff’s
purported misconduct by speaking to one person. This court held that one conversation did not
establish sufficient particularized facts about the truth behind the plaintiff’s statements and thus
the defendants failed to establish a foundation for the honest belief doctrine to apply. Id. at *11.
Shazor is clearly distinguishable from the instant case. Here, Rhoades’s direct supervisor,
Cheryl Yarletts, testified that Hemsath and Hrivnak met with her and complained that Rhoades
had argued and sworn at Hrivnak. Yarletts testified that at that meeting, Hemsath stated to her
that he did not want Rhoades to work there anymore. Senior Manager Neuman testified that
after hearing Yarletts’ account, he called Hemsath to hear Hemsath’s complaint and that
Hemsath told him he wanted Rhoades gone immediately.
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Case No. 13-3984, Rhoades v. Standard Parking Corp.

court held that a command did not constitute hearsay: “the challenged statement was made by

Yarber, who testified that Lewis instructed him to remove a particular indirect loan from the

“exceptions” section of his October 2003 audit report. This statement is not hearsay because it is

a command, a verbal act without truth value.” 641 F.3d at 251. We fail to see how this case

benefits Rhoades. In fact, it helps demonstrate that the statement was also admissible to show

that the request occurred. See United States v. Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir.

2004). The issue here is whether Hemsath demanded that Rhoades be discharged. Various

persons testified that he did and Rhoades presented no evidence to the contrary.


                                                2.

       In support of his argument that the proffered reasons for discharge were insufficient,

Rhoades also contends that the district court erred by applying the honest belief rule to the third

pretext prong.3 This argument is unavailing.


       The “honest belief” rule, as it is called, comes in at the pretext stage and places an
       additional evidentiary burden on Plaintiffs. See, e.g., Braithwaite v. Timken Co.,
       258 F.3d 488, 494 (6th Cir. 2001). This circuit follows a modified form of the
       rule, asking whether the defendant “made a reasonably informed and considered
       decision before taking an adverse ... action.” Smith v. Chrysler, 155 F.3d 799, 807
       (6th Cir. 1998). Where the defendant “‘made an error too obvious to be
       unintentional,’” a fact-finder may infer that “‘it had an unlawful motive for doing
       so.’” Id. (quoting Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C.
       Cir. 1996)).
A.C. ex rel. J.C. v. Shelby County Bd. of Educ., 711 F.3d 687, 705 (6th Cir. 2013).
       Rhoades cites an unpublished district court opinion, Gurne v. Mich. Bell Tel. Co., No. 10-

14666, 2011 WL 5553817 (E.D. Mich. Nov. 15, 2011), for its interpretation of a footnote in

Joostberns v. United Parcel Servs., Inc., 166 F. App’x 783, 794 n.5 (6th Cir. 2006), as precluding

3
  Rhoades did not waive or forfeit this argument because the issue did not arise until the district
issued its opinion. Standard Parking did not argue below that the honest belief rule applied to the
third prong, nor did the district court discuss this issue before issuing its decision.
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Case No. 13-3984, Rhoades v. Standard Parking Corp.

an employer from invoking the honest belief rule when an employee seeks to establish pretext

other than under the first pretext prong:


       If the plaintiff uses the first method [of establishing pretext], which “is essentially
       an attack on the credibility of the employer’s proffered reason,” the “honest
       belief” rule may be invoked. [Joostberns v. United Parcel Servs., Inc., 166 F.
       App’x 783,] 791. It may not be invoked if plaintiff uses the other two methods.
       Id. at 794, n.5.
The footnote in Joostberns stated “[t]he honest belief rule would not prevent Plaintiff from

establishing pretext through methods other than the falsity of the reason offered.”


       Assuming that the scant nonbinding authority Rhoades relies on is correct, any error was

harmless, because the district court correctly determined that Rhoades failed to show by a

preponderance of the evidence that other employees were not discharged even though they

engaged in substantially identical conduct to his. See Manzer, 29 F.3d at 1084. Excluding the

honest belief rule from use in the third prong would only matter if Hemsath’s statement was

inadmissible hearsay. It is not. The statement is admissible as evidence of the request and the

request differentiates Rhoades’s circumstances from other employees’ circumstances.

       None of the three younger employees Rhoades points to, Mitri Ndoni, Rube Richards,

and Latasha Jones, were the subject of a client complaint and a client’s demand that he or she be

removed.


       Moreover, Ndoni and Richards were 65 years old and 68 years old at the time Rhoades

was discharged at age 71 in May 2010, and thus were in the same protected class as Rhoades.

This court has held that “in the absence of direct evidence that the employer considered age to be

significant, an age difference of six years or less between an employee and a replacement is not

significant.” Grosjean v. First Energy Corp., 349 F.3d 332, 340 (6th Cir. 2003). Rhoades

presented no direct evidence that Standard Parking considered age to be significant.
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Case No. 13-3984, Rhoades v. Standard Parking Corp.

       In any event, even if Ndoni yelled at a customer and was not discharged, but rather, was

transferred to a different parking lot, Ndoni, unlike Rhoades who was an at-will employee, was a

member of the Teamsters’ Union and subject to a grievance procedure that requires a showing of

just cause to support termination. PID 621. Matthew Neuman’s affidavit submitted below stated

regarding Latasha Jones that, to his knowledge, Standard Parking never concluded that she was

guilty of theft, and regarding Rube Richards that no client demanded that Richards be removed

from any lot he worked for Standard Parking.         PID 621.   Rhoades presented no contrary

evidence, and thus failed to demonstrate that younger employees were not fired even though they

engaged in substantially identical conduct to his.


       For these reasons, we agree with the district court that Rhoades did not present sufficient

evidence of pretext to survive summary judgment, and AFFIRM the grant of summary judgment

to Standard Parking.




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