F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 14 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
JOSEPH P. AMRO,
Plaintiff - Appellant,
v. No. 99-3281
THE BOEING COMPANY,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. CV-98-2257-KHV)
Albert F. Kuhl, Law Offices of Albert F. Kuhl, Lenexa, Kansas (Bobbie R.
Bailey, The Bailey Law Firm, Kansas City, Missouri, with him on the briefs), for
Appellant.
Timothy B. Mustaine, Foulston & Siefkin, L.L.P., Wichita, Kansas, for Appellee.
Before KELLY , ANDERSON , and HENRY , Circuit Judges.
ANDERSON , Circuit Judge.
Joseph Amro, who is of Lebanese ancestry, brought this action against his
employer, The Boeing Company, alleging discrimination and retaliation in
violation of Title VII and 42 U.S.C. § 1981 in connection with the denial of
various employment opportunities. The district court granted summary judgment
to Boeing. Mr. Amro appeals and we affirm.
BACKGROUND
Mr. Amro, who is an engineer, was hired by Boeing in 1984. By 1999, he
was a senior engineer, Grade 12, DS-4 Skill Code. In April 1993, Mr. Amro was
seriously injured in a workplace accident which left him with various physical
impairments, including vision problems which made it difficult for him to focus
on the CATIA computer screen he used on the job. 1
The accident resulted in
various permanent medical restrictions on his work environment.
In March 1996, Mr. Amro sued Boeing, alleging that Boeing had
discriminated against him for years because of his Lebanese ancestry, race, color
and disability. The district court granted summary judgment to Boeing, and this
court affirmed. Amro v. Boeing Co. , 951 F. Supp. 1533 (D. Kan. 1997), aff’d ,
No. 97-3049, 1998 WL 380510 (10th Cir. July 8, 1998) (unpublished) ( Amro I ).
Of particular relevance to this action, the district court in Amro I held that Mr.
Amro failed to establish a prima facie case of discrimination with respect to Mr.
CATIA stands for “computer-aided three-dimensional interactive
1
application.” It is a proprietary computer software program.
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Amro’s ranking among his fellow engineers. The present lawsuit involves
incidents occurring after March 1996.
I. Boeing’s salary adjustment process
Since 1989, professional engineers at the Boeing Wichita plant where Mr.
Amro worked have been subject to a series of collective bargaining agreements.
The Collective Bargaining Agreement (“CBA”) in effect at the time relevant to
this lawsuit was between Boeing and the Seattle Professional Engineering
Employees’ Association (“SPEEA”). The district court described its operation as
follows:
It provides that on an annual basis, Boeing will selectively increase
the salaries of eligible employees in the bargaining unit. For each
year’s salary exercise, Boeing establishes a fund by multiplying the
sum of the eligible employees’ salaries by a percentage set forth in
the CBA. The CBA set those percentages at 4.0 percent for 1997,
4.5 percent for 1998, and 5.0 percent for 1999.
Amro v. Boeing Co. , 65 F. Supp. 2d 1170, 1178 (D. Kan. 1999). Boeing
determined which individual engineers received raises and determined the amount
of those raises. The district court described that process as follows:
Eligibility depends on the employee’s placement on Boeing’s final
salary totems. Salary totems are compiled through the salary
adjustment process, numerous meetings of working level supervisors
and managers, and meetings of the larger totem committee. As part
of the process Boeing breaks the large group of DS-4 engineers into
smaller “peer” groups which are composed of engineers who have
similar experiences, acquired skills, capabilities and B.S. Equivalent
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years. B.S. Equivalent years are generally defined as the number of
years of engineering-related experience which the employee has
acquired since receiving a B.S. degree.
Id. Within each particular peer group, Boeing compared engineers using five
criteria: accumulation of responsibility; accumulation of skills; leadership;
quality and quantity of work; and attitude.
The salary exercise would begin with working-level meetings among the
immediate supervisors of a particular group of engineers. The supervisors used
the five stated criteria to rank engineers within their peer group. The working
level group then selected a “focal” or “representative to attend totem committee
meetings at which all engineers on the DS-4 totem are integrated into a single
totem and ranked by relative performance.” Id. at 1179. Through a lengthy and
multi-dimensional process of meetings and discussions, “the focals and
representatives reach consensus on final target salaries and actual salary
increases.” Id. at 1180. An engineer’s final target salary for any given year
would be the starting point for the following year’s salary exercise. See Vopat
Dep. at 154, Appellee’s App. at 178.
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II. Mr. Amro’s allegations
With that background in mind, we turn to the specifics of Mr. Amro’s
complaints about his own treatment by Boeing. Mr. Amro alleged in district court
that his annual salary adjustments in 1997, 1998 and 1999 were insufficient, that
he was denied a “special skills” targeted pay raise in 1997, that he was harassed
by his supervisor, and that he was denied a lateral transfer for several months. He
asserts that Boeing’s actions were discriminatory and in retaliation for his prior
lawsuit. In this appeal, he has abandoned his claims based upon his 1998 and
1999 salary adjustments, and he has abandoned his claims based upon the
Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213. He continues to
argue, however, that he suffered discrimination in connection with his 1997 salary
adjustment, that he was wrongly denied the special skills raise, that his supervisor
harassed him, and that his transfer was delayed.
III. Mr. Amro’s 1997 salary adjustment
The working-level group that first considered Mr. Amro’s 1997 salary
adjustment was the Wide-Body responsibility group. Randy Henley was Mr.
Amro’s direct supervisor when the 1997 DS-4 salary review process commenced.
Mr. Amro and Kevin Smith, a non-minority engineer, were the only DS-4
engineers under Mr. Henley’s direct supervision. Mr. Henley evaluated the two
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using the five stated criteria. Mr. Henley concluded that Mr. Smith and Mr. Amro
were equivalent in accumulation of skills and in attitude. He ranked Mr. Smith
higher in leadership and accumulation of responsibility. Mr. Henley testified that
Mr. Amro put out a lot of work and that his work quality was good, with probably
no more returns than Mr. Smith. “Based on the five criteria, Henley judged Smith
a better performer because he had lead responsibilities and more duties than [Mr.
Amro].” Amro , 65 F. Supp. 2d at 1180.
The result of the 1997 salary exercise was a $1700 raise for Mr. Amro,
which amounted to a 4.2% increase, slightly higher than the 4.0% required by the
CBA to be devoted to raises. Of the 303 DS-4 engineers at Boeing’s Wichita
plant in October 1997, 92%, including Kevin Smith, received salary increases
greater than Mr. Amro’s. As the district court found:
[t]he average salary adjustment was 10.3 percent for engineers in the
targeted low experience group and 6.3 percent for the entire totem
group. Henley was aware of two or three other engineers on the
DS-4 totem who had the same number of experience years as [Mr.
Amro]. He considered [Mr. Amro’s] position at the bottom of the
ranking for his peer group to be appropriate.
Id. at 1180.
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IV. Special skills targeted raise
Boeing was experiencing a high rate of attrition among its employees with
what Boeing identified as special or critical skills. Other companies were luring
those employees away with higher salaries. As a result, Boeing began a program
of awarding targeted and annual raises to certain key individuals—engineers with
eight years or less experience and engineers with certain critical skills that Boeing
did not want to lose. Of the 383 engineers on the DS-4 totem on March 4, 1997,
only 34 received supplemental targeted or out-of-sequence raises in 1997. Mr.
Amro was not among them.
V. Mr. Amro’s harassment allegations
Mr. Amro met with Mr. Henley and Jerry Kreutzer, his second-level
manager, on April 4, 1997, and told them he thought they were discriminating
against him. Mr. Henley told him that his medical restrictions prevented him
from progressing at Boeing. Mr. Kreutzer told Mr. Amro that his medical
restrictions “were like a ‘ball and chain’ on [his] leg and that until [his]
restrictions concerning CATIA use were removed nothing would change about
[his] merit increases, [his] retention rankings or [his] B-totem ranking.” Amro
Aff. ¶ 31, Appellant’s App. Vol. II at 167.
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Mr. Amro alleges that Mr. Henley then angrily left, stating that he would
not take this “shit” anymore. Amro Aff. ¶ 32, id. Mr. Kreutzer called Mr. Amro
a “jackass” and told him he was lucky Boeing had a lot of work at that time.
Amro Aff. ¶ 33, id. Mr. Amro further avers that, following the meeting, Mr.
Henley said to him, “You fucking foreigner, you’re lucky to have a job.” Amro
Aff. ¶ 34, id. He also alleges that Mr. Henley placed his hands on Mr. Amro’s
neck and patted him down, asking whether he had a tape recorder. Finally, Mr.
Amro asserts that a few days after that meeting, Mr. Henley threw drawing papers
at Mr. Amro, causing a paper cut on his neck.
Mr. Amro also alleges that on another occasion Mr. Henley demanded to
search through a brown folder Mr. Amro was carrying, and the subsequent search
was humiliating. On one other occasion, when Mr. Amro did not respond to Mr.
Henley, Mr. Henley said, “Damn it. Are you deaf? Turn it up grandpa.” Amro
Dep. at 87, Appellee’s App. at 15. On one final occasion, while Mr. Henley and
Mr. Amro were on the shop floor, Mr. Henley said, “Come on with me. You’re
getting too old,” when Mr. Amro lagged behind. Amro Dep. at 92, id. at 17.
VI. Mr. Amro’s transfer allegations
Mr. Amro was notified on March 19, 1997, that his ranking on the B-Totem
was 313 out of 383 engineers. At the April 4, 1997, meeting with Mr. Henley and
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Mr. Kreutzer, Mr. Amro expressed his unhappiness with his ranking and his raise.
As indicated above, Mr. Henley and Mr. Kreutzer told Mr. Amro that his medical
restrictions were impeding his progress at Boeing. Mr. Amro then agreed to tell
Mr. Henley and Mr. Kreutzer if he found a position to which he wanted to
transfer.
On April 14, 1997, Mr. Amro filed a grievance with the SPEEA concerning
the April 4 meeting, as well as the other encounters and incidents of alleged
harassment. Mr. Amro alleged that he was “not receiving fair consideration for
merit increases, B-totems and retention levels.” Amro Dep. at 87, id. at 15.
There was a grievance meeting, followed by Boeing’s formal response to the
grievance. No further union activity relating to the grievance occurred.
Mr. Amro alleges that he was not told until May 1997 that he needed to fill
out a Career Transfer Request before any transfer would be considered. In June
1997, he obtained a modification of his medical restrictions so that he had no
restrictions on his use of graphical computer systems, and his only restriction on
other computer use was that the screen had to be 17 inches or larger with a zoom
capability. Mr. Amro argues that, despite his completion of a Career Transfer
Request, he was not transferred to various positions for which he was qualified
and which were available, and he was, in general, given the “run around” for
several months. In October 1997, he was notified that he would be transferred
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into a new position, which he assumed in November 1997. He has continued to
work there without complaint. Mr. Amro argues the delay in completing that
transfer was deliberate and discriminatory.
DISCUSSION
We review the grant of summary judgment de novo, applying the same
standard as did the district court. See Thomas v. National Assoc. of Letter
Carriers , 225 F.3d 1149, 1154 (10th Cir. 2000). Accordingly, summary judgment
is appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In reviewing the appeal
from the grant of summary judgment against [Mr. Amro], we accept the version of
the facts most favorable to [Mr. Amro], the non-moving party.” Thomas , 225
F.3d at 1152 n.1. Further, we may affirm the district court for any reason
supported by the record. See Perry v. Woodward , 199 F.3d 1126, 1141 n.13 (10th
Cir. 1999), cert. denied , 120 S. Ct. 1964 (2000).
“A plaintiff alleging discrimination on the basis of race may prove
intentional discrimination through either direct evidence of discrimination . . . or
indirect (i.e., circumstantial) evidence of discrimination.” Kendrick v. Penske
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Transp. Servs., Inc. , 220 F.3d 1220, 1225 (10th Cir. 2000). McDonnell Douglas
Corp. v. Green , 411 U.S. 792 (1973) provides the framework for analyzing
circumstantial evidence under either § 1981 or Title VII. See Perry , 199 F.3d at
1135. Thus, under McDonnell Douglas , the plaintiff “must carry the initial
burden under the statute of establishing a prima facie case of racial
discrimination.” McDonnell Douglas , 411 U.S. at 802.
The district court granted summary judgment to Boeing on Mr. Amro’s
transfer claim with the following explanation of why Mr. Amro failed to establish
a prima facie case:
Plaintiff has identified several available positions for which he was
allegedly qualified and to which he was not hired in the summer of
1997. Except to show that none of those hired were Lebanese,
however, plaintiff has failed to present any evidence regarding the
race or national origin of the successful job applicants.
Amro , 65 F. Supp. 2d at 1185-86. The district court so held in reliance upon our
decision in Reynolds v. School Dist. 1 , 69 F.3d 1523 (10th Cir. 1995), in
which we stated as follows:
To carry the initial burden of establishing a prima facie case of race
discrimination for a failure to promote claim, the plaintiff must
typically show that he or she (1) belongs to a minority group; (2) was
qualified for the promotion; (3) was not promoted; and (4) that the
position remained open or was filled with a non-minority.
Id. at 1534.
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More recently, we have clarified the elements required to establish a prima
facie case. In Kendrick and Perry we held that “the elements of a prima facie
case are the same in hiring and discharge cases.” Kendrick , 220 F.3d at 1229
(citing Perry ). We also clarified what is required under the fourth step of the
prima facie case: the plaintiff may establish the fourth element of the prima facie
case by demonstrating that the position from which he or she was discharged or
into which he or she was not hired was filled or remained available following the
plaintiff’s discharge or failure to hire. The plaintiff is not required to show that it
was filled by someone outside the plaintiff’s protected class. 2
Mr. Amro argues the district court erred under Perry when it faulted Mr.
Amro for failing to “present any evidence regarding the race or national origin of
the successful job applicants [for positions to which Mr. Amro wanted to be
transferred].” Amro , 65 F. Supp. 2d at 1186. While the district court may have
misstated the fourth element of the prima facie case in a typical discharge or
failure to hire case, by suggesting that Mr. Amro had to show that the positions he
wanted were filled by non-Lebanese people, any such error does not necessarily
2
As we recently acknowledged, “[a] plaintiff alleging discrimination in
violation of Title VII can satisfy the fourth element of her prima facie case in a
number of ways.” EEOC v. Horizons/CMS Healthcare Corp., 220 F.3d 1184,
1195 n.6 (10th Cir. 2000).
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compel reversal of the district court’s grant of summary judgment to Boeing. 3
See Kendrick , 220 F.3d at 1229 (noting that although the district court erred in its
articulation of the prima facie case, “[t]he district court’s error was . . . harmless
because Kendrick made out a prima facie case under the Perry standard.”).
Mr. Amro has failed to make out a prima facie case under any articulation
of the standard. Mr. Amro alleges several types of discrimination: that he was
not transferred into positions he wanted quickly enough; that he was given an
insufficient annual pay raise in 1997; that he was denied a special pay raise in
1997; and that he was harassed on several occasions by Mr. Henley.
3
There has been some confusion in our prior cases as to the requisite
elements of the fourth step of the prima facie case. See Kendrick, 220 F.3d at
1228 (“Some confusion regarding the fourth prong of the plaintiff’s prima facie
case in a discharge situation crept into our nomenclature in later cases where,
occasionally, we would articulate the fourth prong of the prima facie case as
requiring a plaintiff to show that the replacement employee was of nonprotected
status.”).
Moreover, the prima facie case is not a rigid and inflexible doctrine. In
certain cases involving discrimination falling outside the more traditional
categories of hiring and firing, it may be modified. See id. at1227 n.6
(“Collapsing the four-part prima facie case of McDonnell Douglas into a three-
part test may occasionally be helpful when addressing discrimination claims that
either do not fall into any of the traditional categories (e.g., hiring or discharge)
or present unusual circumstances.”).
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I. Transfer
If we view his transfer claim as analogous to a failure to hire claim, Mr.
Amro was obligated to establish a prima facie case of discrimination by showing
that (1) he belongs to a protected class; (2) he sought and was qualified for a job
for which Boeing was seeking applicants; (3) despite his qualifications, he was
not transferred into that position; and (4) after his rejection, the position remained
open and Boeing continued to seek applicants from people of Mr. Amro’s
qualifications. See McDonnell Douglas , 411 U.S. at 802. Mr. Amro’s prima
facie case founders because he presents no evidence that there were specific jobs
for which he was in fact qualified, or that Boeing transferred particular engineers
with the same qualifications as Mr. Amro into positions for which he was also
qualified. 4
To the extent he argues the delay in accomplishing his transfer was
actionable discrimination, his claim fails for the simple reason that he cannot
demonstrate that the delay amounted to any adverse employment action by
Boeing. Although Mr. Amro alleges that his transfer was delayed by several
months, he did ultimately transfer to a job in which he currently apparently
Both before the district court and this court Mr. Amro has made
4
conclusory allegations about the existence of available jobs for which he was
qualified. He failed below, and the record reveals he fails here, to present any
evidence supporting those conclusory assertions.
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performs without complaint. He cites no case, and we are aware of none, which
holds that the mere delay in obtaining a desired transfer, in the absence of some
other negative or unfavorable effect from that delay, constitutes an adverse
employment action. See Galabya v. New York City Bd. of Educ. , 202 F.3d 636,
640 (2d Cir. 2000) (“The unspecified inconvenience that appellant endured
because of the relatively minor administrative miscues that occurred during the
reassignment process is not cognizable as an adverse employment action.”).
He identifies no such effect or consequence from the delay, other than that
he continued working under Mr. Henley whom he alleges harassed him. He relies
upon those unpleasant and vulgar encounters with Mr. Henley to support his claim
that he was deliberately and discriminatorily denied an earlier transfer and to
establish that he experienced an adverse employment action by being forced to
endure those encounters longer than he claims he should have. Those comments
and encounters cannot, however, overcome Mr. Amro’s failure to establish that
there were actual positions for which he was qualified and which he was denied.
Nor was Mr. Henley’s conduct itself sufficiently negative and pervasive to create
an adverse employment action. We agree with the district court that “such
treatment without more did not materially affect the terms and conditions of [Mr.
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Amro’s] employment. It was not severe or pervasive enough to be an adverse
employment action.” Amro , 65 F. Supp. 2d at 1188. 5
Moreover, Mr. Amro fails to demonstrate that his transfer took any longer
than any other transfer at Boeing or was in any way different from other lateral
transfers. In sum, Mr. Amro fails to establish a prima facie case of discrimination
in connection with his transfer.
II. 1997 pay raise
Mr. Amro also alleges his pay raise in 1997 was too low. A person alleging
a Title VII wage discrimination claim must show, as part of his prima facie
burden, that he was paid less, or given a lesser raise, than other similarly situated
non-protected class employees. See Sprague v. Thorn Americas, Inc. , 129 F.3d
1355, 1363 (10th Cir. 1997). Mr. Amro fails to do so. He asserts that his pay
raise was less than the raises received by 92% of the engineers in his
classification. However, he fails to demonstrate that there were in fact other
similarly situated engineers outside his protected class who received higher raises.
After carefully reviewing the record, we agree with the district court that
5
Mr. Amro does not appear to make an independent hostile work
environment claim based on Mr. Henley’s conduct. Rather, he points to that
conduct as supporting his claim that he experienced adverse employment action
and to demonstrate Mr. Henley’s discriminatory animus.
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“although [Mr. Amro] has identified others who allegedly are similarly situated
engineers, he has not provided any evidence of their performance, training,
education or skills. [Mr. Amro’s] own opinion that his performance is excellent
does not raise a fact question as to how his performance compares to others.”
Amro , 65 F. Supp. 2d at 1186; see also Jones v. Denver Post Corp. , 203 F.3d 748,
754 (10th Cir. 2000) (“‘It is the manager’s perception of the employee’s
performance that is relevant, not plaintiff’s subjective evaluation of his own
relative performance.’”) (quoting Furr v. Seagate Tech., Inc. , 82 F.3d 980, 988
(10th Cir. 1996)). In essence, Mr. Amro alleges “[t]he simple fact that [he] did
not receive as high a raise as [he] feels he is worth.” Murphy v. Yellow Freight
Sys., Inc. , 832 F. Supp. 1543, 1550 (N.D. Ga. 1993). That is insufficient. 6
That
insufficiency is not remedied by invoking Mr. Henley’s comments and conduct
towards Mr. Amro.
Additionally, it is clear that, in Boeing’s complex salary exercise process,
Mr. Amro’s annual salary in prior years indirectly affected his target salary in
1997. The prior decision of our court in his earlier discrimination action
established that those prior salary exercises were not discriminatory towards Mr.
As we have acknowledged before, “Title VII does not make unexplained
6
differences in treatment per se illegal nor does it make inconsistent or irrational
employment practices illegal. It prohibits only intentional discrimination based
upon an employee’s protected class characteristics.” EEOC v. Flasher Co. Inc.,
986 F.2d 1312, 1319 (10th Cir. 1992).
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Amro. Thus, Mr. Amro is unfortunately, in part, experiencing the ramifications
of his prior salary exercises, about which he was unhappy but as to which he
suffered no actionable discrimination.
III. Special skills raise
Mr. Amro also alleges discrimination in connection with his failure to
receive a targeted special skills raise in 1997. Only 34 of the 383 engineers on
the DS-4 totem received that raise. We agree with the district court that Mr.
Amro “has not produced evidence that he possessed critical skills that Boeing
wanted to maintain,” nor has he “produce[d] any evidence about how his skills
compared to the skills of the engineers who did receive the funds.” Amro , 65 F.
Supp. 2d at 1186-87.
IV. Retaliation
Mr. Amro alleges that Boeing retaliated against him for filing his law suit
in 1996 and for initiating the present law suit. “A plaintiff establishes a prima
facie case of retaliation by showing: (1) he or she engaged in protected
opposition to discrimination; (2) he or she was subject to adverse employment
action; and (3) a causal connection exists between the protected activity and the
adverse action.” Kendrick , 220 F.3d at 1234. Mr. Amro concedes that the district
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court correctly identified that prima facie case standard, but he argues the court
erred in determining that he failed to meet it. We agree with the district court
that Mr. Amro has failed to demonstrate that he experienced adverse employment
action. As indicated above, his unhappiness with his evaluations and salary raise
does not constitute adverse employment action given that he “has not shown that
his performance merits a higher ranking.” Amro , 65 F. Supp. 2d at 1187. Nor, as
also indicated above, does Mr. Henley’s conduct amount to such adverse
employment action. We accordingly affirm the district court’s conclusion that
Mr. Amro failed to establish a prima facie case of retaliation.
CONCLUSION
For the forgoing reasons, the judgment of the district court is AFFIRMED.
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