Lopez v. Brennan
Filing
21
MEMORANDUM DECISION granting 14 Motion for Summary Judgment on All Claims. Signed by Magistrate Judge Evelyn J. Furse on 9/28/2018. (jwt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
STEVE LOPEZ,
Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster
General, United States Postal Service,
Defendant.
MEMORANDUM DECISION AND
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT ON ALL
CLAIMS (ECF NO. 14)
Civil No. 2:15-cv-00595-EJF
Magistrate Judge Evelyn J. Furse
Plaintiff Steve Lopez filed the present Title VII civil rights action in August 2015.
(Compl., ECF No. 2.) Mr. Lopez asserts claims for a national origin and race based
hostile work environment and retaliation for claiming national origin or race based
discrimination against his employer, the United States Postal Service (“Postal
Service”).1 (See id.) Defendant Megan J. Brennan, Postmaster General, United States
Postal Service (“Postmaster Brennan”) now moves the Court2 for summary judgment on
all of Mr. Lopez’s claims. (Def.’s Mot. for Summ. J. on All Claims (“Mot.”), ECF No. 14.)
1
Mr. Lopez's Complaint purports to assert three causes of action against the Postal
Service. (See Compl., ECF No. 2.) In her Motion, Postmaster Brennan interprets Mr.
Lopez's Complaint as asserting two causes of action against the Postal Service—one
for hostile work environment and one for retaliation. Mr. Lopez does not dispute this
characterization in his Opposition, and the Court agrees with Postmaster Brennan that
Mr. Lopez's Complaint asserts only those two causes of action against the Postal
Service.
2
The parties consent to proceed before the undersigned Magistrate Judge in
accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (ECF No.
8.)
Mr. Lopez opposes Postmaster Brennan’s Motion for Summary Judgment but does not
dispute any of the facts set forth in her Statement of Undisputed Facts or set forth any
additional undisputed facts in support of his Opposition. (See generally Pl.’s Mem. in
Opp’n to Def.’s Mot. for Summ. J. on All Claims (“Opp’n”), ECF No. 19.)
After considering the parties’ briefing and the undisputed facts in this case, the
Court finds Mr. Lopez fails to set forth facts from which a rational jury could conclude
that the Postal Service subjected him to a hostile work environment because the alleged
actions and inactions are neither severe nor pervasive. Similarly, the Court finds Mr.
Lopez fails to set forth facts from which a rational jury could conclude that the Postal
Service retaliated against him for engaging in activity that Title VII protects because of a
lack of causal connection between the protected activity and the alleged retaliation.
Accordingly, the Court GRANTS Postmaster Brennan’s Motion for Summary Judgment.
SUMMARY JUDGMENT STANDARD
The Court grants summary judgment when the evidence shows “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “‘A fact is material if, under the governing law, it
could have an effect on the outcome of the lawsuit. A dispute over a material fact is
genuine if a rational jury could find in favor of the nonmoving party on the evidence
presented.’” Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013) (quoting E.E.O.C.
v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000) (internal
quotations omitted)).
“‘[W]here the non moving party will bear the burden of proof at trial on a
dispositive issue’ that party must ‘go beyond the pleadings’ and ‘designate specific
2
facts’ so as to ‘make a showing sufficient to establish the existence of an element
essential to that party's case’ in order to survive summary judgment.” McKnight v.
Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). Further, “in opposing a motion for summary
judgment, the non-moving party ‘cannot rest on ignorance of facts, on speculation, or on
suspicion.’” Bird v. W. Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016) (quoting
Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).
In evaluating a motion for summary judgment, the Court reviews “the facts in the
light most favorable to the nonmovant and draw[s] all reasonable inferences in the
nonmovant’s favor.” Jones v. Norton, 809 F.3d 564, 573 (10th Cir. 2015).
FACTUAL BACKGROUND
The following facts are taken from Postmaster Brennan’s Motion. (Mot. 2–7,
ECF No. 14.) Mr. Lopez does not dispute these facts or set forth any additional facts to
support his Opposition. (See Opp’n 2–12, ECF No. 19.)
Mr. Lopez worked as a city carrier for the Postal Service in the Holladay Post
Office during all times relevant to this case. (Mot., Statement of Undisputed Facts
(“Facts”) ¶ 1, ECF No. 14; Ex. A to Mot., Equal Emp’t Opportunity Comm’n (“EEOC”)
Hr’g Tr. 16:12–17:2, ECF No. 14-2.) Mr. Lopez’s national origin is Mexico. (Mot., Facts
¶ 2, ECF No. 14; Ex. B to Mot., Lopez EEO Aff., USPS000097, ECF No. 14-3.) Mr.
Lopez has a history of filing Equal Employment Opportunity (“EEO”) complaints dating
back to the 1980s. (Mot., Facts ¶ 3, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 117:25–
118:9, ECF No. 14-2.)
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Heidi Clark directly supervised Mr. Lopez during the relevant period. (Mot., Facts
¶ 4, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 17:7–14, ECF No. 14-2; Ex. C to Mot.,
Clark EEO Aff., USPS000184, ECF No. 14-4.) Karen Higgs served as station manager
during the relevant period . (Mot., Facts ¶ 4, ECF No. 14; Ex. D to Mot., Higgs EEO
Aff., USPS000153, ECF No. 14-5; Ex. A to Mot., EEOC Hr’g Tr. 302:20–304:21, ECF
No. 14-2.) Eric Fields, one of Mr. Lopez’s co-workers, worked as a clerk at the Holladay
Post Office and union steward during the time relevant to this case. (Mot., Facts ¶ 5,
ECF No. 14; Ex. E to Mot., Fields EEO Aff., USPS000241, ECF No. 14-6; Ex. A to Mot.,
EEOC Hr’g Tr. 98:2–7, 204:16–205:2, ECF No. 14-2.) Mr. Fields is of German-Irish
descent. (Mot., Facts ¶ 6, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 203:7–11, ECF
No. 14-2.)
Ms. Clark, Ms. Higgs, and Mr. Fields knew Mr. Lopez’s race and national origin
during the relevant time. (Mot., Facts ¶ 7, ECF No. 14; Ex. C to Mot., Clark EEO Aff.,
USPS000183, ECF No. 14-4; Ex. D to Mot., Higgs EEO Aff., USPS000152, ECF No.
14-5; Ex. A to Mot., EEOC Hr’g Tr. 254:6–13, ECF No. 14-2.) Ms. Clark and Ms. Higgs
also knew of Mr. Lopez’s prior EEO activity during the relevant period. (Mot., Facts ¶ 8,
ECF No. 14; Ex. D to Mot., Higgs EEO Aff., USPS000152, ECF No. 14-5; Ex. A to Mot.,
EEOC Hr’g Tr. 368:23–369:1, ECF No. 14-2.)
A. Lori Sugar Promotion
At various times, Mr. Lopez told Ms. Higgs he sought a promotion outside of the
Holladay Post Office. (Mot., Facts ¶ 9, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr.
316:11-16, 344:16–345:4, ECF No. 14-2.) In December 2010, Ms. Higgs promoted
another Holladay Post Office employee, Lori Sugar, to a temporary supervisor position
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known as 204(b). (Mot., Facts ¶ 10, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 315:17–
316:10, ECF No. 14-2.) Ms. Higgs did not offer Mr. Lopez that position, and he did not
compete for it. (Mot., Facts ¶ 11, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 63:20–64:1,
316:17–22, ECF No. 14-2.)
In January 2011, Mr. Lopez called Salt Lake City Postmaster Charley Wright to
complain about Ms. Sugar’s promotion, citing her lack of education and prior criminal
record. (Mot., Facts ¶ 12, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 21:2–13, 31:1–23,
ECF No. 14-2; Ex. F to Mot., Wright EEO Aff., USPS000202, USPS000211, ECF No.
14-7.) Mr. Lopez claims he told Mr. Wright that he is more qualified than Ms. Sugar, but
she got promoted because she is white and friends with Ms. Higgs. (Mot., Facts ¶ 12,
ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 21:2–13, 31:1–23, ECF No. 14-2.) Mr.
Wright shared Mr. Lopez’s concerns about Ms. Sugar’s promotion with Ms. Higgs but
did not mention anything to Ms. Higgs about national origin discrimination or retaliation.
(Mot., Facts ¶ 13, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 326:18–327:20, ECF No.
14-2.) Mr. Lopez also voiced his concerns about cronyism and favoritism to Ms. Sugar.
(Mot., Facts ¶ 14, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 22:21–23:16, ECF No. 142.)
B. Mr. Lopez and Mr. Fields Interactions
Until approximately 2011, Mr. Lopez and Mr. Fields remained cordial with each
other. (Mot., Facts ¶ 15, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 208:7–209:11, ECF
No. 14-2.) After Ms. Sugar’s promotion, Mr. Lopez and Mr. Fields began to have a
negative relationship. (Mot., Facts ¶ 16, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr.
23:10–24:1, ECF No. 14-2.) Mr. Fields sang, whistled, and changed song lyrics to
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reference those around him, which annoyed other coworkers including Mr. Lopez.
(Mot., Facts ¶¶ 17, 18, ECF No. 14; Ex. B to Mot., Lopez EEO Aff., USPS000125, ECF
No. 14-3; Ex. D to Mot., Higgs EEO Aff., USPS000157, ECF No. 14–5; Ex. A to Mot.,
EEOC Hr’g Tr. 207:4–13, ECF No. 14-2.)
At some point after Ms. Sugar’s promotion, Mr. Lopez “crossed crafts” by
handling and sorting certain mail that under union rules only clerks could handle. (Mot.,
Facts ¶ 19, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 216:4–217:15, ECF No. 14-2.)
Mr. Fields asked Mr. Lopez to stop, threatened to file grievances, and informed
management about the situation. (Id.) Management prohibited Mr. Lopez from sorting
this type of mail. (Mot., Facts ¶ 20, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 370:8–
371:6, ECF No. 14-2.) On one occasion, when Mr. Lopez suggested he could help with
the sorting of such mail, Mr. Fields, after an exchange with Mr. Lopez, told him “I’m
going to take you out in the parking lot, kick your ass, fuck you in the ass and turn it into
a man pussy.” (Mot., Facts ¶ 21, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 32:25–34:9,
ECF No. 14-2; Ex. B to Mot., Lopez EEO Aff., USPS000125, ECF No. 14-3.) Later,
when Mr. Lopez accused Mr. Fields of stealing mail, he called Mr. Lopez a “lying piece
of shit.” (Mot, Facts ¶ 22, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 220:22–221:23,
ECF No. 14-2.)
Mr. Fields also called Mr. Lopez a “red-headed Mexican” and “red-headed
stepchild.” (Mot., Facts ¶ 23, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 35:25–36:15,
ECF No. 14-2.) Mr. Lopez admits he jokingly and publicly referred to himself at work as
a “red-headed Mexican.” (Mot., Facts ¶ 24, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr.
88:10–90:1, ECF No. 14-2.) In addition, Mr. Fields once asked Lopez, “Who’s your
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daddy?” and later said to Mr. Lopez “I’m your daddy,” which Mr. Lopez interpreted as
racially derogatory. (Mot., Facts ¶ 25, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 36:11–
37:11, ECF No. 14-2.) In response, Mr. Lopez told Mr. Fields “you better shut your
fucking mouth, I don’t need your ghetto jokes, keep them on the street.” (Mot., Facts ¶
26, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 36:11–37:11, ECF No. 14-2.)
Both Ms. Clark and Ms. Higgs knew about the negative relationship between Mr.
Fields and Mr. Lopez, and both Mr. Fields and Mr. Lopez informed management the
other had harassed him. (Mot., Facts ¶¶ 27, 28, ECF No. 14; Ex. C to Mot., Clark EEO
Aff., USPS000184, ECF No. 14-4; Ex. D to Mot., Higgs EEO Aff., USPS000153,
USPS000156, ECF No. 14-5.) Ms. Higgs investigated these reports and consulted the
Threat Assessment Team. (Mot., Facts ¶ 29, ECF No. 14; Ex. D to Mot., Higgs EEO
Aff., USPS000153, ECF No. 14-5; Ex. A to Mot., EEOC Hr’g Tr. 341:20–342:12, ECF
No. 14-2.) Given the lack of witnesses, Ms. Higgs concluded that the complaints were
“he said/she said.” (Mot., Facts ¶ 30, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 318:6–
19, 339:4–341:7, ECF No. 14-2.) Ms. Higgs gave both Mr. Fields and Mr. Lopez
instructions, including not to speak to each other, or come near each other, and to focus
on their jobs. (Mot., Facts ¶ 31, ECF No. 14; Ex. D to Mot., Higgs EEO Aff.,
USPS000153, USPS000156, ECF No. 14-5; Ex. A to Mot., EEOC Hr’g Tr. 318:6–19,
341:4–14, ECF No. 14-2.) Beyond Ms. Higgs’s instructions, neither Mr. Fields nor Mr.
Lopez received discipline for their behavior toward each other. (Mot., Facts ¶ 32, ECF
No. 14; Ex. A to Mot., EEOC Hr’g Tr. 319:9–13, ECF No. 14-2; Ex. D to Mot., Higgs
EEO Aff., USPS000156, ECF No. 14-5.)
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C. Door Policy3
At the Holladay Post Office, a Dutch door, also referred to as the “front door,”
leads from the customer lobby area to the area where the clerks, including Mr. Fields,
work. (Mot., Facts ¶¶ 33, 34, ECF No. 14; Ex. F to Mot., Wright EEO Aff.,
USPS000207–08, ECF No. 14-7; Ex. A to Mot., EEOC Hr’g Tr. 25:5–10, ECF No. 14-2;
Ex. D to Mot., Higgs EEO Aff., USPS000161, ECF No. 14-5.) If a carrier wanted to
enter through the Dutch door, Mr. Fields had to open the door, which disrupted his work,
or leave the door unlocked. (Mot., Facts ¶ 39, ECF No. 14; Ex. A to Mot., EEOC Hr’g
Tr. 328:20–330:4, ECF No. 14-2.) Carriers, including Mr. Lopez, used to enter the office
through the Dutch door. (Mot., Facts ¶ 35, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr.
328:20–330:4, ECF No. 14-2.) Allowing carriers to use the Dutch door created security
risks because customers would sometimes enter the workroom floor through the
unlocked door. (Mot., Facts ¶ 36, ECF No. 14; Ex. D to Mot., Higgs EEO Aff.,
USPS000159–65, ECF No. 14-5; Ex. F to Mot., Wright EEO Aff., USPS000207–08,
ECF No. 14-7; Ex. A to Mot., EEOC Hr’g Tr. 328:20–330:4, ECF No. 14-2.)
Ms. Higgs determined that no employee, unless he or she had a key, could use
the Dutch door for security reasons and that it needed to remain locked at all times.
(Mot., Facts ¶ 38, ECF No. 14; Ex. D to Mot., Higgs EEO Aff., USPS000159–65, ECF
No. 14-5; Ex. A to Mot., EEOC Hr’g Tr. 328:20–330:4, ECF No. 14-2.) Further, Ms.
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The Postal Service interprets the allegations in Mr. Lopez's purported second cause of
action relating to the Dutch door as forming part of the basis for his retaliation claim
only. (Mot. 11, ECF No. 14.) The Court interprets those allegations as forming part of
the basis for his hostile work environment claim, as well. Accordingly, the Court
considers the undisputed facts concerning the Holladay Post Office's Dutch door policy
in the context of both of Mr. Lopez's claims in deciding Postmaster Brennan's Motion.
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Higgs held informal meetings in which she instructed carriers not to use the Dutch door.
(Mot., Facts ¶ 37, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 330:5–10, ECF No. 14-2.)
Mr. Lopez and others continued to use the Dutch door at times, but Mr. Lopez did not
receive any discipline for continuing to use the door. (Mot., Facts ¶ 40, ECF No. 14; Ex.
A to Mot., EEOC Hr’g Tr. 101:24–102:11, 234:18–25, 330:11–21, ECF No. 14-2.) When
Ms. Higgs saw anyone without a key use the door, she told them not to do it. (Mot.,
Facts ¶ 41, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 330:11–331:2, ECF No. 14-2.)
Mr. Fields closed the door if he saw it propped open, locking out Mr. Lopez and others
who left it open. (Mot., Facts ¶ 42, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 234:8–12,
ECF No. 14-2.)
D. Letter of Warning
On November 27, 2011, Mr. Lopez refused to scan as “attempted” an express
package intended for a closed business. (Mot., Facts ¶ 43, ECF No. 14; Ex. A to Mot.,
EEOC Hr’g Tr. 55:1–24, ECF No. 14-2.) Mr. Lopez believed scanning the package as
an attempted delivery would be fraudulent since he did not actually attempt delivery.
(Id.)
The Postal Service gives a refund for express packages not delivered within
twenty-four hours. (Mot., Facts ¶ 44, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr. 309:13–
311:4, ECF No. 14-2.) If the receiving business is closed and the package cannot be
delivered, the postal employee must scan the package as “attempted” to “stop the
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clock” and avoid a refund to the sender. (Mot., Facts, ¶ 44, ECF No. 14; Ex. A to Mot.,
EEOC Hr’g Tr. 309:13–311:4, 333:13-334:17, ECF No. 14-2.)
On December 3, 2011, Ms. Clark issued Mr. Lopez a Letter of Warning for failing
on November 27 to scan the express package as “attempted” and follow prior
instructions to scan express mail pieces as “attempted” when a business is closed in
order to stop the clock. (Mot., Facts, ¶ 46, ECF No. 14; Ex. G to Mot., Letter of
Warning, ECF No. 14-8.) The Letter states that “[f]uture deficiencies will result in more
severe disciplinary action being taken against you” and that “[s]uch action may include a
suspension[] or removal from the Postal Service.” (Ex. G to Mot., Letter of Warning,
ECF No. 14-8.) The Postal Service’s Employee and Labor Relations Manual provides
that employees must follow a supervisor’s instructions, and if they have any reason to
question the instruction, they must still follow the order and then file a written protest or
appeal. (Mot., Facts, ¶ 45, ECF No. 14; Ex. G to Mot., Letter of Warning, ECF No. 148.)
Ms. Clark believed that a suspension may have been more appropriate discipline
for Mr. Lopez given his past missed scans but thought a Letter of Warning would solve
the problem. (Mot., Facts ¶ 47, ECF No. 14; Ex. C to Mot., Clark EEO Aff.,
USPS000190, ECF No. 14-4.) Ms. Higgs had no involvement in issuing the Letter of
Warning to Mr. Lopez. (Mot., Facts ¶ 48, ECF No. 14; Ex. A to Mot., EEOC Hr’g Tr.
332:12–333:12, 376:18–377:3, ECF No. 14-2.)
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DISCUSSION
I.
HOSTILE WORK ENVIRONMENT CLAIM
Mr. Lopez asserts Mr. Fields engaged in discriminatory and harassing conduct
toward him because of his race and national origin, resulting in a hostile work
environment. (Compl., ¶¶ 13–27, ECF No. 2.) Postmaster Brennan moves for
summary judgment on this claim, arguing that no reasonable jury could conclude the
alleged discrimination rose to the level of sufficiently severe or pervasive or that Mr.
Fields targeted Mr. Lopez because of his race or national origin. (Mot. 9–11, ECF No.
14.) Mr. Lopez counters that the evidence raises a genuine issue of material fact as to
whether a hostile work environment existed. (Opp’n 13–22, ECF No. 19.) The Court
agrees with Postmaster Brennan that summary judgment is appropriate on Mr. Lopez’s
hostile work environment claim.
“Title VII forbids employment discrimination on the basis of race or national
origin.” Chavez v. New Mexico, 397 F.3d 826, 831 (10th Cir. 2005). “This includes an
employee’s claims of a hostile work environment based on race or national origin
discrimination.” Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007).
However, “Title VII does not establish ‘a general civility code,’ for the workplace[.]”
Morris v. City of Colorado Springs, 666 F.3d 654, 663–64 (10th Cir. 2012) (internal
citation omitted) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998)). Therefore, “the run-of-the-mill boorish, juvenile, or annoying behavior that is
not uncommon in American workplaces is not the stuff of a Title VII hostile work
environment claim.” Morris, 666 F.3d at 664.
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To survive summary judgment on a racially hostile work environment claim, a
plaintiff must show “that a rational jury” could conclude that (1) “the workplace is
permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe
or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment,” and (2) the victim “was targeted for harassment because of [his] .
. . race[] or national origin.” Sandoval v. City of Boulder, 388 F.3d 1312, 1326–27 (10th
Cir. 2004) (internal quotations omitted).
A hostile work environment exists if the conduct is either severe or pervasive.
Morris, 666 F.3d at 665. Courts assess whether the work environment is not only
subjectively hostile but objectively hostile to a reasonable person in the plaintiff’s
position. Id. at 664. Courts evaluate objective severity and pervasiveness according to
the “‘totality of the circumstances,’” considering factors such as “‘the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with an employee's
work performance.’” Id. at 664 (quoting Chavez, 397 F.3d at 832–33).
A plaintiff cannot demonstrate pervasiveness by showing “‘a few isolated
incidents of racial enmity’ or ‘sporadic racial slurs.’” Chavez, 397 F.3d at 832 (quoting
Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994)). “Instead, ‘there must be a
steady barrage of opprobrious racial comments.’” Id. (quoting Bolden, 43 F.3d at 551).
Further, “[f]acially neutral abusive conduct can support a finding of . . . animus sufficient
to sustain a hostile work environment claim when that conduct is viewed in the context
of other, overtly [racially] discriminatory conduct.” O'Shea v. Yellow Tech. Serv's., 185
F.3d 1093, 1097 (10th Cir. 1999) (applying law in gender discrimination context).
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Postmaster Brennan argues that Mr. Lopez fails to establish a hostile work
environment claim because Mr. Fields’s alleged harassment was not sufficiently severe
or pervasive. (Mot. 9–11, ECF No. 14.) The Court agrees. The undisputed facts show
that beginning in 2011, Mr. Fields (1) called Mr. Lopez a “red-headed Mexican,” (2)
called Mr. Lopez a “red-headed stepchild,” (3) told Mr. Lopez “I’m going to take you out
in the parking lot, kick your ass, fuck you in the ass and turn it into a man pussy,” (4)
called Mr. Lopez a “lying piece of shit,” (5) asked Mr. Lopez “Who is your daddy?” and
responded “I’m you’re daddy,” (6) subjected Mr. Lopez and others to annoying singing,
and (7) closed the Dutch (front) door if open, locking out Mr. Lopez and others. Mr.
Lopez has not put forth any evidence in response to Postmaster Brennan’s Motion that
Mr. Fields called him a “red-headed Mexican” or “red-headed stepchild” repeatedly nor
has he put forth evidence that Mr. Fields engaged in harassing conduct beyond these
incidents.
Even viewing the facts in the light most favorable to Mr. Lopez, a rational jury
could not find that these isolated incidents amount to pervasive racially discriminatory
behavior that permeated the workplace. At best, Mr. Fields’s “red-headed Mexican”
comment amounts to a derogatory racial comment. However, “red-headed Mexican” is
not a known or obvious racial slur. Moreover, the undisputed facts establish that Mr.
Lopez too referred to himself as a “red-headed Mexican” at work, further calling into
question whether that comment qualifies as derogatory. However, even if the Court
assumes that it does, one derogatory racial comment does not establish pervasive
racially harassing conduct. See Chavez, 397 F.3d at 832 (finding that two racially
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offensive comments “fall far short of the ‘steady barrage’ required for a hostile
environment claim”).
In his Opposition, Mr. Lopez argues that the Court must view the “red-headed
Mexican” comment in totality with Mr. Fields’s other conduct. (Opp’n 19-21, ECF No.
19.) While facially neutral abusive conduct can support a hostile work environment
claim, it can only do so where other overtly racial conduct exists. See O'Shea, 185 F.3d
at 1097. Mr. Fields’s “red-headed Mexican” comment—which Mr. Lopez also used to
describe himself at work—fails to support an inference that racial animus motivated the
rest of Mr. Fields’s harassing behavior toward Mr. Lopez.
Moreover, an examination of the totality of the circumstances fails to show that
Mr. Fields engaged in pervasive discriminatory conduct toward Mr. Lopez or that he
targeted Mr. Lopez because of his race or national origin. First, the undisputed facts
show Mr. Lopez also engaged in inappropriate conduct toward Mr. Fields, and both
complained to management about each other. In one instance, after Mr. Fields said
“I’m your daddy,” Mr. Lopez told Mr. Fields, “you better shut your fucking mouth, I don’t
need your ghetto jokes, keep them on the street.” In addition, Mr. Fields called Mr.
Lopez a “lying piece of shit” after Mr. Lopez accused him of stealing mail. Thus the
circumstances indicate Mr. Fields and Mr. Lopez had a contentious relationship and
reacted—often harshly and inappropriately—to one and another’s words and conduct.
The alleged conduct does not demonstrate that Mr. Fields discriminated against Mr.
Lopez or targeted him because of his race or national origin. Second, the undisputed
facts show that Mr. Fields’s singing annoyed other coworkers and was not limited to Mr.
Lopez. The facts also show Mr. Fields closed the Dutch door when he saw it open,
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locking out any coworkers without a key—not that he targeted Mr. Lopez with this
action. Further, the facts show Mr. Fields closed the door after instruction from
management that the Dutch door should remain locked. Simply put, Mr. Lopez fails to
put forth evidence showing that Mr. Fields engaged in discriminatory conduct toward
him or that he targeted Mr. Lopez due to his race or national origin, as required to prove
a hostile work environment claim. See Sandoval, 388 F.3d 1312, 1326–27 (stating that
hostile work environment plaintiff must show he “was targeted for harassment because
of [his] . . . race[] or national origin”); Bolden, 43 F.3d at 551 (“General harassment if not
racial or sexual is not actionable.”).
Mr. Lopez also argues that a reasonable jury could conclude that Mr. Fields’s
threat to “beat and rape” him is sufficiently severe to establish a hostile work
environment claim. (Opp’n 19, ECF No. 19.) The Court disagrees. As Postmaster
Brennan points out in her Reply, the bar to establish a hostile work environment based
on an isolated incident remains very high. (Reply 2–3, ECF No. 20.) Conduct must “be
especially egregious or extreme where only isolated incidents are alleged.” Morris, 666
F.3d at 667. For example, the Tenth Circuit has found single incidents of sexual assault
sufficiently severe to create a hostile working environment. See id. at 666–67; see also
Gerald v. Locksley, 849 F. Supp. 2d 1190, 1232 (D.N.M. 2011) (“Rape and other forms
of severe sexual assault are the archetypical examples of single incidents which can
establish a hostile work environment.”).
Here, Mr. Fields told Mr. Lopez “I’m going to take you out in the parking lot, kick
your ass, fuck you in the ass and turn it into a man pussy,” in response to Mr. Lopez’s
offer to help sort mail that Mr. Fields and management had previously told him he may
15
not sort. Mr. Fields’s comment, standing alone, does not rise to the level of “egregious
or extreme” necessary to create a hostile working environment. No physical assault, or
even an overt act in furtherance of an assault, took place.
Mr. Fields and Mr. Lopez obviously had a very difficult relationship, and the Court
does not condone Mr. Fields’s conduct toward Mr. Lopez. However, that conduct, while
“boorish, juvenile, [and] annoying,” Morris, 666 F.3d at 664, does not support a racially
hostile work environment claim. No rational jury could find Mr. Fields’s conduct was so
severe or pervasive that it altered the terms of Mr. Lopez’s employment, or that Mr.
Fields targeted Mr. Lopez for harassment because of his race or national origin.
Accordingly, the Court GRANTS Postmaster Brennan summary judgment on Mr.
Lopez’s hostile work environment claim.
II.
RETALIATION CLAIMS
Mr. Lopez also asserts that the Postal Service retaliated against him after
complaining about Ms. Sugar’s promotion. (Compl., ¶¶ 20–31, ECF No. 2.)
Specifically, Mr. Lopez appears to allege three acts of retaliation: (1) that management
failed to stop Mr. Fields’s harassment, (2) that management instituted the Dutch door
policy against him only, and (3) that his supervisor issued a Letter of Warning for failing
to scan as “attempted” delivery an express package.4 (Id.) Postmaster Brennan moves
4
Postmaster Brennan states in her Motion that Mr. Lopez does not allege the Postal
Service took these actions “in retaliation for his EEO complaints” but did so “as a result
of his complaints about [Ms.] Sugar’s promotion in January 2011.” (Mot., ECF No. 11–
12, ECF No. 14.) Mr. Lopez does not dispute this assertion in his Opposition. (See
generally Opp’n, ECF No. 19.) Accordingly, the Court finds Mr. Lopez waived any
argument on this point and addresses the allegations concerning Ms. Sugar’s promotion
only.
16
for summary judgment on Mr. Lopez’s retaliation claim, arguing that Mr. Lopez cannot
establish that he engaged in a protected activity, that he suffered a materially adverse
employment action, or that a causal connection exists between the two. (Mot. 11–15,
ECF No. 14.)
Mr. Lopez counters that, while a “close call,” the evidence regarding his
complaints about Ms. Sugar’s promotion create an issue of material fact as to whether
he engaged in protected activity. (Opp’n 23–24, ECF No. 19.) Mr. Lopez also asserts
that the evidence raises a material issue of fact as to whether his Letter of Warning
constitutes a material adverse action. Mr. Lopez claims the Postal Service’s
“incoherency” in issuing the Letter of Warning supports an inference that management’s
stated reason for issuing it is pretextual, thus permitting his claim to survive summary
judgment. (Opp’n 24–27, ECF No. 19.) As addressed below, the Court agrees with
Postmaster Brennan and grants summary judgment on Mr. Lopez’s retaliation claim.
Title VII prohibits retaliation “against an employee for opposing practices made
unlawful by the statute.” Hansen v. SkyWest Airlines, 844 F.3d 914, 924 (10th Cir.
2016). To prove a Title VII retaliation claim, a plaintiff may “present direct evidence, or
he can rely on circumstantial evidence and utilize the McDonnell Douglas burdenshifting test.” Ward v. Jewell, 772 F.3d 1199, 1202 (10th Cir. 2014) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under the McDonnell Douglas
framework, a plaintiff must first establish a prima facie case by showing “‘(1) that he
engaged in protected opposition to discrimination, (2) that a reasonable employee
would have found the challenged action materially adverse, and (3) that a causal
connection existed between the protected activity and the materially adverse action.”
17
Somoza v. Univ. of Denver, 513 F.3d 1206, 1212 (10th Cir. 2008) (quoting Argo v. Blue
Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006)). “‘Once the
plaintiff successfully asserts a prima facie retaliation case, the burden shifts to the
defendant (i.e., employer) to come forward with a legitimate, non-retaliatory rationale for
the adverse employment action. If the defendant does so, the plaintiff must show that
the defendant’s proffered rationale is pretextual.” Hansen, 844 F.3d at 925 (quoting
Lounds v. Lincare, Inc., 812 F.3d 1208, 1234 (10th Cir. 2015)).
As Postmaster Brennan notes, Mr. Lopez does not set forth direct evidence of
retaliation, (Mot. 12, ECF No. 14), so the Court considers whether he has established a
prima facie case of retaliation.
A. Protected Opposition to Discrimination
Postmaster Brennan argues that Title VII does not protect Mr. Lopez’s
complaints about Ms. Sugar’s promotion. (Mot. 12–13, ECF No. 14.) Specifically,
Postmaster Brennan argues that no evidence exists that either Ms. Higgs or Ms. Clark
knew that Mr. Lopez was “opposing discrimination,” as opposed to complaining about
cronyism and favoritism. (Id.) Mr. Lopez counters that he complained about Ms.
Sugar’s promotion because he had not received a promotion on account of his race and
national origin, but Ms. Sugar, a white female with a criminal record, had received a
promotion. (Opp’n 22–24, ECF No. 19.)
The undisputed facts show Mr. Lopez complained to Mr. Wright, Salt Lake City’s
Postmaster General, about Ms. Sugar’s promotion, mentioning at a minimum, her lack
of education and prior criminal record. Mr. Lopez also claims he told Mr. Wright he was
more qualified than Ms. Sugar, but she got promoted because she is white and friends
18
with Ms. Higgs. The undisputed facts also show that while Mr. Wright shared Mr.
Lopez’s concerns about Ms. Sugar’s promotion with Ms. Higgs, he did not mention
anything to Ms. Higgs about national origin discrimination or retaliation.
Based on this record and viewing the facts in the light most favorable to Mr.
Lopez, the Court cannot conclude that Mr. Lopez never voiced complaints to a Postal
Service superior that Ms. Sugar’s promotion evidenced racial or national origin
discrimination toward him. If Mr. Lopez did in fact tell Mr. Wright he was more qualified
than Ms. Sugar, but she received the promotion because she is white, a rational jury
could conclude this statement shows that his complaints about her promotion rise to the
level of protected opposition to discrimination. See Hertz v. Luzenac Am., Inc., 370
F.3d 1014, 1015–16 (10th Cir. 2004) (“Protected opposition can range from filing formal
charges to voicing informal complaints to superiors. A plaintiff need not convince the
jury that his employer had actually discriminated against him; he need only show that
when he engaged in protected opposition, he had a reasonable good-faith belief that the
opposed behavior was discriminatory.” (citation omitted)). That Mr. Wright did not then
convey these specific concerns to Ms. Higgs is of no import because Mr. Wright is Mr.
Lopez’s superior. Therefore, based on the record before it, the Court finds a genuine
issue of material fact exists as to whether Mr. Lopez engaged in protected opposition to
discrimination when complaining about Ms. Sugar’s promotion.
B. Materially Adverse Actions
Postmaster Brennan argues that even if the Court construed Mr. Lopez’s
complaints as protected activity, his claims nevertheless fail because none of the
alleged actions was materially adverse. (Mot. 13–14, ECF No. 14.) Specifically,
19
Postmaster Brennan argues that the Letter of Warning Mr. Lopez received did not
adversely affect his employment. Postmaster Brennan further points out that the
evidence in the record does not support the other alleged material adverse actions—
that management failed to stop Mr. Fields’s harassment and instituted the Dutch door
policy only as to Mr. Lopez. (Id.) Mr. Lopez counters that a fact finder could reasonably
view the Letter of Warning as materially adverse, though concedes the issue presents a
“close call.” (Opp’n 24–26, ECF No. 19.)
Title VII’s “antiretaliation provision protects an individual not from all retaliation,
but from retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 67 (2006). An employment action qualifies as materially adverse
if it “might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. at 68 (internal quotation marks and citation omitted). Courts judge
materiality from the perspective of a “reasonable person in the plaintiff's position” to
“screen out trivial conduct.” Id. at 69–70. “This standard focuses on the employer’s
retaliatory action, not the underlying discrimination the employee had opposed.”
Semsroth v. City of Wichita, 555 F.3d 1182, 1184 (10th Cir. 2009).
The facts in the record do not support two of the three materially adverse actions
of which Mr. Lopez complains. Mr. Lopez claims that management’s failure to stop Mr.
Fields’s harassment and management’s application of the Dutch door policy only to him
constitute adverse employment actions. However, the record shows that neither of
these claims have factual support. The record shows management actively addressed
the conflict between Mr. Lopez and Mr. Fields. Ms. Higgs investigated their complaints,
consulted the Threat Assessment Team, and issued instructions to both of them. Mr.
20
Lopez does not dispute that Ms. Higgs concluded that given the lack of witnesses, the
complaints were simply “he said/she said.” Further, the undisputed facts show that the
Dutch door policy applied to all employees without a key, not just Mr. Lopez. Moreover,
Mr. Lopez does not substantively address these two supposedly material adverse
actions in his Opposition, (Opp’n 24–26, ECF No. 19), thereby conceding that that they
do not amount to materially adverse employment actions sufficient to support a
retaliation claim. Accordingly, the Court finds that neither of these actions constitute
materially adverse employment actions.
Turning to the one arguable materially adverse action, both parties acknowledge
Mr. Lopez received a Letter of Warning in December 2011. Citing cases that predate
the Supreme Court’s decision in Burlington Northern, Postmaster Brennan argues that
courts generally do not deem letters of warning and reprimands adverse employment
actions where they have not adversely affected the employee’s employment or status in
any manner. (Mot. 13–14, ECF No. 14.) As the Tenth Circuit stated in Somoza, the
Burlington Northern case altered what a plaintiff must prove to establish a prima facie
case of retaliation:
No longer must a plaintiff prove that subsequent “adverse employment
action” was taken against [him], as that phrase has been construed in Title
VII discrimination cases. Rather the plaintiff must show that a reasonable
employee would have found the action materially adverse such that they
might be dissuaded from making a charge of discrimination.
513 F.3d at 1213; see also Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595–
96 (6th Cir. 2007) (stating that the “materially adverse” standard is lower than the
“adverse employment action standard” and sets a “relatively low bar”). Therefore, the
Court finds the cases Postmaster Brennan cites inapplicable.
21
The Letter of Warning Mr. Lopez received states that “[f]uture deficiencies will
result in more severe disciplinary action being taken against you” and that “[s]uch action
may include a suspension[] or removal from the Postal Service.” (Ex. G to Mot., Letter
of Warning, ECF No. 14-8.) Receiving a Letter or Warning that includes the threat of
suspension or even termination for future infractions is not trivial and could dissuade a
“reasonable worker” from making a charge of discrimination. See Montano v. Donahoe,
No. CV 14-0634 WJ/GJF, 2016 WL 5338520, at *10 (D.N.M. July 29, 2016)
(unpublished) (finding that “receiving a Letter of Warning [is a] significant enough event[]
which could dissuade a reasonable worker from making a charge of discrimination.”)
aff'd sub nom. Montano v. Brennan, 718 F. App’x 690 (10th Cir. 2017) (unpublished).
Therefore under the standard articulated in Burlington Northern, the Court finds that the
Letter of Warning could constitute a materially adverse action.
C. Causal Connection
Postmaster Brennan further argues that Mr. Lopez’s retaliation claim fails
because he cannot establish a causal link between his complaints about Ms. Sugar’s
promotion in January 2011 and any action, or lack thereof, by management later in
2011. (Mot. 15, ECF No. 14.) Mr. Lopez concedes “he does not have the benefit of
temporal proximity which might otherwise show a causal connection between Mr.
Lopez’[s] complaints and the letter of warning” but claims that “[w]hat he does have is
the incoherency of [the Postal Service’s] reason for issuing in a letter of warning.”
(Opp’n 26, ECF No. 19.)
“To establish a causal connection, [a plaintiff] must present ‘evidence of
circumstances that justify an inference of retaliatory motive.’” Ward, 772 F.3d at 1203
22
(quoting Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1091 (10th Cir. 2007)). “If
the protected conduct is closely followed by the adverse action, courts have often
inferred a causal connection.” Id. However, a period longer than three months between
the protected activity and adverse action is insufficient to establish causation on
summary judgment. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th
Cir. 1999) (stating that a three-month period between the protected conduct and the
adverse action is “insufficient to establish causation”). Where a plaintiff cannot establish
causation through temporal proximity, he “must use ‘additional evidence . . . to establish
causation.’” Ward, 772 F.3d at 1203 (quoting Anderson, 181 F.3d at 1179).
Using this additional evidence, a plaintiff must show that the materially adverse
action would not have occurred “but for” his protected activity. Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 360 (2013). “The evidence of but-for causation ‘must be
based on more than mere speculation, conjecture, or surmise.’” Ward, 772 F.3d at
1203 (quoting Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004)).
Mr. Lopez concedes he cannot take advantage of temporal proximity to establish
causation. (Opp’n 26, ECF No. 19.) The Court agrees because Mr. Lopez complained
about Ms. Sugar’s promotion in January 2011, and Ms. Clark issued the Letter of
Warning almost a year later, in December 2011. Despite Mr. Lopez’s acknowledgement
that he cannot show causation through temporal proximity, he fails to point to any
additional evidence connecting his complaints about Ms. Sugar’s promotion to Ms.
Clark’s issuance of the Letter of Warning for failing to scan an express package as
“attempted.” (Id. at 26–27.)
23
Instead, Mr. Lopez argues that the Postal Service’s reason for issuing the letter is
incoherent. (Id.) Specifically, he claims that management issued him discipline for
“refusing to make a false representation” since he “had not and was not planning on
attempting to deliver the package.” (Id. at 27.) He claims “[t]his incoherency would
support an inference that his local management’s articulated reason for issuing him a
letter of warning is pretextual.” (Id.)
As an initial matter, Mr. Lopez gets ahead of himself in arguing that the Postal
Service’s reason for issuing the Letter of Warning constitutes pretext. Under the
McDonnell-Douglas burden-shifting analysis, a plaintiff must first establish a prima facie
case of retaliation. See Hansen, 844 F.3d at 925. And the prima facie case of
retaliation requires the plaintiff to put forth evidence of a causal connection between the
protected activity and the materially adverse action. Id. Only then does the burden shift
to the employer to come forth with a legitimate, non-retaliatory rationale for the adverse
employment action and then back to the plaintiff to show the employer’s rationale
reflects mere pretext. See id.
More importantly, as Postmaster Brennan points out, Mr. Lopez fails to offer any
evidence showing that Mr. Lopez’s complaints about Ms. Sugar’s promotion have any
connection to Ms. Clark’s issuance of the Letter of Warning for failing to scan an
express package as “attempted.” Critically, no evidence exists that Ms. Clark knew
about Mr. Lopez’s complaints concerning Ms. Sugar’s promotion. The undisputed facts
show that Mr. Lopez shared his complaints with Mr. Wright, who shared at least some of
them with Ms. Higgs. In addition, Mr. Lopez complained to Ms. Sugar about her
promotion. However, the undisputed facts also show that Ms. Clark is the individual
24
who issued the Letter of Warning and that Ms. Higgs had no involvement in issuing it.
Because Mr. Lopez fails to set forth any evidence that Ms. Clark knew about the
protected activity, i.e., his complaints about Ms. Sugar’s promotion, he cannot show a
causal connection between that activity and Ms. Clark’s issuance of the Letter of
Warning. See Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993) (stating that to
establish a causal connection, a “plaintiff must show that the individual who took
adverse action against him knew of the employee's protected activity”); Hinds v.
Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008) (stating that to show a
causal connection, a plaintiff must “come forward with evidence from which a
reasonable factfinder could conclude that those who decided to [take an adverse action
against] him had knowledge of his protected activity”). Further, even if management’s
purported Dutch door policy or its failure to address Mr. Fields’s harassment are
materially adverse actions, Mr. Lopez fails to cite any evidence showing a connection
between those activities and Ms. Clark’s issuance of the Letter of Warning for violating a
policy of which he was aware and had violated in the past.
Further, even if pretext were relevant to the causal connection analysis, the
record does not support Mr. Lopez’s argument. The undisputed facts show that if a
business receiving an express package is closed, and the package cannot be delivered,
the Postal Service’s 2011 policy required a carrier to scan the package as “attempted”
to “stop the clock” and avoid a refund to the sender. The employee manual further
instructed employees to follow instructions of their supervisors and file a formal protest
or appeal afterwards if they disagreed with the instructions. Given that Mr. Lopez did
not follow this policy, Ms. Clark’s issuance of the Letter of Warning for violating the
25
policy is not incoherent. Moreover, as the Letter of Warning indicates, Mr. Lopez failed
to adhere to this policy in the past and received prior warnings that he must comply with
it, which further cuts against any argument that Ms. Clark would not have issued the
Letter of Warning “but for” his complaints concerning Ms. Sugar’s promotion.
Because Mr. Lopez fails to produce any evidence establishing a causal
connection between his complaints concerning Ms. Sugar’s promotion and Ms. Clark’s
issuance of the Letter of Warning or any other action (or inaction) taken by
management, he fails to state a prima facie case of retaliation. Accordingly, the Court
GRANTS Postmaster Brennan summary judgment on the retaliation claim.
CONCLUSION
For the foregoing reasons, the Court GRANTS Postmaster Brennan’s Motion for
Summary Judgment as to all of Mr. Lopez’s claims.
DATED this 28th day of September, 2018.
BY THE COURT:
_____________________________
EVELYN J. FURSE
United States Magistrate Judge
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