Grievance and Mediation Policy and Procedure by tjl20588

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									      NORTH CAROLINA
DEPARTMENT OF ADMINISTRATION



  Grievance and Mediation
   Policy and Procedure




          August 1, 2008

          W. Britt Cobb, Secretary

          Valerie J. Ford, Director
       Human Resources Management

Sondra C. Chavis, Employee Relations Manager
       Human Resources Management



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   Grievance and Mediation Policy and Procedure

Purpose
The purpose of this policy is to provide a means of communication between supervisors and
 employees and establish principles of administration to ensure a prompt, orderly and fair
 response to an employee's grievance or complaint.


Policy
 Any career employee having a grievance arising out of or due to employment shall first discuss
 the problem or grievance with his/her supervisor or the appropriate supervisor, and follow the
 grievance procedure established by this agency. Employees that allege discrimination
 because of age, sex, race, color, national origin, religion, creed, handicapping condition
 (disability) or political affiliation shall have the right to appeal through the agency grievance
 procedure within the time frame established, or may appeal directly to the State Personnel
 Commission.


Covered Employees
This policy covers career employees and those employees with permanent position
 appointments. A career State employee is one who is in a permanent position appointment,
 and has been continuously employed by the State of North Carolina in a position subject to the
 State Personnel Act for the immediate 24 preceding months. Employees with permanent
 position appointments who have not yet attained career status may appeal final agency
 decisions only to the extent that the Department of Administration’s policy allows.

This policy does not apply to policy-making exempt employees. Likewise, it does not cover
 probationary employees or trainee employees who have not yet attained two years of
 continuous State service. Probationary or trainee employees in their first two years of service
 however, can file a grievance under this policy if alleging discrimination, if alleging a false
 accusation about political threats or promises, or if alleging that information in the employee's
 personnel file is inaccurate or misleading.

 Any applicant for State employment can file a grievance under this policy if alleging denial of
 veteran’s preference in initial State employment or denial of employment on the basis of illegal
 discrimination.




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Types of Action Covered
Employees have a right to present a grievance free from interference, restraint, coercion or
reprisal. Issues that may be grieved through the agency's policy include the following:
•   demotion
•   denial of promotional priority (for State employees competing with non-State employees for
    a job vacancy)
•   denial of priority re-employment for reduction-in-force applicants
•   disciplinary suspension without pay
•   dismissal
•   discrimination
•   failure to give policy-making/confidential exempt status employees priority consideration
•   improper application of the agency’s Reduction-in-Force (RIF) Policy
•   inaccurate and misleading information in the personnel file
•   violation of the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act
    (ADEA), the Family Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA)
•   performance pay disputes can be appealed within the Department of Administration under
    the “Performance Appraisal Dispute Resolution Policy Resolution” policy

Matters of inherent management rights are not subject to appeal under this policy. These
matters include but are not limited to such areas as the program and functions of the agency,
standards of service, utilization of technology, and the assignment and re-assignment of staff to
positions, duty stations and shifts, except where such transfers include a demotion to a lower
classification.




Written Warnings
•   Must advise the employee that written warnings are not grievable.

•   Should an employee wish to contest the written warning, they may write a letter “To The
    File” stating his/her point of view in the matter. This document shall be forwarded to the
    Human Resources Management Office to be placed in the employee's permanent file along
    with the warning.

Generally, matters not specifically set out in this policy as those which can be grieved cannot be
grieved. Specific questions on what is and is not considered grievable may be directed to the
Human Resources Management Office.




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Inaccurate or Misleading Information in a Personnel File
Any employee, regardless of length of service, who alleges that written information in the
employee's personnel file is inaccurate or misleading, may file a grievance. In the grievance, the
employee should specify the information that is false or misleading. Any employee may
examine his/her personnel file by making a request to the Human Resources
Management Office any time between the hours of 8:00 a.m. and 5:00 p.m.

Requests for Reasonable Accommodations (ADA)
This policy provision applies to all qualified applicants and employees with disabilities. If
requested, reasonable accommodations must be provided to qualified employees regardless of
whether they work part-time or full-time, or are considered “probationary” or “non-career status”,
as well as temporary employees.

Employees or applicants, who are dissatisfied with the decision(s) pertaining to his/her
accommodation request may file a grievance in accordance with the Department of
Administration’s grievance procedure. An individual may also choose to appeal directly to the
State Personnel Commission by filing for a contested case hearing with the Office of
Administrative Hearings no later than 30 calendar days from the receipt of the decision.

Filing a Grievance
Any employee who has adverse action taken against him/her will be given written notice of any
applicable appeal rights.

An eligible employee who wishes to file an appeal internally, under the agency grievance policy
and procedure, must file the grievance within 15 calendar days of the date the employee
learned (or with reasonable effort should have known) of the action being contested. See the
attached Employee Grievance and Mediation Filing Form.


How to Obtain Information About the Grievance Policy
The Human Resources Management Office will provide information and answer questions about
the grievance policy. This policy shall be posted in a permanent and conspicuous place in work
areas and will be placed in the agency's Policy and Procedures Manual that is available to all
employees in every work area. New employees will be informed of the policy and grievance
procedure during orientation training sessions. All employees will be notified of grievance policy
and procedure changes through e-mail and agency newsletters. Employees shall be notified no
later than 30 days prior to the effective date of a change. The Supervisor must inform the
employee of applicable appeal rights and give him/her a copy of the departmental
Grievance Policy. For additional information regarding this policy, contact the Employee
Relations Manager/ EEO Officer or the Director in the Human Resources Management Office at
(919) 807-2480.


Time Off for Processing Grievances


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Employees shall be allowed time off from regular duties as may be necessary and reasonable
up to a maximum of eight hours for the preparation of the internal grievance without loss of
pay, vacation leave, or other time credits. Employees must notify their supervisor in advance
and receive prior approval of the necessity to be absent from work for preparation of the internal
grievance.

Upon request, the employee's supervisor shall grant reasonable leave for participation as a
party in a contested case hearing and other administrative proceedings outside the agency in
connection with employment without loss of pay, vacation leave or other time credits. Prior
notification and approval are required and employees must document the time needed for this
purpose. The Human Resources Management Office shall provide guidance to employees and
supervisors in case of disagreement as to a reasonable amount of time off for the purpose of
preparing for a grievance. Employees may request assistance from the agency’s Employee
Relations Manager/EEO Officer in preparing a written summary of the facts regarding the
grievance.

The Human Resources Management Office will maintain all records on grievances filed within
the agency for a period of at least 18 months. Grievances filed and all related information will be
analyzed on an annual basis by demographics, division and nature of issues grieved to ensure
that agency policies and procedures are administered fairly and consistently and follows good
employee relations practices. The Human Resources Management Office will respond to all
requests for information regarding grievances and appeals and will report this and other relevant
information as requested to the Office of State Personnel and other appropriate authorities.

The Human Resources Management Office shall submit this policy for review by the Office of
State Personnel on July 1 of each even-numbered year to ensure that it is in compliance with
current State laws and rules.

This plan will be reviewed annually to determine implementation of goals and
procedures.




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Grievance Procedures
Procedure For Non-Discrimination Grievances

Informal Meeting with Supervisor

The Department of Administration encourages direct communication between employees,
supervisors and Human Resources as the first method of attempting to address grievances in
the spirit of cooperation and compromise. Supervisors must inform HR immediately of
performance or conduct issues, and always consult with the Employee Relations Manager/EEO
Officer or the Director of Human Resource Management prior to implementing any coaching or
disciplinary action.


Step 1 - Mediation

Mediation is the first step in the grievance process and involves the services of a neutral third
person that assists an employee and an agency representative in resolving an employee
grievance in a mutually acceptable manner. Attorneys are not permitted to participate in any
part of the grievance process. Either party may ask for a recess at any time during the
mediation in order to obtain advice regarding the terms of the Mediation Agreement.

To initiate a grievance, the employee must file notice of the grievance, outlining what act or acts
are being challenged, the basis for the grievance and the relief requested. This must be
submitted to the Employee Relations Manager/EEO Officer within 15 calendar days of the
contested action or after attempting and unsuccessfully resolving the grievance informally,
whichever is longer.

Mediation provides opportunity for the two parties to openly discuss the grievance and reach a
resolution that is mutually acceptable to both the agency and the employee. When mediation
results in a resolution of the grievance, both parties will sign a Mediation Agreement which is
considered a binding document. The mediation process shall be concluded within 45 calendar
days from the filing of the grievance unless the parties agree in writing to a longer period of
time.


Step 2 - Appeal to the Hearing Officer

Employees must comply with the following agency requirements before proceeding to Step 2:

   •   Meet with the immediate supervisor or other appropriate supervisor in the chain of
       command to attempt to resolve the grievance; and
   •   Demonstrate a good faith effort to resolve the grievance by attending mediation (Step 1)

In situations where mediation does not produce agreement, employees may appeal to a
Hearing Officer appointed by the Employee Relations (ER) Manager/EEO Officer or the Director
of Human Resources Management. Any request for review by the Hearing Officer shall be
submitted to the ER Manager/EEO Officer within 5 working days of agreement that mediation
has not resolved the grievance. The employee filing the grievance will provide a written



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summary of the specific facts of the complaint, copies of which shall be provided at the same
time to all other parties concerned. The employee may ask the ER Manager/EEO Officer for

help in preparing the request and the written summary of the facts of the appeal. The ER
Manager/EEO Officer shall transmit the request to the Hearing Officer. Each party shall be
notified at least 10 working days in advance of the scheduled date of the hearing. Neither the
employee nor management may be represented by an attorney during the hearing. In cases
where an employee has a disability, they may request reasonable accommodations as defined
by the Americans with Disabilities (ADA) applicable law.

The employee shall be allowed the opportunity to challenge whether the Hearing Officer can
render an unbiased recommendation. Reasons for the challenge must be presented in writing
to the ER Manager/EEO Officer within 5 working days. The determination of whether such
cause exists to remove the Hearing Officer rests with the ER Manager/EEO Officer and the
Human Resources Management Director. The Hearing Officer shall withdraw from participation
in a grievance proceeding if he or she deems themselves disqualified for any reasons.

At the conclusion of the hearing, it is the responsibility of the Hearing Officer to inform the
Secretary of Administration, in writing, of the details of the grievance, share the dissenting
opinions of the employee, and provide a recommendation for the final agency decision (FAD).
The written summary shall include reasons why the problem was not resolved at the preceding
steps and shall be forwarded to the Secretary within 10 working days after the conclusion of
the hearing. The Secretary will issue a final agency decision within 15 calendar days of receipt
of the recommendation from the Hearing Officer.

A final agency decision must be delivered to the employee, in writing (informing him/her of the
right to appeal), within a reasonable time from the date that the grievance was initiated. A
reasonable time is no more than 90 days for dismissals and demotions, and no more than 120
days for all other issues. The employee and the agency may mutually agree to extend the time
in either case. Delays in meeting deadlines by the employee will result in an automatic
extension of the process by the same amount of time.

Step 3 – Appeal to the State Personnel Commission
         Final Agency Decision

Any employee, who does not agree with the final agency decision and has attained career
status as defined earlier in this policy, may appeal this decision within 30 calendar days to the
State Personnel Commission. An Administrative Law Judge will render a recommended
decision to the State Personnel Commission, who will issue a Final Decision and Order.

*For more information regarding appeal to the State Personnel Commission, see section titled
"Procedure For Appeal To The State Personnel Commission."

The employee will be given a copy of the agency grievance and appeal procedures along with
the final agency decision.

EXCEPTION: Allegations of illegal discrimination or unlawful workplace harassment are
exceptions. Grievances alleging discrimination may, at the grievant’s choice, proceed either
through the agency procedure, or may proceed directly to the Office of Administrative Hearings
(OAH). Complaints of unlawful workplace harassment must proceed through the agency’s
Unlawful Workplace Harassment procedure.



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Grievance and Mediation Procedures

Discrimination

Appeal to the State Personnel Commission

Any applicant for employment in the Department of Administration or any present (regardless of
length of service) or former employee who has reason to believe that employment, promotion,
training or transfer was denied him/her; or, that demotion, reduction-in-force or termination of
employment was forced upon him/her due to age, sex, race, national origin, religion, creed,
political affiliation or handicapping condition, except where specific age, sex or physical
requirements constitute a bonafide occupational qualification necessary for proper and efficient
job performance, shall have the right to appeal through the agency grievance procedure or may
appeal directly to the State Personnel Commission. The right to appeal shall be without fear of
reprimand, reprisal or retaliation. An employee who chooses to bypass the agency's internal
grievance procedure and appeal directly to the State Personnel Commission must do so within
30 calendar days of notice of the alleged discriminatory action.


An employee who alleges unlawful workplace harassment shall have the right to bypass any
step in the agency grievance procedure involving discussions with or review by the alleged
harasser. If the employee elects to bypass the supervisor, who is the alleged harasser, the
employee should go to the next higher supervisory level and follow the steps outlined in the
agency grievance procedure.

Employees who decide to exhaust the agency's grievance procedures must abide by all the
requirements as noted in the Grievance and Appeal Procedure: Non-Discrimination. A direct
appeal to the State Personnel Commission alleging discrimination must be filed with the Office
of Administrative Hearings within 30 calendar days after receipt of the final decision.
Grievances filed on an untimely basis must be dismissed. Allegations of discrimination raised
more than 30 calendar days after receipt of notice of the occurrence of the alleged
discriminatory act must be dismissed as untimely.




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Procedure for Appeal

To the State Personnel Commission
A petition for a Contested Case Hearing (Form H-06A) must be filed (received by) within 30
days of the final agency decision or within 30 days of the action or omission giving rise to the
right of appeal at:

       Office of Administrative Hearings
       1711 New Hope Church Road
       6714 Mail Service Center
       Raleigh, NC 27699-6714
       (919) 431-3000

Form can be secured from the Office of Administrative Hearings (OAH) or State Personnel
Commission (SPC):

       State Personnel Commission
       116 W. Jones Street
       Administration Building
       1331 Mail Service Center
       Raleigh, NC 27603-1331
       (919) 807-4850

The hearings are conducted by the Office of Administrative Hearings. Hearing procedures may
be obtained by contacting:

       Chief Hearings Clerk
       Office of Administrative Hearings
       1711 New Hope Church Road
       6714 Mail Service Center
       Raleigh, NC 27699-6714
       (919) 431-3000


To File a Charge with EEOC

State employees and local government employees must file a charge within six months (180
days) from the date of the alleged act(s) of discrimination. The charge form may be completed
by contacting:

       Intake Coordinator
       Office of Administrative Hearings
       Civil Rights Division
       1711 New Hope Church Road
       6714 Mail Service Center
       Raleigh, NC 27609
       (919) 431-3036



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Unlawful Workplace Harassment
Prevention Plan

Policy
Unlawful workplace harassment is a personal issue that must be defined by the individual
victim. The Department of Administration has established a policy that prohibits unlawful
workplace harassment in any form. All parties involved are entitled to a fair and impartial
hearing. A prompt and impartial investigation will be made in all cases alleging harassment
based on presented facts surrounding the misconduct. Interference, coercion, restraint or
reprisal against any person complaining of unlawful harassment is prohibited. The policy and
training programs are designed to ensure that work sites are free from speech or conduct that
fall under the definition of unlawful workplace harassment. This policy and a plan setting forth
steps to be taken to prevent and correct unlawful workplace harassment are to be included as a
part of the equal employment opportunity plan.



Covered Employees
Former employees, full-time or part-time employees with either a permanent, probationary,
trainee, time-limited permanent or temporary appointment.


Communication
The Unlawful Workplace Harassment Prevention Plan will be communicated to all the
department employees through the same method as the EEO Plan. The policy will be posted on
the bulletin board outside the Human Resources Management office. In addition, a copy of the
policy statement will be included in the new employee orientation packets and will be explained
in the new employee orientation training sessions. Information will also be updated on the
Human Resources Management website.


Counseling
Some victims of unlawful workplace harassment have been known to experience some work-
related problems such as absenteeism, low productivity, inefficiency, as well as physiological
problems that have been linked to stress. Managers may refer employees experiencing
personal/work related problems resulting from unlawful workplace harassment to the State
Employee Assistance Program after consulting the Employee Relations Manager in HR.

Training
Each division within the Department of Administration is responsible for taking steps to prevent
and correct unlawful workplace harassment and retaliation. A logical first step is to offer a
training program for supervisors and employees to sensitize them to the subject. Such a


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program is necessary to help meet the legal obligation as suggested under the policy and help
create an environment that supports employees and encourages productivity. The training
program will include employee and supervisory training on the following components:

       a.      Training for supervisors on:

               The State's policy, unlawful workplace harassment, unlawful workplace
               harassment grievance procedures, illegal discrimination, corrective steps, State
               and Federal laws and appropriate disciplinary actions.

       b.      Training for employees on:

               Discrimination and unlawful workplace harassment, the State's policy, employee
               rights, grievance procedures, State and Federal laws and disciplinary actions.


Evaluation
The department's goal is to achieve a productive workplace. In order to reach this goal,
supervisors are requested to monitor the activity in their respective work areas to ensure the
workplace is free of harassment. The Employee Relations (ER) Manager/EEO Officer will work
with top management and others in the correction of any and all misconduct relevant to unlawful
workplace harassment activities. The department's Unlawful Workplace Harassment Policy will
continue to receive an annual audit by the Office of State Personnel.


Implementation
Secretary’s Responsibilities

The primary responsibility for implementing the Unlawful Workplace Harassment Policy rests
with the Secretary of the Department of Administration. The Secretary provides direction to staff
as necessary to carry out all actions required to comply with the department’s Unlawful
Workplace Harassment Policy. Day-to-day responsibility for implementation of this policy is
delegated to the department’s ER Manager/EEO Officer.

Supervisor’s Responsibilities

Each supervisor must administer the department’s policy to include maintaining a work
environment free of unlawful harassment, and counseling employees to prevent and correct
harassment in any form.

Employee’s Responsibilities

All employees must adhere to the policy of the department, report illegal discrimination and/or
unlawful workplace harassment and help to maintain a work environment free of unlawful
workplace harassment.




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Employee Relations Manager/EEO Officer’s Responsibilities

The ER Manager/EEO Officer is accountable for investigating or directing the investigation of all
allegations of unlawful workplace harassment. The ER Manager/EEO Officer specifically
monitors disciplinary actions of all employees involved to ensure that departmental procedures
are followed; provides specialized advice and counseling to managers, supervisors and
employees, serves as the department’s EEO resource person and chairs the EEO team. In
addition, the ER Manager/EEO Officer maintains the BEACON Grievance Tracking System,
plans and presents workshops and training in the area of diversity, EEO and Unlawful
Workplace Harassment, ensures that printed materials about EEO assistance are given to all
new employees at the orientation sessions.


Definitions
      Hostile work environment is one that both a reasonable person would find
      hostile or abusive and one that the particular person who is the object of the
      harassment perceives to be hostile or abusive. Hostile work environment is
      determined by looking at all of the circumstances, including the frequency of the
      allegedly harassing conduct, its severity, whether it is physically threatening or
      humiliating and whether it unreasonably interferes with an employee's work
      performance.

      Quid pro quo harassment consists of unwelcome sexual advances, request for
      sexual favors or other verbal or physical conduct when (1) submission to such
      conduct is made either explicitly or implicitly a term or condition of an individual's
      employment or (2) submission to or rejection of such conduct by an individual is
      used as the basis for employment decisions affecting such individual.

      Retaliation is adverse treatment taken because of opposition to unlawful
      workplace harassment.

      Unlawful workplace harassment is unwelcome or unsolicited speech or conduct
      based upon race, sex, creed, religion, national origin, age, color or handicapping
      condition as defined by G. S. 168A-3 that creates a hostile work environment or
      circumstances involving quid pro quo.




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Procedure

Unlawful Workplace Harassment Grievances

Grievant must submit a written complaint to the Employing Agency

To initiate an unlawful workplace harassment complaint, the grievant must report the alleged
misconduct to their immediate supervisor if he/she is not involved and submit a written
complaint to the Employee Relations (ER) Manager/EEO Officer in the Human Resources
Management Office within 30 calendar days of the alleged harassing action. The employing
agency shall take appropriate remedial action within 60 calendar days from receipt of the
written complaint, unless the Department of Administration has waived the 60 calendar day
period, and grievant has acknowledged such waiver. The waiver and acknowledgement shall
be in writing. The employing agency shall provide a written response to the grievant when the
agency has determined what action, if any, will result from the grievant’s written complaint.
After the agency’s 60 calendar days (or less, if waived) response period has expired, the
grievant may appeal directly to the Office of Administrative Hearings and the State Personnel
Commission within 30 calendar days if not satisfied with the agency’s response to the
complaint.

Grievant Appeals to the Hearing Officer

Employees who feel the matter cannot be resolved through the immediate supervisor may
submit an appeal to a Hearing Officer. Any request for review by the Hearing Officer shall be
submitted to the ER Manager/EEO Officer in the Human Resources Management Office within
30 calendar days of the alleged misconduct. The employee filing the grievance will provide a
written summary of the specific facts of the complaint. The ER Manager shall transmit the
request to the Hearing Officer. Each party shall be notified in advance of the scheduled date of
the hearing. Neither the employee nor management may be represented by an attorney during
the hearing.

The ER Manager/EEO Officer in consultation with the Human Resources Management Director
will appoint the Hearing Officer. The employee shall be allowed the opportunity to challenge
whether the Hearing Officer can render an unbiased recommendation. Reasons for the
challenge must be presented in writing to the ER Manager/EEO Officer within 5 working days.
The determination of whether such cause exists to remove the Hearing Officer rests with the ER
Manager/EEO Officer and the Human Resources Management Director. The Hearing Officer
shall withdraw from participation in a grievance proceeding if he or she deems himself
disqualified for any reasons.
At the conclusion of the hearing, it is the responsibility of the Hearing Officer to inform the
Secretary of Administration, in writing, of the details of the grievance, share the dissenting
opinions of the employee, and provide a recommendation in writing of the details of the review,
what action, if any will result from the grievant’s written complaint.
An individual may also file a complaint with the Office of Administrative Hearings and the Equal
Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing
Title VII of the Civil Rights Act of 1964 as amended and the Civil Rights Act of 1991.


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 Employee Grievance and Mediation Filing Form

Check ONE:             _____   Step 1         Mediation

                       ____ Step 2            Appeal to the Hearing Officer

Note: Copies of the form and additional information must be submitted to the Employee Relations
Manager in the Human Resources Management Division.

If you require reasonable accommodations as defined by the Americans with Disabilities Act,
please list your needs below.

____________________________________________________________________________________



1.     Employee’s Name (first, middle, last): ____________________________________________

2.     Home Address (include zip code): _______________________________________________

3.     Home Telephone (include area code): ____________________________________________
       (If none, please list a telephone number where you can be reached)

4.     Business Telephone: __________________________________________________________

5.     Division: _____________________________ Work Unit: ____________________________

6.     Grievance: __________________________________________________________________
       (e.g. dismissal, demotion, suspension without pay, denial of promotion, etc.)

7.     Provide a brief statement of the issues/facts on which the grievance is based. (Please
       attach an additional sheet if necessary):




8.     Describe the relief desired. (Please attach an additional sheet if necessary):

       _____________________________________________________________________________

9.     Grievant Signature: _________________________________ Date: ____________________




       Received By: _______________________________________________________       Date: ___________
                                         Name and Title



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