Vilmarie Caraballo-Caraballo v. Correctional Administration

United States Court of Appeals
For the First Circuit
No. 16-1597
VILMARIE CARABALLO-CARABALLO,
Plaintiff, Appellant,
v.
CORRECTIONAL ADMINISTRATION; CORRECTIONS DEPARTMENT OF THE
COMMONWEALTH OF PUERTO RICO; and JESUS GONZALEZ-CRUZ, in his
official capacity as Secretary of the Department of Correction
and Rehabilitation of the Commonwealth of Puerto Rico,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Thompson, Circuit Judges.
Luis A. Rodríguez Muñoz, with whom Eduardo A. Vera Ramírez,
Eileen Landrón Guardiola, and Landrón Vera, LLC were on brief, for
appellant.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
with whom Margarita L. Mercado-Echegaray, Solicitor General, was
on brief, for appellees.
June 8, 2018

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LIPEZ, Circuit Judge. Plaintiff-Appellant Vilmarie
Caraballo-Caraballo filed this Title VII gender discrimination
action against her employer, the Corrections Department of the
Commonwealth of Puerto Rico, after she was transferred and replaced
by one male employee, and then, after the transfer of that
employee, by a second male employee. The district court granted
summary judgment to the Corrections Department, finding in its
favor on Caraballo's disparate treatment, hostile work
environment, and retaliation claims.
Although we affirm the court's judgment as to the latter
two claims, we find errors in its analysis of Caraballo's disparate
treatment claim. In particular, the district court erroneously
interpreted our decision in Johnson v. University of Puerto Rico,
714 F.3d 48 (1st Cir. 2013), to prohibit Caraballo from relying on
evidence highly relevant to the similar qualifications element of
her prima facie case -- namely, her experience in performing the
job from which she was transferred. Hence, we must vacate in part
the grant of summary judgment and remand for further proceedings
on that claim.
I.
In reviewing the district court's grant of summary
judgment, we recite the facts in the light most favorable to
Caraballo. See Burns v. Johnson, 829 F.3d 1, 5 (1st Cir. 2016).

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The Corrections Department 1 hired Caraballo as a Correctional
Officer I in 1994. In 2003, it assigned her to a personnel unit
that handled the Department's radio communications equipment,
called the Radio Communication Area. During the time relevant to
this case, the unit consisted of one supervisor, Melvin Sepúlveda-
Vargas ("Sepúlveda"), and a number of subordinate employees who
represented different regions within the Department. Caraballo
was in charge of radio communications for the Department's
Northwest Region. Her responsibilities included: inspecting and
replacing radio equipment at Department facilities, ensuring that
the Department complied with FCC guidelines, logging inventory,
transporting radio equipment, drafting various documents, teaching
cadets to use radio equipment, and making minor repairs.
In January 2009, the Department assigned a male
employee, Danny Cordero-Vega ("Cordero"), to the Radio
Communications Area. Approximately two months later, the
Department transferred Caraballo out of the Radio Communications
Area and reassigned her to inmate purchases -- i.e., the commissary
-- at the 705 Correctional Institution at Bayamón Intake Center.
1 The district court docket listed the appellees as three
separate parties, as follows: (1) the "Correctional
Administration," (2) the "Corrections Department of the
Commonwealth of Puerto Rico," and (3) "Jesus Gonzalez-Cruz, in his
official capacity as Secretary of the Department of Correction and
Rehabilitation of the Commonwealth of Puerto Rico." We refer to
appellees collectively as the "Corrections Department," or the
"Department."

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Caraballo and Sepúlveda asked their two commanding officers to
provide an explanation for her transfer. However, neither officer
complied with the requests, and one of the officers instructed
Sepúlveda not to intervene on Caraballo's behalf.
Meanwhile, without notifying Sepúlveda, the Department
assigned a second male employee, Osvaldo Anaya Cortijo ("Anaya"),
to the Radio Communications Area. Shortly thereafter, a
disagreement between Sepúlveda and Cordero over the scope of the
latter's authority came to a head. The Department sided with
Sepúlveda and transferred Cordero out of the Radio Communications
Area. Sepúlveda then requested that the Department return
Caraballo to her former post, but the request was denied by a
commanding officer without explanation. Instead, Anaya assumed
the responsibilities that had previously been carried out by
Caraballo.
Believing that her transfer from the Radio
Communications Area to the commissary violated Title VII of the
Civil Rights Act of 1964, Caraballo filed a charge of gender
discrimination with the EEOC and subsequently initiated this
action in May 2012. Her complaint alleged that the Department's
decision to transfer her and to replace her with Cordero and then
Anaya was motivated by gender discrimination. 2 She also alleged
2 The Department disputes whether Cordero was hired to replace
Caraballo. It insists that Cordero's job functions were different

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that the Department retaliated against her, and that she endured
a hostile work environment. 3 The district court granted summary
judgment to the Department on each claim. Subsequently, it denied
Caraballo's motion for reconsideration pursuant to Federal Rule of
Civil Procedure 59(e). This appeal followed.
II.
In challenging the district court's entry of summary
judgment on her disparate treatment claim, Caraballo contends that
the Department's initial decision to replace her with Cordero and
its subsequent decision to select Anaya -- instead of her -- as
Cordero's replacement were both based on her gender. Disparate
treatment claims under Title VII are ordinarily subject to the
familiar McDonnell Douglas burden-shifting framework. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
than Caraballo's, and included making major repairs to radio
equipment. However, Sepúlveda testified that Cordero was
unauthorized to make major repairs, and that he routinely exceeded
the scope of his job responsibilities. According to Sepúlveda,
Cordero's duties were supposed to be consistent with Caraballo's
former responsibilities. Viewing the record in the light most
favorable to Caraballo, as we must, we conclude that Cordero
replaced Caraballo.
3 In addition to these Title VII claims, Caraballo's complaint
included claims under the First and Fourteenth Amendments, and the
laws and Constitution of Puerto Rico. Caraballo does not appeal
the district court's grant of summary judgment to the Department
on those claims. Her complaint also named eight individual
defendants who were dismissed after Caraballo failed to timely
effect service. She does not appeal the court's decision to
dismiss those defendants.

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Mariani-Colón v. Dep't of Homeland Sec. ex rel. Chertoff, 511 F.3d
216, 221 (1st Cir. 2007). At the first step of this framework, a
plaintiff has the burden to establish, by a preponderance of the
evidence, a prima facie case of discrimination. See, e.g., Garmon
v. Nat'l R.R. Corp., 844 F.3d 307, 313 (1st Cir. 2016). This
burden is not onerous. See, e.g., Kosereis v. Rhode Island, 331
F.3d 207, 213 (1st Cir. 2003). Indeed, the prima facie case
requires only a "small showing," one that is "easily made." Id.
(quoting Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st
Cir. 2001) and Gillen v. Fallon Ambulance Serv. Inc., 283 F.3d 11,
30 (1st Cir. 2002)). By establishing a prima facie case, a
plaintiff creates an inference of discrimination. See, e.g., Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). 4
The district court described Caraballo's prima facie
case as requiring her to show that, "(1) she is a member of a
protected class; (2) she was qualified [for the position]; (3) she
suffered an adverse employment action; and (4) someone else holding
4 Once a plaintiff establishes a prima facie case of
discrimination, the burden of production shifts to the defendant
to show that the allegedly unlawful action was taken for a
legitimate, nondiscriminatory reason. See Burns, 829 F.3d at 9
n.8. If the defendant satisfies this requirement, the burden of
production shifts back to the plaintiff to show that the
defendant's proffered explanation is mere pretext. See
Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 175
(1st Cir. 2015). While this framework shifts the burden of
production, the burden of persuasion "remains at all times with
the plaintiff." Mariani-Colón, 511 F.3d at 221.

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similar qualifications was chosen or selected for the same
position." In the ensuing discussion, we refer to the second
element as the "job qualifications" element, the fourth element as
the "similar qualifications" element, and the two elements
collectively as the "qualifications elements."
After reciting the elements of Caraballo's prima facie
case, the court found that she had satisfied the first three
elements, but failed to meet the similar qualifications element.
The court compared Caraballo's credentials to Cordero's, and found
Caraballo's credentials wanting. Caraballo had only a high school
diploma, with some training in secretarial speedwriting, while
Cordero had an associate's degree in computer programming, a
license from a radio communications association, and other radio
communications education.
The court limited its analysis to this comparison of
Caraballo's and Cordero's educational credentials. Relying on our
decision in Johnson, 714 F.3d at 54, it reasoned that "[t]he
qualifications [Caraballo] obtained through experience, good work,
and reputation may not be used to prove her to be similarly
situated to Cordero." This application of Johnson was incorrect.
The plaintiff in Johnson was a graphics instructor at
the University of Puerto Rico who held a master's degree in
architecture. 714 F.3d at 49. After twelve years of teaching at
the university under temporary service contracts, she applied for

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a tenure-track position. Id. at 51. The university's requirements
for tenure-track positions specified that candidates had to have
a Ph.D. Id. The university eventually selected three candidates
with Ph.Ds. for the tenure-track positions. Id. Feeling wronged,
Johnson brought a Title VII action alleging that the university
failed to promote her because of her national origin and gender.
Id. at 51-52. The district court granted summary judgment to the
university. Id. at 52.
On appeal, Johnson argued that despite not having a
Ph.D., her teaching experience and stellar reputation qualified
her for the job. Id. at 54. We rejected this position, concluding
that the university's Ph.D. requirement "was reasonable on its
face and was plainly legitimate," and that Johnson's inability to
meet the requirement rendered her unqualified for the position,
and less qualified than her comparators. Id. at 54 & n.7. Johnson
thus stands for the straightforward proposition that where an
employer requires minimum qualifications for an open position that
are "reasonable on [their] face and . . . plainly legitimate," a
plaintiff ordinarily cannot rely on her experience and reputation
to show that she was qualified for the position if she does not
possess the qualifications specified by the employer. Id. at 54.
That holding is inapposite to the similar qualifications element
of the prima facie showing in Caraballo's discriminatory transfer
case.

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Under the McDonnell Douglas framework, the requirements
of a plaintiff's prima facie case "can vary depending on the
context and were 'never intended to be rigid, mechanized, or
ritualistic.'" Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512
(2002) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577
(1978)). Indeed, the McDonnell Douglas Court noted that the prima
facie requirements it was announcing in that race-based refusal-
to-rehire case would need to be modified to account for "differing
factual situations" in future cases. 411 U.S. at 802 n.13. As
the Court anticipated, the McDonnell Douglas framework has since
been adapted and applied in a wide range of discrimination cases
involving different protected statuses and employment decisions.
See generally Lex K. Larson, 1 Larson on Employment Discrimination
§ 8.08 (Lexis, 2018 update) (collecting cases); Merrick T. Rossein,
1 Employment Discrimination Law and Litigation § 2:4 (Westlaw,
2017 update) (same). We have explained that
[t]he prima facie case requirement embodies a
concept, not a mechanical exercise. Though
its contours generally follow the McDonnell
Douglas model, a prima facie case must be
custom-tailored to fit both the particular
animus (e.g., age discrimination, sex
discrimination, race discrimination) and the
particular type of employment decision
involved (e.g., failure to hire, failure to
promote, failure to retain).
Sanchez v. P.R. Oil Co., 37 F.3d 712, 719 (1st Cir. 1994).

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Given the variety of discrimination cases in which
courts apply the McDonnell Douglas framework, a principle
established in one case will not always translate to another. In
particular, there are significant distinctions between the
qualifications elements in failure to promote or hire cases and
those elements in discharge or transfer cases. See 1 Larson on
Employment Discrimination § 8.08(4) (identifying distinctions
between failure to hire and discharge cases and describing how the
qualifications elements should be altered in discharge cases); see
also Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.
2000), overruled on other grounds by Ortiz v. Werner Enters., Inc.,
834 F.3d 760 (7th Cir. 2016) (contrasting the relevant factors for
determining whether employees are similarly situated in
discriminatory discipline cases versus transfer cases).
In failure to hire or promote cases, the plaintiff is
ordinarily vying for an open position, for which the employer has
established certain minimum qualifications. See Johnson, 714 F.3d
at 51 (requiring a Ph.D.); Cruz v. Mattis, 861 F.3d 22, 25 (1st
Cir. 2017) (requiring full-time teaching experience); Goncalves v.
Plymouth Cty. Sheriff's Dep't, 659 F.3d 101, 105-06 (1st Cir. 2011)
(requiring certain computer skills and experience). Courts thus
assess the plaintiff's qualifications in light of the employer's
stated job requirements. If the plaintiff does not possess the
requisite qualifications, she ordinarily cannot raise an inference

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that her protected characteristic, rather than her lack of
qualifications, accounted for the employer's failure to hire or
promote her. See, e.g., Johnson, 714 F.3d at 54. Likewise, the
plaintiff in such cases ordinarily cannot create an inference of
discrimination by arguing that, on the basis of experience and
reputation, she was similarly qualified as a successful applicant
who did possess the qualifications specified by the employer. See,
e.g., Johnson, 714 F.3d at 54 n.7; Gonclaves, 659 F.3d at 105-07. 5
In discharge or transfer cases, however, the employer
"has already expressed a belief that [the plaintiff] is minimally
qualified," by previously "hiring the employee." Gregory v. Daly,
243 F.3d 687, 696 (2d Cir. 2001); see also Cumpiano v. Banco
Santander P.R., 902 F.2d 148, 154 (1st Cir. 1990) ("Particularly
in a discharge case -- where an employee has been doing the job
satisfactorily for a substantial period of time -- the proponent's
burden [to demonstrate her qualifications] is not great.").
5 We do not foreclose the possibility that in some exceptional
cases, a plaintiff who did not meet the employer's stated job
requirements may be able to rely on evidence of her reputation and
experience to show that she was similarly qualified as a comparator
who did meet those requirements. We also note that where both the
plaintiff and the successful applicant for a position do not meet
the employer's stated job requirements, the plaintiff may still be
able to raise an inference of discrimination. See Carter v. Three
Springs Residential Treatment, 132 F.3d 635, 643 (11th Cir. 1998)
(reasoning that a job announcement listing "clinical experience"
as a requirement could not prevent a plaintiff who lacked such
experience from establishing his prima facie case because the two
successful applicants also lacked clinical experience).

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Accordingly, in such cases, courts will rarely need to compare the
plaintiff's credentials with the employer's stated job
requirements. Instead, the plaintiff's ability to satisfy the job
qualifications element will ordinarily depend on whether she was
successfully performing her job at the time of her discharge or
transfer, such that she did not disqualify herself by performing
poorly. See, e.g., Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696
F.3d 128, 139 (1st Cir. 2012) (finding that a discharged
plaintiff's long history of successful employment sufficed to
establish his qualifications at the prima facie stage); Vélez v.
Thermo King de P.R., Inc., 585 F.3d 441, 448 (1st Cir. 2009)
(same). Likewise, the fact that the employer has already deemed
the plaintiff minimally qualified undermines any basis for
preventing the plaintiff from relying on her experience and
reputation in establishing the similar qualifications element. As
described above, we have only applied that rule to the similar
qualifications element in cases such as Johnson where the plaintiff
is not minimally qualified but her comparator is. See supra p.
11; Johnson, 714 F.3d at 54 n.7; Gonclaves, 659 F.3d at 105-07. 6
6 We do not mean to suggest that the Johnson rule can never
apply in a discharge or transfer case. Indeed, our discussion of
the McDonnell Douglas framework's flexibility would belie any such
conclusion. However, in typical discharge and transfer cases,
like Caraballo's, the Johnson rule will ordinarily be inapposite.

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Here, the district court's decision did not account for
this contextual distinction between failure to hire or promote
cases and discriminatory discharge or transfer cases. As a result,
it extended the Johnson rule from the failure to hire or promote
context, in which it typically applies, to a context in which it
is largely inapt. While Johnson involved the comparison of a
plaintiff's credentials to an employer's stated job requirements,
the record in this case does not contain any evidence of the
Corrections Department's stated job requirements. Further, even
if the record did contain such evidence, Caraballo's experience
performing her former position may still have been highly probative
of her qualifications -- vis-à-vis Cordero's qualifications -- to
perform that very job. See Cumpiano, 902 F.2d at 154.
Instead of preventing Caraballo from relying on her work
experience, the district court should have compared Caraballo to
Cordero "in all relevant respects." Conward v. Cambridge Sch.
Comm., 171 F.3d 12, 20 (1st Cir. 1999); see also Ray v. Ropes &
Gray LLP, 799 F.3d 99, 114 (1st Cir. 2015). "Reasonableness is
the touchstone" of this inquiry. Conward, 171 F.3d at 20; see
Cumpiano, 902 F.2d at 154 ("The issue of job qualifications must
be viewed in an objectively reasonable way."). The court must
decide "whether a prudent person, looking objectively" at the
plaintiff and her comparator "would think them roughly
equivalent," and similarly qualified for the position. Vélez, 585

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F.3d at 451 (quoting Perkins v. Brigham & Women's Hosp., 78 F.3d
747, 752 (1st Cir. 1996)).
By the time of her transfer, Caraballo had six years of
experience working in the Radio Communications Area. Her
performance during that time was so successful that her immediate
supervisor, Sepúlveda, wanted her returned to the position after
she was transferred. This successful tenure in the Radio
Communications Area would allow a reasonable person to conclude
that Caraballo's qualifications were similar -- if not superior
-- to Cordero's, despite his better educational credentials.
Turning to Caraballo's second replacement, the district
court failed to assess whether Caraballo and Anaya were similarly
qualified. The record indicates that the Department transferred
Anaya to the Radio Communications Area shortly after it transferred
Cordero to that unit. When the Department reassigned Cordero a
couple of months later, Sepúlveda asked that Caraballo be returned
to her former position. Instead, the Department selected Anaya
for the position. At that time, Anaya's qualifications consisted
of a couple of months' experience working in the Radio
Communications Area. This qualification pales in comparison to
Caraballo's six years of experience in her prior position.
Caraballo thus satisfied the similar qualifications
element of her prima facie case by showing that she was similarly
qualified to both Anaya and Cordero. The district court's

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conclusion to the contrary rested on an erroneous extension of our
decision in Johnson, and on its neglect of a relevant comparator,
Anaya.
III.
The Department offers an alternative basis for affirming
the district court's grant of summary judgment. It contends that
Caraballo did not establish a prima facie case of discrimination
because her transfer from the Radio Communications Area to the
commissary was not an adverse employment action. We disagree.
We have recognized on several occasions that a transfer
may constitute an adverse employment action. See, e.g., Marrero
v. Goya of P.R., Inc., 304 F.3d 7, 23 (1st Cir. 2002); Rodríguez-
García v. Miranda-Marín, 610 F.3d 756, 766 (1st Cir. 2010).
However, not all transfers will suffice. "[A] transfer that does
not involve a demotion in form or substance," including one that
imposes "only minor changes in working conditions," is not an
adverse employment action. Marrero, 304 F.3d at 23 (quoting
Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997)). On
the other hand, a transfer is adverse if it materially changes the
plaintiff's conditions of employment in a manner that is "more
disruptive than a mere inconvenience or an alteration of job
responsibilities." Burns, 829 F.3d at 10 (quoting Morales-
Vallellanes v. Potter, 605 F.3d 27, 35 (1st Cir. 2010)).

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The Department argues that Caraballo's transfer from the
Radio Communications Area was not adverse because it did not
involve a decrease in rank, benefits, or pay. However, we have
squarely rejected the notion that "a transfer cannot qualify as an
'adverse employment action' unless it results in a diminution in
salary or a loss of benefits." Marrero, 304 F.3d at 24; see also
Rodríguez-García, 610 F.3d at 766-67 (holding that plaintiff's
transfer was an adverse employment action due to her change in
duties, despite retaining the same salary and title). Instead,
the fact that a transfer leaves an employee with "significantly
different responsibilities," may make the transfer actionable.
Burns, 829 F.3d at 10 (quoting Morales-Vallellanes, 605 F.3d at
35).
Caraballo's transfer meets that standard. Her six years
working in the Radio Communications Area allowed her to gain
significant experience, and develop some expertise, in the field
of radio communications. She inspected, programmed, and replaced
radio equipment, performed repairs, maintained inventories, taught
cadets to use radio equipment, and ensured that the Department was
compliant with FCC guidelines. That experience and knowledge were
rendered useless by her transfer to the commissary, a job that
consisted of handling inmate purchases. This disparity in duties
distinguishes Caraballo's transfer from those that we have found
insufficient, and makes the transfer an adverse employment action.

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See Ayala-Sepúlveda v. Municipality of San Germán, 671 F.3d 24, 32
(1st Cir. 2012) (rejecting employee's claim that his transfer from
one city office to another was materially adverse because there
was no evidence that his "pay, rank, or duties," had changed
(emphasis added)); Marrero, 304 F.3d at 24 (concluding that
transfer was not adverse where it involved only minor, temporary,
changes in a secretary's working conditions).
IV.
Caraballo has thus established a prima facie case of
gender discrimination. She was successfully performing her
position, was adversely transferred, and was twice replaced by
someone whom a reasonable person could consider similarly (or less)
qualified. Caraballo's satisfaction of the prima facie step of
the McDonnell Douglas framework creates an inference of
discrimination, requiring the Corrections Department to produce a
legitimate, nondiscriminatory justification for its action. See,
e.g., Kosereis, 331 F.3d at 212. However, the Department's
briefing before the district court did not even attempt to offer
such a justification. Because Caraballo established a prima facie
case of gender discrimination that her employer failed to rebut,
the district court erred by granting summary judgment in the
Department's favor. See Mesnick v. Gen. Elec. Co., 950 F.2d 816,
824 (1st Cir. 1991) ("If the plaintiff has made out his prima facie
case, and the employer has not offered a legitimate,

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nondiscriminatory reason to justify the adverse employment action,
then the inference of discrimination created by the prima case
persists, and the employer's attempt to secure summary judgment
should be rebuffed."). We thus vacate the district court's grant
of summary judgment as to Caraballo's disparate treatment claim,
and remand for further proceedings consistent with this opinion. 7
The parties shall bear their own costs on appeal.
So ordered.
7 We see no basis for disturbing the district court's grant
of summary judgment as to Caraballo's hostile work environment and
retaliation claims.

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