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Fitzgerald v. Action, Inc.: ERISA | EMPLOYMENT - enough evidence of pretext to interfere with insurance for ERISA violation; but insufficent evidence of age discrimination

United States Court of Appeals
No. 07-2199
Danny Fitzgerald, *
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Action, Inc., *
Defendant - Appellee. *
Submitted: February 15, 2008
Filed: April 4, 2008
Before BYE, RILEY, and BENTON, Circuit Judges.
BYE, Circuit Judge.
Danny Fitzgerald appeals the district court's grant of summary judgment in
favor of his former employer, Action, Inc., on his claims of age discrimination and
interference with employment benefits. We affirm in part, reverse in part, and remand
for further proceedings consistent with this opinion.
The facts, viewed in the light most favorable to Fitzgerald, Dush v. Appleton
Elec. Co., 124 F.3d 957, 962-63 (8th Cir. 1997) (summary judgment standard), show
the following. He began working for Action as a shop hand on November 12, 2003.
At the time, he was fifty years old, and worked for Action until he was terminated on
May 19, 2005. Throughout this period, Raymond Easley was Fitzgerald's supervisor
and shop foreman.
On February 20, 2005, while Fitzgerald was working, Harold Yandell caused
Fitzgerald to fall, re-aggravating a back and shoulder injury, causing him to miss
about a week of work. He attempted to file an accident report but Action informed
him the incident would be taken care of informally. In late February and early March
2005, he received treatment for his back. On May 11, 2005, he saw Dr. Greg Jones
regarding his shoulder. Following the consultation with the doctor, it became
apparent Fitzgerald would need surgery. The record reveals Dr. Jones told Fitzgerald
he would likely need rotator cuff surgery, and, prior to his termination, Fitzgerald
informed Action he intended to have surgery.
Action asserts "no shoulder surgery had been recommended or scheduled prior
to [Fitzgerald's] termination" and, therefore, it was unaware he was planning on
having shoulder surgery. The record, however, shows Dr. Jones spoke with Fitzgerald
about "treatment options" and informed him "at least an acromioplasty [shoulder
surgery] for the hooked acromion and AC decompression would be appropriate."
App. at 53. According to Fitzgerald, he immediately notified Easley and others at
Action he was going to be having shoulder surgery and needed time off. Easley and
Pete Garner, Action's shop manager, approved his request for time off. Id.
Additionally, Dr. Jones's notes from a followup appointment on May 20, 2005,
support Fitzgerald's testimony.
[Fitzgerald] gives me an interesting story regarding recent dismissal from
work. I am not sure what to make of that. He is concerned that it has
something to do with his upcoming right shoulder surgery or perhaps an
injury that he sustained in an incident at work for which he had been
seen shortly after by Dr. Cole regarding the work related nature. The
bottom line is that I do not know how to advise him except to make sure
his insurance issues are under control at least until the time that he gets
the shoulder taken care of, so as to protect himself on that respect.
App. at 56.
On May 19, 2005, Easley informed Fitzgerald he was being "laid off." Easley
told him "the decision had come from upstairs [management] and that they did not
need a reason." Appellant's Br. at 3. Upon Fitzgerald pressing Easley, Easley stated
Fitzgerald was being terminated due to "lack of work." Id.
Later, in an affidavit, Easley indicated he terminated Fitzgerald's employment
"because of the accumulation of his employee misconduct and specifically over his
abuse of restroom privileges and break time." App. at 86. Easley stated Fitzgerald's
use of "the restroom for long periods of time, usually . . . before break time or time to
go home" was an abuse of restroom privileges and break time and a "violation of
Action Employee Conduct." Id. According to Easley, he spoke with Garner regarding
Fitzgerald's abuse of bathroom privileges on May 17, 2005, and Garner made the
decision to terminate Fitzgerald.
In response to an Equal Employment Opportunity Commission (EEOC)
Request for Information, Action submitted a written position statement stating:
[Fitzgerald] was not laid off because of lack of work. He was terminated
for cause as a result of accumulated misconduct. Multiple written
statements issued to the Charging Party [referring to the Employee
Action Forms] are attached hereto as Exhibit 5. His attendance record
is reflected in additional Exhibit 7.
App. at 155.
The record reveals from February 4, 2005, to May 17, 2005, Fitzgerald was
"written up" for employee misconduct on seven occasions (five of which are relevant
on appeal). He states he was aware written warnings were part of Action's
disciplinary process and Easley required employees to sign the written warnings.
However, while he had received verbal warnings about wearing a seatbelt on the
forklift and smoking in the doorway to the shop, he had not been the subject of any
written disciplinary action and Easley never required him to sign a written warning.
Fitzgerald contends he was terminated because of his age, in violation of the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623, and because of his
need for employee benefits coverage for his shoulder surgery, in violation of § 510 of
the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1140. He argues
the district court erred in granting Action's motion for summary judgment on both
claims because material issues of fact existed.
We review a district court's grant of summary judgment de novo. Fischer v.
Andersen Corp., 483 F.3d 553, 556 (8th Cir. 2007) (citing Woodland v. Joseph T.
Ryerson & Son, Inc., 302 F.3d 839, 841 (8th Cir. 2002)). When the evidence, viewed
in the light most favorable to the nonmoving party, presents no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law, summary
1McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-04 (1973).
judgment is appropriate. Id. (citing Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
Fitzgerald first argues Action terminated him "to prevent him from receiving
his healthcare insurance benefits" in violation of § 510 of ERISA. Appellant's Br. at
6. Specifically, he contends he notified Easley and others "he was preparing to have
surgery on his shoulder to repair damage from an old industrial accident" and Action
terminated him to avoid paying "the substantial costs and potential future costs of this
claim." Id.
Section 510 of ERISA makes it unlawful for an employer to discharge a
participant in an employee benefit plan "for the purpose of interfering with the
attainment of any right to which such participant may become entitled under the plan."
29 U.S.C. § 1140. To establish a claim for a violation of § 510, Fitzgerald must show
Action "had a specific intent to interfere with [his insurance] benefits, but that may be
shown by circumstantial evidence." Register v. Honeywell Fed. Mfg. & Techs., LLC,
397 F.3d 1130, 1136-37 (8th Cir. 2005) (citing Regel v. K-Mart Corp., 190 F.3d 876,
881 (8th Cir. 1999)). In the absence of direct evidence of an employer's deliberate
interference with future benefits, we analyze § 510 interference claims using the
McDonnell Douglas1 three-part burden-shifting analysis common to Title VII and
ADEA cases. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981);
Libel v. Adventure Lands of America, Inc., 482 F.3d 1028, 1035 n.7 (8th Cir. 2007)
(holding because "Libel's ERISA claim is based on alleged circumstantial evidence
. . . we analyze [it] under the McDonnell Douglas framework.").
Initially, Fitzgerald must make a prima facie showing Action terminated him
with the specific intent of interfering with his insurance benefits. Then the burden
shifts to Action to articulate a legitimate, nondiscriminatory reason for the
termination. If the employer does so, the burden shifts back to the employee to prove
the proffered reason was pretextual. Register, 397 F.3d at 1137.
The district court assumed Fitzgerald established a prima facie case but granted
summary judgment, concluding Action had "provided legitimate, nondiscriminatory
reasons for [Fitzgerald's] termination" and "these nondiscriminatory reasons for
terminating [Fitzgerald] prevent a fact finder from concluding that the reasons for
terminating him were pretextual." Id. On appeal, neither party challenges the district
court's assumption or its conclusion Action articulated a legitimate, nondiscriminatory
reason for the termination decision, i.e., Fitzgerald's accumulated misconduct.
Instead, the parties dispute whether Fitzgerald has produced sufficient evidence to
show the employer's reason was pretextual and whether it acted with a specific intent
to interfere with the employee's rights.
If the employer rebuts the inference of discrimination arising from the
employee's prima facie case, the employee can prove the employer's articulated
justification is merely pretextual "either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing
that the employer's proffered explanation is unworthy of credence." Gavalik v.
Continental Can Co., 812 F.2d 834, 853 (3d Cir. 1987) (quoting Burdine, 450 U.S. at
256). In determining whether summary judgment is appropriate we consider "the
strength of the plaintiff's prima facie case, the probative value of the proof that the
employer's explanation is false, and any other evidence that supports the employer's
case and that properly may be considered on a motion for judgment as a matter of
law." Girten v. McRentals, Inc., 337 F.3d 979, 982 (8th Cir. 2003) (quoting Reeves
v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148-49 (2000)).
An employee may prove pretext by demonstrating that the employer's
proffered reason has no basis in fact, that the employee received a
favorable review shortly before he was terminated, that similarly situated
employees who did not engage in the protected activity were more
leniently treated, that the employer changed its explanation for why it
fired the employee, or that the employer deviated from its policies.
Stallings v. Hussmann Corp., 447 F.3d 1041, 1052 (8th Cir. 2006) (citing Smith v.
Allen Health Sys., 302 F.3d 827, 834-35 (8th Cir. 2002)).
Fitzgerald contends the evidence in the record was sufficient to raise genuine
issues of material fact regarding Action's explanation for the termination.
Specifically, he points to: (1) Action's inconsistent explanations for the termination;
(2) Action's failure to follow company policy; (3) Action's more lenient treatment of
another employee; and (4) the temporal proximity between notifying Action of his
surgery and his termination. We conclude Fitzgerald has put forth sufficient evidence
to show accumulated misconduct may not have been the true impetus behind his
termination, but rather a pretext for interfering with his insurance benefits.
Action maintains it terminated Fitzgerald for accumulated misconduct. At the
time of his discharge, however, Action gave a different reason. Easley informed
Fitzgerald he was being "laid off" due to a "lack of work." Appellant's Br. at 10.
Based on Easley's explanation, Fitzgerald filed a claim for unemployment insurance
benefits with the Arkansas Employment Security Division (AESD), representing he
had been "laid off" due to a "lack of work." App. at 148. The AESD notified Action
and gave it the opportunity to dispute his claim. Action was aware if it failed to
timely dispute his claim it would waive its right to protest the AESD's final
determination. Action did not respond and the AESD found Fitzgerald eligible for
unemployment benefits after being "laid off."
2Action suggests it was justified in changing its stated reason for Fitzgerald's
termination because, when told his services were no longer needed, it was Fitzgerald
"who pressed the issue for the reason why." App. at 97. We fail to see how this is
relevant to the issue of pretext.
Conversely, Easley stated he terminated Fitzgerald's employment "because of
the accumulation of his employee misconduct and specifically over his abuse of
restroom privileges and break time." Id. at 86. Easley claimed Fitzgerald's use of "the
restroom for long periods of time, usually . . . before break time or time to go home"
was an abuse of restroom privileges and break time and a "violation of Action
Employee Conduct." Id. In particular, Easley stated Fitzgerald was terminated
because of the May 17, 2005, "bathroom incident." Id. at 167, 168-69, 171.
Action's different justifications "give rise to a genuine issue of fact with respect
to pretext since they suggest the possibility that [none] of the official reasons was the
true reason." Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir. 1994) (reversing
partial summary judgment for defendant on grounds the fact finder could infer
discrimination from inconsistency in defendant's articulated reasons for plaintiff's
termination). "A rational trier of fact could find these varying reasons show that the
stated reason was pretextual, for one who tells the truth need not recite different
versions of the supposedly same event." Payne v. Norwest Corp., 113 F.3d 1079,
1080 (9th Cir. 1997). See also Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424,
432 (1st Cir. 2000) ("[W]hen a company, at different times, gives different and
arguably inconsistent explanations, a jury may infer that the articulated reasons are
Action argues the fact it has given inconsistent reasons for Fitzgerald's
termination is irrelevant because each reason was a "legitimate reason[ ] for
terminating Fitzgerald's at-will employment."2 Appellee's Br. at 17. Action
misunderstands the probative value of this evidence. As we explained in Wallace v.
DTG Operations, Inc.:
There are at least two routes by which a plaintiff may demonstrate a
material question of fact at this final stage of the analysis. First, a
plaintiff may succeed "indirectly by showing that the employer's
proffered explanation is unworthy of credence," Burdine, 450 U.S. at
256, because it has "no basis in fact." Smith v. Allen Health Sys., Inc.,
302 F.3d 827, 834 (8th Cir. 2002). Second, a plaintiff may succeed
"directly by persuading the court that a [prohibited] reason more likely
motivated the employer." Burdine, 450 U.S. at 256. Both of these routes,
in effect, amount to a showing that the prohibited reason, rather than the
proffered reason, actually motivated the employer's action.
442 F.3d 1112, 1120 (8th Cir. 2006). The first route typically requires the plaintiff
rebut the facts underlying the employer's stated reason. Id. "The second route, in
contrast, . . . focuses instead on rebuttal of the employer's ultimate factual claim
regarding the absence of [discriminatory] intent." Id. at 1121. Under this route, "a
plaintiff may concede that the proffered reason . . . would have been a sufficient basis
for the adverse action while arguing that the employer's proffered reason was not the
true reason for the action." Id. (citing Hitt v. Harsco Corp., 356 F.3d 920, 924 (8th
Cir. 2004) (stating whether an age discrimination plaintiff could show pretext turned
"on whether age was . . . the true reason for, the decision to terminate")) (emphasis in
Utilizing this second route, Fitzgerald has demonstrated Action's varying
explanations raise a question whether any of the stated reasons are the true reason for
its decision. See Tatum v. City of Berkeley, 408 F.3d 543, 554 (8th Cir. 2005)
(indicating, in the absence of evidence to dispel the inference that defendant's stated
reason for plaintiff's termination was not the true reason, judgment as a matter of law
was improper). Moreover, the fact that each of Action's stated explanations would
have been a legitimate basis for terminating Fitzgerald does not neutralize the
probative value of this evidence. See Kobrin v. Univ. of Minn., 34 F.3d 698, 703 (8th
Cir. 1994) ("Substantial changes over time in the employer's proffered reason for its
employment decision support a finding of pretext."). Accordingly, a rational trier of
3 Easley explained "monkeying around" to mean spending excessive time in the
restroom. Easley's Dep. at 20.
fact could find the employer's varying reasons for the employee's termination are
evidence of pretext.
Next Fitzgerald contends Action's failure to discipline him according to
company policy is evidence of pretext. Cf. Erickson v. Farmland Indus., Inc., 271
F.3d 718, 727 (8th Cir. 2001) (noting employee can prove pretext through evidence
the employer varied from its normal policy or practice to address the employee's
situation). Easley testified it was protocol to verbally warn an employee who violated
a rule and, if it happened again, to "write the employee up" or fill out an Employee
Action Form. Easley, however, did not give Fitzgerald a verbal warning before
writing him up for the "bathroom incident." Id. When asked why, Easley responded:
"I kept watching him and I kept watching him and watching him. He kept horsing
around and monkeying,3 and that's the reason I did it." Id.
Additionally, under Action's termination policy, an employee would only be
terminated after being written up three times for the same violation. App. at 171-172.
Easley admitted Fitzgerald had not been written up three times for abusing restroom
privileges and was "terminated in violation of Action's policy." Id. at 172. Easley
also admitted he had not fired anyone other than Fitzgerald for abuse of restroom
privileges. Id.
We conclude Fitzgerald has shown that the circumstances surrounding his
termination contravened Action's normal policies and are evidence Action's proffered
explanation was pretextual.
Fitzgerald next asserts Action's more lenient treatment of another employee
supports the conclusion his accumulated misconduct was a pretext for discrimination.
"An employee can prove pretext by showing the employer meted out more lenient
treatment to similarly situated employees who were not in the protected class, or as
here, who did not engage in protected activity." Smith v. Allen Health Sys., Inc., 302
F.3d at 835 (citing Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994)).
Fitzgerald argues David Gipson was similarly situated and "a far less satisfactory
employee," yet Action did not terminate his employment. Appellant's Br. at 24.
The record shows Action hired Gipson in August 2004 and Fitzgerald in
November 2003. Both men were employed as shop hands. At the time Fitzgerald was
terminated, Gipson was forty-eight years old and Fitzgerald was fifty-one. From
January to April 2005, Gipson missed more days of work and arrived late to work
more times than Fitzgerald. Both men were involved in the smoking incident, which
led to Fitzgerald's March 2, 2005, employee action form. Finally, following
Fitzgerald’s termination, Gipson was written-up for insubordination after Easley
witnessed Gipson standing "by the water cooler for 5 to 10 min. doing nothing." App.
at 187. When Easley told Gipson to help load the truck, Gipson replied: "Don't tell
me what to do. . . . FUCK YOU, get my check." Id. Easley sent Gipson home, but
the next day, after he and Gipson spoke, Easley let Gipson come back to work and no
disciplinary action was taken. Id. at 188. According to Fitzgerald, the controlling
distinction between his conduct and Gipson's was, unlike Fitzgerald, Gipson made no
claim for employee medical benefits.
We conclude a reasonable jury could find Action treated Fitzgerald more
harshly than Gipson because of his anticipated insurance claim.
Fitzgerald next contends the temporal connection between the protected activity
and his termination is further evidence of pretext. Action argues temporal proximity,
standing alone, is insufficient to prove retaliatory intent.
We have held "timing alone is insufficient to show a pretextual motive rebutting
a legitimate, non-discriminatory reason for an adverse employment action." Green v.
Franklin Nat'l Bank of Minneapolis, 459 F.3d 903, 916 (8th Cir. 2006) (citing EEOC
v. Kohler Co., 335 F.3d 766, 774 n.7 (8th Cir. 2003)).
We cannot [however] presume that fact finders view each piece of
evidence in isolation, and most cases that involve claims of retaliation
stem from rich factual backgrounds that provide ample evidence to
support and/or disprove allegations of retaliation. In all such cases, the
evidence of pretext and retaliatory intent must be viewed in its totality.
Viewed within the context of the overall record, temporal proximity may
directly support an inference of retaliation, and it may also affect the
reasonableness of inferences drawn from other evidence.
Wallace, 442 F.3d at 1122.
Here only a few days elapsed between Fitzgerald's notification of his intent to
have surgery and Action's decision to terminate him, and temporal proximity provides
support for an inference of retaliatory intent. Moreover, the reason Action gave for
terminating Fitzgerald – accumulated misconduct – had existed for months before
Fitzgerald notified Action of his surgery. With the exception of the "bathroom
incident," which occurred on May 17, 2005, the alleged misconduct involved four
incidents between February 4, 2005, and March 2, 2005: on February 4 and February
11, Fitzgerald was not wearing a seatbelt while driving the forklift; on February 11,
Fitzgerald was thirty minutes late for work; and on March 2, Fitzgerald was smoking
on the dock during working hours. Yet, Action made the decision to terminate
Fitzgerald on May 17, 2005; days after finding out about his upcoming surgery, but
some two and a half months after the bulk of the accumulated misconduct occurred.
Where an employer tolerates an undesirable condition for an extended period
of time, and then, shortly after the employee takes part in protected conduct, takes an
adverse action in purported reliance on the long-standing undesirable condition, a
reasonable jury can infer the adverse action is based on the protected conduct. See
Eliserio v. United Steelworkers of America Local 310, 398 F.3d 1071, 1079-80 (8th
Cir. 2005) (stating when an employer ignored or treated as de minimis five complaints
about an employee but took drastic action following a sixth, identical complaint, a
reasonable jury could infer the employer's claim of reliance on the sixth complaint was
pretextual). In this case, a fact finder could reasonably infer Action would have
terminated Fitzgerald sooner if accumulated misconduct had been the true motivation
for his discharge.
Viewed in concert with other evidence of pretext, the close temporal proximity
between Fitzgerald's notification and Action's termination decision provides support
for an inference of retaliatory intent. Because material questions of fact exist on the
issue of pretext, we conclude it was error for the district court to grant Action
summary judgment on Fitzgerald's ERISA claim.
Fitzgerald next appeals the district court's grant of summary judgment on his
claim of age discrimination. The ADEA forbids an employer from taking adverse
employment actions against an employee because of his age. 29 U.S.C. § 623(a)(1).
A plaintiff may establish a claim of intentional age discrimination either through
direct evidence of discrimination or through circumstantial evidence. Carraher v.
Target Corp., 503 F.3d 714, 716 (8th Cir. 2007) (citing Mayer v. Nextel W. Corp., 318
F.3d 803, 806 (8th Cir. 2003)). Where the plaintiff does not show a specific link
4Having determined Fitzgerald presented sufficient evidence of pretext, we
focus on whether age was a determinative factor in Action's decision.
between the alleged discrimination and the adverse action, we apply the
burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 800-04 (1973). See Regal, 190 F.3d at 879 (citing Hindman v. Transkrit Corp.,
145 F.3d 986, 990-91 (8th Cir. 1998)).
The district court assumed, and Action does not dispute, that Fitzgerald
established a prima facie case of age discrimination. The district court further found
Action had articulated a legitimate, non-discriminatory reason for the termination, i.e.,
accumulated misconduct. Fitzgerald, therefore, can only avoid summary judgment if
he presents evidence showing: (1) Action's proffered reason was pretextual; and (2)
age was a determinative factor in Action's decision.4 See Regal, 190 F.3d at 879
(citing Hindman, 145 F.3d at 991).
In addition to Action's inconsistent explanations for the termination and its
failure to follow company policy, Fitzgerald relies on the following as evidence age
was a determinative factor in Action's decision: (1) comments made by Easley
reflecting age-based animus; and (2) Easley's testimony stating Fitzgerald was
replaced with "younger kids." Appellant's Br. at 18. According to Fitzgerald, during
the course of his employment, Easley told him they were getting "too old for that type
of work" and "needed to retire." Appellant's Br. at 18. Fitzgerald claims after the
incident with Yandell, Easley's "mood changed." Id. Instead of referring to both of
them, Easley began to comment Fitzgerald was getting "too old for the job" and
"needed to retire." Id. In addition, when asked who Action hired to replace
Fitzgerald, Easley stated he could not remember exactly who, but he "usually [didn't]
hire older guys . . . because [younger guys] are cheaper to work, cheaper labor." App.
at 177.
"Stray remarks" standing alone do not give rise to an inference of
discrimination. Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 922 (8th Cir. 2000).
But, neither are they irrelevant. Id. "[S]uch comments are 'surely the kind of fact
which could cause a reasonable trier of fact to raise an eyebrow, thus providing
additional threads of evidence that are relevant to the jury.'" Id. at 922-23 (quoting
Bevan v. Honeywell, Inc., 118 F.3d 603, 610 (8th Cir. 1997)). When combined with
other evidence, stray remarks "constitute circumstantial evidence that . . . may give
rise to a reasonable inference of age discrimination." Id. at 923.
Fitzgerald argues the remarks attributed to Easley, combined with other
evidence recounted herein, gives rise to an inference of discrimination. Action,
however, argues other evidence counters against the inference. For example, Action
notes Fitzgerald admitted that a "far less satisfactory employee," who was also a
member of the protected class, was not terminated for alleged misconduct. Further,
Action hired Fitzgerald when he was fifty and terminated him when he was fifty-two.
We have noted it is unlikely a supervisor would hire an older employee and then
discriminate on the basis of age, and such evidence creates a presumption against
discrimination. Peterson v. Scott County, 406 F.3d 515, 522 (8th Cir. 2005). Under
different circumstances, the remarks attributed to Easley might create an inference of
discrimination. In this instance, however, they are insufficient to overcome the
presumption created by the fact Action hired Fitzgerald at age fifty. Therefore, we
conclude the evidence is insufficient to create a reasonable inference age was a
determinative factor in Fitzgerald's termination.
Accordingly, we reverse the district court's grant of summary judgment on
Fitzgerald's interference claim, affirm the district court's grant of summary judgment
on his age discrimination claim, and remand for further proceedings consistent with
this opinion.


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