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Phillips v. Mathews: EMPLOYMENT - error but no reversal; plaintiff was termed two hours before FMLA period could begin

United States Court of Appeals
No. 08-1082
Jamila Phillips, **
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Cathie Mathews, individually, and in *
her official capacity as Director of *
Department of Arkansas Heritage; *
Sharon Hacker, individually, and in *
her official capacity as an employee *
of the State of Arkansas; and Mike *
Beebe, in his official capacity as *
Governor of the State of Arkansas, *
Defendants-Appellees. *
Submitted: September 22, 2008
Filed: November 18, 2008
Before BYE, BEAM, and COLLOTON, Circuit Judges.
BYE, Circuit Judge.
1The Honorable William R. Wilson, United States District Judge for the Eastern
District of Arkansas.
Jamila Phillips appeals the district court's1 grant of summary judgment for
Defendants-Appellees on her interference and retaliation claims brought under the
Family and Medical Leave Act (FMLA). We affirm.
Phillips began employment for the State of Arkansas on October 14, 2004. On
Monday, April 17, 2006, Phillips transferred to the Department of Arkansas Heritage
(DAH). Her main job responsibilities included answering the telephone and greeting
visitors as they entered DAH headquarters. Sharon Hacker was Phillips's supervisor.
As a new DAH employee, Phillips was hired subject to a six-month probationary
period, during which her employment could be terminated at any time based on her
overall performance. During her first week at DAH, Phillips was reprimanded twice:
once for making too many personal telephone calls and once for failing to be cordial
to DAH guests and employees.
During Phillips's orientation, the subject of her available balance of paid leave
time was discussed. When employees of the State of Arkansas move to a different
agency, they are allowed to transfer accrued leave time. Because DAH had not
received the Proof of Prior Service from her previous agency, which verifies the
amount of leave time available to an employee, Phillips was asked whether she had
any leave time remaining. Phillips responded that she used quite a bit of leave time
prior to her transfer, and she did not know how much leave time she had left, if any.
On Tuesday, April 18, Phillips was involved in an automobile accident on her
way to work. She called DAH and told Hacker of the accident. After police left the
scene of the accident, Phillips went to the emergency room, where she declined a
doctor's excuse to take a few days off from work. Phillips arrived at DAH around
midday. Because DAH had not received a Proof of Prior Service detailing the balance
of her leave time, Phillips and DAH categorized her absence as leave without pay.
Phillips performed her job responsibilities without complaint for the remainder
of the week, with the exception of agreeing with a colleague not to stuff posters into
a tube because her back was hurting. Sometime on or after Thursday, April 20,
Phillips scheduled a doctor's appointment with her primary care physician for
Monday, April 24, at 10:45 A.M. Phillips discussed the appointment with Hacker.
They agreed that until DAH received information concerning the balance of her leave
time, they would continue to operate under the assumption she did not have any leave
time available. As such, they both agreed she should arrive to work at 8:00 A.M. prior
to her doctor's appointment and take an early lunch, thereby using the least amount of
leave without pay as possible.
During this discussion, Hacker mentioned that Phillips may need time off for
physical therapy. Hacker printed and gave to Phillips FMLA paperwork to complete,
and she suggested Phillips discuss the possibility of FMLA leave with Sue
Montgomery or Debbie Ballard. Phillips did not complete the paperwork nor discuss
a need for FMLA leave with either Montgomery or Ballard prior to her doctor's
On Monday, April 24, Phillips's car would not start. She called DAH and
informed another employee that her uncle was on his way to fix the car. Phillips said
she would call back when she had more information; there is a factual dispute whether
Phillips did in fact call back. Phillips did not report to DAH prior to her doctor's
appointment. During the appointment, her doctor prescribed several sessions of
physical therapy and recommended she take off work through Thursday, April 27.
Phillips had the doctor complete the necessary FMLA paperwork, and she brought the
completed paperwork with her to DAH after her appointment. Phillips was unable to
submit her FMLA paperwork or inform DAH of her need for time off, however,
2The district court found it unnecessary to consider whether Phillips had a
"serious health condition" or whether Appellees were immune from suit in their
official capacities. Appellees do not renew these arguments on appeal. Because we
affirm the district court, we find it unnecessary to consider these issues as well.
because she was given a letter of termination immediately upon her arrival. The letter
stated Phillips was terminated because she did not report to work until after her
doctor's appointment, and "[l]eave without pay is a very serious issue and is not to be
used because an automobile won't start."
Phillips's last check stub, received after her termination, indicated she had paid
leave time available. On May 5, 2006, DAH received the Proof of Prior Service from
her previous agency, which indicated she had no leave time remaining. There is no
reason given for the discrepancy between her check stub and the Proof of Prior
Phillips filed suit in the Eastern District of Arkansas against Hacker, Cathie
Mathews, Director of DAH, and Mike Beebe, Governor of the State of Arkansas.
Phillips sued Hacker and Mathews in their individual and official capacities and
Governor Beebe in his official capacity. She alleged interference and retaliation in
violation of the FMLA. Appellees moved for summary judgment, arguing they lacked
notice concerning Phillips's need for FMLA leave, they terminated her for reasons
independent from the FMLA, she did not have a "serious health condition" within the
meaning of the FMLA, and they were immune from suit in their official capacities.
The district court granted summary judgment in Appellees' favor on both claims.
The court concluded the interference claim failed because DAH did not have notice
of Phillips's need for FMLA leave, and, alternatively, her termination was not related
to any FMLA rights. The district court concluded the retaliation claim failed because
she never exercised her FMLA rights, and, alternatively, she was not terminated
because of those rights.2 Phillips, arguing the district court erred in granting summary
judgment on both of her claims, now appeals.
This court reviews the district court's grant of summary judgment de novo.
Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 850 (8th Cir. 2002).
"Summary judgment is appropriate when the evidence, viewed in a light most
favorable to the nonmoving party, shows no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law." Id.
The FMLA entitles an employee to twelve workweeks of leave during any
twelve-month period if he or she has a "serious health condition that makes the
employee unable to perform the functions of the position of such employee." 29
U.S.C. 2612(a)(1)(D). A "serious health condition" is any "illness, injury,
impairment, or physical or mental condition that involves (A) inpatient care in a
hospital, hospice, or residential medical care facility; or (B) continuing treatment by
a health care provider." 29 U.S.C. 2611(11).
There are two types of claims under the FMLA: "(1) 'interference' or '(a)(1)'
claims in which the employee alleges that an employer denied or interfered with his
substantive rights under the FMLA and (2) 'retaliation' or '(a)(2)' claims in which the
employee alleges that the employer discriminated against him for exercising his
FMLA rights." Stallings v. Hussman Corp., 447 F.3d 1041, 1050 (8th Cir. 2006)
(citing 29 U.S.C. 2615(a)(1)-(2)).
In order to state a claim for interference under the FMLA, Phillips must have
given notice of her need for FMLA leave. When leave is needed for an unforeseeable
event, notice is required "as soon as practicable." 29 C.F.R. 825.302(a). "This
ordinarily means at least verbal notification to the employer within one or two
business days of when the need for leave becomes known to the employee." Spangler,
278 F.3d at 852 (quoting 29 C.F.R. 825.302(b) (alterations omitted). However,
"[a]n employee need not invoke the FMLA by name in order to put an employer on
notice that the Act may have relevance to the employee's absence from work."
Thorson v. Gemini, Inc., 205 F.3d 370, 381 (8th Cir. 2000). The employer's duties
arise "when the employee provides enough information to put the employer on notice
that the employee may be in need of FMLA leave." Id. (quoting Browning v. Liberty
Mut. Ins. Co., 178 F.3d 1043, 1049 (8th Cir. 1999)). Whether an employee gave
sufficient information to put his or her employer on notice that an absence may be
covered by the FMLA is a question of fact for the jury. Browning, 178 F.3d at 1049.
The district court erred in concluding as a matter of law that Phillips failed to
provide enough information to put her employer on notice she may be in need of
FMLA leave. Viewing the evidence in the light most favorable to Phillips, a
reasonable jury could conclude Phillips satisfied the notice requirement because she
put Appellees on notice that her doctor visit was related to her prior accident and
could result in a need for additional treatment and time off from work.
Appellees argue they did not have notice of the need for FMLA leave because
Phillips never indicated a need to be absent from work subsequent to the doctor's
appointment or an inability to perform her job responsibilities, and they terminated her
before she turned in her FMLA paperwork. A reasonable jury could conclude
otherwise, however, because Phillips and Hacker specifically discussed the possibility
that Phillips could need time off for physical therapy subsequent to her doctor's
appointment, and Hacker even printed FMLA paperwork for Phillips to complete.
Even though Phillips did not indicate a significant inability to perform her job
responsibilities in the days following the accident, Hacker knew she was going to a
doctor's appointment and expressly recognized that the result of the appointment could
necessitate FMLA leave. Thus, even though neither party knew before the
appointment that Phillips definitely would need additional time off, both were aware
of the possibility that such time could be needed.
Appellees attempt to make much of the fact that Phillips did not discuss a need
to be absent beyond her doctor's appointment and did not submit FMLA paperwork
prior to her termination. This argument is insufficient for several reasons. First, the
required FMLA paperwork includes a medical certification, which Phillips would
have been unable to submit until after her doctor's appointment. Second, FMLA leave
"include[s] visits to a doctor when the employee has symptoms that are eventually
diagnosed as constituting a serious health condition, even if, at the time of the initial
medical appointments, the illness has not yet been diagnosed nor its degree of
seriousness determined." Caldwell v. Holland of Tex., Inc., 208 F.3d 671, 676 (8th
Cir. 2000) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 163 (1st Cir.
1998). Thus, if Phillips had a serious health condition, her doctor's appointment to
diagnose and treat that condition was covered by the FMLA. Because Appellees knew
that Phillips was attending a doctor's appointment for treatment related to her accident
and that could result in a need for physical therapy, i.e. develop into a serious health
condition, Phillips gave notice that she may be in need of FMLA leave, including for
the doctor's appointment itself.
Moreover, it is immaterial that Phillips was terminated before she submitted her
FMLA paperwork or before Appellees learned she needed additional time off from
work. That is because an "employer does not avoid liability by discharging an
employee who takes leave in order to seek treatment for a condition that is later held
to be covered by the FMLA." Caldwell, 208 F.3d at 677. Because Appellees had
notice that Phillips's doctor's appointment could potentially be covered by the FMLA,
they do not escape liability by simply terminating her before she could inform them
of the results of her appointment; they bore "the risk that the health condition in
question later develop[ed] into a serious health condition . . . ." Id.
Contrary to Appellees' assertion, this does not mean that every routine visit to
a doctor constitutes notice to an employer of a potential serious health condition,
which in turn prohibits an employer from taking action against an employee in close
temporal proximity to that visit. In this case, however, Hacker knew Phillips's
appointment was a non-routine visit related to her accident, expressly recognized that
the result of the appointment could necessitate additional time off covered by the
FMLA, and even went so far as to print FMLA paperwork for Phillips to complete.
In light of this evidence, a reasonable jury could conclude Phillips satisfied the
FMLA's notice requirement.
Even though the district court erred on the issue of notice, reversal is not
appropriate because the interference claim nonetheless fails. Interference includes
"not only refusing to authorize FMLA leave, but discouraging an employee from
using such leave. It would also include manipulation by a covered employer to avoid
responsibilities under FMLA." Stallings, 447 F.3d at 1050 (quoting 29 C.F.R.
825.225(b)). "An employer's action that deters an employee from participating in
protected activities constitutes 'interference' or 'restraint' of the employee's exercise
of his rights." Id. For her claim, Phillips must show only that she was entitled to the
benefit denied. Id. The Appellees' intent in denying that benefit is immaterial. Id.
Phillips "can prevail under an interference theory if [s]he was denied substantive
rights under the FMLA for a reason connected with h[er] FMLA leave." Id.
Assuming Phillips had a serious medical condition, which we do not decide on
appeal, she was entitled to FMLA leave starting from her doctor's appointment at
10:45 A.M. on Monday, April 25, through her necessary time off from work. Because
Phillips was terminated during her FMLA leave, Appellees interfered with her FMLA
rights since "every discharge of an employee while she is taking FMLA leave
interferes with an employee's FMLA rights." Throneberry v. McGehee Desha County
Hosp., 403 F.3d 972, 980 (8th Cir. 2005). The employer is not liable for this
interference, however, "where an employee's reason for dismissal is insufficiently
related to FMLA leave . . . ." Stallings, 447 F.3d at 1051. The burden is on the
employer to prove the reason for termination was unrelated to FMLA. Throneberry,
403 F.3d at 978-79.
Phillips's interference claim fails because, viewing the evidence in her favor,
there is no genuine issue of fact that she was terminated for a reason connected to her
FMLA leave. Rather, she was terminated because she did not show up to work as
agreed prior to her doctors appointment (a time period not covered by the FMLA)
and did not have any leave time available to apply towards that absence. The district
court correctly concluded that Phillips's car being unable to start is not a serious health
condition, and her termination for that reason was completely unrelated to her doctor's
appointment or any other need for FMLA leave. Additionally, Appellees have further
elaborated on their decision to terminate Phillips by noting her two prior reprimands
during her first week of employment.
Phillips offers no evidence other than speculation to support a connection
between her termination and FMLA leave. Her primary argument is that she did have
leave time built up, noting the check stub she received after her termination. Even
though there is a factual dispute whether Phillips had leave time available, it is not
material because all parties were operating under the assumption that no leave time
was available until DAH received proof otherwise. At best, Appellees were mistaken
in their belief Phillips did not have leave time available. However, termination based
on even a mistaken, but honestly held, belief concerning leave time is still termination
based on a reason unrelated to the FMLA. Thus, Appellees have met their burden of
showing Phillips "would have been dismissed regardless of [her] request for, or taking
of, FMLA leave." Throneberry, 403 F.3d at 979 (quoting Smith v. Diffee Ford-
Lincoln-Mercury, Inc., 403 F.3d 955, 963 (8th Cir. 2002)). Whether Phillips had a
doctor's appointment or not, she would have been terminated for not showing up to
work at 8:00 A.M. Monday, April 24, when Appellees believed rightly or wrongly
her absence would be taken as leave without pay because she did not have paid leave
3McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06 (1973).
time available. Because no reasonable jury could conclude Phillips's termination was
related to her FMLA leave, summary judgment for Appellees was proper on her
interference claim.
For many of the same reasons, the district court properly granted summary
judgment for Appellees on the retaliation claim. Although the district court erred in
concluding Phillips did not exercise any rights under the FMLA, it correctly
determined she was not terminated because she exercised those rights.
Because Phillips does not have direct evidence of retaliation, we analyze her
FMLA retaliation claim under the McDonnell Douglas burden-shifting framework.3
Phillips must first establish a prima facie case, which requires her to "show that she
exercised rights afforded by the Act, that she suffered an adverse employment action,
and that there was a causal connection between her exercise of rights and the adverse
employment action." Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir.
2002). If Phillips is able to do so, the burden shifts to Appellees to come forward with
evidence of a legitimate, nondiscriminatory reason for the adverse action. Id. at 833.
Their burden "is not onerous and the showing need not be made by a preponderance
of the evidence." Wallace v. Sparks Health Sys., 415 F.3d 853, 860 (8th Cir. 2005).
If Appellees do so, Phillips must come forward with evidence that creates an issue of
fact as to whether the asserted reason was pretext for discrimination. Smith, 302 F.3d
at 833.
The district court determined the retaliation claim failed because she never
exercised her rights under the FMLA, concluding her employment was terminated
before she could. This conclusion was incorrect because, as we have already
4We do not determine whether Phillips has established a prima facie of
retaliation. Unquestionably, termination is an adverse employment action. Van Horn
v. Best Buy Stores, L.P., 526 F.3d 1144, 1148 (8th Cir. 2008). Phillips's only
significant evidence to establish a causal connection between the exercise of her
FMLA rights and her termination is the close temporal proximity between it and her
doctor's appointment. In Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir.
2002), we thoroughly discussed the various lines of precedent determining whether,
and when, temporal proximity alone is sufficient to satisfy the causal connection
element of a prima facie retaliation case. We decline to consider this difficult issue,
however, because Appellees have put forward a legitimate reason for Phillips's
termination, and her evidence that this reason was a pretext for retaliation is weak.
explained, the doctor's appointment was covered by the FMLA if it involved
diagnosing and treating a condition later found to be a "serious health condition."
Even if Phillips establishes a prima facie case of retaliation, however, Appellees have
put forward a legitimate nondiscriminatory reason for her termination: her failure to
show up for work as agreed prior to her doctor's appointment and without an available
balance of paid leave time to apply towards that absence.4
Phillips does not create an issue of fact that this reason is pretext for
discrimination. "An employee's attempt to prove pretext or actual discrimination
requires more substantial evidence than it takes to make a prima facie case, however,
because unlike evidence establishing the prima facie case, evidence of pretext and
discrimination is viewed in light of the employer's justification." Smith, 302 F.3d at
834 (quoting Sprenger, 253 F.3d at 1111) (alteration omitted). There are several
recognized methods of proving pretext:
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 treated
5Phillips also criticizes Hacker's statement in her deposition that Phillips failed
to call in a second time on the morning of her doctor's appointment as promised.
While there is an issue of fact whether she did in fact call back, this does not
demonstrate pretext since this was merely a supplemental after-the-fact justification
given in the course of litigation that does not undermine Appellees' legitimate, nonpretextual
reason for terminating her regardless of whether she called back or not.
more leniently, that the employer changed its explanation for why it fired
the employee, or that the employer deviated from its policies.
Stallings, 447 F.3d at 1052.
Phillips first argues Appellees' stated reason for her termination has no basis in
fact because she did in fact have leave time available. As previously discussed,
however, the operative issue is that Appellees were not aware prior to her termination
that she may have had leave time available, and it is undisputed all parties were
operating under the assumption no leave time was available until DAH learned
otherwise. Thus, Phillips's introduction of a check stub issued after her termination
showing a balance of leave time does not create an issue of fact that Appellees' reason
for her discharge lacked a basis in fact at the time of her discharge.
Second, Phillips argues Appellees are changing their explanation for her
termination by now relying on her two prior reprimands and her probationary status
as a justification for her discharge. This does not prove pretext, however, because
Appellees are not changing their initial justification, merely adding to it. Appellees
"certainly did not back off their original explanation, but only pointed out an
additional aspect of the same behavior." Smith, 302 F.3d at 835. Thus, it "is not a
substantial change in [their] story, and it is not probative of pretext." Id.5
Therefore, there is no issue of fact that Appellees' non-discriminatory reason
for her termination was pretext for FMLA retaliation. As such, Phillips's retaliation
claims fails, and summary judgment for Appellees was proper.
Accordingly, we affirm the judgment of the district court.
COLLOTON, Circuit Judge, concurring.
The opinion of the court accurately sets forth the framework adopted by this
circuit for analyzing claims under the Family and Medical Leave Act (FMLA), and
I agree that the district courts judgment should be affirmed under that approach. I
therefore concur in the opinion of the court. The analytical framework used by our
circuit, however, deviates from the text of 29 U.S.C. 2615(a), and it would be
preferable to bring our analysis in line with the statutory language.
Our cases say that there are two types of claims under the FMLA: (1)
interference or (a)(1) claims in which the employee alleges that an employer
denied or interfered with his substantive rights under the FMLA and (2) retaliation
or (a)(2) claims in which the employee alleges that the employer discriminated
against him for exercising his FMLA rights. Ante, at 5 (quoting Stallings v. Hussman
Corp., 447 F.3d 1041, 1050 (8th Cir. 2006) (citing 29 U.S.C. 2615(a)(1)-(2)); see
also Darby v. Bratch, 287 F.3d 673, 679 (8th Cir. 2002). By its terms, however,
subsection (a)(2) does not apply to claims in which an employee alleges that the
employer discriminated against him for exercising his FMLA rights. Rather, that
subsection makes it unlawful for an employer to discharge or otherwise discriminate
against any individual for opposing any practice made unlawful by [the FMLA].
29 U.S.C. 2615(a)(2) (emphasis added). This prohibition is analogous to the sort
of retaliation claim that is familiar under Title VII, see 42 U.S.C. 2000e-3(a),
where an employee alleges that the employer discriminated against the employee for
opposing what the employee reasonably believed to be violations of Title VII by the
employer. E.g., Barker v. Mo. Dept of Corr., 513 F.3d 831, 834 (8th Cir. 2008); see
29 C.F.R. 825.220(e); 60 Fed. Reg. 2180, 2218 (Jan. 6, 1995) ([The FMLA] makes
it unlawful for an employer to discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful by the Act. This opposition
clause is derived from Title VII of the Civil Rights Act of 1964 and is intended,
according to the legislative history, to be construed in the same manner.). Some
courts properly have applied 2615(a)(2) in this manner. E.g., Gruppo v. FedEx
Freight Sys., Inc., No. 08-1006, 2008 WL 4596332 (10th Cir. Oct. 15, 2008); Cline
v. Wal-Mart Stores, Inc., 144 F.3d 294, 301-02 (4th Cir. 1998).
Jamila Phillips asserts that her employer discharged her because she exercised
her rights under the FMLA. This claim does not arise from any alleged opposition to
a practice made unlawful by the FMLA, and it therefore should not be governed by
2615(a)(2). The Department of Labor, however, has determined that the FMLA
prohibits an employer from discriminating against employees or prospective
employees who have used FMLA leave. 29 C.F.R. 825.220(c). Several courts have
thought this regulation is a reasonable interpretation of 2615(a)(1), which makes it
unlawful for an employer to interfere with, restrain, or deny the exercise of any right
under the FMLA. See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146
n.9 (3d Cir. 2004); Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1122-24 (9th
Cir. 2001); Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160 n.4 (1st Cir. 1998);
see also Potenza v. City of New York, 365 F.3d 165, 167-68 (2d Cir. 2004) (per
curiam) (discussing two approaches under 2615(a)(1) for analyzing employees
claims that they were punished for exercising their rights under the FMLA).
The termination of an employee for exercising rights under the FMLA could
be viewed as actionable under 2615(a)(1) as a denial of the employees right under
29 U.S.C. 2614(a) to be restored to an equivalent position upon return from FMLA
leave. Cf. Bryant v. Dollar Gen. Corp., 538 F.3d 394, 401 (6th Cir. 2008). Or,
because attaching negative consequences to the exercise of protected rights surely
tends to chill an employees willingness to exercise those rights, Bachelder, 259
F.3d at 1124, at least in the case of an employee who retains employment and suffers
negative consequences, there seems to be a textual basis for finding interfere[nce]
with or restrain[t] on the future exercise of FMLA rights. As a textual matter, the
application of this chill theory is more difficult in the case of an employee who is
terminated, but if a retained employee can proceed on this basis under 2615(a)(1),
then it would be odd to conclude that a terminated employee is entitled to lesser
protection simply because the employer took the more drastic step of denying him or
her the opportunity to exercise future FMLA rights altogether. In any event, the
appellees do not dispute that this type of claim is available under the FMLA, and
treating the claim under 2615(a)(1) is more appropriate than invoking the opposition
clause of 2615(a)(2).
When the entirety of Phillipss case is analyzed under 29 U.S.C. 2615(a)(1),
the judgment of the district court should be affirmed. Our analysis in Part II.A
concludes that even without regard to the employers intent, ante, at 8, and with the
burden of proof shifted to the employer, ante, at 9, the appellees are entitled to
summary judgment on a claim of interference under 2615(a)(1), because the
undisputed facts demonstrate that Phillips was discharged for reasons unrelated to the
FMLA. This analysis also dictates a rejection of Phillipss claim, discussed in Part
II.B, that the appellees terminated her because she exercised her rights under the
FMLA. Therefore, with these additional views, I concur in the opinion and judgment
of the court.


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