Darlene Westbrook, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 10, 2009
0120070774_Westbrook (E.E.O.C. Mar. 10, 2009)

0120070774_Westbrook

03-10-2009

Darlene Westbrook, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Darlene Westbrook,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120070774

Hearing No. 35D-2004-00243X

Agency No. 994274200M1019

DECISION

On November 22, 2006, complainant filed an appeal from the agency's

October 16, 2006 final order concerning her equal employment opportunity

(EEO) complaint alleging employment discrimination in violation of

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the

following reasons, the Commission AFFIRMS the agency's final order.

BACKGROUND

At the time of the events first arising in this complaint, complainant's

permanent position was as a Nursing Assistant at the agency's VA Medical

Center in Sheridan, Wyoming.

Complainant has a pacemaker to assist her with cardiac issues.

Additionally, on April 12, 1991, complainant experienced an on-the-job

injury which resulted in two knee replacements. Complainant's physician

then placed permanent physical limitations on complainant, such as no

lifting more than 10 pounds, no walking up stairs, and no squatting,

stooping, or kneeling. Complainant does not contest that after she

recovered from the total bilateral knee replacement surgery, she could no

longer perform the essential functions of the Nursing Assistant position,

with or without a reasonable accommodation. As a result, in 1998, as a

reasonable accommodation complainant was detailed to a Time and Leave

Clerk position where she could perform the essential functions of the

position.

In May and June of 1999, all staff at the facility was notified that

there was going to be a reduction in force (RIF).

On June 17, 1999, complainant was officially notified that she was unable

to meet the physical requirements of the Nursing Assistant position,

and as a reasonable accommodation, she was offered the Time and Leave

Clerk position on a permanent basis. Complainant was told that if she

accepted the position she would be entitled to indefinite pay retention,

even though the position was listed as a lower grade than her Nursing

Assistant position. Complainant accepted the position. Complainant

asserts that she was offered this position as a form of harassment,

because the agency was aware that the position was targeted for RIF.

The agency denies agency officials knew that the position would be

targeted for a RIF at the time it was offered to complainant.

Because the Time and Leave Clerk position was going to be abolished

under the RIF, the agency offered complainant a File Clerk position,

which complainant accepted. However, after complainant raised concerns

over whether she could perform the essential functions of the position,

the agency staff physician determined that she could not perform the

essential functions of the File Clerk position, with or without a

reasonable accommodation. Specifically, the physician found that if

complainant lifted more than 10 pounds, kneeled, squatted, or walked

up steps, her knees would shatter and she would have to have surgery.

The essential functions of the position required repetitive kneeling

and squatting, as well as lifting, stooping, and walking up steps.

The physician determined that complainant therefore was not qualified for

the position. Complainant asserts that the agency should have reasonably

accommodated her in this position.

In a meeting during July 1999, the topic of wages was addressed. It was

revealed that, prior to complainant's injury, she worked a schedule

of nights, Sundays, and holidays. After her injury she was switched

to a Monday through Friday day-shift. As a result of the switch,

complainant lost wages. The Acting Chief of Human Resources management

(HRM) acknowledged that complainant should be receiving compensation for

the lost wages, and stated that she would review complainant's OWCP file.

In November 1999, complainant was compensated for the lost wages.

On or about October 30, 1999, complainant received a Notice of Separation

by RIF, effective December 31, 1999. Because of her disqualifications,

the agency was not able to find a vacant position for which complainant

was qualified that would have prevented her from being subjected to

the RIF. In order to ensure continued medical coverage, complainant

elected to retire early, effective December 31, 1999.

Meanwhile, on August 4, 1999, complainant filed a formal EEO complaint

alleging that she was discriminated against and harassed on the bases

of disability (bilateral knee replacement and cardiac problems), age

(DOB: 3/4/43), and in reprisal for prior protected EEO activity when:

1. In July 1999, she learned that OWCP should have reimbursed her for

medication, lost wages, and lost holiday and Sunday pay;

2. In June 1999, she received a standard 30-60 day Notice of Proposed

Reduction in Force (RIF); and

3. On July 8, 1999, she was permanently offered a Time and Leave Clerk

position with pay retention when in fact the position was identified as

abolished on the RIF list, she was offered a demotion to a File Clerk

position, and subjected to other terms and conditions of employment

which ultimately led to her constructive discharge.

On December 3, 1999, complainant filed another formal EEO complaint

alleging that she was discriminated against and harassed on the bases

of disability (bilateral knee replacement and cardiac problems), age

(DOB: 3/4/43), and in reprisal for prior protected EEO activity when:

1. She was offered a part-time Ward Clerk position;

2. Management failed to fill the position of Secretary of Nutrition and

Food Service and Chaplain Service with her or some other employee who

might otherwise be separated due to the RIF;

3. On September 7, 1999, she was asked by the Acting Chief of HRM to

sign a letter that she could not perform the duties of File Clerk, GS-4;

4. Even though she had accepted the reassignment to the File Clerk

position, she was found medically disqualified for the File Clerk position

and was left in the Time and Leave Clerk position which was to abolished

by the RIF;

5. On or about September 7, 1999, the Acting Chief of HRM denied her

the information and/or forms needed for the Federal Retirement System

and the OWCP;

6. On or about October 30, 1999, she received a Notice of Separation by

RIF, effective December 31, 1999;

7. On or about November 4, 1999, her Senator's office was informed that

she was "technically absent without leave";

8. On or about November 5, 1999, she was denied advanced sick leave and

was not provided with guidance on the requirements for leave coverage;

9. On or about November 8, 1999, she was told by HRM that her listing as

"disqualified" for several positions on the RIF results was "because of

your disabilities";

10. The effective date of her RIF was unfavorable to her; and

11. Her early retirement, effective December 31, 1999, was in fact a

constructive discharge.

The agency accepted the complaints in their entirety, consolidated them,

and conducted an investigation. Upon completion of the investigation,

complainant was notified of her right to request a hearing before an

EEOC Administrative Judge (AJ) or to request a final decision from the

agency. Complainant requested a hearing before an AJ, who determined

that complainant's constructive discharge claim rendered the complaint a

"mixed case" complaint, and therefore remanded the decision to the agency

for further processing.

On November 27, 2001, the agency issued a final decision finding

no discrimination. The agency notified complainant of her right

to appeal the decision to the Merit Systems Protection Board (MSPB).

Complainant appealed to the MSPB, and on July 31, 2003, the MSPB issued

a decision finding that complainant's retirement was not a constructive

discharge within its jurisdiction. Complainant petitioned the Commission

for review, and on October 28, 2004, we denied her petition but remanded

the complaint to the agency to be processed as a "non-mixed" case.1

The agency referred the complaint back to the EEOC for appointment

of an AJ. On July 26, 2005, the agency filed a Motion to Dismiss

the Complaint, or in the Alternative, a Motion for Summary Judgment.

On September 6, 2005, the AJ denied the agency's Motion. On January 9,

2006, the case was reassigned to a new AJ as a result of the original

AJ's retirement from the Commission. On February 9, 2006, the agency

submitted a Motion for Reconsideration for Summary Judgment. On September

26, 2006, the new AJ found that a hearing was not necessary and issued a

decision without a hearing. The AJ found that complainant had failed to

establish that the agency failed to reasonably accommodate her. Further,

the AJ found that complainant was reasonably accommodated, and that she

failed to establish that she was subjected to discrimination or harassment

as alleged. On October 16, 2006, the agency issued a final order adopting

the AJ's decision. Complainant now appeals to the Commission.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ's legal and

factual conclusions, and the agency's final order adopting them, de novo.

See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from

an agency's final action shall be based on a de novo review . . ."); see

also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)

(providing that an administrative judge's "decision to issue a decision

without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed

de novo"). This essentially means that we should look at this case

with fresh eyes. In other words, we are free to accept (if accurate)

or reject (if erroneous) the AJ's, and agency's, factual conclusions and

legal analysis - including on the ultimate fact of whether intentional

discrimination occurred, and on the legal issue of whether any federal

employment discrimination statute was violated. See id. at Chapter 9,

� VI.A. (explaining that the de novo standard of review "requires that

the Commission examine the record without regard to the factual and

legal determinations of the previous decision maker," and that EEOC

"review the documents, statements, and testimony of record, including

any timely and relevant submissions of the parties, and . . . issue its

decision based on the Commission's own assessment of the record and its

interpretation of the law").

Timely Appeal

The agency asserts that complainant's appeal is untimely because her

representative received the final agency decision more than 30 days

prior to the date that complainant filed the appeal. As set forth in

EEOC Regulation 29 C.F.R. 1614.402 (a), appeals to the Commission must

be filed within thirty calendar days after a complainant receives the

agency decision. EEOC Regulation 29 C.F.R. 1614.402(b) provides that, if

the complainant is represented by an attorney of record, the 30 day time

period shall be calculated from the receipt of the required document by

the attorney. Here, the record discloses that complainant's representative

is not an attorney. Therefore, the time for filing the appeal begins

to toll the day complainant received the final agency decision, not the

day her representative received the final agency decision. Further,

the record reveals that complainant received the final agency decision

on October 23, 2006, and complainant's appeal is postmarked November

22, 2006. As a result, complainant's appeal is timely.

Summary Judgment

We must first determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. The Commission's

regulations allow an AJ to issue a decision without a hearing when

he or she finds that there is no genuine issue of material fact.

29 C.F.R. � 1614.109(g). This regulation is patterned after the summary

judgment procedure set forth in Rule 56 of the Federal Rules of Civil

Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive

legal and evidentiary standards that apply to the case, there exists

no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,

a court's function is not to weigh the evidence but rather to determine

whether there are genuine issues for trial. Id. at 249. The evidence of

the non-moving party must be believed at the summary judgment stage and

all justifiable inferences must be drawn in the non-moving party's favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing

a decision without holding a hearing is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider issuing a

decision without holding a hearing only upon a determination that the

record has been adequately developed for summary disposition. See Petty

v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

Finally, an AJ should not rule in favor of one party without holding

a hearing unless he or she ensures that the party opposing the ruling

is given (1) ample notice of the proposal to issue a decision without

a hearing, (2) a comprehensive statement of the allegedly undisputed

material facts, (3) the opportunity to respond to such a statement, and

(4) the chance to engage in discovery before responding, if necessary.

According to the Supreme Court, Rule 56 itself precludes summary

judgment "where the [party opposing summary judgment] has not had the

opportunity to discover information that is essential to his opposition."

Anderson, 477 U.S. at 250. In the hearing context, this means that the

administrative judge must enable the parties to engage in the amount

of discovery necessary to properly respond to any motion for a decision

without a hearing. See 29 C.F.R. � 1614.109(g)(2) (suggesting that an

administrative judge could order discovery, if necessary, after receiving

an opposition to a motion for a decision without a hearing).

Complainant avers she was not given a comprehensive summary of undisputed

facts. However, we note that complainant was given a comprehensive

statement of undisputed facts in the agency's Motion for Summary Judgment.

Complainant responded to the Motion, and did not controvert the facts,

with one minor exception that the AJ noted in his decision. We agree

with the AJ that no material facts are in dispute. Further, complainant

was given ample notice of the proposal to issue a decision without a

hearing, and she had the chance to engage in discovery before responding.

Therefore, we find that summary judgment was not inappropriate in this

case.

Reasonable Accommodation

Complainant asserts that the agency should have accommodated her in the

File Clerk and the Nursing Assistant positions. Under the Commission's

regulations, an agency is required to make reasonable accommodation to the

known physical and mental limitations of an otherwise qualified individual

with a disability unless the agency can show that accommodation would

cause an undue hardship. 29 C.F.R. � 1630.9. Reasonable accommodation

includes modifications to the manner in which a position is customarily

performed in order to enable a qualified individual with a disability to

perform the essential job functions. Enforcement Guidance - Reasonable

Accommodation. The Rehabilitation Act of 1973 prohibits discrimination

against qualified disabled individuals. See 29 C.F.R. � 1630. In order

to establish that complainant was denied a reasonable accommodation,

complainant must show that: (1) she is an individual with a disability,

as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified individual

with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the agency

failed to provide a reasonable accommodation absent undue hardship.2 See

Enforcement Guidance: Reasonable Accommodation and Undue Hardship under

the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002).

The agency concedes, and we assume without finding, that complainant is an

individual with a disability within the meaning of the Rehabilitation Act.

Next, complainant must establish that she is a "qualified individual with

a disability," which is defined as an individual with a disability who,

with or without a reasonable accommodation, can perform the essential

functions of the position held or desired. 29 C.F.R. � 1630.2(m).

We find that complainant failed to establish that she is a qualified

individual with a disability. First, complainant acknowledges on

appeal and in her affidavit that she could not perform the essential

functions of the Nursing Assistant position with or without a reasonable

accommodation; therefore, she is not qualified for that position. As for

the File Clerk position, the agency's physician avers that complainant's

complete limitation on kneeling and squatting prohibited complainant from

performing the essential functions of the position because repetitive

kneeling and squatting was required. 3 The position requires complainant

to access files, which are located in file cabinets. All of the file

cabinets have shelves that are near the floor and complainant would

have to repetitively kneel, stoop, or squat to retrieve the files.

Additionally, the position required heavy lifting of the files and

walking up multiple stairs. In a letter to her supervisor, complainant

stated that the functions of this position required "everything that

went against [her] doctor's orders." Further, complainant failed to

identify an accommodation that would have allowed her to perform the

essential functions of the File Clerk position. Therefore, complainant

was not "qualified" for the position as defined by the Rehabilitation Act.

Additionally, the record supports the agency's assertion that there were

no other vacant positions for which complainant was qualified that the

agency could have placed her in. Therefore, we find that the agency

did not fail to reasonably accommodate complainant's disability.

Disparate Treatment and Harassment

Complainant alleges that she was disparately treated and harassed

based upon her disability, age, and in reprisal for prior protected

EEO activity. To prevail in a disparate treatment claim such as this,

complainant must satisfy the three-part evidentiary scheme fashioned

by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). She must generally establish a prima facie case by demonstrating

that she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 134 (2000); St. Mary's Honor Center v. Hicks, 509

U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of

the Navy, EEOC Request No. 05950351 (December 14, 1995).

To establish a prima facie case of hostile environment harassment,

complainant must show that: (1) she is a member of a statutorily

protected class; (2) she was subjected to harassment in the form of

unwelcome verbal or physical conduct involving the protected class;

(3) the harassment complained of was based on the statutorily protected

class; and (4) the harassment affected a term or condition of employment

and/or had the purpose or effect of unreasonably interfering with the work

environment and/or creating an intimidating, hostile, or offensive work

environment. Humphrey v. U. S. Postal Service, EEOC Appeal No. 01965238

(October 16, 1998); 29 C.F.R. �1604.11. The harasser's conduct should

be evaluated from the objective viewpoint of a reasonable person in

the victim's circumstances. Enforcement Guidance on Harris v. Forklift

Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

Here, we will assume for the sake of argument that complainant established

her prima facie cases of disparate treatment and harassment. The agency

articulated legitimate, nondiscriminatory reasons for its actions.

Specifically, the Director and the Human Resources Program Analyst both

testified that when complainant was offered the Time and Leave clerk

position, it was not known that the position would be abolished in the

RIF. The issues surrounding complainant's lost wages were honest errors

and were corrected in November 1999. The interaction with complainant's

Senator's office was for the purpose of getting complainant her proper

pay. The agency offered complainant the part-time Ward Clerk position

in an attempt to find alternative employment options for complainant.

The Secretarial position with Nutrition and Food Service and Chaplain

Service was not vacant, and complainant was not qualified because the

position was a GS-5 and she was a GS-4. Complainant was given the

RIF notice because she was medically disqualified for the File Clerk

position, and there were no other vacant positions available for which

complainant qualified. And finally, complainant was denied advanced

sick leave because her personal physician indicated that her return

to work was undetermined, and therefore it was unknown whether or not

complainant could pay back the advance sick leave.

Complainant must now establish by a preponderance of the evidence that the

agency's legitimate, nondiscriminatory reasons are pretext for harassment.

The record reveals that most of the alleged acts of harassment that

complainant alleges deal directly with the circumstances surrounding the

RIF, and had nothing to do with complainant's age, disability, or prior

protected EEO activity. Complainant failed to offer evidence that would

establish that discriminatory animus more likely than not influenced any

of the agency's actions. Therefore, we find that complainant failed to

establish that the agency discriminated against her, as alleged.

Constructive Discharge

Complainant asserts that she was constructively discharged when

she retired early. Constructive discharge occurs when an employer

deliberately renders an employee's working conditions so intolerable

that the individual is forced to retire from her position. Constructive

discharge only occurs when the agency's actions were taken with

the intention of forcing the employee to retire. The Commission has

established three elements which complainant must prove to substantiate a

claim of constructive discharge: 1) a reasonable person in complainant's

position would have found the working conditions intolerable; 2) the

conduct causing the intolerable working conditions is an EEO violation;

and 3) complainant's resignation was caused by the intolerable working

conditions. See Taylor v. Army and Air Force Exchange Service, EEOC

Request No. 05900630 (July 20, 1990); see also Perricone v. United States

Postal Service, EEOC Request No. 05900135 (June 11, 1990). As discussed

above, the agency's conduct did not amount to discrimination, and hence

was not an EEO violation. Therefore, complainant has failed to establish

that her alleged forced retirement was a constructive discharge.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the agency's

final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the

policies, practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. In the absence of a legible postmark, the request

to reconsider shall be deemed timely filed if it is received by mail

within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as the

defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File a Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

March 10, 2009

Date

1 See Westbrook v. Department of Veterans Affairs, EEOC Petition

No. 03A40143 (October 28, 2004).

2 Throughout her appeal, complainant asserts that the AJ unfairly placed

the burden on her to establish that discrimination existed. We note that

the burden is at all times on complainant to establish by a preponderance

of the evidence that discrimination existed.

3 The physician based this determination on the physical limitation

paperwork that was previously submitted by complainant's doctor, because

complainant refused to submit additional paperwork. While complainant

does not contest the limitations in her prior paperwork, she takes issue

with the fact that she was asked to provide additional documentation.

We note that an employer may require an employee to provide documentation

that is sufficient to substantiate that she has a disability within the

meaning of the Rehabilitation Act and needs the reasonable accommodation

requested, but cannot ask for unrelated documentation. Documentation

is insufficient if it does not specify the existence of a disability

and explain the need for reasonable accommodation. An employer that

requests additional information based on a good faith belief that the

documentation the employee submitted is insufficient is not liable

for discrimination. EEOC Enforcement Guidance: Disability-Related

Inquiries and Medical Examinations of Employees Under the Americans

with Disabilities Act (ADA), response to question 11, (July 27, 2000).

Complainant does not dispute the accuracy of her previous medical

documentation.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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