Lee v. Elkhart City of et al

Filing 77

OPINION AND ORDER: Court GRANTS 52 Defendants City of Elkhart and Dale Pflibsen's Motion for Summary Judgment; GRANTS 53 Defendant Richard W. Hubbard's Motion for Summary Judgment. Judgment is entered in favor of the Defendants and against the Plaintiff. Signed by Judge Theresa L Springmann on 2/11/2014. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
WILLIAM A. LEE, SR.,

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Plaintiff,
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v.
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CITY OF ELKHART, Dale Pflibsen, in his )
official and individual capacity, and
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Richard W. Hubbard, in his private and
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individual capacity,
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Defendants.
)

CAUSE NO.: 2:12-CV-25-TLS

OPINION AND ORDER
This matter is before the Court on Defendants City of Elkhart and Dale Pflibsen’s Motion
for Summary Judgment [ECF No. 52], Defendant Richard W. Hubbard’s Motion for Summary
Judgment [ECF No. 53], and the supporting and opposing memoranda and exhibits. “[T]he plain
language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). Because the Plaintiff has failed to present “definite, competent evidence,” Butts
v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004), upon which a jury could rely to
find in his favor on any of his claims, the Defendants are entitled to judgment as a matter of law.

BACKGROUND
On January 17, 2012, Plaintiff William A Lee, Sr., filed a Complaint against the City of
Elkhart, and the City’s Chief of Police, Dale Pflibsen, in both his official and individual
capacities. The Plaintiff also sued Richard W. Hubbard, as a PhD licensed psychologist who

provided professional services to the Plaintiff. The Complaint lists a number of statutes under
which the Plaintiff, a former City of Elkhart police officer, is suing, but does not specify which
of these statutes apply to which Defendants, and it does not match up the three counts that he
identifies with any specific statute. The statutes he cites are: 42 U.S.C. §§ 1983, 1981, 1981a,
1985(3), 1986, 1988, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e,
and 29 U.S.C. § 2601 et seq.
In their motions for summary judgment, the Defendants construe the Complaint as
seeking relief on the following grounds: the Plaintiff was denied the benefits and privileges of
the Elkhart Police Department general order 1.3.8 because of his race when he was not provided
medical intervention and counseling before returning to work in 2009 after a shooting incident;
he was denied his rights under the Family and Medical Leave Act (FMLA) because of his race;
and the Defendants conspired to terminate his employment with the Police Department in
retaliation for applying for FMLA leave and on the basis of his race.
The Defendants explicitly sought summary judgment on all of these claims. In his
combined response to the Defendants’ Motions, the Plaintiff has substantially narrowed the
breadth of his claims. He argues that the City of Elkhart interfered with his substantive rights
under the FMLA, see 29 U.S.C. § 2615(a)(1) (“It shall be unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this
subchapter.”), and that Defendants Pflibsen and Hubbard violated 42 U.S.C. § 1983 when they
conspired to delay his diagnosis of Post Traumatic Stress Disorder (PTSD) so that the Plaintiff
would not be on approved FMLA leave when Defendant Pflibsen sought to terminate the
Plaintiff’s employment.

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STATEMENT OF FACTS
The Plaintiff was a police officer with the City of Elkhart Police Department from June
14, 2005, until the City’s Board of Public Safety terminated his employment on February 10,
2011. Defendant Pflibsen has been the Chief of the Elkhart Police Department since January 1,
2008.
In 2008, the Plaintiff shot a suspect during the course of his police duties. He was placed
on paid administrative leave to see a psychiatrist, per the Elkhart Police Department policy at
that time. The Plaintiff returned to work after Dr. V. Thomas Mawhinney indicated that the
Plaintiff was ready and able to perform his duties as a police officer. In February 2009, the
Plaintiff was present when another officer was shot. The Plaintiff did not ask to go on
administrative leave after the incident or to see a psychologist or psychiatrist.
On July 6, 2010, Elkhart Police Internal Affairs investigator Lieutenant Steve Mock was
contacted by an employee of a local restaurant. The employee reported that the Plaintiff, while in
full police uniform, grabbed a female co-worker’s breast with enough force to knock her cell
phone out of her front shirt pocket. Another employee also witnessed the event and verified the
account. During the course of the internal affairs investigation, Lt. Mock learned of another
incident involving a female employee of a 7-Eleven convenience store. The employee had filed a
complaint in November 2009 concerning the Plaintiff’s unwelcome and rude sexual touches, but
the Plaintiff’s supervisor, Sergeant Frank Thomas, had not reported the complaint to the
Department of Internal Affairs.
The Plaintiff was placed on administrative leave with full pay and benefits while the
allegations were investigated. At the conclusion of the investigation, Lt. Mock sustained both

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allegations of inappropriate touching and forwarded the case to Chief Pflibsen for disciplinary
action against the Plaintiff. When Chief Pflibsen learned that Sgt. Thomas, the Plaintiff’s
supervisor at the time of the first complaint by the 7-Eleven female employee, did not report the
complaint, Chief Pflibsen recommended that Sgt. Thomas be demoted from sergeant to corporal,
and the Board of Public Safety approved the demotion. The Plaintiff was given a five-day
suspension. Dr. Mawhinney conducted the Plaintiff’s psychological evaluation for fitness for
duty. Although Dr. Mawhinney did not declare the Plaintiff unfit for duty, he recommended that
the Plaintiff receive follow-up counseling with Dr. Hubbard in an attempt to help him acquire
skills to change his behaviors. Dr. Mawhinney also recommended that any further incidents of
inappropriate sexual conduct result in the Plaintiff’s termination from employment as a police
officer. In his July 23, 2010, memorandum to the Plaintiff advising of the five-day suspension
and counseling, Chief Pflibsen warned:
I sincerely hope that you have learned from this incident that this type of conduct
will not and cannot be tolerated on duty or off duty. I cannot emphasize strongly
enough should this type of allegation occur against, and is found to be sustained,
you will leave me no choice to request your termination from the Elkhart Police
Department through the Board of Safety.

(Ex. 15 to Def.’s Statement of Material Facts, ECF No. 58-15 at 2.)
The Plaintiff saw Dr. Hubbard three times during the months of August, September, and
October. On October 7, 2010, Dr. Hubbard completed a short clinical report that summarized the
first three sessions with the Plaintiff and stated that Dr. Hubbard was not aware of any behaviors
that would make the Plaintiff unfit for duty. Dr. Hubbard stated that the Plaintiff only needed to
complete the appointment scheduled for November 1, 2010, before he would be released from
treatment.
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Then, on October 28, 2010, a female named Jackie Cottrell reported to police officers
during an arrest that the Plaintiff, while on duty and in full police uniform, had come to her
house in May 2010 and had sex with her. Ms. Cottrell reported that the Plaintiff came to her
house, informed her that there was a warrant for her arrest, and had sex with her while he was in
his uniform. The Plaintiff denied the allegations.
After the new allegations of misconduct, the Plaintiff returned to Dr. Hubbard for an
evaluation of stress related symptoms. The Plaintiff told Dr. Hubbard that his wife believed he
was exhibiting symptoms of PTSD. After the session, Dr. Hubbard provided a report to the
Elkhart Police Department noting that the Plaintiff’s symptoms were currently at a level that
made it unlikely that he could provide an acceptable standard of safety and judgment in his job,
and recommending that he take off work for seven to ten days. The Elkhart Police Department
did not have any communication with Dr. Hubbard regarding its investigation into the new
allegations.
On November 30, 2010, the Plaintiff returned to Dr. Hubbard for a fifth session.
Afterwards, Dr. Hubbard sent a letter to the police department clearing the Plaintiff to return to
work on December 2, 2010. On December 14, during the Plaintiff’s final session with Dr.
Hubbard, the Plaintiff told Dr. Hubbard that his wife believed that he had PTSD, and that he was
experiencing an increased level of anxiety and tension. The Plaintiff then told Dr. Hubbard that
he wanted to seek an evaluation for PTSD from another mental health provider. No further
appointments were scheduled because the Plaintiff indicated that he did not feel the need to
come back and was more likely to seek treatment from the other provider. After the session, Dr.
Hubbard prepared a report, noting that the Plaintiff was experiencing an increase in anxiety and

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tension that made it unlikely he could perform his job safely, and further noted that the Plaintiff
needed to be off work until his anticipated evaluation at the Center for Behavioral Medicine.
In December, the Plaintiff had started the process for taking FMLA leave. He obtained a
Notice of Eligibility and Rights & Responsibilities and Provider Certification Form that had
been prepared for him on December 27, 2010. The Plaintiff was still on paid, administrative
leave, and Chief Pflibsen contacted Dr. Hubbard and they discussed the fact that the Plaintiff
was seeking treatment elsewhere to get testing for PTSD, and that Dr. Hubbard had not
diagnosed the Plaintiff with PTSD. Chief Pflibsen requested that Dr. Hubbard document the
details of their conversation in a letter. In response, Dr. Hubbard prepared a Clinical Summary
dated January 7, 2011, stating that the Plaintiff had Adjustment Disorder with Mixed Emotional
Features. Dr. Hubbard indicated that it was the Plaintiff who believed he had symptoms of
trauma related to his police work and who wanted to get tested for PTSD. Although Dr. Hubbard
had informed the Plaintiff that his symptoms were not consistent with PTSD, he agreed to
recommend that the Plaintiff be off work while he pursued this testing. Chief Pflibsen was also
in the process of deciding what action to take with respect to the Plaintiff’s disciplinary history
and the latest allegation of misconduct. Chief Pflibsen indicated that he would advise the
Plaintiff how he intended to proceed, and that he would remain on paid administrative leave
unless notified differently. By this time, the Plaintiff had provided the FMLA Certification form
to Dr. Hubbard.
According to Chief Pflibsen he decided, based on the Plaintiff’s disciplinary history,
including the severity of the allegations against him, to seek the Plaintiff’s termination by the
Board of Public Safety. Chief Pflibsen advised the Plaintiff of his intentions on January 18,

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2011.
At the end of January, Dr. Hubbard completed the form, indicating that Plaintiff was no
longer under his care and that he was unaware of any developments in terms of symptoms or
diagnosis in the past five weeks. The Plaintiff retrieved the forms and submitted them to the
Human Resources Department on January 26, 2011. The form was not processed by the
Department, but was misfiled and did not surface until a search for records was conducted as part
of the discovery in the Plaintiff’s lawsuit two years later.
The City of Elkhart Board of Public Safety held a two-day hearing regarding Plaintiff’s
termination on February 8 and 10. The Board voted in favor of the Plaintiff’s termination,
effective February 10.
City of Elkhart Police officers are guaranteed 180 days of paid medical leave, which is
counted against FMLA leave entitlement. When an officer is on administrative leave, he is not
required to use sick or vacation time, and the time does not count toward paid medical leave. If
the Plaintiff had been on FMLA leave when the termination proceedings were completed and his
employment ended, he would have received the same pay and compensation that he received by
being on administrative leave.

ANALYSIS
A.

The FMLA Claim
The FMLA entitles any eligible employee suffering from a serious health condition that

renders him unable to perform the functions of his position to twelve workweeks of leave during
each twelve-month period. 29 U.S.C. § 2612(a)(1)(D). The FMLA makes it unlawful for an

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employer to interfere with an employee’s attempt to exercise any FMLA rights. Id. § 2615(a)(1).
The plaintiff carries the burden of proving an FMLA interference claim, see Darst v. Interstate
Brands Corp., 512 F.3d 903, 908 (7th Cir. 2008), and cannot succeed unless he establishes that
he was entitled to leave under the FMLA and his employer denied him FMLA benefits to which
he was entitled. See Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011) (setting forth
elements).
The Plaintiff claims that he was denied an FMLA entitlement when Chief Pflibsen
frustrated his attempts to obtain FMLA leave and when the City misplaced his Certification and
did not act on his request for FMLA leave, either to grant or deny the leave. The Plaintiff,
however, was already on paid administrative leave when he requested FMLA leave, and
continued to be on such leave until the end of his employment. The time on administrative leave
did not count toward the 180 days of paid medical leave that police officers were entitled to take.
Thus, the Plaintiff was granted more favorable benefits than those awarded under the FMLA and
suffered no prejudice. See, e.g., Ridings v. Riverside Med. Ctr., 537 F.3d 755, 762 (7th Cir.
2008) (denying interference claim where plaintiff did not contend that she was prejudiced by her
employer’s failure to designate leave as FMLA-qualifying); see also Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 88 (2002) (striking down a regulation that punished an
employer’s failure to provide timely notice that leave was designated as FMLA leave by denying
the employer any credit for leave that was granted before the notice because the penalty was
“unconnected to any prejudice the employee might have suffered from the employer’s lapse”).
The Plaintiff appears to be arguing that one of the prejudices he suffered was that he was
not reinstated to his former position, as is guaranteed by 29 U.S.C. § 2614(a). His arguments

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suggest that he would have been immune from termination if he was diagnosed with PTSD and
placed on FMLA leave. However, the FMLA does not entitle a restored employee to “any right,
benefit, or position of employment other than any right, benefit, or position to which the
employee would have been entitled had the employee not taken the leave.” 29 U.S.C. §
2614(a)(3)(B). This means that “[a]n employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee had been continuously employed
during the FMLA leave period.” 29 C.F.R. § 825.216(a). Conspicuously missing from the
Plaintiff’s case is any challenge to the actions of the Safety Board to terminate his employment
after multiple allegations of sexual misconduct were substantiated. Thus, the Plaintiff has not
established that he was denied a benefit—continued employment—to which he was entitled. See
Cracco v. Vitran Exp., Inc., 559 F.3d 625, 636 (7th Cir. 2009) (no FMLA interference claim
where the employer set forth evidence that the plaintiff “was not entitled to resume his
employment upon his return from leave because the company had, after an investigation,
determined that he had not performed his duties in a competent manner prior to the
commencement of his leave”); Ogborn v. United Food & Commercial Workers Union, 305 F.3d
763, 768 (7th Cir. 2002) (“[E]mployers may fire employees for poor performance if they would
have fired them for their performance regardless of their having taken leave.”).
Additionally, under the law governing FMLA interference claims, the Plaintiff must
present facts demonstrating his entitlement to FMLA leave. The Certification the Plaintiff
returned to his employer did not show that he was entitled to FMLA leave. Dr. Hubbard did not
opine that the Plaintiff suffered from a serious health condition, but stated he was no longer
treating the Plaintiff and was not aware of any developments in terms of symptoms or diagnosis.

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A “serious health condition” includes an illness resulting in more than three days of incapacity
and requiring treatment at least two times by a health-care provider. 29 U.S.C. § 2611(11); 29
C.F.R. §§ 825.113, 825.115(a); Price v. City of Fort Wayne, 117 F.3d 1022, 1024 (7th Cir.
1997). When an employee requests leave for such a condition, the employer may request
certification by the employee’s health-care provider, 29 U.S.C. § 2613(a), and that certification
is sufficient if it provides the date the serious health condition began, its probable duration,
relevant medical facts, and a statement that the employee is unable to work. 29 U.S.C. § 2613(b);
29 C.F.R. § 825.306. The only argument the Plaintiff provides that he suffered from such a
condition is that there was “no question that [the Plaintiff was] placed off duty by his doctor for
health reasons.” (Pl.’s Combined Mem. 10, ECF No. 69.) The Plaintiff does not identify which
doctor he is referring to. If he means Dr. Hubbard, the record is that Dr. Hubbard’s last session
with the Plaintiff was on December 14, that Dr. Hubbard did not believe the Plaintiff suffered
from PTSD, and that Dr. Hubbard acknowledged that the Plaintiff would be seeking an
assessment with another provider.
As an aside, the Plaintiff claims that the City discriminated against him because it
required him to obtain the Certification by a certain date, but that it did not require white officers
to obtain certification in this same manner. The basis of the Plaintiff’s argument appears to be a
typographical error in the date that was placed on his form, which indicated that his Certification
was due on a date that had already passed. The forms, requested by the Plaintiff in December
2010, indicated that the Health Care Provider Certification was due by January 12, 2010. It is not
plausible to suggest that, by this error in adjusting for the new year, the City intended to
discriminate against the Plaintiff based on his race, or to interfere with his FMLA rights. See

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Parker v. Fed. Nat’l Mortg. Ass’n, 741 F.2d 975, 980 (7th Cir. 1984) (“The district court is not
required to evaluate every conceivable inference which can be drawn from evidentiary matter,
but only reasonable ones.”).

B.

Conspiracy
The Plaintiff claims that Defendant Pflibsen and Defendant Hubbard conspired to deprive

him of the equal protection of laws secured by the Constitution or laws of the United States. “To
establish § 1983 liability through a conspiracy theory, a plaintiff must demonstrate that . . . a
state official and private individual(s) reached an understanding to deprive the plaintiff of his
constitutional rights.” Williams v. Seniff, 342 F.3d 774, 785 (7th Cir. 2003).
The totality of the Plaintiff’s analysis of this claim follows:
In this case the agreement centered around the interest of Chief Pflibsen,
operating under color of state law, in terminating Lee’s employment as an Elkhart
Police Officer before he could obtain a determination as to whether he suffered
from undiagnosed PTSD, which may have caused his latest difficulties for which
Pflibsen would seek termination if he did not resign from his position. The joint
collaborative actions of Pflibsen, Moore and Hubbard deprived Lee of his
substantive FMLA rights, privileges, and equal protection of the laws secured by
the Constitution or laws of the United States.
Dr. Hubbard, who gave Lee a DSM diagnosis of 309.28, refused to test
Lee even though Lee told him that his wife believed he was exhibiting PTSD
symptoms. He did nothing to determine whether Lee suffering from PTSD even
though he could have tested and evaluated Lee as did Dr. Wade and the
Psychologist who referred Lee to him through Chief Pflibsen for follow up
counseling with Lee. But he refused to do so. Why?
(Pl.’s Combined Mem. 12, ECF No. 69.)
The fact that Dr. Hubbard did not test the Plaintiff for PSTD is insufficient to support an
inference that he was joined in a conspiracy with Chief Pflibsen. In comparison to the Plaintiff’s
rank speculation that the absence of testing suggests a conspiracy, Dr. Hubbard offers three
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reasons, supported by the designated evidence: (1) Dr. Hubbard provides therapy but does not
conduct psychological testing or prescribe medications; (2) Dr. Hubbard did not believe that the
Plaintiff actually suffered from PTSD; and (3) Dr. Hubbard’s purpose for counseling was to deal
with the allegations of sexual misconduct. And although the Plaintiff implies that his PTSD may
have been the underlying cause of the actions he took that led to his termination, none of the
evidence suggests this connection. Likewise, none of the evidence suggests that the absence or
existence of any such diagnosis was relevant to the termination proceedings. To the contrary, the
record adequately shows that they were unrelated. On January 21, 2011, the Plaintiff received
psychological testing from Dr. Stephanie Wade indicating that he had PTSD. However, she did
not make any connection between the inappropriate sexual conduct and PTSD, nor did the
Plaintiff ask her to testify at his termination proceedings.
The Plaintiff states that there are genuine issues of fact regarding whether he was
discouraged to file his FMLA papers, but has not demonstrated that the timing of his return of
FMLA paperwork had any impact on the outcome of his termination proceedings. Before a
nonmoving party “can benefit from a favorable view of the evidence, he must first actually place
evidence before the courts,” Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir.
2010), and the Plaintiff has not presented any evidence connecting his FMLA request or his
eventual PTSD diagnosis to Chief Pflibsen’s decision to seek the termination of his employment.
See also Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008)
(“Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute.”).
Another problem with the Plaintiff’s claim is that both the Defendants state that the only
interaction they had was related to the Plaintiff’s intentions to seek out a provider to administer

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PTSD testing. Dr. Hubbard did not make any recommendations regarding the Plaintiff’s
continued employment, and Chief Pflibsen did not direct Dr. Hubbard how to handle the FMLA
request. The Plaintiff has no credible evidence to refute this, stating only that the evidence shows
they “spoke on the telephone at least once.” (Pl.’s Statement of Genuine Issues 4, ECF No. 68.)
However, even the existence of numerous phone calls between alleged conspirators, “standing
alone, merely proves that [the individuals] remained in contact. Goetzke v. Ferro Corp., 280 F.3d
766, 778 (7th Cir. 2002) (“To assert that the calls are evidence of a conspiracy is simply
speculation.”). An agreement to violate a plaintiff’s civil rights may be inferred from
circumstantial evidence “only if there is sufficient evidence that would permit a reasonable jury
to conclude that a meeting of the minds had occurred and that the parties had an understanding to
achieve the conspiracy’s objectives.” Sow v. Fortville Police Dep’t, 636 F.3d 293, 305 (7th Cir.
2011) (quoting Hernandez v. Joliet Police Dep’t, 197 F.3d 256, 263 (7th Cir. 1999)). No rational
jury could infer from the Plaintiff’s meager facts an understanding or agreement between Chief
Pflibsen and Dr. Hubbard to inflict injury on the Plaintiff.
A district court should deny a motion for summary judgment only when the non-moving
party presents admissible evidence that creates a genuine issue of material fact. Luster v. Ill.
Dep’t of Corrs., 652 F.3d 726, 731 (7th Cir. 2011) (citing United States v. 5443 Suffield Terrace,
607 F.3d 504, 510 (7th Cir. 2010); Swearnigen–El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 852,
859 (7th Cir. 2010)). The Plaintiff’s submission does not create genuine issues as to any facts
that would impact the outcome of his various claims, and the Defendants are entitled to judgment
as a matter of law.

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CONCLUSION
For the reasons stated above, the Court GRANTS the Defendants City of Elkhart and
Dale Pflibsen’s Motion for Summary Judgment [ECF No. 52], and GRANTS Defendant Richard
W. Hubbard’s Motion for Summary Judgment [ECF No. 53]. The Clerk will enter judgment in
favor of the Defendants and against the Plaintiff.
SO ORDERED on February 11, 2014.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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