Woodward v. Elizabethtown Community and Technical College et al
Filing
16
MEMORANDUM OPINION by Senior Judge Charles R. Simpson, III on 7/20/15; Defendants motion to dismiss (DN 8) will be granted in part and denied in part. A separate order will be entered this date in accordance with this Memorandum Opinion.cc:counsel (TLG)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
ANGELA M. WOODWARD
PLAINTIFF
CIVIL ACTION NO. 3:14-CV-00776-CRS
v.
ELIZABETHTOWN COMMUNITY AND
TECHNICAL COLLEGE, ET AL.
DEFENDANTS
MEMORANDUM OPINION
This matter is before the Court on Defendants Elizabethtown Community and Technical
College (“ECTC”), Tom Davenport, and Diane Owsley’s motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6) (DN 8). Defendants contend that the Complaint (DN 1-1) of
Plaintiff Angela M. Woodward, pro se, fails to state a claim upon which relief can be granted
because sovereign immunity and insufficient factual allegations preclude recovery. For the
following reasons, Defendants’ motion to dismiss (DN 8) will be granted in part and denied in
part.
I.
BACKGROUND
In June 2007, Plaintiff started a job with ECTC as a workforce liaison. (Compl., DN 1-1,
¶ 9.) Two years into her employment, Plaintiff received a diagnosis of breast cancer. (Compl.,
DN 1-1, ¶ 10.) She then underwent a radical mastectomy on her right side, together with the
insertion of a breast expander. (Compl., DN 1-1, ¶ 10.) Plaintiff attended an appointment each
week for six to eight weeks after the surgery. (Compl., DN 1-1, ¶ 10.) During the appointments,
the breast expander was incrementally filled with fluid to create space for a permanent implant.
(Compl., DN 1-1, ¶ 10.)
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Plaintiff claims to have asserted her rights under the Family and Medical Leave Act of
1993 (“FMLA” or “Act”), 29 U.S.C. § 2601 et seq., in requesting that her work schedule be
modified to accommodate those post-surgery appointments. (Compl., DN 1-1, ¶ 11.) To avoid
burdensome paperwork, Plaintiff’s supervisor, Davenport, allegedly refused the schedule
modification and told her to use vacation days for the appointments. (Compl., DN 1-1, ¶ 11.)
Plaintiff further alleges that Davenport began a “campaign of harassment” following her request
for FMLA leave. (Compl., DN 1-1, ¶ 12.) Plaintiff ultimately filed a formal workplace
complaint against Davenport for alleged interference with her FMLA rights, “bullying[,] and
aggressive behavior.” (Compl., DN 1-1, ¶ 12.)
In August 2012, Plaintiff discovered a tumor in her left breast. (Compl., DN 1-1, ¶ 13.)
The next month, a biopsy confirmed that the new tumor was cancerous. (Compl., DN 1-1, ¶ 13.)
Plaintiff obtained the appropriate forms for FMLA leave and forwarded them to her physician.
(Compl., DN 1-1, ¶ 14.) She scheduled her second mastectomy for November 8, 2012, planning
to return to work two-and-a-half weeks after the surgery. (Compl., DN 1-1, ¶ 14.) But, on
November 5, Davenport and the human resources director terminated Plaintiff’s employment
with ECTC. (Compl., DN 1-1, ¶ 15.)
Plaintiff commenced this action in Hardin County Circuit Court. (Compl., DN 1-1.) She
claims violations of her FMLA rights and intentional infliction of emotional distress. (Compl.,
DN 1-1, Cts. I–II.) Defendants then removed the case to this Court. (Notice or Removal, DN 1.)
They invoke the Court’s federal question jurisdiction based on the FMLA claims and its
supplemental jurisdiction to hear the state law claims for intentional infliction of emotional
distress. (Notice of Removal, DN 1, ¶¶ 5–6.) Defendants now move for the dismissal of all
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claims under Rule 12(b)(6), raising sovereign immunity and pointing to factual allegations they
argue are insufficient as a matter of law (DN 8).
II.
STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009). Though “[t]he plausibility standard is not akin to a ‘probability
requirement,’” it demands “more than a sheer possibility that a defendant has acted unlawfully.”
Id. The factual allegations in the complaint must “raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555.
When considering such a motion, the court may examine the complaint and its exhibits,
public records, items appearing in the record of the case, and documents incorporated by
reference into the complaint and central to the claims. Bassett v. Nat’l Collegiate Athletic Ass’n,
528 F.3d 426, 430 (6th Cir. 2008). The court must view the complaint in the light most
favorable to the plaintiff, accepting as true all well-pleaded factual allegations and drawing all
reasonable inferences in the plaintiff’s favor. Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d
673, 680 (6th Cir. 2011). Nevertheless, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
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III.
DISCUSSION
A.
FMLA Claims
The FMLA entitles an eligible employee to twelve work weeks of unpaid leave per year.
29 U.S.C. § 2612(a)(1). An employee may take FMLA leave for a number of reasons, including
self care based on “a serious health condition that makes the employee unable to perform the
functions of the position of such employee.” Id. § 2612(a)(1)(D). The FMLA declares it
unlawful for any employer “to interfere with, restrain, or deny the exercise of or the attempt to
exercise, any right provided [by the Act],” id § 2615(a)(1), or “to discharge or in any other
manner discriminate against any individual for opposing any practice made unlawful by [the
Act],” id. § 2615(a)(2). The statute allows for the maintenance of a private action seeking
damages or equitable relief “against any employer (including a public agency) in any Federal or
State court of competent jurisdiction.” Id. § 2617(a)(2).
Here, Plaintiff claims that Defendants interfered with the exercise of her rights under the
FMLA’s self-care provision by preventing her from taking leave in connection with the
treatment of her breast cancer. She further claims that Defendants discharged her in retaliation
for asserting her rights to self-care leave. In pursuing those claims, Plaintiff attempts to impose
liability on ECTC, as well as Davenport and Owsley in their official and individual capacities,
for money damages and reinstatement to her previous position.1
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Whether Plaintiff seeks to impose liability on Davenport and Owsley as individuals, or merely as officials, is
disputed. The Complaint contains no explicit statement identifying the capacity or capacities in which Davenport
and Owsley are being sued. But failure to clearly label the capacity of a defendant does not automatically limit the
claim to the official capacity alone. Moore v. City of Harriman, 272 F.3d 769, 772–73 (6th Cir. 2001) (en banc).
The Court must look to the “course of proceedings” to determine whether Davenport and Owsley received notice of
Plaintiff’s intent to hold them individually liable. Id.
The Court concludes that the Complaint, taken as a whole, provided Davenport and Owsley with sufficient
notice of Plaintiff’s intent to sue them as individuals for FMLA violations and intentional infliction of emotional
distress. First, the Complaint’s caption and description of the parties list Davenport and Owsley by name without
including their official titles. (Compl., DN 1-1, at 1–2.) Second, the requests for relief express Plaintiff’s desire to
recover damages from “Defendants,” not ECTC exclusively. (Compl., DN 1-1, at 6–7.) Third, and most
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In response, ECTC contends that sovereign immunity shields it from Plaintiff’s federal
claims premised on the FMLA’s self-care provision.2 The states, as sovereigns, possess
immunity from suits instituted by private parties. Alden v. Maine, 527 U.S. 706, 713–14, 733,
119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999); Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005) (en
banc). The Eleventh Amendment concerns one aspect of this sovereign immunity, recognizing
the states’ immunity from suits “commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend.
XI. Courts and litigants often refer to the states’ sovereign immunity as “Eleventh Amendment
immunity.” Alden, 527 U.S. at 713. But that convenient phrase is a misnomer because “the
sovereign immunity of the States neither derives from, nor is limited by, the terms of the
Eleventh Amendment.” Id.; see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S. Ct.
1114, 134 L. Ed. 2d 252 (1996). It has been long understood that sovereign immunity extends to
circumstances beyond the literal text of the Eleventh Amendment, such as the present situation
where a state is sued by its own citizen on the basis of a federal question. Alden, 527 U.S. at
727–28; Hans v. Louisiana, 134 U.S. 1, 9, 14–15, 10 S. Ct. 504, 33 L. Ed. 842 (1890). The
states’ immunity from suit originated as a feature inherent in the nature of sovereignty, and it is
retained today by constitutional design, manifest in the structure and history of the nation’s
fundamental charter. Alden, 527 U.S. at 728–29, 733; see Ernst, 427 F.3d at 358.
Two purposes underlie the doctrine of sovereign immunity. First, sovereign immunity
preserves the dignity of the states by allowing them to avoid being dragged before the courts at
the instance of private parties. Seminole Tribe, 517 U.S. at 58. Second, the states’ immunity
significantly, Plaintiff alleges that the FMLA’s individual-liability provision, 29 U.S.C. § 2611(4)(A)(ii)(I), applies
to Davenport and Owsley. (Compl., DN 1-1, ¶ 18.)
2
In opposing the motion to dismiss, Plaintiff relies primarily on ECTC’s policies and procedures, but arguments
based on those internal guidelines are irrelevant in combating the defense of sovereign immunity.
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from suit secures their financial integrity because it prevents private parties from raiding the
public treasuries to satisfy judgments. Id.
The Court must first determine whether ECTC’s relationship to the state entitles it to the
same immunity enjoyed by the sovereign. The defense of sovereign immunity applies not only
to the state itself, but also extends to government entities that act as arms of the state. S.J. v.
Hamilton Cnty., 374 F.3d 416, 419 (6th Cir. 2004). To identify an arm of the state, the Court
looks to the follow factors: “(1) whether the state would be responsible for a judgment against
the entity in question; (2) how state law defines the entity; (3) what degree of control the state
maintains over the entity; and (4) the source of the entity’s funding.” Id. at 420.
ECTC is a division of the Kentucky Community and Technical College System
(“KCTCS”). KRS 164.591. Kentucky created KCTCS by statute to offer two-year academic
programs and technical training. KRS 164.580. A board of regents—the majority of which is
appointed by Kentucky’s governor—bears responsibility for governing KCTCS. KRS 164.321;
see KRS 164.310. The state expressly recognizes KCTCS as a public institution within its
postsecondary education system. KRS 164.001(17). Moreover, “state institutions of higher
education under KRS Chapter 164 are agencies of the state” for purposes of Kentucky’s Board of
Claims. KRS 44.073(1). In light of its state creation and operation, the Court concludes that
ECTC may invoke Kentucky’s sovereign immunity as an arm of the state.
Like most general rules, however, the states’ immunity from private suit is subject to
various exceptions. Sovereign immunity does not bar litigation (1) when the state consents to
suit; (2) when Congress validly abrogates the immunity; and (3) when the suit is brought against
a state official under Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 441 (1908). S & M
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Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008). There is no argument that ECTC
consented to Plaintiff’s suit, but the remaining two exceptions are relevant here.
The Supreme Court’s decision in Coleman v. Court of Appeals of Maryland, — U.S. —,
132 S. Ct. 1327, 182 L. Ed. 2d 296 (2012), makes clear that Plaintiff cannot rely on abrogation to
overcome ECTC’s immunity defense. The enforcement powers granted by § 5 of the Fourteenth
Amendment allow Congress to abrogate the states’ sovereign immunity in limited circumstances.
Id. at 1333. Congress may abrogate sovereign immunity only when it adopts a remedy
congruent and proportional to an identified pattern of conduct transgressing the Fourteenth
Amendment. Id. at 1333–34. In Coleman, the Supreme Court found “no sufficient nexus, or
indeed any demonstrated nexus, between self-care leave and gender discrimination by state
employers.” Id. at 1337. Therefore, Congress failed to effect a valid abrogation of the states’
immunity in suits brought under the FMLA’s self-care provision. Id. at 1332, 1338; accord
Touvell v. Ohio Dep’t of Mental Retardation & Developmental Disabilities, 422 F.3d 392, 405
(6th Cir. 2005). Absent an effective abrogation, Plaintiff’s FMLA claims brought directly
against ECTC will be dismissed as barred by sovereign immunity.
Plaintiff’s remaining FMLA claims are asserted against Davenport and Owsley in their
official and individual capacities. The disposition of Plaintiff’s individual-capacity claims
requires only brief discussion. The FMLA does not authorize claims against public employees in
their individual capacities. Mitchell v. Chapman, 343 F.3d 811, 832 (6th Cir. 2003). The text
and structure of the FMLA indicate that the provision creating individual liability is limited to
certain private employees, leaving the employees of public agencies beyond its reach. Id. at
829–32; see 29 U.S.C. §§ 2611(4), 2617(a)(2). The statute precludes Plaintiff’s attempt to
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impose individual liability on Davenport and Owsley, and accordingly, those claims will be
dismissed.
The FMLA claims against Davenport and Owsley in their official capacities are
equivalent to claims against ECTC—the state entity that they represent. Kentucky v. Graham,
473 U.S. 159, 165–66, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). “As long as the government
entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects
other than name, to be treated as a suit against the entity.” Id. at 166 (citing Brandon v. Holt,
469 U.S. 464, 471–72, 105 S. Ct. 873, 83 L. Ed. 2d 878 (1985)). Here, the viability of the
official-capacity claims depends on the type of relief sought. Sovereign immunity shields
Davenport and Owsley from suits for money damages to the same degree it protects ECTC.
Ernst, 427 F.3d at 358. For this reason, the Court will dismiss the official-capacity claims for
damages.
Of course, Plaintiff also sues Davenport and Owsley in their official capacities for
reinstatement to her previous positon, implicating the exception to sovereign immunity first
mentioned in Ex parte Young, 209 U.S. at 123. In Diaz v. Michigan Department of Corrections,
703 F.3d 956, 963–66 (6th Cir. 2013), the Sixth Circuit discussed the application of Ex parte
Young to claims for reinstatement based on alleged violations of the FMLA’s self-care provision.
The Ex parte Young exception allows claims for prospective relief against state officials in their
official capacities to proceed uninhibited by sovereign immunity. Id. at 964. The prospective
relief, however, must be sought to end a continuing violation of federal law. Id. The Diaz court
concluded that reinstatement under the FMLA qualifies as prospective relief, but it remanded to
allow the district court an opportunity to determine whether the plaintiff’s termination
constituted a continuing violation of federal law. Id. at 964, 966. Though the court did not
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resolve the matter entirely, its decision recognized the potential use of Ex parte Young to save
claims similar to the ones now pursued by Plaintiff.
Defendants’ motion does not address the applicability of Ex parte Young, nor does it
acknowledge any distinction between the requests for prospective and retrospective relief.
Defendants simply failed to articulate a reason for dismissing the official-capacity claims for
reinstatement. They did cite Crugher v. Prelesnik, 761 F.3d 610, 614–16 (6th Cir. 2014)—a case
concerning a Diaz-based claim—but made no attempt to explain the impact of that decision or
the precedent upon which it relies. The Court will deny Defendants’ motion to the extent it seeks
dismissal of the FMLA claims for reinstatement brought against Davenport and Owsley in their
official capacities. All other claims premised on the FMLA will be dismissed for the reasons
stated above.
B.
Claims for Intentional Infliction of Emotional Distress
In addition to her FMLA claims, Plaintiff pursues state law claims against Defendants for
intentional infliction of emotional distress. ECTC responds by raising the defense of
governmental immunity under Kentucky law. Governmental immunity shields a state agency
from civil actions for damages “to the extent that it is performing a governmental, as opposed to
a proprietary, function.” Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001). As a public
institution of higher education—created by the state and operated under its direction—ECTC is
an agency entitled to governmental immunity, unless the act at issue is a proprietary function.
Autry v. W. Ky. Univ., 219 S.W.3d 713, 717–18 (Ky. 2007); see Withers v. Univ. of Ky., 939
S.W.2d 340, 342–43 (Ky. 1997).
A governmental function is a public act integral to state government. Breathitt Cnty. Bd.
of Educ. v. Prater, 292 S.W.3d 883, 887 (Ky. 2009). A proprietary function, on the other hand,
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is a non-integral undertaking of the sort a private person or business might engage in for profit.
Id. Education stands among the principal duties of state government, and actions taken “in direct
furtherance of education will be deemed governmental rather than proprietary.” Id. Here, ECTC
provides post-secondary education and training through the work of its employees. ECTC could
not fulfill its educational mission without the ability to manage employment relationships,
including matters of medical leave and discharge. By making decisions regarding Plaintiff’s
employment, ECTC performed a governmental function for which immunity is granted.
Therefore, Plaintiff’s state law claim against ECTC will be dismissed as barred by governmental
immunity.
Plaintiff asserts identical claims for intentional infliction of emotional distress against
Davenport and Owsley in their official and individual capacities. The Court will dismiss the
official-capacity claims based on the preceding governmental-immunity analysis. When an
employee of a state agency is sued in his official capacity, the employee possesses the same
immunity as the agency itself. Autry, 219 S.W.3d at 717; Yanero, 65 S.W.3d at 522.
Governmental immunity prevents Plaintiff from subjecting ECTC to suit under state tort law, and
that immunity likewise shields Davenport and Owsley in their official capacities.
With respect to the individual-capacity claims, Davenport and Owsley do not raise any
form of immunity defense. Instead, they argue that Plaintiff’s factual allegations are insufficient
to state a claim for intentional infliction of emotional distress. Kentucky adopted the tort of
intentional infliction of emotional distress as defined by § 46 of the Restatement (Second) of
Torts: “One who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if bodily harm
to the other results from it, for such bodily harm.” Craft v. Rice, 671 S.W.2d 247, 251 (Ky.
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1984) (quoting Restatement (Second) of Torts § 46(1) (1965)) (internal quotation marks
omitted). Davenport and Owsley contend that, even when viewed in the light most favorable to
Plaintiff, the alleged conduct falls far short of what could be considered extreme and outrageous.
Intentional infliction of emotional distress is a tort of “highly restrictive application.”
Goebel v. Arnett, 259 S.W.3d 489, 493 (Ky. App. 2007). Whether the conduct complained of
can reasonably be regarded as so extreme and outrageous to allow recovery is a question for the
Court to decide. Id. Liability may be found only where the conduct “is a deviation from all
reasonable bounds of decency and is utterly intolerable in a civilized community.” Craft, 671
S.W.2d at 250; accord Humana of Ky., Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990). The tort of
intentional infliction of emotional distress “is not available for ‘petty insults, unkind words and
minor indignities.’ Nor is it to compensate for behavior that is ‘cold, callous and lacking
sensitivity.’ Rather, it is intended to redress behavior that is truly outrageous, intolerable and
which results in bringing one to his knees.” Osborne v. Payne, 31 S.W.3d 911, 914 (Ky. 2000)
(quoting Kroger Co. v. Willgruber, 920 S.W.2d 61, 65, 67 (Ky. 1996); Seitz, 796 S.W.2d at 3–4).
Plaintiff failed to allege conduct of an extreme and outrageous nature on the part
Davenport or Owsley. To start, Plaintiff made no allegation whatsoever regarding Owsley’s
conduct. Owsley appears only twice in the Complaint. First, Plaintiff alleges that Owsley is a
citizen and resident of Kentucky in describing the parties, and second, she alleges that Owsley is
an “employer” within the FMLA’s definition of that term. (Compl., DN 1-1, ¶¶ 8, 18.) Those
allegations, of course, do not disclose any extreme and outrageous conduct.
The Complaint does contain several allegations concerning Davenport’s conduct.
According to Plaintiff, Davenport told her to use vacation days in lieu of FMLA leave. (Compl.,
DN 1-1, ¶ 11.) He then allegedly began a “campaign of harassment” against Plaintiff, engaging
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in “bullying and aggressive behavior.” (Compl., DN 1-1, ¶ 12.) Plaintiff further alleges that
Davenport terminated her employment with ECTC for invoking her rights under the FMLA.
(Compl., DN 1-1, ¶ 15.)
Taken collectively, Davenport’s alleged conduct is not of the extreme and outrageous
kind for which the tort of intentional infliction of emotional distress provides a remedy. The
workplace is too often a source of insults and indignities, but the law does not redress all rude
and disheartening actions taken by employers. See Sacharnoski v. Capital Consol., Inc., 187 F.
Supp. 2d 843, 845 (W.D. Ky. 2002). Requiring Plaintiff to use vacation days when she preferred
to take FMLA leave is not an act transgressing all reasonable bounds of decency, and the
allegations of harassment and bullying are conclusory statements inadequate to support a claim.
Finally, termination—even for a discriminatory reason—does not rise to the level of extreme and
outrageous conduct necessary to maintain a claim for intentional infliction of emotional distress.
Id.; Highlands Hosp. Corp. v. Preece, 323 S.W.3d 357, 368 (Ky. App. 2010); Miracle v. Bell
Cnty. Emergency Med. Servs., 237 S.W.3d 555, 560 (Ky. App. 2007); Benningfield v. Pettit
Envtl., Inc., 183 S.W.3d 567, 572 (Ky. App. 2005). In light of the insufficient factual
allegations, Plaintiff’s claims against Davenport and Owsley in their individual capacities will be
dismissed.
IV.
CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss (DN 8) will be granted in
part and denied in part. The Court will deny Defendants’ motion to the extent it seeks dismissal
of Plaintiff’s FMLA claims for reinstatement brought against Davenport and Owsley in their
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official capacities. All other claims will be dismissed with prejudice. A separate order will be
entered this date in accordance with this Memorandum Opinion.
July 20, 2015
C al R Smpo I , ei J d e
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U i dSae Ds i C ut
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cc:
Counsel of Record
Angela M. Woodward, pro se
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