Reardon v. Herring et al
Filing
28
MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Robert E. Payne on 08/23/2016. (walk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
AUG 2 3 2016
CLERK, U.S. DISlAICT COURT
RICHMOND VA
ANN MARIE REARDON
Plaintiff,
v.
Civil Action No. 3:16cv34
MARK R. HERRING,
In his official capacity as
A~torney General of Virginia,
Defendant.
MEMORANDUM OPINION
This matter is before the Court on
Defendant's MOTION TO
DISMISS COUNT II OF PLAINTIFF'S AMENDED COMPLAINT
For
the
reasons
stated
below,
Defendant's
COUNT II OF PLAINTIFF'S AMENDED COMPLAINT
(ECF No.
MOTION
(ECF No.
21).
TO
DISMISS
21)
will be
denied.
BACKGROUND
Plaintiff Ann Marie Reardon
Attorney General
of
Virginia
employer,
unequal
unlawful
("OAG"),
Attorney
pay
at the Off ice of the Attorney General
brought
General
relative
retaliation
(Count II).
6)
( "AAG")
("Reardon"), a former Assistant
to
for
this
Mark
her
suit
Herring
male
complaining
her
("Herring"),
counterparts
about
(Memorandum Opinion of June 3,
("June 3 Opinion").
against
alleging
(Count
that
2016,
former
I)
and
unequal
pay
ECF No.
13,
1-
Herring filed a motion to dismiss under
Fed.
R.
Civ.
P.
opinion,
the
Court
temporal
connection
alleged
12.
(ECF
found
No.
that
between
retaliation
5).
As
is
Reardon' s
the
foreclosed
relevant
failure
protected
the
for
to plead any
activity
existence
of
a
and
the
plausible
causal link between her complaints and her termination.
Opinion 4 8-52) .
this
(June 3
The Court dismissed Count II without prejudice
and with leave to amend.
(June 3 Opinion 52-53; Order,
ECF No.
14}. Reardon then filed a First Amended Complaint ("FAC"), which
included
additional
information
Reardon' s
pay complaints
(FAC,
about
ECF No.
the
circumstances
18),
of
and Herring filed
this motion to dismiss Reardon' s retaliation claim.
(Def.' s Mtn.
to Dismiss Count II of Pl.'s Am. Comp!., ECF No. 21).
LEGAL STANDARD
Fed.
R.
Civ.
P.
12(b) (6)
permits
a
party
dismissal of a claim if the complaint fails
upon
which
relief
can
be
granted."
Fed.
to
move
for
"to state a claim
R.
Civ.
P.
8(a) (2}
requires "a short and plain statement of the claim" showing that
the
pleader
dismiss,
a
is
complaint
accepted as true,
on
its
entitled
face.'"
to
to
must
relief.
contain
"To
survive
sufficient
a
motion
factual
to
matter,
'state a claim to relief that is plausible
Ashcroft
v.
Iqbal,
556
U.S.
662,
678
(2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
2
Courts
should
allegations
dismiss
in
assume
the
the
veracity
Complaint,
and
of
should
all
deny
where those well-pleaded allegations
claim for
relief.
Id.
at
679.
well-pleaded
a
motion
to
state a plausible
A claim is "plausible" when the
plaintiff pleads facts sufficient to allow the court to draw the
reasonable
inference
alleged misconduct.
that
Twombly,
grant a motion to dismiss,
nothing
more
the
than
legal
defendant
550 U.S.
however,
at
is
liable
55.
for
the
The court should
where the allegations are
conclusions,
or
where
they
permit
court to infer no more than a possibility of misconducc.
a
Igbal,
556 U.S. at 678-79.
ANALYSIS
A.
Elements of a Prima Facie Retaliation Claim
The Equal
Pay Act
Labor Standards Act
discharge
employee
or
in
because
{"EPA"),
as
incorporated into the
Fair
{"FLSA"), 1 provides that it is unlawful "to
any
such
other
manner
employee
has
discriminate
filed
any
against
an
complaint
or
instituted or caused to be instituted any proceeding under or
related to this chapter." 29 U.S.C.
§
215(a) (3). Thus,
to state
a claim for retaliation, a plaintiff must plausibly allege: "(l)
1
O'Neill v. Allendale Mut. Ins. Co., 956 F.Supp. 661,
(E.D. Va. 1997) (noting that the "Equal Pay Act
incorporates§ 215(a} (3) of the FLSA.").
3
665 n. 8
directly
engagement in protected activity,
(2}
'materially adverse action
... which ... might well have dissuaded a reasonable worker from
making
or
supporting
a
charge
of
discrimination,'
causality." 2 Hinton v. Virginia Union Univ., No.
WL 2621967,
Santa
Fe
elements
515
*17
Rwy.
(E.D.
v.
Va.
White,
of Title VI I
F.3d 334,
practice
of
340
May 5,
548
U.S.
in
Title VII case law when
2008)
(3)
3:15CV569,
2016
(quoting Burlington N.
53,
retaliation) ;
(4th Cir.
courts
2016
and
68
(2006})
Darveau v.
&
(discussing
Detecon,
Inc.,
(noting the "almost uniform
considering
the
authoritative
body
of
interpreting the comparable provisions
of other federal statutes," and applying Title VII case law to
the FLSA) .
The dispositive issue in the motion to dismiss the FAC is
whether Riordan has plausibly alleged causality.
showing of causality requires either:
closely
plaintiff
between
followed
put
the
the
forth
protected
protected
a
activity,
sufficient
activity
2
(1)
and
that
A prima facie
the retaliation
or
(2)
explanation
for
the
alleged
that
the
the
delay
retaliation.
To establish a claim for retaliation under the FLSA, a
plaintiff may offer direct evidence that she was retaliated
against because she engaged in protected activity, or apply the
\\burdenshifting"
scheme
initially
articulated
in
McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), which requires
that a plaintiff plead a prima facie case. Hackney v. Arlington
Cty. Police Dept., 145 F.3d 1324, 1998 WL 230849, at *4 (4th
Cir. May 11, 1998}. Because Reardon has alleged no facts that
would permit a finding that she has pled a \\direct" case, she
must plead each of the elements of a prima facie case.
4
Hinton,
F.
2016 WL 2621967 at *23
Appx.
637,
64 3
(4th Cir.
(relying on Perry v.
2012} } .
As
to
the
Kappes,
first
489
method,
neither the Supreme Court nor the Fourth Circuit has adopted a
bright line for how closely the adverse action must fallow the
protected conduct.
ten-week
inference
delay
of
Perry,
"is
489 E'. App'x at 643.
sufficiently
causation
between
long
the
so
two
King v. Rumsfeld, 328 F.3d 145, 151 n.5
the second option,
and
the
based
adverse
solely
on
'other relevant
as
Perry,
to
events."
even a
weaken
Id.
the
(quoting
(4th Cir. 2003}}. As to
where the time between the protected conduct
action
"is
temporal
too
great
proximity,
to
a
establish
plaintiff
489
F.
causation
must
present
to establish causation,'
evidence
'continuing retaliatory conduct and animus'
period."
However,
App'x
at
643
such as
in the intervening
(relying
on
Lettieri
v.
Equant, Inc., 478 F.3d 640, 650 (4th Cir. 2007)}.
1.
Overcoming Delay Under Existing Fourth Circuit
Law
The
Fourth
explanation
Circuit
sufficient
has
to
recognized
overcome
two
the
ways
to
weakened
plead
an
causality
inference where there is a delay between the alleged protected
activity and the alleged adverse action.
First,
the
most
common
"sufficient
explanation"
in
the
Fourth Circuit requires alleging "continuing retaliatory conduct
and
animus."
Perry,
489
F.
App'x
5
at
643.
The
conduct
deemed
sufficiently
retaliatory
serious.
~
where
plaintiff
was
(D.
Md.
of
law
is
quite
significant
responsibilities,
Murphy-Taylor v.
2013)
case
(finding ongoing animus
stripped
supervisory
meet with clients) ;
722
existing
Lettieri, 478 F.3d at 650
responsibilities,
693,
under
Hofmann,
and
968
job
ability
F.
Supp.
to
2d
(finding ongoing animus where employer
failed to separate plaintiff from her harasser and issued poor
performance reviews);
JCC/TRJ,
2013
(finding
WL
ongoing
Elder v.
4538777,
animus
DRS Techs.,
at
*7
where
(E.D.
Inc.,
Va.
employer
No.
Aug.
1: 13CV7 99
27,
deployed
2013)
civilian
employee to life-threatening active combat site in Afghanistan).
Second,
the
Fourth
Circuit
has
also
"regular acts showing animus or antagonism,
reasons why the adverse action was not
serve
as
a
sufficient
explanation
acknowledged
coupled with val id
taken
for
that
immediately" can
delay
between
the
protected action and retaliation. Hart v. Hanover Cty. Sch. Bd.,
No. 3:10-CV-794, 2013 WL 1867388, at *5
aff 'd,
547
F.
App'x
298
(4th
Cir.
(E.D. Va. May 2,
2013)
(relying on Lettieri, 478 F.3d at 650). In
(emphasis
Le~tieri,
Lettieri contacted
Human Resources on
December
17,
2001,
to
report
gender
discrimination by Taylor and Parkinson. Over
the
next
two
days
Hausner
conveyed
Lettieri' s complaints to the two men. After
Lettieri lodged her complaint, Taylor gave
up on his plan to transfer her to New York.
But the very next month
(January 2002)
Taylor stripped Lettieri of significant job
6
2013),
added),
responsibilities. He reduced her supervisory
responsibilities over the sales team and
took away her authority to set prices and
meet directly with Sprint clients. These
steps made it easier for Taylor to take the
position later that Lettieri was not needed
and should be terminated. Before long, in
February or March 2002, Taylor and Parkinson
began discussions about firing
Lettieri.
This was well before Equant asked managers
such as Taylor to look for positions that
could be eliminated. Right after Radochia
took over Parkinson's role in April 2002,
Taylor informed Radochia that he had "big
issues with (Lettieri]" and that "her role
(was] not really needed." J.A. 264. After
the decision was made to terminate Lettieri
in June of 2002 because her position was
supposedly
redundant,
Taylor
immediately
sought approval to hire a replacement for
Lettieri.
These intervening events
which occurred
regularly after Lettieri's complaint and can
reasonably
be
viewed
as
exhibiting
retaliatory animus on the part of Taylor and
Parkinson - are sufficient to show a causal
link between Lettieri's complaint and her
termination.
Lettieri,
pattern
478
of
F.3d
at
antagonistic
650-51.
Similarly,
behavior
{including
rumors and a poor performance review)
first
convenient
opportunity
in
Murphy-Taylor,
failure
to
a
quash
and adverse action at the
overcame
a
delay
of
fifty-one
months between the plaintiff's protected conduct and the adverse
action. Murphy-Taylor, 968 F. Supp. 2d at 721-22. 3
3
In Murphy-Taylor, plaintiff's employer (1) demonstrated ongoing
animus by refusing to quash rumors about plaintiff, refusing to
prevent contact between plaintiff and her alleged harasser, and
gave plaintiff a poor performance review; and (2) acted at the
7
In other words,
under the second Fourth Circuit approach,
an employer steadily working toward effecting an adverse action
and
subsequently
opportunity,
taking
combined
that
with
action
at
articulated
the
first
continuing
convenient
animus,
meet the plausibility standard for pleading causality,
can
at least
at the motion to dismiss stage.
2. Overcoming Delay Using the "Valid Reason" Approach
Other courts of appeals have adopted a rule that goes one
seep
further,
pleading
that
convenient
and
have
adverse
found
plausible
action
opportunity
was
without
any
retaliation
delayed
until
accompanying
continuing animus.
Kachmar v. SunGard Data Sys.,
173,
1997)
the
178
{3d Cir.
adverse
absence
of
employment
immediacy
upon
the
first
evidence
Inc.,
a
of
109 F.3d
("When there may be valid reasons why
action
between
was
not
the
taken
cause
disprove causation."); 4 see also Porter v.
and
immediately,
the
effect
not
does
California Dep' t
of
earliest convenient opportunity by terminating plaintiff a
single day after plaintiff's harasser - against whom plaintiff's
employer had taken no disciplinary action
pled guilty to
sexual assault against plaintiff. Id. at 721-22.
4
The Third Circuit employs the--same test for prima facie
retaliation as does the Fourth. ~, Kachmar, 109 F. 3d at 177.
Like the
Fourth Circuit,
the Third Circuit also permits
circumstantial evidence of a pattern of antagonism to overcome a
delay between protected activity and adverse action. ~'
Farrell v. Planters Lifesavers Co., 206 F. 3d 271, 280 ( 3d Cir.
2000) . This strongly suggests that the "pat tern of antagonism"
or "valid reason" approaches are complimentary, not conflicting,
ways of overcoming a delay, and that employing the "valid
8
Corr.,
419 F. 3d 885,
895
(9th Cir.
Richmond v. Oklahoma Univ.
Cir. 1998)
Bd.
2005)
(relying on Kachmar);
of Regents,
162 F.3d 1174
{10th
{relying on Kachmar); Dixon v. Gonzales, 481 F.3d 324
(6th Cir. 2007)
(noting Kachmar but
finding no valid reason why
the adverse employment action was not taken immediately).
In
person
Kachmar,
in-house
plaintiff worked as
counsel
team.
an
Kachmar,
attorney on a
109
F.3d at
three-
175,
178.
Plaintiff complained to her supervisor about her own pay and the
pay and treatment of others at the company.
Id. at 175-76. Four
months after her fin al instance of protected activity which
plaintiff's
"strained"
-
motion
dismiss
to
relationship
with
plaintiff was terminated.
plaintiff's
Title
her
Id.
VII
at
during
supervisor
176,
17 8.
retaliation
was
In a
claim,
defendant argued that "even a four month gap would be too long
to
allow
an
inference
of
causation."
Id.
at
178.
The
Third
Circuit observed that
[i]t is important to emphasize that it is
causation, not temporal proximity itself,
that is an element of plaintiff's prima
facie case, and temporal proximity merely
provides an evidentiary basis from which an
inference can be drawn.
The element of
causation,
which necessarily involves an
inquiry into the motives of an employer, is
highly context-specific. When there may be
valid reasons why the adverse employment
action
was
not
taken
immediately,
the
reason" approach would add to, not conflict
Fourth Circuit jurisprudence on retaliation.
9
with,
existing
absence of immediacy between the cause and
effect does not disprove causation.
SunGard may have recognize that termination
of Kachmar immediately after her January 15,
1993 meeting with [her supervisor) could
have resulted in the disruption of the
small,
three-attorney
in-house
counsel's
off ice. After all, Kachmar was senior inhouse
counsel,
not
one
of
many
interchangeable employees on an assembly
line.
We do not
know whether she was
involved
in
long-term
negotiations
or
litigation that could have deterred SunGard
from terminating her immediately.
Id. 5
The Third Circuit's reasoning is persuasive, and the "valid
reason" approach taken there as a means to overcome the effect
of
an
extended
contradictory to,
delay
the
is
complimentary
of,
rather
than
Fourth Circuit's decisions on overcoming
delay.
First,
under the Third Circuit's "valid reason" approach,
the
Fourth Circuit's
predominant
the
Fourth
Lettieri
Circuit's
ongoing
animus
blended approach,
5
approach,
the
and
plaintiff
The Court notes that the Kachmar court's "there could have
been ... " approach, requiring the defendant to show improbability
rather than requiring the plaintiff to allege plausibility, is
outmoded in the wake of Twombly and Igbal. See, e.g., Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). In the present
case,
however,
Reardon affirmatively pleads
that she was
"involved in ... litigation that could have deterred [OAG) from
terminating her immediately," particularly pointing to two cases
in which she was lead counsel. Thus, Reardon has pled facts (her
role as lead counsel on two ongoing trials) from which the Court
may
reasonably
infer a
"valid reason[]
why the adverse
employment
action
was
not
taken
immediately."
Reardon
accordingly avoids any issues arising from the shift in pleading
standards after the Third Circuit decided Kachmar.
10
pleads intervening facts that bridge the gap between the distant
protected
act
and
the
delayed
adverse
action,
permitting
the
district court to make a reasonable inference in the plaintiff's
favor
that the protected act and adverse action were related.
The consistency of
these
three
Circuit's
overcome
the animating principle underlying each of
analytical
valid
a
constructs
reason
lengthy
approach,
delay
that
teaches
if
that
properly
would
the
Third
pleaded,
otherwise
may
foreclose
a
permits
an
plausible pleading of causality. 6
Second,
inference
convenient
with the
the
of
"valid
causation
opportunity
reason"
where
to
Fourth Circuit
approach,
an
take
employer
adverse
which
acts
at
the
action,
is
consistent
approach that permits an
inference of
causation where an employer takes adverse action at
possible opportunity.
(4th
Cir.
2004)
failure-to-hire
~,
Price v. Thompson,
(assuming,
context,
without
the first
380 F.3d 209, 213
deciding,
the employer's
first
"that
in
the
knowledge coupled with
an adverse action taken at the first opportunity satisfies the
causal connection element of the prima f acie case") ; Johnson v.
Scott Clark Honda,
*4
No.
(W.D.N.C. Apr. 25,
3:13-CV-485-RJC-DCK,
2014), aff'd,
6
2014 WL 1654128, at
584 F. App'x.
180
(4th Cir.
Of course, there must exist a factual predicate that will
support such a pleading. Without that factual base, the pleading
runs the risk of running afoul of Fed. R. Civ. P. 11.
11
2014)
(applying
\\first
opportunity"
to
employee's
request
to
become a full time employee) .
Because the "valid reason"
consistent
adopts
it
approach,
with
as
may
existing
an
approach
Fourth
approach
overcome
Circuit
which,
an
persuasive and is
case
like
extended
activity and adverse action,
is
law,
the
delay
the
ongoing
between
thus re-establishing a
Court
animus
protected
reasonable
probability of causation, at the motion to dismiss stage.
B.
Application to Reardon's Claims
According
activity:
(1)
February 2015";
2015."
to
on
the
FAC,
November
and
(3)
{FAC 'Hc:ll 41-44,
3,
2014;
instance
of
eight
or
alleged
(2)
Pl.'s Br.
56;
\\on
in
or
protected
about
early
in Opp.
to Def.'s Mtn.
("Pl.'s Opp."), 11). Reardon was notified
of her termination on June 15,
approximately
engaged
"on or about late March or early April
50,
to Dismiss, ECF No. 24
Plaintiff
ten
2015.
weeks
protected
(FAC 'II
elapsed
63).
Accordingly,
between
activity
and
the
final
Reardon's
termination. This places Reardon in the category of cases where
the \'separation between the two events is sufficiently long so
as
to
weaken
requiring
significantly
[plaintiff]
to
the
present
inference
additional
retaliation." Perry, 489 F. App'x at 643.
12
of
causation,
evidence
1
of
Reardon
that
instances
allege(d]
antagonism,
did
argues
not
coupled
she
of
in
retaliatory
with
immediately
has,
valid
animus
reasons
terminate
"sufficiently
fact,
why
[Reardon' s]
or
intervening
(Herring's
office]
employment."
(Pl.' s
Opp. 12) .
1. Reardon Has Not Pled Ongoing Animus
In support of her assertion of ongoing retaliatory animus,
Reardon points
to the
(Pl.'s Opp. 13).
conduct
of
a
supervisor,
Reardon alleges that:
{1)
Linda
Bryant.
"[a]fter [Reardon's]
unequal pay complaint to Ms. Bryant in early February 2015, Ms.
Bryant
rarely
Plaintiff",
and
spoke
(2)
to
Plaintiff
"[s]hortly
after
and
actively
Plaintiff's
avoided
unequal
pay
complaint to Ms. Bryant in early February 2015,
in mid-February
2015,"
office
Bryant
window"
assigned
a
"desirable
to another attorney,
exterior
despite the
fact
that
with
a
''[Reardon]
was next in line for consideration for such an office"; and (3)
Bryant did not congratulate Reardon or "send [Reardon's] section
the
customary
announcing the
served as
email
favorable
congratulating
verdict" of a
lead attorney.
( FAC
'!I'll
4 7,
[Reardon]
trial
54,
or
even
in which Reardon
51-53,
56-58;
Pl. 1 s
Opp. 13).
The conduct that
Reardon identifies
does
not rise to the
level required for ongoing animus. The conduct that suffices to
establish
"ongoing
animus"
in
existing
13
case
law
is
much more
severe than the conduct that Reardon pleads here.
478
F.3d at 650;
Murphy-Taylor,
2013 WL 4 538777,
at
*7;
Hart,
968
F.
Supp.
~
Lettieri,
2d at 722;
2013 WL 18 67 388,
at
*5
Elder
{noting
Third Circuit case finding ongoing animus "based on a pattern of
harassment,
discipline
for
provoke the plaintiff")
Transp.
Auth.,
1993)).
Compared
Reardon' s
Red
sufficient
to
to
permit
matters,
and
attempts
to
{relying on Robinson v. Se. Pennsylvania
Arrow
allegations
minor
the
Div.,
982
conduct
F.2d
892,
alleged
895
in
(3d
those
Cir.
cases,
plead insignificant conduct 7
that
is
not
a
Reardon
was
reasonable
inference
that
terminated in retaliation for her protected behavior.
2.
Reardon Has Pled A Valid Reason For Delayed
Adverse Action
In support of her assertion of valid reasons why Herring's
office
did
not
immediately
Reardon alleges that,
terminate
Reardon's
employment,
from November 2014 through May 2015,
7
she
On that point, it is useful to remember that, in determining
what behavior constitutes harassment, the Supreme Court observed
that federal labor laws are not intended to create "a general
civility code for the American workplace." Oncale v. Sundowner
Off shore Servs., Inc., 523 U.S. 7 5 ( 1998) ; see also Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006) (noting,
in context of determining whether an action is materially
adverse, that
"(a] supervisor's refusal to invite an employee
to lunch is normally trivial, a nonactionable petty slight") .
14
served
as
lead
prosecutions,
attorney
on
separate
two
"extensive"
and that terminating her before the conclusion of
those matters "would have jeopardized the trial given the large
amount of trial preparation performed by" Reardon.
(FAC
'.!['.![
47-
50, 54, 56-58, 101-03).
The Third Circuit contemplated exactly such a circumstance
in Kachmar and concluded that
this situation provided a
valid
reason for delay between protected activity and adverse action,
so as to re-establish the presumption of a
causal link at the
motion to dismiss stage. Kachmar,
109 F.3d at 178
have
of
recognized
her January 15,
that
termination
1993 meeting with
Kachmar
("SunGard may
immediately
[her supervisor]
after
could have
resulted in the disruption of the small, three-attorney in-house
counsel's office .... We do not know whether she was involved in
litigation that could have deterred SunGard from terminating
her
immediately.") . 8
employer,
having
It
invested
is
logical
significant
to
infer
time
in
that
one
a
legal
attorney's
preparation for a matter, might well delay taking adverse action
against that attorney until the termination of the matter, so as
to avoid the need to squander resources bringing a replacement
up to speed.
8
Again, although Kachmar' s "we do not know" approach has been
supplanted by Twombly and Iqbal, Reardon has pled specific facts
such that the Court does know - accepting Riordan's allegations
as true - that she was involved in litigation at the time she
engaged in protected activity.
15
In
this
drawing
case,
Reardon's
favor,
it
Reardon's
protected
is
all
reasonable
plausible
activities
and
that
the
OAG's
inferences
delay
adverse
in
between
action
is
attributable to OAG's desire to avoid disrupting the trials that
Reardon was prosecuting in late 2014 and early 2015. By pleading
this
valid
inference
reason
of
for
delay,
causation
Reardon
has
re-established
which
permits
Count
II
to
an
survive
Herring's Fed. R. Civ. P. 12{b} {6} motion to dismiss.
CONCLUSION
For the reasons stated above,
Defendant's MOTION TO DISMISS
COUNT II OF PLAINTIFF'S AMENDED COMPLAINT
(ECF No.
21}
will be
denied.
It is further ordered that the facts and legal contentions
are adequately presented in the materials before the Court and
oral
argument
Defendant's
would
MOTION
TO
not
aid
DISMISS
the
COUNT
decisional
II
OF
process
PLAINTIFF'S AMENDED
COMPLAINT (ECF No. 21}.
It is so ORDERED.
Isl
Robert E. l?ayne
Senior United States District Judge
Richmond, Virginia
Date: August ~' 2016
16
on
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