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Chen v. Maryland Department of Health And Mental Hygiene

United States District Court, D. Maryland

March 14, 2018

YING-JUN CHEN, Plaintiff,


          Ellen Lipton Hollander United States District Judge

         In this employment discrimination suit, self-represented plaintiff Ying-Jun Chen, who is Chinese-American, filed suit against his former employers, the Maryland Health Care Commission (“MHCC”) and the Maryland Department of Health and Mental Hygiene (“MDHMH, ” “DHMH” or the “Department”), [1] as well as several individuals in their official capacities: the former Secretary of MDHMH, Van T. Mitchell; the Acting Executive Director of MHCC, Michael (“Ben”) Steffen; and the Director of Administration for MHCC, Bridget Zombro (collectively, the “Individual Defendants”). See ECF 14 (“Amended Complaint”).[2] Chen alleges that MHCC terminated his employment as a result of discrimination based on national origin, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), codified, as amended, at 42 U.S.C. §§ 2000e et seq.

         Defendants have moved for summary judgment (ECF 48), supported by a memorandum of law (ECF 48-1) (collectively, the “Motion”) and many exhibits. See ECF 48-3 through ECF 48-21.[3] Chen opposes the Motion (ECF 50, “Opposition”) and has also provided multiple exhibits. See ECF 50-1 through ECF 50-19. Defendants replied (ECF 51, “Reply”) and submitted two additional exhibits. See ECF 51-1; ECF 51-2.

         The Motion is fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion

         I. Factual and Procedural Background


         Plaintiff was born in China. ECF 14, ¶ 1. He moved to the United States in 1990 to pursue graduate studies (id., ¶ 11) and in 2007 he became a naturalized U.S. citizen. Id. ¶ 13. MDHMH is a principal department of the Maryland state government. ECF 14, ¶ 14. MHCC is an independent commission that functions within MDHMH. Id. ¶ 16. In December 2009, MHCC hired Chen as a “Health Policy Analyst-Advanced.” ECF 48-4, ¶ 2; see also ECF 50-1 at 2 (letter from the Chief of MHCC Employment Services to Chen, dated December 10, 2009).

         As a “Health Policy Analyst-Advanced, ” Chen was required, inter alia, to conduct “studies on relevant policy issues regarding health care access, utilization and costs using large data files with minimal supervision.” ECF 48-5 (plaintiff's Position Description) at 1. Chen acknowledged receipt of his position description. See ECF 50-1 at 7 (Certified Receipt of Position Description). He satisfactorily completed the 180-day probationary period on June 16, 2010. ECF 50-2 at 2-3. However, Chen was terminated on January 18, 2012. See ECF 52-1 (Notice of Termination). At that time, he was still classified as Health Policy Analyst- Advanced. See ECF 52-1 at 2.

         During plaintiff's employment, Mitchell was Secretary of MDHMH. ECF 14, ¶ 15. He resigned in December 2016, and was succeeded by Robert R. Neall.[4] Steffen was the Acting Executive Director of the MHCC, and the Director of MHCC's Center for Analysis and Information Services. ECF 14, ¶ 17; see also ECF 52-3 at 3-14 (documents attached to plaintiff's Notice of Disciplinary Action, dated November 9, 2011). Zombro is the Director of Administration for MHCC. ECF 48-4 (Zombro Affidavit), ¶ 1; see also ECF 52-2 (Memorandum from Zombro to Chen, dated December 7, 2010) at 3.[5] According to Chen, Zombro reports to Steffen. ECF 14, ¶ 18.

         While at MHCC, plaintiff had several supervisors, some of whom overlapped. Linda Bartnyska, the Chief of Costs and Quality for MHCC (ECF 52-3 at 10, ¶ 2), was Chen's “immediate supervisor.” ECF 14, ¶ 43. Bartnyska supervised plaintiff from at least December 2009 to July 2011. See ECF 48-7 (Mid-Cycle PEP Evaluation, dated December 2010); ECF 48-8 (End-of-Cycle PEP Evaluation, dated July 2011); see also ECF 48-5 at 1; ECF 52-3 at 10 (memorandum from Zombro to Chen, dated November 3, 2011). It is not clear when, if at any point before Chen's termination, Bartnyska ceased supervising plaintiff.

         Norman Ringel began to supervise Chen in January 2011, when Chen was moved from the position of Health Policy Analyst-Advanced to the position of Data Processing Programmer. See ECF 48-8 at 5 (unsigned and undated document attached to plaintiff's 2011 End-Of-Cycle PEP Evaluation); see also ECF 52-3 at 10.[6] It appears that Ringel ceased supervising plaintiff in June 2011, when Ringel retired from MHCC. See ECF 50-13 at 3 (email from Chen to Steffen, dated December 26, 2011).

         Leslie LaBrecque is the Chief of Database Development and Applications for the MHCC. See ECF 52-3 at 7 (email from LaBrecque to Steffen, dated November 3, 2011). At some point in 2011, LaBrecque also began supervising plaintiff as to his “programming” assignments. ECF 14, ¶ 59; ECF 52-3 at 7.

         On September 21, 2010, Zombro wrote a “Memorandum of Verbal Counseling” to Chen, with copies to Steffen and Bartnyska. See ECF 48-19 at 1 (Memorandum of Verbal Counseling). The subject line of the memorandum is: “Insubordination.” Id. In the body of the memorandum, Zombro asserted that Chen had been given an assignment at “the beginning of the year, ” which was due on September 17, 2010, but he failed to complete the assignment by the deadline. Id. Additionally, Zombro wrote that, “without authorization from Linda Bartnyska or Ben Steffen, ” plaintiff “tried to convince Norm Ringel to create” the assignment, offering Ringel “comp-time” and the possibility of “part-time work . . . when he retires, neither of which are things [Chen is] in a position to offer.” Id. Further, Zombro stated that, when Bartnyska told plaintiff that the assignment was due, plaintiff said “then [Bartnyska] should do it” herself. Id.

         Two emails were attached to the Memorandum of Verbal Counseling. See ECF 48-19 at 1-3. In an email from LaBrecque to Steffen, Bartnyska, Ringel, and Zombro, dated September 17, 2010 (ECF 48-19 at 2), LaBrecque reported that Chen had placed MHCC data on a USB drive, [7] in violation of MHCC data policy. Id. According to LaBrecque, Chen also inserted the USB drive into LaBrecque's computer, causing the computer to crash. Id. In an email of that same date from Ringel to Zombro and Steffen (ECF 48-19 at 3), Ringel reported that Chen “impulsively” connected a USB drive to Ringel's computer. According to Ringel, Chen said that “he has numerous [USB] drives on which to back up his files.”

         On December 2, 2010, Chen and Bartnyska had a verbal altercation that resulted in a five-day suspension of Chen, from December 8, 2010, through December 15, 2010. See ECF 52-2 at 3. According to a memorandum from Bartnyska to Zombro, dated December 2, 2010 (ECF 52-2 at 4-5), when Bartnyska assigned Chen a project on that same date, Chen raised his voice, leaned across the table towards Bartnyska, and put his face close to hers. ECF 52-2 at 4. Defendants have submitted statements of several MHCC employees who claim to have witnessed the incident and who corroborate Bartnyska's account. See ECF 52-2 at 6-9.[8]

         Chen appealed the suspension to Rex Cowdry, then the Executive Director of MHCC. See ECF 50-4 at 3-4 (appeal). Chen claimed that he “remained silent when [Bartnyska] started yelling at” him. Id. at 3. Moreover, Chen insisted that he “did not yell” at Bartnyska. Id. And, in response to Bartnyska's assertion that Chen had leaned across a table towards her, Chen explained that he “bowed down” to her. Id.[9] Further, Chen stated that he “had endured [Bartnyska] yelling at least three (3) times.” Id. And, he asserted that he and Zombro had discussed improving his “2-way communications on future work assignments” to “avoid misunderstandings” with Bartnyska. Id.

         Cowdry denied the appeal. ECF 50-4 at 2. He concluded that plaintiff failed to present evidence of mitigating circumstances regarding the verbal altercation of December 2, 2010. Id.[10]

         The MHCC evaluates its employees using the Maryland Performance Planning and Evaluation Program (“PEP”). See ECF 48-1 at 4; see also 48-6 (revised PEP Guidelines and Instructions, dated October 14, 2010). “The PEP is intended to facilitate communication between employees and supervisors regarding expectations and performance.” ECF 48-6 at 1. It “offers employees and supervisors an opportunity to . . . openly discuss areas for [the employee's] enhancement and improvement. In cases of poor performance it is meant to compliment the disciplinary process by providing a means to assist employees to improve.” Id.

         The PEP process requires an employee to be evaluated by a supervisor at least twice each year, typically in June and December. See ECF 48-6 at 1; see also ECF 48-1 at 4. PEP evaluations fall into three categories. A “beginning-of-cycle” PEP evaluation, which occurs soon after an employee is hired, requires, inter alia, a discussion about “performance expectations for the coming year.” Id. A “mid-cycle” PEP pertains to “the employee's performance during the first months of the PEP Cycle, ” and typically occurs in December. Id. An “end-of-cycle” evaluation entails a review of “the employee's performance for the entire rating year, ” and generally occurs in June. Id.

         Under the PEP framework, an employee is evaluated based on job requirements termed “position-specific performance standards” and “behavioral elements.” ECF 48-6 at 2. An employee's supervisor rates the employee on a scale of 1 to 3 for each position-specific performance standard and behavioral element, with 3 being the best. See, e.g., ECF 48-9 (Chen's Decembers 2011 PEP); see also ECF 48-6 at 2. The ratings on each “standard” and “element” are then averaged. The average score determines whether the employee receives an overall evaluation of “Outstanding, ” “Satisfactory, ” or “Unsatisfactory.” ECF 48-6 at 2 (capitals in original); see also ECF 48-9. To obtain an overall rating of “Outstanding, ” the employee must receive an average score within the range of 2.75 to 3.00. See, e.g., ECF 48-9. An overall rating of “Satisfactory” requires an average score within the range of 1.75 to 2.74. Id. And, a rating of “Unsatisfactory” falls within the range of 1.00 to 1.74. Id.

         Notably, if an employee receives an overall rating of “Unsatisfactory” on an end-of-cycle PEP evaluation, “the employee's supervisor shall inform the employee that the employee has 180 days to improve to the level of ‘Satisfactory.'” ECF 48-6 at 7 (emphasis in original). Moreover, the supervisor and employee must complete a “Performance Improvement Plan” (“PIP”) to facilitate the employee's improvement during the “180-day improvement period.” Id. at 7-8. If the employee fails to earn a “Satisfactory” rating within the 180-day improvement period, the MHCC is required to terminate the employee. Id. at 8; see also ECF 52-1.

         Title Eleven of the State Personnel and Pensions (“S.P.P.”) Article of the Maryland Code (2015 Repl. Vol., 2017 Supp.) governs disciplinary actions and termination of employees in the State Personnel Management System, within the Executive Branch of the State government. See S.P.P. § 11-102. The Code of Maryland Regulations (“COMAR”) provides, in relevant part, (emphasis added):[11]

When an employee has been given an overall rating of “unsatisfactory” on an annual performance appraisal, the employee's supervisor shall inform the employee that the employee has 180 days from issuance of the rating to improve to the level of “satisfactory”. . . . Failure to meet standards at the end of the 180-day period shall result in the employee's termination.

         In the Mid-Cycle PEP Evaluation, dated December 21, 2010 (ECF 48-7, “December 2010 PEP”), plaintiff received an overall rating of “Satisfactory, ” indicating that he had “[m]et the required and expected results for the job.” Id. at 1. It was signed by Chen, Zombro, and Bartnyska. Id.

         Zombro avers in her Affidavit: “The Department of Budget and Management implemented a new performance evaluation system during the December 2010 PEP ratings period. MHCC was instructed to rate all employees satisfactory. Mr. Chen would have received an unsatisfactory rating but for the Department of Budget and Management's policy mandating that he be given a satisfactory rating.” ECF 48-4, ¶ 3; see ECF 48-8 at 5 (unsigned and undated document attached to Chen's July 2011 PEP, stating that the Maryland Department of Budget and Management (“DBM”) mandated that “all employees were to be rated Satisfactory” on the December 2010 PEP). No. such notation is made on the December 2010 PEP itself. And, defendants provide no documents from the DBM as to the alleged mandate.

         In her Affidavit, Zombro asserts that Chen's “deficiencies and poor work performance” in 2010 “related to his failure to check his results before turning in a project, his refusal to follow directions, and his inability to understand and use statistical formulas.” ECF 48-4, ¶ 4. Indeed, despite the satisfactory rating, Chen's December 2010 PEP described several “Behavioral/Skill Areas” in which he required improvement, including, ECF 48-7 at 2 (emphasis in original):

1. Working independently-requires/expects unreasonable amount of supervisory attention during implementation of projects.
2. Self checking [sic] results-failure to self-check work adequately before giving to supervisor.
3. Unwillingness to accept Supervisor's decisions-refusals to perform assigned tasks on several occasions; repeatedly questions supervisor's descriptions of assigned tasks; repeatedly questions supervisor's decisions about what is to be included in documents; and repeatedly questions supervisor's decisions regarding editing of text.
4. Ability to understand and use statistical formulas-unable to identify correct standard error formulas from a short chapter describing the formulas and when to use them; uses incorrect formula even when told the correct formula to use.
5. Ability to accurate/clearly [sic] explain analytical results in written text- inaccurate descriptions of analytical results in text for insurance coverage report.

         Plaintiff has submitted a document titled “Health Insurance Coverage in Maryland Through 2009.” See ECF 50-3. Presumably, this is the “insurance coverage report” referenced in the December 2010 PEP. See ECF 48-7 at 2, ¶ 5. In his Opposition, Chen points to the insurance coverage report (ECF 48-7) for the proposition that he “had no problem . . . performing relevant job duties.” ECF 50 at 6, ¶ 3. The report bears Bartnyska's name. ECF 48-7 at 1. And, it recognizes Chen and Larry Monroe for their contributions to the report. Id.; see also ECF 50 at 6, ¶ 3.

         Zombro avers that in April 2011 Chen was transferred “to a position with a new supervisor” in order to improve his work performance. ECF 48-4, ¶ 5. Zombro stated that Chen's new position required him “to do programming.” Id. Zombro does not specify the scope of plaintiff's new responsibilities or identify his supervisor. It appears that plaintiff's new position was that of “Data Processing Programmer, ” and Ringel was his supervisor. See ECF 48-8 at 5. However, plaintiff's job title remained unchanged. See ECF 52-1 at 2.

         On June 23, 2011, the MHCC created a PIP for Chen. See ECF 48-13 (“June 2011 PIP”). According to plaintiff's Notice of Termination, Zombro and Ringel issued the June 2011 PIP to plaintiff during a meeting on June 30, 2011. ECF 52-1 at 3. Defendants assert that the June 2011 PIP was “implemented with management to improve upon Chen's ‘Unsatisfactory' June 2011 PEP[.]” ECF 48-1 at 9. The June 2011 PIP stated, ECF 48-13 at 2:

This plan will be reviewed monthly, as necessary, to work with Linda/Leslie on areas of difficulty and to note areas of strength. This plan, and any amendments, will be considered for the mid-cycle PEP, to take place on or before December 31st 2011. The performance under the plan will be reevaluated in 180 days starting July 1, 2011.

         The June 2011 PIP identified plaintiff's performance in the following areas as “Needs Work (Unsatisfactory)”: “Working independently”; “Self checking results”; “Ability to understand and use statistical formulas”; “Ability to accurately/clearly explain analytical results in written text”; “Demonstrates an increasing knowledge of the MCDB, [12]expertise in its use”; “Prepares at least one technical analysis using the MCDB”; “Reports progress, resolves questions needing decision with supervisor”; “Provides data analysis, text development, and document reviews for the health insurance coverage report”; “Prepares at least one technical analysis using the MCDB or other data in accordance with the approved study and design and timeline.” ECF 48-13 at 1.

         A “Special Note” at the end of the PIP stated, in relevant part, id. at 2: “Mr. Chen was rated as satisfactory during his mid-term evaluation; it was due to the implement [sic] of a new performance evaluation system. Instruction from DBM were that all employees were to be rated Satisfactory.” In Chen's subsequent PEP Evaluation (ECF 48-8, “June 2011 PEP”), he received an overall evaluation of “Unsatisfactory, ” based on an assessment of eleven “position-specific performance elements” and nineteen “behavioral elements.” See Id. at 1-3; see also ECF 48-4, ¶ 6.[13] Chen and Bartnyska signed that PEP on July 6, 2011. ECF 48-8 at 4. Zombro and Ringel signed it on July 11, 2011. Id.[14]

         In the June 2011 PEP, Bartnyska and Ringel informed plaintiff of several “Tasks to be Achieved Before the Next Mid-Cycle Rating, ” including “1. Upgrade communication skills; 2. Become proficient in task assignments . . . 3. Cease printing inappropriate documents; 4. Focus on users specific requests/requirements instead of formulating assumptions about tasks; 5. See mid-year [December 2010 PEP] evaluation areas needing improvement.” ECF 48-8 at 4. Additionally, Bartnyska and Ringel suggested that “[c]ourses in communication (written and verbal) may be helpful” to improve Chen's work performance. Id.

         Numerous documents are attached to the June 2011 PEP. See ECF 48-8 at 5-64. They appear to have been collected and/or created by Ringel. See id. In a document dated June 13, 2011, titled “Supervisor Comments, ” Ringel noted that Chen “is prone to go off in his own direction”; “needs improvement in his communication skills”; and struggles to follow directions, take initiative in his work, and is uncooperative with his colleagues. ECF 48-8 at 6-7; see also ECF 50-5 at 3-4. However, Ringel also stated that “Chen is an adequate SAS programmer.” ECF 48-8 at 6; see ECF 50-5 at 3. And, he said that “a review of Chen's assignment sheets shows that SA programs are mostly completed on time. Some projects are completed with minimal supervision and some with closer supervision.” ECF 48-8 at 7; see ECF 50-5 at 4.

         Additional documents attached to the June 2011 PEP include records of email correspondence indicating that Chen failed to follow Ringel's instructions on two occasions (ECF 48-8 at 10-15), that Chen had a confrontation with a colleague stemming from one of Chen's assignments (id. at 17-18), and Chen failed to follow directions from Bartnyska pertaining to the use of certain datasets. See Id. at 24-25.

         On June 30, 2011, Zombro wrote and delivered a memorandum to Chen. See ECF 48-12.

         It stated, in part, id.:

On June 30, 2011 we met to discuss your FY2011 end-of-cycle PEP evaluation [June 2011 PEP]. The end-of-cycle rating is 1.27, Unsatisfactory and you will have 180 days from the issuance of this letter to improve to the level of “Satisfactory.” It is important to note that COMAR states: “Failure to meet standards at the end of the 180 day period shall result in the employee's termination[”]. . . .

         Although the memorandum states that it was delivered to Chen on June 30, 2011, Chen appears to have refused to sign it. See ECF 48-12. The portion of the memorandum reserved for Chen's signature contains the words: “Refused to sign as he disagrees with ratings.” Id. Those words were initialed by “BZ” (id.), which presumably refers to Bridget Zombro.

         Defendants assert, without pointing to any evidence, that, as a result of plaintiff's June 2011 PEP, the MHCC revoked plaintiff's access to the internet “in order to keep Chen focused on his work.” See ECF 48-1 at 7. It appears that Zombro met with plaintiff on June 23, 2011, to discuss, inter alia, how plaintiff's internet access would be blocked until his PEP performance improved to the level of “Satisfactory.” See ECF 52-3 at 9 (memorandum from Zombro to Chen, dated November 3, 2011), ¶ 1; see also ECF 52-3 at 6 (email from Zombro to Steffen, dated November 3, 2011); ECF 52-3 at 7 (email from LaBrecque to Steffen, dated November 3, 2011).

         In emails dated July 21, 2011, between, inter alia, LaBrecque and Zombro (ECF 50-7 at 2), LaBrecque suggested that Chen was using a “stand-alone” printer with access to the internet to print “non-work related matter” from the internet. Id. LaBrecque stated that Chen's purported actions “ought to be a fire-able-offense since he was instructed verbatim not to print any non-work related internet documents.” Id. Zombro responded, “In. Subordination [sic] I will deal with it . . . .” Id.; see also Id. at 4 (email from LaBrecque to Zombro and Bartnyska, dated July 29, 2011).

         In a memorandum from Zombro to Chen dated November 3, 2011, Zombro stated that on October 28, 2011, plaintiff left the MHCC building for three hours, without permission. See ECF 52-3 at 11, ¶ 5. Zombro characterized this as “Unauthorized Leave” and stated that plaintiff had been “AWOL” for three hours. Id. Zombro changed plaintiff's timesheet to reflect the unauthorized leave, and informed plaintiff that he would not be paid for that time. ECF 50-10 at 3. In an email to Steffen, Chen referred to the three hour absence as an “extended lunch break.” ECF 52-3 at 13.

         In an email from LaBrecque to Steffen, dated November 3, 2011, LaBrecque stated that she observed plaintiff using the internet on October 26, 2011. See ECF 52-3 at 7; see also ECF 52-3 at 10, ¶ 1. As noted, Zombro had removed plaintiff's access to the internet on June 23, 2011. See id.; see also ECF 52-3 at 9. LaBrecque discovered that plaintiff's internet access had been automatically restored as a result of a power outage in the MHCC building. ECF 52-3 at 7; see also ECF 52-3 at 9.

         According to an email from Zombro to Steffen dated November 3, 2011 (ECF 52-3 at 6), Zombro and LaBrecque met with plaintiff on November 2, 2011, to discuss his unauthorized use of the internet, his June 2011 PIP, and his “work attitude.” Id. Zombro recounted that, during the meeting, plaintiff repeatedly raised his voice, rolled his eyes, laughed inappropriately, and interrupted Zombro. Id. Zombro also averred that Chen threatened to “go to the Secretary” if MHCC did not restore his internet access. Id. Chen acknowledged only that he was “very upset” during the meeting. See ECF 50 at 9, ¶ 12. In an unsigned memorandum from Zombro to Chen dated November 3, 2011 (ECF 52-3 at 9-11), Zombro noted that Chen's access to the internet had again been rescinded. Id. at 9.

         Steffen emailed Chen on November 4, 2011 (ECF 50-10 at 2), asking Chen to “provide a written description” of the meeting with Zombro and LaBrecque on December 2, 2011. Chen responded on that same date, stating, id.:

1. I would like to apologize for being emotional in conversation with Bridget [Zombro] (I still think that they've been coming too hard on me, unbearable at times);
2. I have abided, and will continue to abide, all the provisions of the MHCC's Telecommunication Usage Agreements;
3. I did not “mock” anybody, nor “threaten” anything;
4. I have been using the internet uninterrupted to complete my assignments, including the recent download and processing of CPS/ASEC survey data and updates;
5. I have completed all my assignments on time with prudence, efficiency, and professionalism; And [sic]
6. I shall continue working hard on improving my communication skills; . . . .

         In a memorandum dated November 8, 2011, from Steffen to Janet Nugent, Director of Personnel for the DHMH (ECF 52-3 at 3), Steffen stated that on November 7, 2011, he “held a mitigating circumstances meeting” with Chen, in which Steffen reviewed plaintiff's version of facts regarding the meeting between Chen, Zombro, and LaBrecque on December 2, 2011.[15]According to Steffen, plaintiff expressed contrition during the “mitigating circumstances meeting” of November 7, 2011. ECF 52-3 at 3. Nonetheless, by memorandum dated November 8, 2011 (ECF 52-3 at 12), Steffen informed Chen that, as punishment for Chen's behavior during the meeting of November 2, 2011, Chen would receive a ten-day suspension, without pay, from November 9, 2011, through November 22, 2011. Id.; see also Id. at 2, 12. Steffen instructed plaintiff to return to work on Monday, November 28, 2011. Id.[16] According to Bartnyska, Chen was escorted from the MHCC building on the morning of November 9, 2011. See ECF 52-4 at 4-5 (memorandum from Bartnyska to Steffen, dated November 10, 2011); see also ECF 50-11 at 2-3 (same).

         Defendants state that plaintiff did not file a grievance challenging the ten-day suspension. See ECF 48-1 at 8.[17] However, plaintiff emailed Steffen on November 14, 2011, asking for Steffen to reconsider the suspension. See ECF 52-3 at 13-14; ECF 50-12 at 10-11. And, by letter of December 12, 2011 (ECF 50-12 at 2-7), an attorney for plaintiff wrote to Joshua Sharfstein, M.D., then the Secretary of MDHMH, arguing that the duration of the suspension violated the DHMH ...

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