United States District Court, N.D. California
December 1, 2005.
LAURA E. CARRASCO, Plaintiff,
SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT, Defendant.
The opinion of the court was delivered by: CHARLES BREYER, District Judge
MEMORANDUM AND ORDER
In this employment discrimination action, plaintiff Laura
Carrasco alleges that she was terminated in retaliation for
opposing the discriminatory treatment of a co-worker, Mary Glenn,
and also for filing a complaint about discrimination against
herself. Now pending before the Court is the defendant's motion
for summary judgment on all of plaintiff's claims. After
carefully considering the papers filed by the parties, having had
the benefit of oral argument, and having allowed plaintiff to
supplement the record post-hearing, the Court concludes that no
reasonable jury could find for plaintiff and therefore GRANTS
defendant's motion for summary judgment.
Defendant San Ramon Valley School District (the "District")
hired plaintiff Laura Carrasco as a custodian in 1983. In 1990,
defendant promoted plaintiff to Head Custodian at San Ramon
Valley High School (the "High School"). The High School's
principal or assistant principal supervised the custodians, including the head
custodian. From 1990 through September 2002 Carrasco had an
unblemished work history; indeed, in July 2002, Assistant Vice
Principal Lisa Ward wrote that "Laura does a wonderful job at
running our custodial program. . . . She is an extremely
important part of the success of SRVHS!" Declaration of Laura
Carrasco ("Carrasco Decl.") Exh. 2.
Mary Glenn was the District's Director of Custodial Services
and Child Nutrition and the District liaison to the District's
food services agency, Sodexho. Glenn was the only
African-American manager out of approximately 40 District
management employees. She was also the only female out of
approximately 10 classified management positions.
Carrasco was Glenn's "right hand person." Carrasco assisted
Glenn in writing the custodian manual and during the summer Glenn
supervised half of the 80 custodians while Carrasco supervised
the other half. When Glenn did not have time to perform certain
tasks, District officials would ask Carrasco to perform them.
A. The Glenn protest
In August 2002, Glenn notified the District that she intended
to file a lawsuit against it alleging discrimination in pay
because she was paid less than other managers supervising fewer
employees. The next month the District initiated an investigation
into Glenn based on allegations that she took money in return for
hiring certain custodians. Later that month Carrasco approached
Glenn and asked Glenn if she was aware that the District was
blaming Glenn for an $80,000 shortfall in the Sodexho budget.
Glenn took administrative leave in September, and in November
2002 she retired.
On October 8, 2002, Carrasco wrote and circulated a petition to
the Board of Education (the "Petition"). The Petition read:
We the custodians are asking you to look into our
manager's treatment by some of the district high
management. Thomas Jamison and John Caldecutt are
meeting with some of the custodians asking them to
say Mary Glenn took money for a job. We talked to the
same custodians and ALL OF THEM TOLD US THEY TOLD
THOMAS JAMISON AND JOHN CALDECUTT THAT THEY GAVE MARY
GLENN THE MONEY FOR BIRTHDAY AND FOR CHRISTMAS AS DO
EVERYONE ELSE DOES FOR THEIR MANAGER. SOME OF THE
CUSTODIANS SAID THAT THEY HAVE GIVEN GIFTS TO THOMAS
JAMISON AND TONY DORIA WHO WAS THE CUSTODIAN BEFORE
THE LAYOFF. WE FEEL AS THE BOARD YOU SHOULD LOOK INTO THE SODEXHO BUDGET SHORT FALL OF
80,000 DOLLARS. WE HAVE HEARD THAT THIS SHORTFALL IS
GOING TO BE BLAMED ON MARY GLENN. BESSIE ARGALLON
STARTED THIS RUMOR ON MARY GLENN BY GOING TO THOMAS
PLEASE CHECK INTO THIS MATTER. MAY GLENN IS ONE OF
THE BEST MANAGERS IN THIS DISTRICT. WE THINK YOU
SHOULD FIND OUT THE TRUTH.
Carrasco Decl. Exh. 1. Carrasco and several other custodians
signed the Petition.
B. The District's discipline of Carrasco following the
circulation of the Petition
In August 2002, Assistant Principal Sylvia Ryan took charge of
custodial services at the High School. At the time there were two
full time day-shift custodians, plaintiff and Emiliano Ochoa.
According to Ryan, in September or October 2002, Ryan asked
Carrasco to do something to which Carrasco loudly responded that
Ryan could not tell her what to do. Carrasco disputes that the
incident ever occurred. Shortly thereafter, Ryan became aware
that Carrasco and the other day-shift janitor, Ochoa, were having
problems. Ochoa said that Carrasco was always upset with him, and
was always complaining about his not finishing his work. For
example, he reported that Carrasco had yelled at him for helping
to unload some chairs from a truck, and that Carrasco spoke to
him too loudly. At the same time, Carrasco complained that Ochoa
was not picking up trash in his assigned areas. Ryan and the
principal, David Lorden, responded by admonishing Carrasco that
her behavior toward Ochoa constituted harassment and that she was
not to speak to Ochoa regarding performance issues. According to
Lorden and Ryan, Ochoa was doing his job and Carrasco was asking
him to pick up trash after his shift ended. Carrasco alleges that
Ryan and Lorden solicited the complaints from Ochoa.
In December 2002, Ryan, Lorden, and Jim Shannon (who replaced
Glenn) told Carrasco for the first time that she had to improve
her productivity. This "advice" arose out of an incident in which
Carrasco had spoken to the cafeteria manager about what had
happened to Mary Glenn. According to plaintiff, the manager was
spreading the rumor that Glenn had been fired and Carrasco
corrected her that Glenn had resigned. Ryan told Carrasco she was wasting her time in the cafeteria. Ryan also
told Carrasco not to speak to Ochoa at all.
Also in December, Shannon told Carrasco not to have her son
work as a substitute custodian.
On January 9, 2003, Carrasco attended a PTSA (Parent, Teacher,
Student Association) meeting for 15 to 20 minutes during the day.
Shannon had observed Carrasco attend a meeting the month before
and he had not said anything to her. At the January 9, 2003
meeting, Carrasco told the parents that she (Carrasco) does not
get much support from the administration about the trash issue.
Principal Lorden got angry at Carrasco for attending the meeting
and speaking negatively about the administration.
On January 15, a meeting was scheduled between Carrasco and the
High School's administration to discuss the PTSA incident;
instead of discussing the incident, Lorden, Ryan and Shannon
observed that Carrasco had hired her son as a substitute
custodian even though Shannon had specifically told her not to do
so. Carrasco subsequently executed a "Last Chance Agreement" in
which she acknowledged having improperly hired her son as a
substitute custodian and attending the PTSA meeting during work
hours without authorization. She also accepted a four-day unpaid
disciplinary suspension and stated, in writing, that she
understood that her failure to perform satisfactorily would
likely lead to dismissal.
The next month officials claimed that Carrasco had spent 40
minutes during work hours talking to a cafeteria employee. At a
meeting held on March 19, Carrasco was given the opportunity to
take a demotion to custodian. She declined and was told that the
District would provide her with an improvement plan in early May.
From March 19 through August 18 Carrasco went on medical leave
C. Carrasco's discrimination complaint
By letter dated March 26, 2003, Carrasco responded to the
incident raised at the March 19 meeting. First, she claimed that
Lorden and Ryan were treating her unfairly because she "refused
to become involved in false and negative allegations against"
Glenn. After setting forth her factual disagreement with the
administration's version of the February incident, and asking
whether management had complied with the provision of the Last
Chance Agreement providing that the administration would keep
Carrasco informed of the administration's instructions to Ochoa,
I also find that the San Ramon Valley High School is
in violation of School District Policies & Regs.,
Code of Ethics E4219.21, #4,5,6 and Non
Discrimination in Employment AR 4030, #4.
She concluded her letter by stating that while past
administrations had worked with her, she is currently "faced with
harassment from different levels and types, and an administration
creating turmoil amongst the employees." Carrasco Decl. Exh. 12.
The District responded by letter the following month and
concluded that "the actions taken by the District to attempt to
improve your conduct are appropriate." Carrasco Decl. Exh. 13.
The District also stated that it would be working on an
improvement plan to help improve plaintiff's performance as head
custodian, since she was not interested in a demotion.
D. Carrasco's termination after her return to work
When Carrasco returned to work from her stress leave, Carrasco
was asked to sign, and did sign, written "objectives for
improvement." The "Final Assessment" stated that "[a]ll of the
objectives must be implemented immediately and sustain. [sic]
Further disciplinary action may result from any breaches of your
responsibility." [sic] Carrasco Decl. Exh. 17.
On September 12, Ryan asked Carrasco to clean graffiti.
Carrasco could not find the graffiti, but saw that the trash cans
had not been emptied. She returned to Ryan to report that she
could not find the graffiti and to complain about the trash. Ryan
and two other witnesses claimed that Carrasco's tone was
A few days later Carrasco was asked to turn on the school sign.
It did not happen. Carrasco claims she turned it on, but that
there was a problem with the timer. She was never notified that
there was a problem until she was terminated in November. Around
this time Lorden reminded Carrasco to keep the hallways clear of
furniture. Carrasco responded that they (the custodians) were doing their best. The District claimed
this comment "was not responsive." Later that month Carrasco
allegedly was not cooperative when asked to do some leaf blowing.
She disputes these allegations.
Finally, on October 6 Carrasco allegedly authorized overtime
without getting prior authorization from her supervisors. She
claims Lorden asked her at 9:30 p.m. to put everything away after
a football game. As her shift ended at 10:00 p.m., there was no
way that could be completed without overtime.
Vice-principal Ryan subsequently provided Carrasco with her
evaluation for the period October 2002 through November 2003. The
evaluation found Carrasco's performance "unsatisfactory" in
several areas and recommended the termination of plaintiff's
classified service based on her failure to improve since the
issuance of the Last Chance Agreement. On the same day, the
District provided plaintiff with dismissal papers. After a
Skelley hearing, the hearing officer recommended dismissal and
the Board of Education adopted his recommendation. This lawsuit
Plaintiff's First Amended Complaint makes two claims: a
retaliation claim under Title VII and a discrimination and
retaliation claim under California's Fair Employment and Housing
Act ("FEHA"). Plaintiff alleges that because of her race, age,
and gender, as well as her opposition to the discrimination
against Mary Glenn, defendant "solicited and/or manufactured
false allegations of alleged misconduct to conduct its
investigation against Carrasco for the purpose of firing the
plaintiff." First Amended Complaint ¶ 15.
Plaintiff's FEHA claim was dismissed on sovereign immunity
grounds. Thus, the only claim remaining in this lawsuit is
plaintiff's Title VII retaliation claim. The District moves for
summary judgment on the ground that no reasonable trier of fact
could find that the District terminated plaintiff's employment
because of her race, age, or gender or in retaliation for her
opposition to the District's allegedly discriminatory treatment
of Mary Glenn. In her opposition, plaintiff concedes that she was
not terminated on account of her race, age or gender; instead,
Carrasco argues that a reasonable trier of fact could find that
the District terminated her employment in violation of Title VII in
retaliation for her (1) opposition to the treatment of Mary
Glenn, and/or (2) her March 2003 discrimination complaint.
STANDARD OF REVIEW
A. Summary judgment standard
A principle purpose of the summary judgment procedure is to
isolate and dispose of factually unsupported claims. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). A party
moving for summary judgment that does not have the ultimate
burden of persuasion at trial (usually the defendant) has the
initial burden of producing evidence negating an essential
element of the non-moving party's claims or showing that the
non-moving party does not have enough evidence of an essential
element to carry its ultimate burden of persuasion at trial.
See Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
210 F.3d 1099, 1102 (9th Cir. 2000).
If the moving party does not satisfy its initial burden, the
non-moving party has no obligation to produce anything and
summary judgment must be denied. If, on the other hand, the
moving party has satisfied its initial burden of production, then
the non-moving party may not rest upon mere allegations or
denials of the adverse party's evidence, but instead must produce
admissible evidence that shows there is a genuine issue of
material fact for trial. See Nissan Fire & Marine Ins. Co.,
210 F.3d at 1102. A genuine issue of fact is one that could
reasonably be resolved in favor of either party. A dispute is
"material" only if it could affect the outcome of the suit under
the governing law. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248-49 (1986).
B. Retaliation Under Title VII
Under Title VII, "it is unlawful `for any employer to
discriminate against any of his employees . . . because [the
employee] has opposed any practice made an unlawful employment
practice by [Title VII], or because [the employee] had made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII]."
Stegall v. Citadel Broadcasting, Co., 350 F.3d 1061, 1065 (9th
Cir. 2003) (quoting 42 U.S.C. § 2000e-3 (2000)). To make a prima facie case
of retaliation in violation of Title VII, a plaintiff "must
demonstrate that `(1) she engaged in protected activity, (2) she
suffered an adverse employment action, and (3) there was a causal
link between her activity and the employment decision.'" Id. at
1065-66 (quoting Raad v. Fairbanks North Star Borough Sch.
Dist., 323 F.3d 1185, 1196-97 (9th Cir. 2003)). "In addition,
the plaintiff must make some showing sufficient for a reasonable
trier of fact to infer that the defendant was aware that the
plaintiff had engaged in protected activity." Raad,
323 F.3d at 1197.
If the plaintiff makes a prima facie showing, the burden shifts
to the defendant to "articulate a legitimate, non-discriminatory
reason for the adverse employment action." Stegall,
350 F.3d at 1066 (internal quotation marks and citation omitted). If the
defendant satisfies this burden, the plaintiff "bears the
ultimate burden of demonstrating that the reason was merely a
pretext for a discriminatory motive." Id. (internal quotation
marks and citation omitted).
The Ninth Circuit "has set a high standard for the granting of
summary judgment in employment discrimination cases." Schnidrig
v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir. 1996).
When a plaintiff "seeks to establish a prima facie case [of
discrimination] through the submission of actual evidence, very
little such evidence is necessary to raise a genuine issue of
fact regarding an employer's motive; any indication of
discriminatory motive . . . may suffice to raise a question that
can only be resolved by a factfinder." Lowe v. City of
Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985).
A. Carrasco's opposition to the District's treatment of Mary
Defendant moves for summary judgment on plaintiff's "Mary
Glenn" retaliation claim on the ground that plaintiff has not
made a prima facie showing that she engaged in protected conduct
and/or that the District was aware she had engaged in such
To meet her prima facie burden of showing that she engaged in
protected conduct, plaintiff must show that she had a reasonable
belief that the employment practice she protested was unlawful
under Title VII. See Trent Valley Elec. Ass'n Inc.,
41 F.3d 524, 526 (9th Cir. 1994). An employee's "protest" is not "opposed to an
unlawful employment practice" for purposes of Title VII "unless
it refers to some practice by the employer that is allegedly
unlawful." E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008,
1013 (9th Cir. 1983). Evidence of a plaintiff's sincerity in a
claim that discrimination occurred is relevant to determining
whether the plaintiff had a "reasonable" belief that
discrimination occurred. See Strother v. So. Cal. Permanente
Medical Group, 79 F.3d 859, 869 (9th Cir. 1996).
Plaintiff contends that she "prepared, circulated and submitted
a petition to the San Ramon Valley School District in opposition
to perceived discrimination against her supervisor, Mary Glenn."
Opposition at 19. A reasonable jury could not find that
plaintiff's opposition to the District's treatment of Mary Glenn
was conduct protected by Title VII because plaintiff never in
fact protested that the District was discriminating against
First, it is undisputed that plaintiff was not aware that
Glenn had told the District she (Glenn) was going to sue the
District for discriminatory pay. There is no admissible evidence
in the record that Glenn or anyone else ever told plaintiff about
Glenn's claims of discrimination.*fn1
Second, the Petition itself makes no mention of discrimination.
The Petition contends that the charges against Glenn are
fabricated and false; it does not suggest that the District is
making the charges against Glenn in retaliation for her
complaints of discrimination or for any other discriminatory
reason; instead, the language of the Petition suggests that
plaintiff believes the charges are being brought so that the
District can make Glenn a "scapegoat" for the Sodexho budget
shortfall. While such a motive may be reprehensible, it is not
prohibited by Title VII. Other than the Petition, the only evidence cited by plaintiff
to support her claim that she was opposing what she believed to
be the District's discriminatory (as opposed to merely unfair)
practice are the declarations of Mary Glenn and plaintiff. Again,
Glenn does not attest that she told plaintiff about her
discrimination complaint; instead, Glenn states as follows:
In August 2002, I advised the District that I
intended to file a lawsuit for discrimination based
on unequal pay because other managers who managed
fewer people were being paid more. In September 2002,
the District conducted an investigation based on
false allegations that I was accepting gifts for
jobs. That month, Laura Carrasco approached me to ask
if I had heard that I was being blamed for the
$80,000 Sodexho shortfall in the budget. Shortly
thereafter, Laura showed me the petition she prepared
on my behalf after it was already signed by numerous
custodians. I told her to be careful because she
might be next.
Glenn Decl. ¶ 7. This paragraph does not give rise to an
inference that plaintiff was opposing the discriminatory
treatment of Glenn.
Mary Glenn was the only African-American woman in
upper management at the District. I believed the
District was discriminating against Mary Glenn by
investigating false statements that she was accepting
gifts for jobs and was responsible for Sodexho's
budget deficit of $80,000.
I wrote a petition dated October 8, 2002 complaining
about the District's discrimination against Mary
Carrasco Decl. ¶¶ 7-8. The Court does not have to accept
plaintiff's characterization of the Petition because the Petition
itself on its face does not complain about the District's
discrimination against Mary Glenn; instead, plaintiff wrote a
Petition complaining that the charges against Glenn were false
and that the District was making Glenn a scapegoat. The pivotal
question, then, is whether plaintiff's uncommunicated belief
that the District was discriminating against Glenn (assuming, for
purposes of this motion, that she had such a belief) is
sufficient to meet her prima facie burden of showing that her
circulation of the Petition was "protected activity."
The Ninth Circuit's decision in EEOC v. Crown Zellerbach
Corp., 720 F.2d 1008 (9th Cir. 1983) is helpful in answering
this question. There the plaintiff employees of Crown Zellerbach
wrote a letter to the Los Angeles Unified School District Board
protesting an affirmative action award the District gave to a Crown Zellerbach
employee (Crown Zellerbach was a District supplier). The letter
accused the employee of being a bigot, and noted the many
substantiated discrimination charges that the E.E.O.C. had
brought against Crown Zellerbach. Crown Zellerbach subsequently
fired the employees for sending the letter. Id. at 1011.
As it was undisputed that Crown Zellerbach fired the employees
for writing the letter, the only issue was whether the sending of
the letter was "protected activity." The Ninth Circuit noted that
"the employee's statement cannot be `opposed to an unlawful
employment practice' unless it refers to some practice by the
employer that is allegedly unlawful.'" Id. at 1013. The court
concluded that the
assertedly unlawful employment practices protested by
the [plaintiffs] could be discerned from the context
of the letter. The letter specifically mentioned the
history of unlawful employment practice charges filed
against [Crown] by black employees pursuant to Title
VII. It stressed that Zellerbach had engaged in a
continuing series of unlawful discriminatory
employment practices, and that, if the school
district officials had consulted the entire record,
they would have discovered the persistent complaints
about these practices.
Id. The court held that the complaints in the letter "were
sufficiently specific to constitute opposition to `unlawful
employment practices.'" Id.
Here, in contrast, there is nothing in the Petition that even
hints that plaintiff is opposing an unlawful employment practice,
that is, a practice forbidden by Title VII. While the Petition is
specific as to the practice plaintiff is opposing, namely, the
investigation of Mary Glenn, it does not specify that plaintiff
believes the District is investigating Glenn because of her race,
gender or age; instead, the Petition suggests that the District
is investigating Glenn to make her a scapegoat for a shortfall in
the budget. Plaintiff has not cited any cases that hold that an
employee has engaged in protected activity under similar
In Raad, the Ninth Circuit described the requirement that the
plaintiff make some showing that the defendant was aware that the
plaintiff had engaged in protected activity as an additional
element of the prima facie case. 323 F.3d at 1197 ("In
addition, the plaintiff must make some showing sufficient for a
reasonable trier of fact to infer that the defendant was aware that the plaintiff had engaged in protected activity")
(emphasis added). Plaintiff, then, has also failed to make a
prima facie retaliation case under Raad. Since the Petition
itself does not suggest that plaintiff is complaining about the
District's discriminatory treatment of Glenn, and since there is
no evidence that plaintiff ever expressed to anyone, let alone
the persons responsible for her discipline and termination, that
she believed the District's treatment of Glenn was motivated by a
discriminatory animus, the evidence is insufficient to make a
prima facie showing that the District was aware that plaintiff
had engaged in "protected activity."
A third way to analyze the issue is through the lens of the
causation element. To make a prima facie case, a plaintiff must
show a causal link between the protected activity and the adverse
employment action. "[E]ssential to a causal link is evidence that
the employer was aware that the plaintiff was engaged in the
protected activity." See Cohen v. Fred Meyer, Inc.,
686 F.2d 793, 796 (9th Cir. 1982). If the defendant is not aware of the
protected activity, the adverse employment action could not have
been taken in retaliation for the protected activity.
Here, there is no evidence that anyone was aware that
plaintiff had opposed the discriminatory treatment of Glenn or
that plaintiff had ever alleged that the District was
investigating Glenn because of Glenn's age, race or gender.
Plaintiff has therefore not made a prima facie showing that her
"opposition" to the District's alleged discriminatory conduct
caused the District to discipline her and ultimately terminate
B. Carrasco's March 2003 discrimination complaint
Carrasco also argues that even if her opposition to the
District's treatment of Mary Glenn was not protected under Title
VII, she did engage in protected conduct when in her March 2003
letter she stated that the High School was in violation of the
District's ethics and non-discrimination regulations. For
purposes of this motion, the Court will assume that plaintiff has
satisfied her prima facie burden of showing that her March 2003
letter constituted protected activity, and she has also shown
that she suffered an adverse employment action. She has not made
a prima facie showing, however, that there is a causal relationship between her protected activity, that is the March
2003 letter, and the District's termination of her employment.
By March 2003 the administration's discipline of plaintiff had
been on-going for at least six months, including the execution of
the January 2003 Last Chance Agreement. As the incidents that led
to the agreement all occurred prior to the March 26, 2003 letter,
they could not have been motivated, even in part, by plaintiff's
late March complaint.
The District terminated plaintiff's employment in November
2003, more than five months after she complained about
discriminatory treatment. The record does not support a
reasonable inference that the termination was caused, even in
part, by plaintiff's March 2003 complaint about discriminatory
treatment rather than as part of the ongoing pattern of
discipline that commenced in September/October 2002, well before
plaintiff complained that the administration was discriminating
against her. The only evidence plaintiff offers is the fact of
the complaint itself and the District's failure to conduct an
investigation into her complaint. The District, however, did
respond to her complaint and concluded that its treatment of
plaintiff was appropriate.
Plaintiff also complains that the District never offered her an
improvement plan as promised, and, somewhat contradictorily, that
she had improved as requested. She states in her declaration that
she executed an improvement plan in September 2003. In any event,
assuming these allegations are true, they do not support a prima
facie inference that plaintiff's complaint of discrimination
made after she signed the Last Chance Agreement and after several
complaints by the High School administration about her
performance motivated the District's termination of her
employment. At most, the evidence supports a reasonable inference
that the termination was part of the ongoing campaign of
discipline that commenced around the time that plaintiff
circulated the Petition. As the circulation of the Petition does
not constitute activity protected by Title VII, that inference
does not defeat the District's summary judgment motion. CONCLUSION
It is undisputed that plaintiff suffered several adverse
employment actions. And for purposes of the District's summary
judgment motion, the Court assumes that plaintiff has made a
prima facie showing that her circulation of the Petition was a
motivating factor for those adverse employment actions. Summary
judgment must nonetheless be granted because plaintiff has not
made a prima facie showing that her participation in the Petition
constitutes opposition to "any practice made an unlawful
employment practice by" Title VII. Nor has she made a prima facie
showing that her March 2003 complaint of discrimination played
any role in the termination of her employment. At best, the
evidence supports an inference that plaintiff opposed the unfair
treatment of Mary Glenn. As Title VII does not prohibit an
employer from investigating an employee based on false charges,
the District's motion for summary judgment is GRANTED in its
IT IS SO ORDERED.
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