Bolton vs. Sprint/United, No. 06-3042 (10th Cir. 2007)

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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS March 6, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court JA M ES B OLTO N , Plaintiff-Appellant, v. SPR IN T/U N ITED M A N A G EM ENT C OM PA N Y , No. 06-3042 (D.C. No. 04-CV-2156-CM ) (D . Kan.) Defendant-Appellee. OR D ER AND JUDGM ENT * Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges. Plaintiff James Bolton appeals from the district court s entry of summary judgment in favor of defendant Sprint/United M anagement Company (Sprint) on M r. Bolton s claim of employment discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (ADEA). W e have jurisdiction under 28 U.S.C. § 1291 and affirm. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. Background M r. Bolton was born on February 5, 1953, and began working for Sprint s predecessor in 1987 as a software engineer II. In 1990, he began working part-time on the Access Request M anagement System (ARM S), an on-line system that field representatives use to enter service requests. In 1993, he began working full time on the ARM S team. M r. Bolton worked on that team until his discharge in October 2003. During the course of his employment, M r. Bolton received performance evaluations by his manager for each performance year. For performance years 1990 through 1998, he received generally favorable overall ratings of proficient, above expectations, or fully met expectations. He was promoted to software engineer III (SE III) in 1995 by his manager, Betty M athis, although against her better judgment. Aplt. App., Vol. I at 114, ¶ 9. M r. Bolton received pay raises each year from 1990 through 1997. The reviews for performance years 1996 and 1998, however, were not without some comment on M r. Bolton s performance problems. Despite rating him as fully satisfactory (a middle rating of 3 on a scale of 1 to 5, w ith 5 being the lowest) for performance year 1996, M s. M athis rated him as improvement needed in the areas of leadership, management, and personal effectiveness, id. at 113, ¶ 5; id. at 244. She based her appraisal of his weaknesses on her observation that he had a difficult time grasping new tasks, -2- took longer than average to perform a task, had very weak analytical skills, lacked an understanding of basic ARM S business functions despite the length of time he had worked on the ARM S team, and was either very conservative or lacking in self-confidence in decision-making skills. Id. at 113, ¶ 7. Sue Goodwin took over as manager of the ARM S team in M arch 1998 and became M r. Bolton s direct supervisor. W hen she met with M r. Bolton in early 1999 to discuss his 1998 performance, she explained that although he was dedicated, tried hard, and was well-liked, he was not performing at the level of an SE III for a number of reasons, including his inability to provide technical guidance to less experienced engineers, his need for continuous guidance on how to solve most production problems, his difficulty writing adequate technical specifications, and his lack of organization. Id. at 339. Despite considering a rating of 4, M s. Goodwin gave him the higher rating of 3 but did not award a merit-based pay increase. Id. at 341. M s. Goodwin again rated him as a 3 for 1999. Id. at 257. Thereafter, M s. Goodwin solicited and received comments from team leads under whom M r. Bolton worked that reiterated many of the same performance shortcomings M s. M athis and M s. Goodwin had noted. These problems caused Larry Reeves, one of M r. Bolton s team leads, to give him the easiest tasks in order to avoid spending time fixing errors. Id. at 306:9-17. W hen M s. Goodwin met again with M r. Bolton in July 2000, she indicated that his need for -3- continuous, substantial support should not be required of an SE III with as many years experience on the same system. Id. at 356. For performance year 2000, M s. Goodwin again rated M r. Bolton a 3, fully met expectations, noting that he w as a team player and completed his assignments but continued to require assistance from other team members. Id. at 267. M r. Bolton received another pay increase. Sprint employed two rating systems for performance year 2001, the old system under which it awarded a formal numerical rating and a new, letter-based system under which it aw arded an advisory rating of M ost effective (M ), Highly effective (H), Effective (E), Improvement needed (I), or Substantial Improvement needed (SI). Sprint directed its managers to use a bell curve system and classify a certain percentage of employees at each of the advisory levels, with the largest percentage, 40% , rated E. M r. Bolton was rated a 3 on the formal scale ( fully met expectations ), id. at 279, an E on the advisory scale, and received a pay increase. For performance year 2002, Sprint used only a four-tiered letter-based scale, M ost effective (M ), Highly effective (H), Very effective (V), or Less effective (L), and Sprint again employed the bell curve system. M s. Goodwin received additional reports from other ARM S team members concerning M r. B olton s performance problems, which were similar to those described above. She rated him an L and wrote that he takes longer to accomplish tasks than any -4- other SE III on the ARM S team despite being the longest-tenured member. Id. at 293-94. In January and February 2003, Shelly Becker was M r. Bolton s team lead and gave him two project evaluations. Although she found M r. Bolton to be a conscientious worker who did whatever was needed to meet deadlines, she stated that he needed to have greater self-confidence and provide quicker code turnaround, and that he struggles with many areas of ARM S. Id. at 369-70, 372-73. In M arch 2003, Sprint added a layer of supervision to the ARM S team between M s. Goodwin and the team members, and M s. Becker became M r. Bolton s supervisor. M s. Becker testified that while she w as M r. Bolton s supervisor, no one on the ARM S team took consistently longer to complete tasks than M r. Bolton did. Id. at 166:3-6. In M ay 2003, M s. Goodwin conducted an informal assessment of M r. Bolton s knowledge and skills and, more specifically, his demonstration of Sprint Dimensions. A mong the factors identified as Sprint Dimensions were (1) Leadership, and (2) Personal Effectiveness. M r. Bolton received the same poor score in both areas a 4, which was one step from the bottom of a five-point scale. Approximately one month later, M s. Becker conducted a similar informal assessment of all of the members of the ARM S team. As to Leadership -5- and Personal Effectiveness, M r. Bolton fared no better on M s. Becker s assessment; as to both, he received a 4. 1 In late M ay 2003, Patricia M itchell, then fifty-eight years old, evaluated M r. Bolton s performance on a project she led. Although omitted from her initial written evaluation, M s. M itchell eventually documented certain performance problems that she had only discussed with M r. Bolton, in order to address the 1 M r. Bolton s briefs on these factual matters are confusing and his citations to the record are unhelpful. In his opening brief, he states that M s. Becker s evaluation occurred first, see Aplt. Opening Br. at 10, but a chart in that brief suggests the opposite, see id. at 11-12, as does the discussion and the same chart in his reply brief, see Aplt. Reply Br. at 13-14. His supporting citations to the record refer to a chart in the brief he filed in the district court in response to Sprint s motion for summary judgment, see Aplt. App., Vol. II at 443-44, which is identical to the chart in his appellate briefs, and to a barely-legible document that appears to evaluate M r. Bolton and other ARM S team members on the Sprint Dimensions, see id. at 716, which he attributed to M s. Goodwin in his opening brief and to M s. Becker in his reply. The chart indicates that both M s. Goodwin and M s. Becker gave M r. Bolton a 4 on Leadership and Personal Effectiveness. The cited document at page 716 of the record appears to rate M r. Bolton a 4 in Leadership and Personal Effectiveness, but it is unclear from the document itself who completed it or when it was completed, and we have found no documentation of a second evaluation. Although M s. Becker s deposition testimony indicates that she gave M r. Bolton a 4 on Leadership, id. at 689:6-7, and that her evaluation was dated June 16, 2002, see id. at 691:18 to 692:24, she never states what rating she gave M r. Bolton on Personal Effectiveness. Fortunately, for our purposes, we need not resolve this morass because the parties do not appear to dispute that both M s. Goodwin and M s. Becker completed an informal evaluation and both scored M r. Bolton a 4 on Leadership and Personal Effectiveness. The sequence of their evaluations is immaterial. -6- concern of M s. Goodwin and M s. Becker that all problems be documented. Id. at 164:12-20. 2 In June 2003, M s. Goodwin and M s. Becker talked to M r. Bolton about applying for a different position with the company, one that might be a better match for his skills. M r. Bolton declined, and M s. Goodwin orally warned him that she would begin Sprint s corrective-action process. On July 15, M r. Bolton was placed on w ritten w arning and told he must improve in 30 days or he would be placed on final written warning. He was given a list of discrete goals to meet, including completion of assignments in the allocated time and with minimal errors, and was given the opportunity to make a presentation on a topic of his choice. M r. Bolton s presentation fell well short of the expectations of M s. Goodwin, M s. Becker, and M s. M itchell. Further performance problems w ere documented, and M s. Goodwin, along with M r. Stranimier, who had taken over as M r. Bolton s immediate supervisor from M s. Becker, placed M r. Bolton on final written warning on August 15. After additional performance problems and another presentation that met with criticism, M s. Goodwin and M r. Stranimier terminated M r. Bolton s employment on October 3, 2003. He was 50 years old. For a short time after his 2 Following M r. Bolton s commencement of this litigation, M s. M itchell had occasion to testify that she was surprised to learn of M r. Bolton s termination, Aplt. App., Vol. II at 630:13-24, and that she had not observed in M r. Bolton s performance any problems that warranted his termination, id. at 625:22 to 626:2. -7- discharge, M r. Bolton worked for a contractor as a temporary worker performing tasks for Sprint similar to the work he performed as a member of the ARM S team. M r. Bolton completed this temporary work without any review of his performance. After obtaining a right-to-sue letter from the Equal Employment Opportunity Commission, M r. Bolton filed suit. The district court entered summary judgment in favor of Sprint, and M r. Bolton appeals. II. Analysis A. G eneral Legal Standards W e review the district court s grant of summary judgment de novo, using the same legal standard applicable in the district court. Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir. 2005). Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). Under this standard, we view the evidence, and draw all reasonable inferences from it, in the light most favorable to the nonmoving party. Baca, 398 F.3d at 1216. In evaluating an ADEA claim based on indirect evidence of discrimination, we use the burden-shifting framew ork outlined in M cDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and its progeny. See M cKnight v. Kimberly -8- Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998) (applying M cDonnell Douglas to ADEA claim). W ithin this framew ork, a plaintiff must initially establish a prima facie case of age discrimination. See M cDonnell Douglas, 411 U.S. at 802. This burden is not onerous. Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005) (quotation omitted). If a plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its action. M cDonnell Douglas, 411 U.S. at 802. If the defendant meets this burden, summary judgment is warranted unless the employee can show there is a genuine issue of material fact as to whether the proffered reasons are pretextual. Plotke, 405 F.3d at 1099. B. Prima Facie Case In a typical ADEA case based on discharge, a plaintiff establishes a prima facie case by show ing that he (1) is within the protected age group (i.e., at least forty years old, see 29 U.S.C. § 631(a)); (2) was doing satisfactory work; (3) was discharged; and (4) w as replaced by a younger person. See, e.g., Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004). But whether the claim arises under the ADEA or another antidiscrimination statute, the fourth element of a prima facie case is a flexible one that can be satisfied differently in varying scenarios. Plotke, 405 F.3d at 1100. As the district court recognized, when a plaintiff is not replaced by a younger w orker, w hich appears to be the case here, a plaintiff may satisfy the fourth element with a more general showing that his -9- discharge occurred under circumstances which give rise to an inference of discrimination. Id. (quotation omitted). There is no dispute that M r. Bolton satisfies the first and third prongs of the prima facie case he was 50 years old when he was discharged. As to the second element, the district court began its analysis by stating, Defendant contends, and the court finds that the record demonstrates, that plaintiff was not performing up to the expectations of his employer at the time defendant terminated his employment. Aplt. App., Vol. II at 811. W e agree with M r. Bolton that the court s consideration of Sprint s nondiscriminatory reason for discharging him was impermissible at the prima facie stage of the analysis. As we explained in M acDonald v. Eastern Wyoming M ental Health Center, 941 F.2d 1115 (10th Cir. 1991), concluding that plaintiffs did not establish a prima facie case based on the reasons for their discharge raises serious problems under the M cDonnell Douglas analysis because it frustrates a plaintiff s ability to establish that the defendant s proffered reasons were pretextual and/or that age was the determining factor. 941 F.2d at 1119. W e therefore held that a plaintiff may meet the second element of a prima facie case of discrimination in a discharge case by credible evidence that she continued to possess the objective qualifications she held w hen she w as hired, or by her own testimony that her w ork was satisfactory, even when disputed by her employer, or by evidence that she -10- had held her position for a significant period of time. Id. at 1121 (citations omitted). It is undisputed that M r. Bolton worked as a software engineer for Sprint and its predecessor in interest from 1987, and specifically as an SE III on the ARM S team from 1995, until his discharge in 2003. Each of these periods of time, 16 and 8 years, respectively, is a significant period of time. See id. (concluding that four years was significant). Because the M acDonald test is phrased in the disjunctive, this fact alone is sufficient to establish the second element of the prima facie test. See English v. Colo. Dep t of Corr., 248 F.3d 1002, 1008 (10th Cir. 2001) (relying only on length of plaintiff s employment to satisfy second element under M acDonald). M r. Bolton also argues that the district court erred in its consideration of the fourth element of the prima facie case, whether his discharge occurred under circumstances that give rise to an inference of discrimination. In its analysis of the fourth element, the district court considered much of the evidence that also goes to pretext. W e will assume for purposes of this appeal, therefore, that M r. B olton has met his prima facie burden, which is not an onerous one, see Plotke, 405 F.3d at 1099, and analyze the evidence under the pretext standard. That pretext review may properly encompass evidence supporting the prima facie case. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). M r. Bolton has conceded that Sprint s proffered reason for discharging him -11- satisfies the company s burden under the second prong of the M cDonnell Douglas framew ork, so we proceed to the pretext analysis that the district court did not reach. 3 C. Pretext Pretext can be shown by such w eaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unw orthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons. M organ v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quotations omitted). W e do not, however, act as a super personnel department that second guesses employers business judgments. Simms v. Okla. ex rel. Dep t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir. 1999) (quotation omitted). M r. Bolton first argues that older members of the ARM S team received generally low er performance ratings on their 2002 evaluations. For that year, tw o team members, aged 45 and 40, received the highest rating, M . 4 See Aplt. A pp., 3 Because our review is de novo, we need not separately address M r. Bolton s argument that the district court erred in its analysis by improperly weighing evidence, drawing inferences in favor of Sprint, and making credibility determinations. See Rivera, 365 F.3d at 920. 4 To reiterate, the 2002 ratings were M ost effective (M ), Highly effective (H ), V ery effective (V ), or Less effective (L). -12- V ol. II at 798. 5 Three team members, aged 55, 34, and 28, received an H rating. See id. Five team members, aged 57, 50, 42, 41, and 39, received a V rating. See id. And three team members, aged 56, 49 (M r. Bolton), and 27, received the lowest L rating. See id. at 797-98. There is no age-related pattern that raises an inference of discrimination evident in the distribution of these ratings. Two team members aged 45 and 40 received the highest rating and the youngest team member received the lowest rating. M oreover, M r. Bolton s rating was supported by M s. Goodw in s narrative outlining his performance issues. M r. Bolton next argues that the youngest member of the team, Sandi Ozgen, was not discharged even though he, like M r. Bolton, received the lowest rating for 2002. This argument overlooks the fact that M r. Ozgen left Sprint s employment on April 22, 2003, apparently of his own volition. M r. Bolton was not placed on written corrective action until July 15, 2003, and not discharged until October 3, 2003. No reasonable inference of age discrimination can arise from Sprint s failure to place M r. Ozgen on corrective action or terminate his employment in shorter course than it took with M r. Bolton. 5 This reference to the record is a chart set forth in the district court s opinion summarizing the ages of the members of the ARM S team as w ell as their performance ratings. W e reference this summary for convenience. M r. Bolton has not taken issue with the accuracy of this summary, and nothing in the record indicates that it is in error. -13- M r. Bolton also points to two other ARM S team members, Paul M cDonnell and Paul Robinson, who were discharged as part of a reduction in force (RIF) in 2004 when they were approximately 58 and 52 years old, respectively. Sprint argues that their discharge is irrelevant because they voluntarily left the ARM S group, were discharged from another group, and neither M s. Goodwin nor M r. Stranimier had any role in the decision to include them in the RIF. Assuming arguendo that this evidence is relevant on these facts, even though a different supervisor w as involved in the RIF, see Mendelsohn v. Sprint/United M gmt. Co., 466 F.3d 1223, 1226-28 (10th Cir. 2006) (declining to extend the same supervisor rule to contexts other than those involving discriminatory discipline), w e conclude that it is of minimal probative value. M r. Bolton has not provided any evidence or argument that would eliminate nondiscriminatory reasons for Sprint s discharge of M r. M cDonnell and M r. Robinson. It would be unreasonable, therefore, to infer that Sprint maintained a company-wide policy of age discrimination that led to M r. Bolton s termination from the bald fact that Sprint laid off two workers aged 58 and 52 as part of a RIF. M r. Bolton characterizes the evidence relating to his performance in 2003 as sharply conflicting : specifically, the project evaluations completed by M s. Becker and M s. M itchell; his own view of his performance; and the informal assessments which M r. Bolton refers to as secret evaluation[s], see Aplt. -14- Opening Br. at 11 conducted by M s. Goodwin and M s. Becker in 2003 of the technical abilities of the ARM S team members and the Sprint Dimensions. Contrary to his first contention, M s. Becker s project evaluations do not sharply conflict with M s. Goodwin s opinion of his ability to perform as an SE III on the ARM S team. Although M s. Becker described M r. Bolton s positive attributes, she also listed areas for growth or concern, in particular his need to make more independent decisions, Aplt. App., Vol. II at 709, and provide quicker code turn around, id. at 710, concerns similar to those that led to M r. Bolton s corrective action and eventual discharge. Similarly, M s. M itchell s evaluation was not unqualifiedly positive but identified problem areas. See id., Vol. I at 394, 398. 6 Additionally, M s. M itchell s opinion that she saw nothing in M r. Bolton s performance in 2003 warranting termination (see supra note 2) is insufficient to create a genuine issue of material fact as to the opinions of M s. Goodwin, which concerned a broader period of time than just 2003, or those of M r. Stranimier. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000) (relevant pretext inquiry is how facts appeared to the decision maker). Likewise, in the pretext 6 Contrary to M r. Bolton s suggestion, we see no impropriety in the request that M s. M itchell document areas of concern that she had spoken to M r. Bolton about but omitted from an earlier version of the evaluation. -15- analysis, M r. Bolton s own opinion of his performance is irrelevant. See Kelley v. Goodyear Tire & Rubber Co., 220 F.3d 1174, 1177-78 (10th Cir. 2000). The part of the record to which M r. Bolton cites in support of his contention that he was rated the same for technical proficiency on certain computer programming languages, systems, and applications as other ARM S team members w ho were not discharged is of such poor print quality that we are unable to read it in any meaningful way as to the technical proficiencies. See Aplt. A pp., Vol. II at 716. But even assuming M r. Bolton s summation of the information is accurate, it says nothing about whether any of the other A RM S team members shared any of the specific performance problems that formed the basis for M r. Bolton s discharge. In fact, the record is devoid of any such evidence. Thus, M r. Bolton has not met his burden of showing that he was similarly situated to the other employees but was treated differently, and therefore the comparison is not legally relevant. See Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1182 (10th Cir. 2002). As to the ratings M s. Goodwin and M s. Becker gave him on the secret evaluations pertaining to the Sprint Dimensions, we see no sharp conflict creating a material question of fact as to whether his discharge was pretextual. Again, the primary reasons for his discharge were his slow work pace, poor analytical skills, and need for assistance and approval for decisions. Those reasons are encompassed by the Sprint Dimensions of Personal Effectiveness -16- and Leadership, the two categories for which M s. Goodwin and M s. Becker both gave him the same subpar score, 4 on a scale of 1 to 5, with 5 being the lowest score. M r. Bolton next contends that M s. Goodwin s comments that he had the longest tenure of anyone on the ARM S team and that he should know more based upon his years of experience, Aplt. Opening Br. at 29, give rise to an inference of age bias. This contention ignores the fact that M s. Goodwin made those comments in the specific context of evaluating his performance that is, M s. Goodwin was expressing her criticism of M r. Bolton s skill level in relation to the length of time he had worked on the ARM S team; it had nothing to do with how old he was despite the link between tenure and age. An employer may legitimately have an expectation that an employee s ability to perform a job will improve with experience, and nothing in M s. Goodwin s expression of that expectation as to M r. Bolton suggests that her true reason for discharging him was his age. Accordingly, we conclude that no reasonable inference of age bias can be drawn from M s. Goodwin s comments, and therefore her comments do not create a genuine issue of material fact that Sprint s reason for discharging M r. Bolton was pretextual. M r. Bolton s final contention is that the secret evaluation and the sequence of events leading up to his termination are the type of disturbing procedural irregularities that can constitute evidence of pretext, Simms, 165 F.3d -17- at 1328. He first points to the testimony of Rubye Beal, a Sprint human resources representative, suggesting that there was no company policy or guidelines related to the secret evaluation. See Aplt. App., Vol. II at 650-51, Beal Depo. at 58:1 to 63:24. Even if this was true, we fail to see how an additional evaluation concerning characteristics apparently recognized by the company is suggestive of age bias. To the contrary, M s. Becker testified that she completed such evaluations for anyone who applied for a different job with Sprint, id. at 681:7-12, and it is undisputed that she was trying to assist M r. Bolton in obtaining a different position with the company. The other alleged procedural irregularity concerns Sprint s corrective-action guidelines and the purportedly accelerated pace at which M r. B olton s corrective action proceeded, approximately 81 days in total. According to M r. Bolton, the guidelines provide that a written warning would normally be in effect for three to nine months and a final written warning would normally be in effect for three to twelve months. Aplt. O pening Br. at 9. M r. Bolton points to no record support for his interpretation, but our review indicates that the corrective-action process was subject to management discretion, and that although the aforementioned time frames could be used, local practice controlled. See Aplt. App., Vol. I at 319-20. Additionally, M s. Beal testified that a person could spend a minimum of 30 days in each phase, Id., Vol. II at 640, Beal Depo. at 20:20 to 21:4; that discretion is used to tailor the time frames to -18- each individual situation, id. at 647-48, Beal Depo. at 49:16 to 50:4; and that a 30-day time frame provides a good measure of an employee s improvement efforts, id. at 648, Beal Depo. at 51:4-6. Thus, the choices made as to M r. Bolton were not procedurally irregular or suggestive of pretext. W e conclude that none of the evidence, even when viewed in the aggregate, see E.E.O.C. v. Horizon/CM S Healthcare Corp., 220 F.3d 1184, 1200 (10th Cir. 2000), creates a genuine issue of material fact that Sprint s reason for terminating M r. Bolton s employment was pretextual. III. Conclusion The judgment of the district court is AFFIRM ED. Entered for the Court Jerome A. Holmes Circuit Judge -19-

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