United States Court of Appeals
For the First Circuit
No. 99-1708
FELIX A. LANDRAU-ROMERO,
Plaintiff, Appellant,
v.
BANCO POPULAR DE PUERTO RICO,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
Luis R. Mellado Gonzalez on brief for appellant.
Pedro J. Manzano-Yates with whom Fiddler Gonzalez &
Rodriguez, LLP was on brief for appellee.
April 6, 2000
CAMPBELL, Senior Circuit Judge. Plaintiff-appellant
Felix Landrau-Romero (“Landrau”) appeals from the district
court’s entry of summary judgment in favor of Landrau’s
employer, defendant-appellee Banco Popular. We affirm in part
and vacate in part, and remand for further proceedings not
inconsistent with this opinion.
I. BACKGROUND
We set forth the relevant facts in the light most
favorable to the appellant. See New York State Dairy Foods,
Inc. v. Northeast Dairy Compact Comm'n, 198 F.3d 1, 3 (1st Cir.
1999). Landrau, a black man, was employed by Banco Popular from
1981 until his resignation in 1995. He began as a clerk in the
collection department, and was transferred in 1988 to the
insurance unit of the mortgage department for the remainder of
his employment.
On April 1, 1993, Landrau’s supervisor, Carmen Sandín,
retired from her position as supervisor of the mortgage
insurance services. Several Banco Popular employees applied for
the vacant position, including Landrau. In April, 1993, a white
man, Jaime Bou, was selected and became Landrau’s supervisor.
Bou subjected Landrau’s work to closer scrutiny than
that of the other employees in the unit, and closely monitored
Landrau’s whereabouts. This monitoring included forcing Landrau
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to leave a note on his desk every time he went on break, to the
bathroom, or to get a drink of water. At one point after June
30, 1994, Bou verbally admonished Landrau for taking a break
without providing notification of his whereabouts (“the break
incident”). When Landrau brought co-workers to explain to Bou
that Landrau had in fact informed them of his whereabouts, Bou
“said nothing.”
Bou criticized and “yelled” at Landrau more frequently
than other employees, sometimes in front of Landrau’s coworkers.
Moreover, after Landrau suffered an injury at work and returned
from disability leave on December 29, 1993, Bou assigned him
physically strenuous tasks in disregard of an accommodation
ordered by the State Insurance Fund. This disregard of
Landrau’s disability continued through June or July, 1994.
In March or April, 1994, Landrau received a written
reprimand for misidentifying the date on certain paperwork,
which caused duplicate payments to be made. On June 30, 1994,
Bou gave Landrau another reprimand for continuing to repeat
these mistakes. Landrau’s performance evaluations, which had
been excellent under his previous supervisors, declined.
Landrau contends that the errors were due to the bank’s failure
to provide him with adequate computer training, which his
coworkers received.
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Landrau alleges other harassment, including Bou’s
attempt to “frame” him in June, 1994, by using Landrau’s
computer to commit errors for which Landrau was blamed. Bou and
other supervisors made jokes and comments about his race,
including remarking upon his “kinky hair.” One of the
supervisors also complained in writing about Landrau’s meeting
with other Banco Popular employees to discuss filing a race
discrimination complaint.
In an attempt to remove himself from these
circumstances, Landrau submitted applications for other
positions within Banco Popular, but was not hired.1 Landrau
complained to Banco Popular about the alleged harassment and
racial discrimination. In a letter dated March 7, 1994, Landrau
stated that he had been unfairly subjected to reprimands after
Bou replaced Sandín, and that “work became hell.” On June 14,
1994, Landrau wrote a letter to general manager Felipe Franco
alleging that Bou was mistreating him due to race
discrimination; on August 26 of that year, Landrau wrote another
letter to Franco complaining that he had been turned down for
1 As to at least two of those positions, Landrau admitted
that he was not hired because he lacked the necessary experience
and training. He does not contend that he was denied any of
these positions due to racial discrimination.
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Sandín’s position and that his performance evaluations had
fallen since Bou became his supervisor.
Banco Popular investigated the allegations, and, in a
report dated November 3, 1994, concluded that Landau’s problems
were not caused by discrimination. Landrau’s job duties, pay,
and physical working environment did not change while Bou was
his supervisor.
On February 15, 1995, Landrau submitted a letter of
resignation stating that he was leaving Banco Popular because he
had another job opportunity. On February 28, 1995, the day that
resignation was to be effective, he submitted another letter,
this time stating that the true reason for his resignation was
discrimination.
Landrau filed charges of discrimination with the Anti-
Discrimination Unit of Puerto Rico’s Labor Department and the
Equal Employment Opportunity Commission (EEOC) on or about March
9, 1995.2 The EEOC issued him a “right-to-sue” letter on January
16, 1996. On April 16, 1996, Landrau filed employment
discrimination claims against Banco Popular in the District
Court for the District of Puerto Rico pursuant to Title VII of
2
March 9, 1995, is the date on the Department of Labor
discrimination charge form contained in the record, although
Landrau’s complaint and the district court’s opinion state that
the charge was filed on February 28, 1995. This discrepancy is
not material.
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the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and
Puerto Rico’s anti-discrimination statute, Law 100, P.R. Laws
Ann. 29, § 146 et seq.3 He appears to have alleged three adverse
employment actions on the basis of his race and color: (1) that
Banco Popular failed to promote him to Sandín’s position; (2)
that he was subjected to harassment after Bou became his
supervisor; and (3) that the harassment became so intolerable
that it resulted in his constructive termination.
On August 11, 1997, Banco Popular moved for summary
judgment on the grounds that (1) Landrau could not adduce
sufficient evidence to support his constructive discharge claim;
and (2) Landrau’s failure-to-promote claim was time-barred
because he did not file a charge of discrimination within the
300-day time limit set forth in Title VII. Landrau opposed the
summary judgment motion, contending that his working conditions
amounted to actionable harassment and constructive discharge,
and that Banco Popular’s failure to promote him was
discriminatory. Landrau did not, however, explicitly counter
defendants’ time bar argument or address the state law claims.
In support of his opposition to Banco Popular’s summary
judgment motion, Landrau submitted, inter alia, affidavits by
3
The complaint originally alleged age discrimination as well
as race discrimination; the age claim was later dropped.
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Sandín and another former supervisor that discussed a general
climate of racial discrimination at Banco Popular.
Specifically, Sandín stated in her affidavit that she “always
had the impression that black candidates like Mr. Landrau were
not welcome [sic] by the top management of Banco Popular for
trainee positions in management nor for supervisory positions.”
The other former Banco Popular supervisor, Angel Rivera Colon,
stated:
I had my reservations that [Landrau] would not be
selected just for been [sic] black, considering
that a white applicant, Mr. Jaime Bou, had
already applied for the position. In fact,
during my 29 years of experience in Banco Popular
it was an unwritten law that somehow was conveyed
to us officials, that if there was a white
applicant and a black applicant for the same
position, the white applicant would get the
position, and that was accepted as an implied
rule, although nobody dared to publicly talk
about it or openly admitting [sic] it. Also it
was well known to me that blacks were not
welcomed for management positions, although
nobody told me so explicitly.
The district court allowed Banco Popular’s motion for
summary judgment on February 23, 1999. See Romero v. Banco
Popular de Puerto Rico, 35 F. Supp. 2d 195 (D.P.R. 1999). The
court stated in a footnote that Landrau’s failure to file a
timely charge of discrimination with the EEOC provided a basis
for awarding summary judgment to Banco Popular, but went on to
address the merits of Landrau’s claims. The district court
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determined that Landrau had established a prima facie case of
discrimination based upon the fact that Bou had been hired to
fill Sandín’s position. Landrau failed to rebut Banco Popular’s
nondiscriminatory explanation for the selection of Bou, however,
with sufficient evidence of discrimination.4 The district court
stated that the affidavits offered by Sandín and Rivera did not
sufficiently establish discriminatory intent. It also concluded
that Landrau did not adduce sufficient evidence of race-based
harassment or constructive discharge.
On March 9, 1999, Landrau filed a motion to set aside
the opinion and order and for reconsideration pursuant to Fed.
R. Civ. P. 59(e). For the first time, Landrau asserted that the
time period for filing his charge of discrimination should be
tolled due to operation of the discovery rule and the
“continuing violation” doctrine. The district court denied the
motion on March 29, 1999. Landrau appeals.
4 The district court appeared to confuse or conflate the
different adverse employment actions in applying the burden-
shifting analysis. For example, it stated that Landrau
established a prima facie case of racial discrimination because
Bou was hired instead of him, but pointed to Landrau’s failure
to adduce evidence of harassment or constructive discharge in
concluding that Landrau did not rebut Banco Popular’s
explanation that Bou was the more qualified applicant. Because
the alleged adverse employment actions are factually distinct,
we analyze them separately on appeal. See Lattimore v. Polaroid
Corp., 99 F.3d 456, 463 (1st Cir. 1996).
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II. DISCUSSION
This Court reviews orders for summary judgment de novo,
construing the record in the light most favorable to the
nonmovant and resolving all reasonable inferences in that
party's favor. See Houlton Citizens' Coalition v. Town of
Houlton, 175 F.3d 178, 184 (1st Cir. 1999). This standard of
review does not limit us to
the district court's rationale; we may affirm the entry of
summary judgment on "any ground revealed by the record." Id.
A. Failure to promote
The district court correctly determined that Landrau’s
failure to promote claim was time-barred. 42 U.S.C. §
2000e-5(e) provides that a charge shall be filed with the EEOC
"within one hundred and eighty days after the alleged unlawful
employment practice occurred," or within 300 days after the
unlawful practice if "the person aggrieved has initially
instituted proceedings with [an authorized] State or local
agency." The longer period is available only in so-called
"deferral" jurisdictions, including Puerto Rico. See Bonilla v.
Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 & n.4 (1st Cir.
1999).
Assuming that the longer period applied, Landrau had
300 days after the alleged adverse employment action to file his
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charge with the EEOC. For purposes of his failure to promote
claim, the clock began to run no later than April, 1993, when
Bou filled the position Landrau had sought, necessarily
notifying Landrau that Bou had been selected instead of him.
Landrau did not file his charge of discrimination until March 9,
1995, nearly two years later. He thus failed to comply with the
300-day limitation period. “This omission, if unexcused, bars
the courthouse door, as courts long have recognized that Title
VII’s charge-filing requirement is a prerequisite to the
commencement of suit.” Id. at 278.
Landrau contends on appeal that the doctrines of notice
and “continuing violation” equitably tolled the limitation
period. He argues that he was unaware that defendant’s actions
were motivated by racial discrimination until July 14, 1994, and
that all of the adverse actions were part of a continuous
pattern of harassment and discrimination. Hence, he contends,
his failure to timely file his charge of discrimination was
excused.
Landrau failed to make this argument, however, in his
opposition to Banco Popular’s motion for summary judgment.5
5
Although Landrau’s opposition to the motion for summary
judgment made passing mention of “continuous” harassment, he did
not explicitly assert a tolling argument in his accompanying
brief. To the extent that he discussed a “pattern” of
treatment, it was in the context of harassment and constructive
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Therefore, he has waived it. See Bullington v. United Air
Lines, Inc., 186 F.3d 1301, 1311 (10th Cir. 1999) (refusing to
consider continuing violation theory that was not adequately
presented in district court); see also Rivera-Muriente v.
Agosto-Alicea, 959 F.2d 349, 354 (1st Cir. 1992).
To be sure, Landrau asserted a tolling argument in his
motion for reconsideration pursuant to Fed. R. Civ. P. 59(e).
It is well-settled, however, that new legal arguments or
evidence may not be presented via Rule 59(e); rather, motions
under that rule must either clearly establish a manifest error
of law or present newly discovered evidence. See Federal
Deposit Ins. Corp. v. World Univ., Inc., 978 F.2d 10, 16 (1st
Cir. 1992). As Landrau’s tolling argument was available to him
before judgment was entered, he could not raise it under Rule
59(e), and we are not obliged to consider it now. See id.
In any event, Landrau’s tolling argument lacks merit.
No continuing violation can be found where the plaintiff was
aware of the alleged discrimination outside of the time for
filing a charge:
Even where a plaintiff alleges a violation within
the appropriate statute of limitations period,
the continuing violation claim will fail if the
discharge, not tolling of the limitations period for his
discrimination charge. Nor does Landrau argue on appeal that he
had timely raised this argument below.
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plaintiff was or should have been aware that he
was being unlawfully discriminated against while
the earlier acts, now untimely, were taking
place.
Provencher v. CVS Pharmacy, Div. of Melville Corp., 145 F.3d 5,
14 (1st Cir. 1998). The record contains a handwritten note by
Landrau dated March 9, 1994, stating, “we, who are black, were
denied the position and [it] was given to the only white that
applied for it, Mr. Jaime Bou.” Thus, Landrau apparently was
aware of the alleged discrimination with regard to Bou’s hiring
approximately a full year before he filed his charge of
discrimination with the EEOC. Accordingly, neither the doctrine
of notice nor of continuing violation could resuscitate his
failure to promote claim. See id.
As Landrau’s failure to promote claim was time-barred,
we need go no further with respect to that claim.
B. Constructive discharge
Landrau contends that the district court erred in
concluding that there was insufficient evidence to support his
claim of constructive discharge under Title VII. In an
employment discrimination case alleging termination, the
plaintiff first must establish a prima facie case, i.e., that he
(1) was within a protected class; (2) met the employer's
legitimate performance expectations; (3) was actually or
constructively discharged; and (4) was replaced by another with
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similar skills and qualifications. See St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 506 (1993).
Alleging constructive discharge presents a “special
wrinkle” that amounts to an additional prima facie element.
Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 719 (1st Cir.
1994). In such cases, the plaintiff must prove that his
employer imposed "’working conditions so intolerable [] that a
reasonable person would feel compelled to forsake his job rather
than to submit to looming indignities.’" Simas v. First
Citizens' Fed. Credit Union, 170 F.3d 37, 46 (1st Cir. 1999)
(quoting Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 480 (1st
Cir. 1993)) (alteration in original); see also Sanchez, 37 F.3d
at 719.
Here, the district court concluded that Landrau did not
adduce sufficient evidence to support a constructive discharge
claim, noting that the alleged events did not occur close in
time to Landrau’s termination. We think that Landrau’s
resignation came too late after the offensive conduct to be
labeled a constructive discharge. See Smith v. Bath Iron Works
Corp., 943 F.2d 164, 167 (1st Cir. 1991). If a plaintiff does
not resign within a reasonable time period after the alleged
harassment, he was not constructively discharged. See id. (no
constructive discharge found where plaintiff quit six months
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after last reported incident of sexual harassment), and cases
cited.
Here, Landrau has not adduced evidence of any incidents
of mistreatment within a reasonable time of his resignation in
February, 1995. The specific events to which he has affixed
dates -- i.e., the written reprimands, Bou’s attempt to frame
him, Bou’s failure to accommodate his disability -- occurred no
later than June or July, 1994, at least seven months before
Landrau’s resignation. Landrau has therefore failed to provide
sufficient evidence of constructive discharge, and, accordingly,
failed to make out a prima case of discriminatory termination.6
See Vega, 3 F.3d at 480. Hence, the district court properly
awarded summary judgment for Banco Popular on the issue of
constructive discharge.
C. Race-based harassment
In his amended complaint and trial court brief, as well
as in his appellate brief, Landrau asserted a claim of race-
based harassment that is separable from the failure to promote
6Although the district court correctly determined that no
rational juror could have believed that Landrau was
constructively discharged, it nonetheless held that he passed
the prima facie hurdle because he was qualified for Sandín’s
position. As to Landrau’s termination claim, this was a non
sequitur. See note 4, supra.
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and constructive termination claims.7 See Lattimore, 99 F.3d at
463. An employee states a claim under Title VII if he alleges
offensive, race-based conduct that is severe or pervasive enough
to create an objectively hostile or abusive work environment and
is subjectively perceived by the victim as abusive. See id.
[W]hether an environment is "hostile" or
"abusive" can be determined only by looking at
all the circumstances. These may include the
frequency of the discriminatory conduct; its
severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an
employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Unlike the failure to promote claim, Landrau’s
harassment claim is not time-barred. As discussed supra, he
described specific episodes of mistreatment as well as ongoing
harassment occurring within the 300-day limitations period set
forth in 42 U.S.C. § 2000e-5(e).
The district court stated that Landrau had not provided
“enough evidence to support a finding of continuous harassment,
unreasonably tight supervision, or imposition of a hostile
7
Although Landrau sometimes characterizes the harassment as
“retaliatory” in his briefs, he makes no effort to address the
established framework for a Title VII retaliation claim, see,
e.g., Simas, 170 F.3d at 44, i.e., he does not explicitly set
forth evidence of protected activity or its causal connection to
the harassment. Hence, we do not consider a separate
retaliation claim.
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working environment.” In so concluding, it referenced only the
two written reprimands Landrau received after Bou became his
supervisor and the break incident (in which Landrau brought co-
workers to Bou to explain that he had given proper notice when
he took a meal break). The court apparently did not take into
account other specific aspects of the mistreatment Landrau
alleged in his deposition and affidavit -- including, inter
alia, the verbal criticisms, the monitoring of his whereabouts,
the reference to “kinky hair,” Bou’s purported attempt to
“frame” him, Bou’s failure to accommodate Landrau’s physical
injury, and the complaint about his meeting with other black
employees to discuss a discrimination claim -- that were not
imposed on white employees.
There is, to be sure, some tension between Landrau’s
affidavit in support of his opposition to summary judgment and
his deposition. In his affidavit he states that he was
subjected to ongoing criticism and harassment, including Bou’s
“almost daily” verbal reprimands, weekly “yelling,” and
heightened monitoring of his work and whereabouts. But when
asked earlier to describe specific “admonishments” in his
deposition, Landrau enumerated only the two written reprimands
and the break incident. The comprehensiveness of this response,
however, is rendered somewhat ambiguous by the fact that when
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asked whether he had received any “verbal admonishments,” he
mentioned “[t]he persecutions that I have always had,” then went
on to discuss the break incident. He later stated in his
deposition that he did not “recall” other “admonishments” at
that time. While fodder for impeachment, Landrau’s statements
do not involve the sort of direct contradiction that we have
held fails to create a “genuine” factual dispute for summary
judgment purposes. See, e.g., Borowiec v. Local No. 1570, 889
F.2d 23, 27 (1st Cir. 1989).
Looking at the totality of the circumstances, we find
the evidence in Landrau’s affidavit and deposition, while close
to the line, to be sufficient to withstand summary judgment.8
We must, of course, consider the evidence and all reasonable
inferences therefrom in the light most favorable to Landrau.
See Buenrostro v. Collazo, 973 F.2d 39, 41 (1st Cir. 1992).
This evidence might, if proven, support a race-based harassment
claim. See, e.g., Danco, Inc. v. Wal-Mart Stores, Inc., 178
F.3d 8, 16 (1st Cir. 1999) (plaintiff alleged comments or jokes
of a racial nature); Lattimore, 99 F.3d at 463 (plaintiff
8
Also contained in the summary judgment record below is an
excerpt from the deposition of Landrau’s psychiatrist, who
stated (based on his sessions with Landrau) that Landrau was
called a “good Negro” by Banco Popular personnel. This evidence
is inadmissible hearsay, however, and thus cannot be taken into
account for purposes of the summary judgment calculus. See
Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998).
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alleged that he was coerced into performing tasks inconsistent
with his medical restriction, unlike white employees). Alleged
conduct that is not explicitly racial in nature may, in
appropriate circumstances, be considered along with more overtly
discriminatory conduct in assessing a Title VII harassment
claim. See DeGrace v. Rumsfield, 614 F.2d 796, 800 (1st Cir.
1980) (evidence of equipment sabotage and co-workers’ “silent
treatment” considered along with racially explicit notes); see
also Williams v. General Motors Corp., 187 F.3d 553, 563-64 (6th
Cir. 1999) (sexual harassment); O’Shea v. Yellow Tech. Servs.,
Inc., 185 F.3d 1093, 1097 (10th Cir. 1999); Carter v. Chrysler
Corp., 173 F.3d 693, 701 (8th Cir. 1999). We note further that
there is evidence that Landrau complained about his alleged
mistreatment to Banco Popular’s management, and that he suffered
emotional harm as a result of the harassment. On the present
state of the record, we cannot say that there is no genuine
issue of material fact concerning Landrau’s race-based
harassment claim. Thus, while we take no view on its ultimate
merits, we must vacate the district court’s entry of summary
judgment on that claim and remand it for further proceedings not
inconsistent with this opinion.
D. State law claim
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On appeal, Landrau asserts that his discrimination
claim under Puerto Rico Law 100 should survive summary judgment.9
The district court did not analyze or even mention his Law 100
claim, but simply dismissed Landrau’s complaint in its entirety.
It seems likely that the district court, having decided that
Landrau’s Title VII claims should be dismissed, declined to
retain jurisdiction over the state law claim. This disposition
cannot stand in light of our reversal of the ruling on the Title
VII harassment claim. We therefore vacate the district court’s
dismissal of Landrau’s harassment claim under Law 100, and
remand it for further consideration not inconsistent with this
opinion.10
Banco Popular contends that Landrau has waived his Law
100 claim because he failed to argue it below in his opposition
to summary judgment. In its brief in support of summary
judgment, however, Banco Popular focused exclusively on
Landrau’s Title VII claims and did not address the Law 100 claim
9
As with Landrau’s Title VII claim, the state law claim
appears to encompass discriminatory failure to promote,
harassment and constructive discharge.
10
For the reasons we have set forth regarding the similar
federal claims, we affirm the dismissal of Landrau’s state-law
failure to promote and constructive discharge claims. In all
events, we note that Landrau does not argue on appeal that the
timeliness of these claims should be analyzed differently under
Law 100 than under Title VII.
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in any manner.11 Landrau could fairly have understood that Banco
Popular was moving for summary judgment only on the Title VII
claims, and that he was not required to address the merits of
the Law 100 claim.
Affirmed in part and reversed in part, and remanded for
further proceedings not inconsistent with this opinion. Each
party to bear his or its own costs.
11
This failure, therefore, is distinguishable from Landrau’s
failure to oppose Banco Popular’s statute of limitations
argument. See section A, supra.
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