Enough symbols of terror and hatred to shame an agency
Pamela Coopwood,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration)
Agency.
Appeal No. 01200545441
Hearing No. 250-2004-0098X
Agency No. 3033064
DECISION
JURISDICTION
On April 25, 2005, complainant filed an appeal from the agency’s March 22,
2005 final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §
2000e et seq. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
REVERSES the agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Air Traffic Control Specialist at the Knoxville Air Traffic
Control Tower in Knoxville, Tennessee. Complainant stated that shortly
after she began her employment in November 1999, she discovered the
initials “KKK” on the aircraft data tag at her work station, during her
training session. Complainant’s first line supervisor (S) witnessed the
inscription and erased the initials. Complainant claimed that the only
other African American employee/union representative (UR), informed her
that she would not be successful at the Knoxville Tower because she is
a black female. The rest of the work force consisted of 32 Caucasian
employees. Complainant reported that she found out her co-workers had a
lottery and made wagers about how long it would take to get rid of her.
S acknowledged that a few people felt this way and management knew who
they were, but that she should not be discouraged. Complainant reported
that at the training sessions, her trainers cursed at her, kicked her
chair, had screaming fits, made belittling comments and subjected her
to verbal abuse. Complainant reported these incidents to the agency’s
Accountability Board in October 2000. In the fall of 2001, complainant’s
co-worker discovered a hangman’s noose in the control tower in the area
where complainant was scheduled to work. UR confirmed that a noose had
been found on two occasions where complainant was scheduled to work.
UR reported to the EEO manager that, in December 2002, a cartoon
caricature appeared on the local control console in the tower cab
depicting two airplanes colliding, with the words, “WHAT THE #$%@?” and
complainant’s initials. He also reported that complainant had found
written notes stating “rid TYS (the control tower) of ME.” The record
indicates that “ME” was complainant’s assigned initials. This same month,
UR also verified reports of a petition signed by employees identifying
complainant as the “next operation error in this facility.”
Thereafter, on January 31, 2003, complainant contacted an EEO Counselor
and filed a formal EEO complaint on March 10, 2003.2 She alleged that
she was discriminated against on the bases of her race (African-American)
and in reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when:
1. she was subjected to a hostile work environment;
2. her training in radar proficiency was terminated on March 10, 2003.
At the conclusion of the investigation, the agency provided complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing but subsequently withdrew her request.
Consequently, the agency issued a final decision pursuant to 29 C.F.R. §
1614.110(b), concluding that complainant failed to prove that she was
subjected to discrimination as alleged.
FINAL AGENCY ACTION
The agency issued a final decision finding that the alleged incidents
were not based on complainant’s race or the fact that she engaged in
protected EEO activity, but instead were due to her personality and
jealousy regarding her seniority status. The agency concluded that
the incident in which KKK initials were found at complainant’s work
station, was not so severe that, by itself, was enough to create a
hostile work environment. According to the agency, other incidents
including evidence of employees petitioning for complainant’s removal,
a cartoon depicting complainant’s initials along with colliding airplanes
and messages on the union computer, “M finally gone,” were not based on
complainant’s race or protected EEO activity but were based on employees’
dissatisfaction with her seniority status. Concerning complainant’s
claim that the agency terminated her training because of discrimination,
the agency found that complainant failed to perform well and did not
demonstrate the knowledge or ability to complete the radar function in
a manner acceptable to be certified. The agency stated that these were
legitimate reasons unrelated to complainant’s race or to the fact that
she had engaged in protected EEO activity.
CONTENTIONS ON APPEAL
The agency filed a brief in opposition to complainant’s brief on appeal
stating that the Commission should not consider the brief because it
was untimely filed.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency’s decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999). This means that
the Commission will examine the record without regard to the factual and
legal determinations of the previous decision maker, here the agency.
The Commission will review the entire record including the documents,
statements, and testimony of record contained in the agency’s Report
of Investigation, including any timely and relevant submissions of the
parties, and issue a decision based on its own assessment of the record
and its interpretation of the law.
ANALYSIS AND FINDINGS
At the outset, we note that the appeal was filed on April 25, 2005
which required complainant to file her brief on or before May 25, 2005.
29 C.F.R. §1614.403(d). Complainant’s brief was filed on May 27, 2005
making her submission untimely. Complainant having failed to request
an extension for the filing of her brief, the Commission will disregard
the brief on appeal.
Complainant alleges that she was subjected to a hostile work environment
perpetuated by her co-workers and condoned by her supervisors, from the
date of her entry into the work place in October 1999 until her transfer
on or about June 2003. First, we set forth a brief statement of the law
applicable to this claim. Harassment of an employee that would not occur
but for the employee’s race, color, sex, national origin, age, disability,
religion or prior EEO activity is unlawful. McKinney v. Dole, 765 F.2d
1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated
incidents will not normally be regarded as discriminatory harassment
unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to
trigger a violation of Title VII must be determined by looking at all the
circumstances, including 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, 510
U.S. 17 (1993). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances.
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice
No. 915.002 (March 8, 1994).
Based on the Commission’s review of the record, we find the evidence
persuasively establishes that complainant’s co-workers and trainers
harassed her based on the fact that she is African American. Complainant
stated that UR informed her she would have problems at the beginning of
her tenure because she is a black female. Complainant and several of
her trainers stated that she was harassed during her training sessions
and that her trainers were hostile towards her or did not want to
train her. She relayed that she was in a training status for two and
a half years during which she was constantly retested and subjected to
abusive methods.
We find that the placement of the initials “KKK” near complainant’s work
station computer as well as the discovery of a noose in her work station,
on two occasions, clearly demonstrate racial animus and an intention to
intimidate and to create a fearful atmosphere. As the Commission has
stated, the presence of a hangman’s noose evokes an image, particularly
among African Americans, of extreme racial violence and a direct threat
to life. Tootle v. Department of the Navy, EEOC Appeal No. 07A40127
(Feb. 21, 2006). Even a single incident involving a hangman’s noose is
severe enough to alter the terms and conditions of one’s employment and
to create an abusive work environment. Posey v. United States Postal
Service, EEOC Appeal No. 01986619 (July 10, 2001); Tardd v. Brookhaven
Nat’l. Lab., 407 F. Supp. 2d 404, (E.D. N.Y. 2006) (employee wearing a
KKK hood, a hangman’s noose and a doll hanging in effigy on plaintiff’s
door sufficient to defeat a Federal Rule 12(b) motion to dismiss the
hostile work environment claim).
We turn now to the issue whether the agency took appropriate action
in light of the actions of complainant’s co-workers. In a case of
co-worker harassment, an agency is responsible for acts of harassment in
the workplace where the agency (or its agents) knew or should have known
of the conduct, unless it can show that it took immediate and appropriate
corrective action. See 29 C.F.R. § 1604.11(d). When an employer receives
a complaint or otherwise learns of alleged harassment in the workplace,
the employer should investigate promptly and thoroughly. The employer
should take immediate and appropriate corrective action by doing whatever
is necessary to end the harassment, make the victim whole by restoring
lost employment benefits or opportunities, and prevent the misconduct
from recurring. Disciplinary action against the offending supervisor
or employee, ranging from reprimand to discharge, may be necessary.
Generally, the corrective action should reflect the severity of the
conduct. Id.
The record reflects that complainant first complained about racial
harassment in a complaint filed before the agency’s Accountability Board
in October 2000. There is no documentary or testimonial evidence in the
record reflecting the outcome of this particular complaint, aside from
complainant’s statement that the agency decided to resolve the complaint
“in-house.” According to UR, an investigation was made, however,
there is no evidence that any additional action was taken to discipline
any employees or to communicate that the conduct was unacceptable.
From this we conclude that the agency failed to take any appropriate
corrective actions to prevent future similar incidents from occurring.
Thereafter, additional incidents occurred, in which complainant’s
co-workers continued to express their hostility towards her.
Complainant again reported the hostile work environment and reiterated a
request for a transfer to the agency’s Civil Rights Office in February
2003. In turn, the Civil Rights Office reported the discovery of a
hangman’s noose to the Accountability Board along with complainant’s
request for a transfer.
In response, the agency assigned the Manager of the Air Traffic Control
Tower at Nashville (S2) to investigate the incident. The record
discloses, however, that S2 did not investigate the presence of the
hangman’s noose, but instead, she examined complainant’s and UR’s use of
the word “nigger.” That is, UR had a conversation with complainant in
which he referred to the hangman’s noose as “like a hang a nigger noose,
like Jim Crow.” According to S2’s written report, she found the incident
to be a “non-issue.” (ROI, Training records).
The Commission concludes that the agency’s actions were inadequate to
address the severe incidents of racial hostility being exhibited in its
work place. There is no evidence the agency had a written policy directed
towards preventing and reporting incidents of harassment in the work site
or that it conveyed a policy to its employees. The record reflects no
effort to investigate the report of a noose. We also find that the agency
did not seriously investigate or take any corrective action surrounding
the presence of “KKK” initials found at complainant’s work station.
Thus, there being no proof of prompt corrective and remedial actions in
response to the reported racial hostility, the Commission concludes that
the agency is liable for the hostile work environment.
We address now complainant’s claim that the agency retaliated against her
when her training was terminated in March 2003. Complainant claims that
her training sessions were fraught with hostility towards her and were
conducted in such a way that she would fail. Several employees who were
assigned to train complainant admitted that complainant was being harassed
during her training, that the training program was poorly administered,
and that certain trainers did not want to train complainant. (Exhibit 9,
11 & 12). The agency’s FAD contains excerpts from a letter from one of
complainant’s trainers (Caucasian) outlining his dissatisfaction with
the training environment which would “ensure that complainant fails
to meet performance expectations in her training efforts.” FAD at 20.
This trainer described how the training time was almost always cut short
by supervisors, that he was required to ask for training time in the
radar room where the remaining portion of her training took place, and
that there was no time for classroom sessions or on-the-job de-briefings
although required by the agency’s training manual. Id. Finally, this
trainer asked managers to put a stop to the “discriminatory practices”
surrounding complainant’s training. Exhibit 7.
Under relevant law, complainant can establish a prima facie case of
reprisal by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a
reprisal claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish an inference of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000) (Whitmire).
The Commission concludes that complainant has established a prima facie
case of retaliation in that S and complainant’s second line supervisor
(S3) were aware of complainant’s EEO activity at the time he discovered
the KKK initials on complainant’s work station and was aware that
complainant complained that her training was permeated with racial
hostility.3 Complainant has shown that the agency took adverse action
against her by terminating her training. Such an action would result in
complainant’s failure to become certified as an air traffic controller and
would be reasonably likely to deter complainant and others from engaging
in protected activity. Whitmire, supra. S’s decision to terminate the
training with which S3 concurred, occurred shortly after complainant
reported the incident of racial hostility in 2003. The close proximity
between the agency’s action and complainant’s EEO activity establishes
a nexus such that an inference of retaliation can be drawn.
In response to complainant’s claim of retaliation, S claimed that he
decided to terminate complainant’s training because “her knowledge base
of supporting information was lacking” and “her skill checks were at an
unsatisfactory level.” The agency asserts that this is its legitimate,
non-discriminatory reason for taking the adverse action. Texas Dep’t
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The Commission finds the agency’s reason does not adequately address
its decision to terminate complainant’s training since the way it
conducted its training was tainted by discriminatory animus. See Young
v. Department of the Treasury, Request No. 05940517 (October 13, 1995).
As UR and a peer trainer confirmed, the manner in which complainant’s
training was conducted was discriminatory and was designed to ensure her
failure. As we concluded above, S and S3 had been made aware that its
appointed trainers were engaged in racially hostile behavior directed at
complainant during the course of her training but they failed to correct
the illegal harassment. They cannot legitimately claim that complainant
lacked the necessary skills to continue her training because by their
own actions, complainant was unable to obtain an adequate skill level.
Such reasoning is circular and does not permit complainant a full and
fair opportunity to demonstrate that the agency’s reasons are a pretext
for discrimination. Burdine at 253 (1981). Moreover, the agency’s final
decision to terminate complainant’s training in March 2003 followed by
just one month, her letter reporting another incident of racial hostility.
We find it reasonable to conclude that, more likely than not, the agency’s
decision was motivated by her EEO activity.
CONCLUSION
For the reasons that are outlined above, and based on a review of the
record as a whole, the Commission concludes the agency was more likely
motivated by discrimination based on race and retaliation in terminating
complainant’s training program. The Commission further finds that the
agency failed to take reasonable steps to prevent and correct the racially
motivated hostile work environment in which complainant was employed.
The Commission hereby reverses the agency’s final decision and remands
the case for remedial action as set forth below.
ORDER (D0403)
The agency is ordered to take the following remedial action within 60
days of the date this order becomes final:
1. the agency will offer to reinstate complainant into the subject
training program which the Commission has determined was illegally
terminated;
2. the agency will restore complainant to the position and grade level
she occupied prior to the termination of her training and pay back pay if
appropriate. The agency shall determine the appropriate amount of back
pay (with interest, if applicable) and other benefits due complainant,
pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. The complainant shall
cooperate in the agency’s efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
“Implementation of the Commission’s Decision.”
3. the agency will require S, S2 and S3 to take 8 hours of training
in the provisions of Title VII, specifically, as they relate to the
employer’s duty to ensure a workplace free from harassment based on an
employee’s membership in a protected class, and the associated Commission
enforcement policies and relevant regulations. The Commission does not
consider training to be a form of discipline.
4. the issues of compensatory damages and attorney’s fees and costs
are remanded to the agency. The agency shall conduct a supplemental
investigation on the issue of compensatory damages. Complainant,
through counsel, shall submit a request for attorney’s fees and costs
in accordance with the Attorney’s Fees paragraph set forth below.
No later than sixty (60) days after the agency’s receipt of the
attorney’s fees statement and supporting affidavit, the agency shall
issue a final agency decision addressing the issues of attorney’s fees,
costs, and compensatory damages. The agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below.
5. the agency will consider taking disciplinary action against
the subordinate employees identified as being responsible for the
discriminatory harassment perpetrated against complainant. This will
include S, S2 and S3. The agency shall report its decision. If the
agency decides to take disciplinary action, it shall identify the action
taken. If the agency decides not to take disciplinary action, it shall
set forth the reason(s) for its decision not to impose discipline.
6. the agency will expunge from its records, any reference to the
actions found to be discriminatory, i.e., the termination of complainant’s
training.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled “Implementation of the Commission’s
Decision.” The report shall include supporting documentation of the
agency’s compliance including evidence that the corrective action has
been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Knoxville Air Traffic Control
Tower facility copies of the attached notice. Copies of the notice,
after being signed by the agency’s duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled “Implementation of the Commission’s Decision,” within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY’S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney’s fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney’s fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency — not to the Equal Employment Opportunity Commission,
Office of Federal Operations — within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney’s fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0501)
Compliance with the Commission’s corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency’s report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission’s
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. § 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission’s
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
“Right to File A Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. § 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous
interpretation of material fact or law; or
2. The appellate decision will have a substantial impact
on the policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
“Agency” or “department” means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
(“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____7-10-07______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to the following recipients on the date
below:
Pamela Coopwood
416 Bashford Ln $103
Alexandria, VA 22314
Mary Jones, Deputy Director, Civil Rights
Department of Transportation
400 7th St., SW #10215
Washington, DC 20590
__________________
Date
______________________________
Equal Opportunity Assistant
1 Due to a new data system, this appeal has been re-designated with the
above-referenced docket number.
2 The EEO Counselor’s Report reflected that the counselor recommended
that complainant be removed from the Knoxville Tower due to the level of
hostility directed at her and to protect her “safety and her life.” The
counselor reported that he was advised not to have any further contact
with complainant. ROI Exhibit 2.
3 Complainant’s second line supervisor (S3) denied he was aware of any
EEO issues involving complainant, but we infer from the frequency and
severity of the incidents, the two reports to the Accountability Board,
as well as S’s and other employee’s awareness of the harassment, that
S3 knew or should have known of complainant’s opposition to the racial
hostility in the workplace.
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0120054544
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120054544
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