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Leave Under the Americans with Disabilities Act Is Not a Free Pass to Not Work

Lawsuits can go either way in court, as this plaintiff discovered when she lost her case.

While there are many reasons to file a lawsuit under the Americans with Disabilities Act (ADA), those reasons must be valid when tested by the courts. If they are not, the plaintiff may lose his case. This is what happened in Samper v. Providence St. Vincent Med. Ctr., 9th Cir., 4/11/12,” said Timothy Coffey, a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace.

In Samper, the plaintiff neonatal intensive care nurse was a fibromyalgia sufferer, experiencing chronic pain and an inability to sleep soundly or restfully. Her unplanned absences from work were more than allowed, according to the terms of her job description. In working with the nurse to try and accommodate her medical issues, the hospital agreed to a very flexible schedule that would allow her to move her shift, should she be having a bad fibromyalgia symptom day.

Even with the new very flexible shift arrangement, her rate of attendance in the workplace did not get any better, so the hospital fired her. The nurse chose to sue the employer under the ADA, alleging they did not offer her reasonable accommodation, as outlined in the ADA. The hospital’s defense was that, while they did acknowledge she was disabled, they did not feel that an open-ended pass to be absent for work was reasonable, not in a job such as working in the neonatal intensive care unit, where her physical presence as essential.

If the worker was not present at the hospital in the neonatal intensive care unit, then she could not perform her job, whether she had a flexible schedule or not. Since that was the case, and that the nurse could not do her work at home, she should not be considered a qualified individual protected under the auspices of the ADA.

When this case got to court, the legal question of the day was whether or not showing up for work on a predictable basis was essential. The decision was that a nurse in the intensive care unit must be in attendance, not only because it was essential, but because it was a matter of life or death. The defendant won this case,” said Coffey.

Not all cases that go to court win, and there is a valuable lesson inherent in this case. Predictably showing up for work is essential, or a job cannot be done. This fact must be a part of the job description, to be fair to employees by outlining everything expected of them. Additionally, the employer must make an effort to offer reasonable accommodations for a worker. This hospital made a significant accommodation for this nurse, but she wanted that to exempt her from the very essential nature of the job: being in regular attendance. This means it was not afforded protection under the ADA.

Timothy J. Coffey is a Chicago employment lawyer with, and owner of, The Coffey Law Office, P.C., a Chicago employment litigation firm. To learn more, visit http://www.employmentlawcounsel.com

This entry was posted on Thursday, September 27th, 2012 at 6:15 pm and is filed under News and Press
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There is a Proper Way to Issue Severance for Reduction in Force Situations, Says Chicago Employment Lawyer

There is a right way and a wrong way to issue severances. Employers need to follow a strict protocol or run afoul of the law.

To avoid a charge of ageism, or age discrimination, there are rules a company needs to follow if their reorganization or consolidation process ends up affecting older workers. An older worker may well feel he is losing his job because of his age and that management chose to reorganize to have the chance to let him go,” said Timothy Coffey, a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace.

If a company has its head on straight, they will structure any layoffs or reduction in their workforce by approaching it strictly in a business-like manner, clearly outlining the reasons for all changes and/or the blending of positions. They need to also be able to demonstrate why another worker was given the new position, based on qualifications,” Coffey said.

If someone in a company makes off-the-cuff remarks about age, it would be harder for them to prove that age was not a determining factor in letting an older worker go. A case in point is Duffy v. Belk, Inc., No. 11-1757, 4th Cir., 2012, where a 63-year-old customer relationship manager was re-organized out of a job.

What happened in this case is that the store merged his job with the job of company vice president and then offered the newly creation position to the woman currently holding the VP job. The lady was 43-years-old. Although the man was offered other jobs, he turned them down for two reasons: they did not pay what he was used to making, and they were lesser-ranked jobs. He sued the company, alleging he should have been offered the new position and that he did not get it because of age discrimination,” Coffey said.

When the case got to court, the process the furniture company had used to reduce their workforce was explained in great detail. It involved combining common job functions and reducing duplication in the workplace. The woman was offered the newly blended job, as she had an MBA and credible job experience in an area where the company wanted to expand in the future.

There had been no criticism of older workers in the workplace, remarks made about bringing in younger blood or any other incidents that indicated to the court that they were antagonistic towards older managers. The court discharged the man’s case.

However, this case could just as easily have gone the other way, with a win for the plaintiff, if there had been any indications of age discrimination. If employers want to treat their employees fairly when it comes to reorganizing or reducing their workforce, they need to have every step and reason carefully documented,” said Coffey.

Timothy J. Coffey is a Chicago employment lawyer with, and owner of, The Coffey Law Office, P.C., a Chicago employment litigation firm. To learn more, visit http://www.employmentlawcounsel.com

This entry was posted on Sunday, September 16th, 2012 at 6:15 pm and is filed under News and Press
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Chicago Employment Lawyer Asserts Americans with Disabilities Act Does Not Exempt Employees from Work

Employers need to set clear expectations for employees in order to avoid ADA lawsuits

“While there are many reasons to file a lawsuit under the Americans with Disabilities Act (ADA), those reasons must be valid when tested by the courts,” according to Timothy Coffey, a Chicago employment lawyer and principal attorney for The Coffey Law Office, P.C.. “If they are not, the plaintiff may lose his or her case, which is what happened in Samper v. Providence St. Vincent Med. Ctr., 9th Cir., 4/11/12.”

In Samper, the plaintiff neonatal intensive care nurse was a fibromyalgia sufferer, experiencing chronic pain and an inability to sleep soundly or restfully. Her unplanned absences from work were more than allowed, according to the terms of her job description. In working with the nurse to try and accommodate her medical issues, the hospital employer agreed to a very flexible schedule that would allow her to move her shift if she had a day where she was experiencing bad fibromyalgia symptoms.

Even with the new flexible shift arrangement, her rate of attendance in the workplace did not improve, and the hospital fired her. The nurse chose to sue the employer under the ADA, alleging they did not offer her reasonable accommodation, as outlined in the ADA. The hospital’s defense was that, while they did acknowledge she was disabled, they did not feel an open-ended pass to be absence for work was reasonable, especially when working in the neonatal intensive care unit where one’s physical presence is essential.

If the worker was not present at the hospital in the neonatal intensive care unit, then she could not perform her job, whether she had a flexible schedule or not. Since that was the case, and the nurse could not do her work at home, she could not be considered a qualified individual protected under the auspices of the ADA.

“When this case got to court, the legal question of the day was whether or not it was essential showing up for work on a predictable basis,” said Coffey. “The decision was that a nurse in the intensive care unit must be in attendance, not only because it was essential but because it was a matter of life or death. The defendant won the case.”

Not all cases that go to court win, and there is a valuable lesson inherent in this case. Showing up for work on a predictable basis is essential, or a job cannot be performed. Facts like this must be included in the job description, so employees understand exactly what is expected of them. Additionally, employers must make an effort to offer reasonable accommodations for all workers. The hospital made a significant accommodation for the nurse in this case, but she wanted that to exempt her from the very essential nature of the job: being in regular attendance. This means is was not afforded protection under the ADA.

Timothy J. Coffey is an employment lawyer and owner of The Coffey Law Office, P.C., a Chicago employment litigation firm. To learn more, visit http://www.employmentlawcounsel.com

This entry was posted on Thursday, August 23rd, 2012 at 10:56 pm and is filed under News and Press
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Plaintiff Appealed Retaliation Case to Supreme Court of Illinois

In this employment case, the plaintiff filed claims of retaliation in the workplace.

This is an interesting case and serves as a tool to show that when filing a complaint through the Human Rights Commission, the wording and content of the complaint are very important. The case is Blount v. Stroud et al. 904 N.E.2d 1 (2009) 232 Ill. 2d 302 No. 10557, appealed to the Supreme Court of Illinois.

In this instance, the plaintiff, Jerri Blount, appealed a judgment by a lower court reversing a multimillion dollar jury award relating to her federal and state retaliation claims against the defendants Stroud and Jovon Broadcasting. The core issue was whether or not Blount’s only source of redress was via the administrative procedures laid out in the Illinois Human Rights Act (775 ILCS 5/1-101 (West 2000)).

In 2001, the plaintiff filed several complaints against the defendants. At issue in the Illinois Supreme Court were counts three and five. In count three, the plaintiff stated the defendants wrongfully dismissed her, violating the federal Civil Rights Act of 1866 (42 U.S.C. § 1981 (2000)). It appeared the issue was that defendant Stroud retaliated against plaintiff Blount because she stood up for a coworker in a federal discrimination suit against Jovon Broadcasting. Both plaintiff and defendants were African-American and the coworker was Caucasian.

It appeared that Blount was a witness to some behavior the coworker was subjected to and that Blount said her complaints had merit. Blount also told her boss, Stroud, she would testify for the coworker. However her boss said to stay out of the situation and be quiet. Blount thought that was the wrong thing to do and testified for her coworker. She was threatened, intimidated, suspended and fired in October 2000.

In relation to count five, which was tied directly to count three, it was indicated in court that witnesses must testify truthfully and that perjury is a criminal offense. Because the plaintiff refused to tell a lie in court about her coworker, the management fired her.

At trial, defendants stated the lower circuit court did not have jurisdiction to judge the plaintiff’s retaliation claims, saying the claim fell under the prohibitions in the Act (see 775 ILCS 5/6-101(A) (West 2000)), and that she had to seek a resolution through the Act’s administrative procedures.

Further, defense counsel said the plaintiff’s claims were linked to a civil rights violation and therefore the Act preempted the claims. The court rejected those arguments and focused on complaint five. On the retaliation claim, the jury found for the plaintiff back pay in the amount of $257,350, a pain and suffering award of $25,000 and punitive damages for $2.8 million. After the trial it was argued, among other things, the circuit court did not have jurisdiction. The appellate court reversed.

When this case reached the Illinois Supreme Court, the court reversed the judgment of the appellate court. In other words, they held that the circuit court did have jurisdiction over the plaintiff’s claim and they reversed the judgment of the appellate court and remanded the matter back to that court.

It is quite evident that retaliation claims and wrongful dismissal issues can be incredibly complex. Consequently, how they are filed is of vital importance, and this is something that a Chicago employment lawyer will attend to when filing such a complaint. If you are not sure whether or not you may have a case, make a call to an experienced Chicago employment attorney and discuss your situation.

Timothy Coffey is a <a href=”http://www.employmentlawcounsel.com”>Chicago employment lawyer</a> and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace. To learn more or to contact a <a href=”http://www.employmentlawcounsel.com”>Chicago employment attorney</a>, visit Employmentlawcounsel.com.

This entry was posted on Wednesday, November 23rd, 2011 at 7:27 pm and is filed under News and Press
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Religious Harassment and Discrimination is Prohibited says Chicago Employment Lawyer

It should go without saying that religious discrimination and harassment is prohibited. Sadly, this still happens today.

“Religious discrimination may come in many forms, and to the employee, it may not seem like discrimination at first, until they begin to see a pattern. For instance, religious discrimination may come when you are denied the right to take holidays. You may be told something like: ‘Just for this year, we need you to fill in for someone,’ and you comply. However, you notice that over the year, when your religion has holidays, there is always a reason why you are not granted those days off,” said Timothy Coffey, a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace.

This form of discrimination can be subtle. It may involve the employer denying a worker the right to keep weekly religious holidays by not scheduling around those days when it is reasonable to do that. For instance, if the employee is a shift worker, and his or her religious holiday is a Saturday, and the company continually schedules the person to work that day despite others being available to take that shift, it may be discrimination.

“Denying an employee a promotion because of their religion or religious affiliation is discrimination, as is not hiring the most qualified individual because of their religion,” Coffey said. “It goes further than the employer. It involves the workplace itself, and if there is harassment or the creation of a hostile workplace due to co-worker’s, this too is discrimination.”

Unfortunately, since the Sept. 11, 2001 attacks, there has been a significant increase in discrimination against people of Middle Eastern lineage. This has snowballed into discrimination in many forms against those who are confirmed Muslims, and those who are perceived as Muslims.

“While it is not fair and is illegal, it is still happening. What people fail to take into consideration is that you can’t brand a whole race for the acts of a few. For Muslims or Middle Eastern individuals who are enduring hostile workplaces, it may help you to call an experienced Chicago employment lawyer and find out your rights,” Coffey said. “My office is capable of handling any type of religious discrimination and will represent clients from all religious backgrounds, provided they have a case.”

“Just one word of advice for those who may be experiencing religious harassment and discrimination at work – report it to a supervisor. Keep records, read your company handbook and know where you stand. Having a verbal and/or paper trail in cases like this is important. Do not wait to report it. Act immediately to get assistance with the harassment. If this does not work, then please, call my office and we can discuss your circumstances,” Coffey said.

Timothy J. Coffey is a Chicago employment lawyer with, and owner of, The Coffey Law Office, P.C., a Chicago employment litigation firm. To learn more, visit http://www.employmentlawcounsel.com

This entry was posted on Saturday, March 5th, 2011 at 8:02 pm and is filed under News and Press
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The EEOC Is Dead Serious About Stamping Out Sexual Harassment Indicates Chicago Employment Lawyer

The United States Equal Employment Opportunity Commission (EEOC) is making great inroads in stamping out sexual harassment in workplaces.

“Sexual harassment is never acceptable in any form in the workplace. Anyone that feels they have been the victim of such inappropriate behavior needs to contact a highly trained Chicago employee litigation attorney to get to the bottom of the situation,” said Timothy J. Coffey, a Chicago employment lawyer with, and owner of, The Coffey Law Office, P.C.

While individual cases dealing with sexual harassment in the workplace seem to be more prevalent, they are also the focus of a drive by the EEOC to stamp it out. In fact, one of their latest cases deals with two Florida-based companies who were caught on the wrong side of the laws relating to sexual workplace harassment.

The case is interesting in that it highlights what the EEOC is attempting to achieve for workers across the nation. It is cases like this that are used as examples in court should a lawyer in another jurisdiction have the need to try a similar case. It also demonstrates that legally speaking, sexual workplace harassment is not to be tolerated in any form and there are consequences for crossing over the line.

The case on point here was filed against two Florida companies – Cobra Pavers & Engineering, Inc. and Cobra Construction. Apparently, Cobra managers made it a habit to harass female office workers in such as manner as to create a sexually hostile work environment. They told jokes, made denigrating remarks about women, bandied inappropriate sexual remarks about on a daily basis and took great delight in telling stories about sexual adventures and exploits. The sexual harassment was not just verbal; it included very unwelcome sexual touching.

The EEOC filed a lawsuit and won; a situation that will see Cobra pay $125,000 to settle the lawsuit. In addition, they have also agreed to revise both company’s sexual harassment policies, offer training to workers and management, post a notice about the case and the settlement and report any future discrimination complaints to the EEOC.

“If this can happen in Florida, it can happen in Chicago,” said Coffey, “which is why employment lawyers stay up-to-date on the latest cases in this area. It’s highly sensitive and in many cases, workers in that type of a situation have no place to turn to for help. That is my job, to help people deal with situations like this.”

Timothy J. Coffey is a Chicago employment lawyer with, and owner of, The Coffey Law Office, P.C., a Chicago employment litigation firm. To learn more, visit http://www.employmentlawcounsel.com

This entry was posted on Monday, February 28th, 2011 at 6:59 pm and is filed under News and Press
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Be Honest with Employment Law Counsel about the Nature of Workplace Harassment Says Chicago Employment Lawyer

Lack of honesty when discussing your case with counsel may result in unexpected results.

“You need to be cautious about filing a workplace sexual harassment lawsuit, as this kind of a suit may go both ways,” said Timothy Coffey, a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace. “Let me make my point by using a recent case as an example.”

The case happened in Iowa when Jane Doe got a job at a local store sorting nuts and bolts. She worked in the plant four years and came to the conclusion that she was the focal point of sexual harassment in her workplace. Various co-workers were apparently involved, but there was one worker who not only insulted Doe, but her husband as well.

Deciding that she had had enough of what was going on at work, she filed a sexual harassment lawsuit and alleged that the co-worker she was complaining about would make sure he was always close to her so that he had to brush up against her privates and vice versa. Offensive off-color jokes were the order of the day.

The company took the initiative to conduct its own investigation into this matter and did indeed come to the conclusion that there was a hostile work environment and that most of the allegations that Doe filed could be confirmed. “However, the investigation also revealed that the sexual harassment between the two co-workers was mutual and in direct violation of company policy. Both workers were suspended for five days and the male worker was transferred,” Coffey said.

At trial, the Eighth Circuit of the U.S. Court of Appeals said that an internal investigation would many times turn up conflicting evidence that necessitates someone making a judgment about credibility. The company, in this instance, had to choose among various bits of information to arrive at a good faith conclusion. Accordingly, Doe was suspended for her misconduct and not because she complained. The court concluded the company’s response had been appropriate.

“As you can see, there is a very important distinction to be made in this case and that is the female worker was suspended for her conduct in violation of company policy, not because she filed a sexual harassment complaint. For those in a similar situation, it is vital to be completely honest with your employment counsel, or the results in court may not be what you expect them to be,” Coffey said.

Timothy J. Coffey is a Chicago employment lawyer with, and owner of, The Coffey Law Office, P.C., a Chicago employment litigation firm. To learn more, visit http://www.employmentlawcounsel.com

This entry was posted on Monday, February 21st, 2011 at 6:58 pm and is filed under News and Press
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Chicago Employment Lawyer Explains Equal Opportunity Job Openings

A job advertised as an EEO means the company may not discriminate in benefits, payment, firing and other vital areas.

“If you’re looking for a job and find one that indicates it is an equal employment opportunity (EEO), it means that the company cannot discriminate against you in terms of recruitment, training, benefits, payment, firing or hiring. In addition, when the job is posted, that company must post a notice for all workers that outlines their rights under EEO laws,” said Timothy Coffey, a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace.

The EEO laws forbid discrimination on the basis of race, religion, national origin, sexual orientation, pregnancy, age or sex. In addition, a company cannot refuse to hire or fire someone for not speaking English, unless it is a specific job qualification.

“For example, if a warehouse employee’s job not does not include talking to sales representatives about ordering, they cannot be fired for not speaking English. Put another way, if the company is discriminating against those who do not speak English, they must prove a job absolutely requires English,” Coffey said.

An offshoot of discrimination is often harassment. Harassment may include bullying, name calling, stalking, verbal and non-verbal threats, targeted and offensive teasing and sexual innuendo, assault, lewd gestures and other offensive behaviors. “It is not just women that may be sexually harassed. Men can be as well,” Coffey said.

Workers who are in situations at work where they feel they are being harassed, demeaned, discriminated against, threatened or bullied, need to take their concerns to an expert Chicago employment lawyer. If attempting to deal with the issue by reporting it to management has not resulted in any changes, it may well be time to take legal action.

The law is there to protect those who are being subjected to harassment and discrimination and those laws need to be enforced in workplaces that choose to flaunt the rules and regulations. “Righting a wrong situation in a workplace is often a lot about not only doing it for yourself, but doing it for others who may follow in your footsteps later. Harassment and discrimination are not to be tolerated in today’s working world,” Coffey said.

Timothy J. Coffey is a Chicago employment lawyer with, and owner of, The Coffey Law Office, P.C., a Chicago employment litigation firm. To learn more, visit http://www.employmentlawcounsel.com

This entry was posted on Sunday, January 30th, 2011 at 7:56 pm and is filed under News and Press
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Chicago Employment Lawyer Suggests Reviewing any Severance Package Prior to Acceptance

Never accept a severance package at face value. Take it to a skilled Chicago employment lawyer for review.

It is well known that the U.S. economy is forcing many businesses to cut back operations. That may include laying people off, putting any expansion plans on hold or making deep cuts to the budget. This is all done in the name of being able to stay in business.

“Whatever the reasons for your layoff, you may get offered a severance package. Many of them seem to be, on the surface, good deals. However, some of them have drawbacks you might not be aware of and this is why you need to consult with an employment lawyer,” said Timothy Coffey, a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace.

In today’s economy, one way to cut expenses at the office is to reduce the number of workers on board. This is accomplished through layoffs. Generally, many employers will issue their laid off staff a check for a month or more to help them while they try to find other work. None of these packages are standard and may vary from case to case.

Employers may create severance packages based on a number of criteria, such as how long the worker has been with the company, what their position is, how much they are paid, their performance and other factors that fit the particular employee being laid off and the circumstances at the time. “The thing you need to know about severance is that although you may feel that you deserve it, the employer is normally not required to give you one in a layoff situation,” Coffey said.

On one hand, severance is a bonus that may assist someone get through the rigors of job hunting. On the other, the paperwork that usually goes with a severance package and check usually means an individual does not get their pay for weeks or months. This of course compromises the person trying to keep up with their financial obligations while looking for work.

“The one thing that many people do not realize is that accepting a severance check may disqualify you from getting unemployment benefits. Never just accept what you are given without speaking to an employment attorney first,” Coffey said. “In addition, you may also not be aware of the fact that if you accept the package, you generally are required to release your rights to file a claim against the company for any wrongdoing they may have perpetrated.”

Timothy J. Coffey is a Chicago employment lawyer with, and owner of, The Coffey Law Office, P.C., a Chicago employment litigation firm. To learn more, visit http://www.employmentlawcounsel.com

This entry was posted on Thursday, January 20th, 2011 at 7:55 pm and is filed under News and Press
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Companies Asking for Doctor Notes for Absence When Workers are on Intermittent FMLA Leave May be Sued

If you are working for a company that is asking you to produce a doctor’s note when you are absent when you are already on an abridged calendar leave under the Family and Medical Leave Act, you may be the victim of illegal FMLA interference.

A recent federal court decision will significantly impact on companies that have an employee head count policy or paid sick leave policies that demand workers justify their absences with doctor’s notes if a worker is already on intermittent leave under the FMLA.

The decision centered on the finding that the defendant company’s attendance policy illegally obstructed the plaintiff’s use of FMLA leave, by mandating that a doctor’s note must be turned in after every absence, despite the fact that the doctor had already sent in a certification stating the need for sporadic leave for up to a year.

The court indicated the company demanding a doctor’s note every time the worker was not there ultimately discouraged the plaintiff, and other workers, from taking intermittent leave. In addition, it found that the FMLA’s recertification regulations already protect the company from an employee’s abuse of leave.

While the defendant argued that they were just enforcing their attendance policy, which also acted to discourage leave abuse, the court held that the note requirement unjustly interfered with FMLA leave because it was burdensome and may compel the worker to submit notes on a weekly or more recurrent basis. The judge further held that recertification is the preferred way to verify a worker’s time off is related to the FMLA and is so stated in the regulations.

If you find yourself in a similar situation, this is something that really needs to be discussed with a Chicago employment lawyer who stands up for worker’s rights. You will need to know precisely what those rights are, what may be done about the situation, what will happen should you go to court and what you may expect as an outcome to your case.

Timothy Coffey is a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace. To learn more or to contact a Chicago employment attorney, visit employmentlawcounsel.com.

This entry was posted on Saturday, January 15th, 2011 at 7:54 pm and is filed under News and Press
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