Failure to Accommodate: What is Sufficient Notice to an Employer and How Much Documentation Can be Requested

In numerous blog entries, we have talked about how magic words are not required. We have also talked about staying away from requests for excessive documentation. The question is how do the two work together. A published decision from the 11th Circuit decided on November 9, 2022, Owens v. State Of Georgia, Gov.’s Office Of Student Achievement, here, addresses both of those questions. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning explaining what an employee must do to show that a requested accommodation is reasonable; court’s reasoning that employer was within its rights to request additional information; court’s reasoning that plaintiff’s retaliation and pregnancy discrimination claims fail; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Following a C-section in July 2018, plaintiff informed her employer that she would need to work remotely for several months. In support of that requests, plaintiff provided her employer with two notes from her physician, which noted a C-section delivery, stated she was doing well, and concluded that she may telework until November 2018. Plaintiff separately informed her employer that she was seeking telework due to childbirth -related complications but provided no detail about the nature of those complications or how they would be accommodated by teleworking. Finding that information insufficient to support plaintiff’s accommodation request, her employer asked the plaintiff to either submit additional documentation or return to the office. At that point in time, her employer started making plans to figure out how the telework would work assuming the additional documentation was submitted. Plaintiff failed to submit additional documentation or return to the office. As a result, her employer terminated her employment.

 

II

Court’s Reasoning Explaining What an Employee Must Do to Show That a Requested Accommodation Is Reasonable

 

  1. Case law and the statutory text of the ADA (the Rehabilitation Act and the ADA get interpreted the same way), established that an employee must identify her disability before an employer is obligated to engage in the interactive process about accommodating that disability.
  2. For a plaintiff to sustain a prima facie case of disability discrimination, there has to be proof that her employer knew of her disability.
  3. The Rehabilitation Act text imposes a duty on employers to accommodate only the disability known to them.
  4. Identifying a disability in most cases means the employee provides at least some information about how a physical or mental condition limits her functioning.
  5. The ADA requires employers to make reasonable accommodation only to the physical or mental limitations caused by the employee’s physical or mental condition.
  6. Putting in employer on notice of a disability means an employee must identify at least in broad strokes the limitations her mental or physical condition imposes.
  7. An employee must provide her employer enough information to assess how her proposed accommodation would help her overcome (court’s actual word), her disability’s limitations.
  8. An accommodation qualifies as reasonable only if it enables the employee to perform the essential functions of the job.
  9. The same accommodation might be appropriate for one disability and inappropriate for another, and the same disability may require different accommodations for different employees.
  10. An employee must link her disability to her requested accommodation by explaining how the requested accommodation could alleviate the workplace challenges posed by her specific disability.
  11. Employees must give employers enough information to respond effectively to an accommodation request.
  12. When an employee triggers an employer’s accommodation duties, the employer has to expend time and expense exploring the universe of reasonable accommodations, identifying one that is mutually agreeable to the parties, and implementing it. To begin that interactive process, the employer needs information about the nature of the individual’s disability and the desired accommodation.
  13. The link between the disability and the requested accommodation may often be obvious. So, an employee confined to a wheelchair would hardly need a doctor’s report to show she needed help in getting to her workstation if it were accessible only by climbing a steep staircase. In other circumstances, the link between a person’s limitations and the requested accommodation will be unclear without additional information. Since that information is typically possessed only by the individual or her physician, it is reasonable that the employee inform her employer how the accommodations she seeks will address her limitations before requiring the employer to initiate the interactive process.
  14. The court expects an employee’s informational burden to be modest. Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its accommodation duties. On the other hand, an employee is not required to provide her employer with detailed or private information about a disability to initiate the employer’s duty to engage in an interactive process about the need for an accommodation.
  15. To trigger an employer’s accommodation duties, an employee with a disability only has to identify a statutory disability and explain generally how a particular accommodation would assist her.

 

II

Court’s Reasoning That Employer Was within Its Rights to Request Additional Information

 

  1. Courts and regulators have recognized that neither childbirth nor pregnancy is a disability. That said, pregnancy or childbirth -related impairment can be a disability only if that impairment substantially limits a major life activities. However, childbirth and pregnancy themselves are not disabilities.
  2. Although plaintiff unspecified childbirth related complications may have caused the disability, she never identified what the disability was. She did talk about medical procedures and treatments but not disabilities. There is no obvious limitation on functioning arising from having a C-section or a blood transfusion five or six weeks earlier.
  3. In addition to failing to identify a disability, plaintiff also failed to explain to her employer why teleworking would accommodate her disability. Although her physician’s recommendation that she telework qualifies as a demand for a specific accommodation, it does not explain how the accommodation would alleviate any physical or mental limitation.
  4. The information plaintiff provided to her employer amounts to nothing but vague or conclusory statements revealing an unspecified incapacity. Such information is not enough to trigger an employer’s duties to engage in the interactive process under the Rehabilitation Act.
  5. It isn’t necessary to decide whether plaintiff’s claim fails on the ground that she caused the breakdown in the interactive process in light of the fact that sufficient information and documentation to start the interactive process was not given by the plaintiff to her employer in the first place.

 

III

Court’s Reasoning That Plaintiff’s Retaliation and Pregnancy Discrimination Claims Fail

 

  1. Both the retaliation claim and the pregnancy discrimination claim are governed by McDonnell Douglas fee shifting paradigm. That paradigm requires a plaintiff to establish a prima facie case. If the plaintiff does that, then the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Once the employer does that, the burden then shifts back to the plaintiff to show that the reason given by the employer was a mere pretext for discrimination. The ultimate burden of persuasion is always on the employee.
  2. Establishing pretext and avoiding summary judgment means the plaintiff must present significant probative evidence sufficient to permit a reasonable factfinder to conclude that the discriminatory animus was the but for cause of the adverse employment action. That means the plaintiff has to show that the evidence reveals such weaknesses, possibilities, inconsistencies, and coherency, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence.
  3. An employer may fire an employee for a good reason, bad reason, a reason based on erroneous facts, or for no reason at all, so long as its action is not for discriminatory reason.
  4. If the evidence shows that the employer was dissatisfied with the plaintiff for nondiscriminatory reasons, even if mistakenly or unfairly so, the employer is entitled to summary judgment.
  5. Plaintiff has not shown that being fired for failing to return her reasonable accommodation paperwork or for failing to return to the office as requested was pretextual.
  6. Plaintiff’s failure to provide her employer with sufficient information to allow it to adequately assess her accommodation request meant that her employer was within its rights to request additional information from the plaintiff before deciding to approve her teleworking accommodation.
  7. The evidence establishes that her employer fired the plaintiff not for any discriminatory reason but rather because the plaintiff kept her employer in the dark as to when it could expect to receive her paperwork and what the paperwork would reveal about her medical condition. She never communicated with her employer directly about how telework would reasonably accommodate any childbirth -related disability. She also failed to submit a medical release that would have authorized the employer to contact her doctor directly. Finally, she did not share with her employer that her doctor had a 20 day turnaround for paperwork request.
  8. An employer is not required to wait indefinitely for necessary information supporting an accommodation request.
  9. Employer had good reason to believe, even if it was mistaken, that plaintiff had been medically released to return to work.

 

IV

Thoughts/Takeaways

  1. Putting an employer on notice means giving the employer notice of the disability in broad strokes of the limitations the mental or physical condition imposes.
  2. The court uses an unfortunate choice of words when it says that an employee must provide her employer enough information to assess how her proposed accommodation would help her “overcome,” her disability’s limitations. The use of the word “overcome,” is unfortunate because you cannot overcome a disability. You can manage it. You can also compensate for it. Overcoming a disability is not a thing. Most disabilities cannot be entirely fixed or cured. Even if they can, that is a personal question for the particular individual as to whether they want to go down that route. For example, I have no desire to fix or cure my deafness. I do compensate for my deafness with Bluetooth technology, lip reading, and advanced hearing aids but none of that is fixing or curing it.
  3. Identifying a disability means providing at least some information about how a physical or mental condition limits functioning.
  4. Accommodation qualifies as reasonable if it enables the employee to perform the essential functions of the job. The particular statement “enables the employeee…,” is a huge victory for persons with disabilities because it is the disability being accommodated and not the essential functions of the job.
  5. The court is absolutely right that the whole reasonable accommodation process is very individually based and one size does not fit all even when the same disability is involved.
  6. An employee has to link her disability to her request for the accommodation by explaining how the requested accommodation alleviates the workplace challenges posed by her specific disability. This is another big victory for persons with disabilities because it again says that it is the disability being accommodated and not the essential functions of the job.
  7. If the disability is obvious and the accommodation is also obvious, and employer needs to be very careful about what additional information it seeks. The EEOC guidance is consistent with what the court says on this point. If more documentation is needed, keep it narrowly focused and do not go on fishing expeditions. The court talks about seeking information that talks about how the accommodations address the employee’s limitations. Again, the focus is on the disability and not on the essential functions of the job. See also this blog entry.
  8. Vague and conclusory statements do not work with respect to triggering the interactive process, but the informational burden is not a high one.
  9. Considering the amendments to the ADA, identifying a statutory disability is not a high bar.
  10. Pregnancy and childbirth are not disabilities but they can give rise to conditions that are.
  11. Remember, that temporary disabilities can be actual disabilities under the ADA as amended.
  12. While it is true that whoever breaks down the interactive process loses, the plaintiff still has to provide sufficient information for the interactive process to start and to go forward.
  13. This was a case where the honest belief rule, which we discussed here, was in play and benefited the employer.
  14. Communication between the employee and the employer is always important.
  15. But for causation does not mean sole cause anymore, rather per Bostock, here, it means determining factor.
  16. The language used by the court in this opinion suggests that the plaintiff has a relatively high bar to get by summary judgment with respect to showing that an employer acted with pretext.
  17. The court’s focus on accommodating the disability is a huge victory for employees with service animals, and perhaps even emotional support animals, because those animals are most certainly accommodating the disability regardless of whatever the essential functions of the job may be.

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Tech Layoffs and Your Rights

Linh Nguyen Dallas Trial Attorney

If you have been on Twitter lately, you have likely borne witness to the numerous accounts of laid off former Twitter employees flooding the site. In the tumultuous days and weeks following Elon Musk’s acquisition of Twitter, thousands of employees were laid off to offset the billionaire’s over-priced acquisition of the site. And if that wasn’t enough drama, numerous fired employees were then asked to return to their jobs as the site struggled to handle the massive reduction in its workforce.

  Twitter’s internal struggles are playing out in real-time on its very own platform, but it isn’t the only tech company to face large and even historic numbers of layoffs as of late. Meta and Facebook have cut over 10,000 employees each from its respective companies. Lyft and Stripe have also laid off approximately 13% of its workforce as well. According to Layoffs.fyi, a website which tracks tech job cuts, over 130,000 jobs have been lost worldwide in 2022 alone. 

The post Tech Layoffs and Your Rights appeared first on Dallas Employment Lawyer Blog.

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Personal Injury and Wrongful Death Statutes of Limitation

When determining whether you can bring a lawsuit for personal injury or the wrongful death of a loved one, a vital consideration is the statute of limitations. A statute of limitations is defined as

“any law that bars claims after a certain period of time passes after an injury. The period of time varies depending on the jurisdiction and the type of claim. Statutes of limitations exist for both civil and criminal causes of action, and begin to run from the date of the injury, or the date it was discovered, or the date on which it would have been discovered with reasonable efforts.  Many statutes of limitations are actual legislative statutes, while others may come from judicial common law.”

For the most part, statutes of limitations governing personal injury and wrongful death claims are controlled by state law. Therefore, if you attempt to bring a lawsuit for personal injury or wrongful death, it is important to understand two key aspects of your claim: (1) which state(s) you can bring a lawsuit in; and (2) the state’s statute of limitations.

The purpose of this article is to demonstrate the general rules regarding statutes of limitations for each state. The table below generally addresses statutes of limitations for personal injury and wrongful death claims resulting from negligence and products liability claims. Bear in mind that each state has specific nuances – established through statutes and through common law – that may affect a certain statute of limitations based on the type of injury, the type of act or omission that caused the injury or death, and specific areas of law. For instance, some states have specific rules governing medical malpractice claims, which are not addressed in this article.

The Discovery Rule

Aside from the general statute of limitations for a particular state, an important consideration in determining the length of time you are given to file a personal injury or wrongful death claim is whether that state employs the “discovery rule.” The discovery rule is a general term that encompasses scenarios in which a person may not have known they were injured by the acts/omissions of another until after the statute of limitations has expired. For example, an industrial worker exposed to a hazardous substance while on a jobsite may not have been aware that his injuries appearing years later were caused by the exposure. Another example of this would be when an individual develops ailments/diseases after ingesting a product not known to be dangerous, and is unaware that his injuries were caused by that certain product until after the statute of limitations expires. In some states, the clock to file a lawsuit may not start ticking until this information was known or reasonably should have been known. Again, each state has specific rules, and you should contact an attorney to evaluate the specific circumstances of your claims.

The following table illustrates for each state: (1) the general rule for time to bring a personal injury lawsuit; (2) whether that state employs the discovery rule; and (3) the general rule for time to bring a wrongful death lawsuit (with mention of that state’s lack of discovery rule for wrongful death):

Again, it is important to consult an attorney to evaluate the specifics of your injuries and potential claims. The table above is a general guideline to help you understand the time period you have to take action in the event of injury or the death of a loved one.

Other important considerations include:

Fraudulent Concealment

Generally, the fraudulent concealment rule exists to allow injured persons to bring claims against wrongdoers who specifically hid the dangers of their actions to that person or the public. In most states that employ the fraudulent concealment rule, the clock for an injured party to bring a claim will not start ticking until the injured party knows or should have known that the wrongdoer’s actions were causing his injury. This can occur, for example, when a company specifically withholds facts or makes misrepresentations (i.e., “conceals”) to the public claiming that the product they are selling is safe, when in fact there is evidence that the company knew about the dangers. Most states require that injured parties discover the concealment through reasonable diligence and can prove that they relied on the concealment to their detriment. The fraudulent concealment rule can act to “toll” – or stop or delay – the running of the statute of limitations. Again, these rules vary greatly from state to state and you should consult a lawyer to evaluate the specific circumstances of your potential claim.

Minor Tolling

Most states allow for the tolling of statutes of limitations when injuries/death befall a minor. The rules for each state vary greatly, but minor tolling rules generally allow a minor to start the clock on the statute of limitations for an injury after they reach the age of majority. Again, these rules vary greatly from state to state and you should consult a lawyer to evaluate the specific circumstances of your potential claim.

In conclusion – the most important thing you can do if you or a loved one are injured or killed due to the fault of another is to act quickly. Consult a personal injury lawyer immediately to determine which state(s) you can bring your claim in, how the rules of that state may affect your legal rights, and what strategies you will need to utilize in order to preserve your opportunity to bring a lawsuit.

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Family Injustice: A Bridge Too Far



A Fort Bend Judge sentences children to a questionable fate.

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Welcome to the Era of Salary Transparency

Have you heard it’s “taboo” to talk about your salary? Us too. Well, that is out the window now. Welcome to the era of salary transparency. Yes, we know it can be awkward to talk about salary, but with new laws on the horizon, it may be a little easier to figure out how much your co-workers are getting paid. 

 Recently, the New York City Council passed a law requiring employers in New York City with four or more employees to list the minimum and maximum salary on all job posting including ads, promotions, and transfer opportunities. This law applies to any position that can or will be performed, in whole or in part, in New York City. This affects remote listings, meaning any job that could conceivably be done in New York City must follow this. 

 So why did the New York City Council deem this necessary? They passed this law to try and fight against big pay gaps, specifically between genders as well as between majority and minority racial groups. Let’s be honest, pay matters. It affects where you work and how long you decide to stay there.  

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FAMILY INJUSTICE: Show Me The Money



There are signs of new transparency in a Houston family courtroom. Time to make the folks making money off family drama to …

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Extra, Extra: IRS Division of Tax Exempt and Government Entities Releases FY2023 Program Letter

On November 4, 2022, the Tax Exempt and Government Entities division of the IRS (TE/GE) released its Fiscal Year 2023 Program Letter (2023 Program).

The 2023 Program is intended to dovetail with the IRS Strategic Plan FY2022-2026. Under that Strategic Plan, the IRS’s Mission is: “Provide America’s taxpayers top quality service by helping them understand and meet their tax responsibilities and enforce the law with integrity and fairness to all.” The Plan includes key performance indicators in areas of Service, Enforcement, Transformation, and People. For Enforcement, the IRS’s objectives are to:

  • Enforce the tax law fairly and efficiently to increase voluntary compliance and narrow the tax gap;
  • Improve operations to effectively and efficiently identify and address non-compliance;
  • Enhance enforcement efforts to collect unpaid taxes in a fair and impartial manner; and
  • Proactively identify current and emerging fraud schemes and other threats using real-time intelligence and analytics.

A key pillar of the 2023 Program is to “Strengthen Compliance Activities (Enforcement)”. TE/GE will focus on collaboration with IRS divisions of Criminal Investigations; Large Business & International; Small Business/Self-Employed; and Research, Applied Analytics & Statistics. A TE/GE priority includes selecting and examining returns for compliance action. TE/GE’s collaboration is aimed at creating a unified compliance plan to enable effective tax administration.

As for People, the 2023 Program indicates that TE/GE hired 187 new employees in FY2022, and TE/GE anticipates a greater number in FY2023. In the Service arena, TE/GE expects to continue with appropriate compliance workstreams – education letters, compliance checks, or exams – in order to balance TE/GE and taxpayer burdens for effective enforcement of tax laws.

As calendar year 2022 enters its end-of-life phase, the TE/GE Fiscal Year 2023 Program Letter gives tax practitioners of an idea of what we might see in the near future and into 2023, at least from a tax-exempt and governmental entities perspective.

The post Extra, Extra: IRS Division of Tax Exempt and Government Entities Releases FY2023 Program Letter appeared first on Freeman Law.

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Disputes Related to Pasture Leases

Landowners commonly lease their properties to ranchers and farmers for agricultural purposes. To avoid leasing disputes, some details should be ironed out before any agreements are made. These involve the expectations of both parties. Understanding the facts before entering into a contract can avoid disappointment, money, and future litigation. Considerations Before Entering a Lease Agreement…

The post Disputes Related to Pasture Leases appeared first on Lovell, Lovell, Isern & Farabough, LLP..

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Conservation Easements and Retained Mineral Interests

Retained Surface Mining Rights in Conservation Easement Deeds: CCA 202236010

Introduction: Separating the Surface Estate from the Retained Mineral Interest

As we have discussed in prior posts, conservation easements remain an area of focus for the IRS. The Service has spent significant effort challenging and litigating conservation easements to ensure that only donations that meet the strict standards of section 170(h) of the Code are permitted. In a recent Chief Counsel Advice, CCA 202236010[1] the IRS addressed whether a conservation easement satisfies the requirements of section 170(h) where (i) the easement donor retains a qualified mineral interest, (ii) the ownership of the surface estate and the mineral interest has never been separated, and (iii) under the terms of the deed the donor can use a surface mining method to extract the subsurface materials with the donee’s approval.

As discussed below, the IRS concluded that the conservation easement did not meet the requirements of section 170(h), and in particular, the requirement that the conservation easement was contributed “exclusively for a conservation purpose” because the qualified mineral interest was never separated from the surface estate and the deed retained the possibility of surface mining to extract the subsurface materials. Donors seeking to claim a charitable contribution deduction for a conservation easement should be sure to separate the qualified mineral interest from the surface estate and that the deed to the property permits the owner of the qualified mineral interest to extract or remove the minerals by a surface-mining method.

Qualifying for a Qualified Conservation Contribution Deduction with Retained Mineral Interests  

Generally, a taxpayer is not permitted a deduction for a charitable contribution for a gift of a partial interest in property.[2] However, section 170(f)(3)(B)(iii), provides an exception for a qualified conservation contribution. Section 170(h)(1) defines a qualified conservation contribution as a contribution of a qualified real property interest to a qualified organization exclusively for conservation purposes. Section 170(h)(5)(A) provides that a conservation easement is not treated as exclusively for conservation purposes unless the conservation purpose is protected in perpetuity.

Moreover, section 170(h)(5)(B)(i) provides that if the donor retains a qualified mineral interest (as defined in section 170(h)(6)), the conservation easement is generally not treated as exclusively for conservation purposes if at any time there may be extraction or removal of minerals by any surface-mining method. However, section 170(h)(5)(B)(ii) provides an exception to the general rule and states that if the ownership of the surface estate and the mineral interests has been and remains separated, and the probability of surface mining occurring on such property is so remote as to be negligible, then the contribution may be treated as exclusively for conservation purposes satisfying section 170(h)(5)(A).

Treas. Reg. § 1.170A-14(g)(4)(i) clarifies the rules regarding the retention of qualified mineral interests in conservation contributions and whether those retained interests preclude a charitable contribution deduction. It restates the general statutory rule that no deduction is allowed if there is a retention of a qualified mining interest and the minerals may be extracted or removed by a surface-mining method. It further provides that the perpetuity requirement is not satisfied in the case of a qualified mineral interest gift if any method of mining that is inconsistent with the particular conservation purposes of a contribution is permitted at any time. Finally, the regulation provides a limited exception to the prohibition on mining where the mining method is not surface mining. It provides that the deduction will not be denied in the case of certain mining methods that have limited, localized impact on the real property and are not irremediably destructive of significant conservation interests.

IRS Analysis of the Donation and the Retained Mineral Interests

The IRS stated that unless the exception in section 170(h)(5)(B)(ii) applies, the contribution is not made exclusively for conservation purposes if there is an owner of a qualified mineral interest and the deed permits the owner to extract or remove those minerals by a surface-mining method. Under the facts of the CCA, the exception in section 170(h)(5)(B)(ii) did not apply because the ownership of the surface estate was never separated from the mineral interest. Additionally, the deed permitted the surface mining of the donor’s sub-surface minerals which was contrary to section 170(h)(5)(B)(i) and Treas. Reg. § 1.170A-14(g)(4)(i). The IRS disregarded the fact that the deed only permitted surface mining if the donee approved because if approval was granted, surface mining could occur. Thus, because the contribution did not satisfy the exclusivity requirement, it was not a qualified conservation contribution. Accordingly, because the gift was less than the donor’s entire interest and was not a qualified conservation contribution, a charitable deduction was not allowed under section 170(f)(3)(B)(iii).

The Takeaway

Taxpayers seeking to claim a deduction for a qualified conservation easement and that seek to retain a qualified mineral interest should ensure that the qualified mineral interest is separated from the surface estate. Additionally, taxpayers should ensure that the deed states that if the qualified mineral interest is mined, it will not be mined with a surface mining method, and rather the taxpayer will use a method of mining that has limited, localized impact on the real property and is not irremediably destructive of the conservation interests. Taxpayers that satisfy these two conditions should satisfy the exception in section 170(h)(5)(B)(ii) and Treas. Reg. § 1.170A-14(g)(4)(i) so that the contribution is treated as made “exclusively for conservation purposes” and treated as a qualified conservation contribution for purposes of sections 170(h)(5) and 170(h)(1), respectively.

Expert Tax Attorneys

If you need assistance with conservation easement defense or tax litigation, Freeman Law can help you navigate these complex issues. We have experience with conservation easement tax litigation. We offer value-driven services and provide practical solutions to complex tax issues. Schedule a consultation or call (214) 984-3410 to discuss your tax concerns.

 

[1] September 9, 2022.

[2] Section 170(f)(3)(A).

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Family Injustice: Time for Accountability.



Brazilian grandparents face more punishment this week – but we think they deserve a refund.

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