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Murdoch v. Medjet Assistance LLC

United States District Court, N.D. Alabama, Southern Division

March 1, 2018

MEDJET ASSISTANCE, LLC, et al., Defendants.




         Plaintiff Darlene Murdoch (“Ms. Murdoch”) initiated this employment case against her former employer Medjet Assistance, LLC (“Medjet”) and its Chief Executive Officer, Roy Berger (“Mr. Berger”) on April 21, 2017. (Doc. 1). Ms. Murdoch generally maintains that Mr. Berger sexually harassed her for a period of 6 to 7 months and that Medjet fired her in retaliation for reporting his harassment to Medjet (in a letter from her lawyer) and subsequently filing an EEOC charge about that same alleged conduct. Ms. Murdoch's complaint contains both federal and state law claims: (1) Title VII sexual harassment against Medjet (Count One); (2) Title VII retaliation against Medjet (Count Two); (3) negligent and/or wanton hiring, retention, training, and supervision against Medjet (Count Three); (4) invasion of privacy against both Mr. Berger and Medjet (Count Four); (5) assault and battery against both Mr. Berger and Medjet (Count Five); and (6) tort of outrage against both Mr. Berger and Medjet (Count Six).

         Pending before the Court is Defendants' Motion for Summary Judgment (doc. 19) (the “Motion”) filed on March 10, 2017. The Court has reviewed the parties' filings offered in support of and opposition to the Motion. (Docs. 20, 21, 25-28). For the reasons set out below, the Motion is GRANTED IN PART and otherwise DENIED or TERMED as MOOT.


         Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P. 56(a). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to ‘come forward with specific facts showing that there is a genuine issue for trial.'” International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).


         A. Background Facts About Medjet and Mr. Berger

         Medjet operates a membership program that provides air medical transport and related services for members who become ill or injured while traveling. AF No. 1.1.[2]The Birmingham-based company employs approximately 24 people. AF No. 1.2. Mr. Berger is Medjet's President and Chief Executive Officer. AF No. 1.3. As CEO of Medjet, Mr. Berger has ultimate hiring and firing authority. AAF No. 1.1.[3] Mr. Berger has a reputation within Medjet of being a difficult boss. AAF No. 2.1.

         B. Ms. Murdoch's Employment with Medjet

         Ms. Murdoch was employed by Medjet as its Assistant Controller from August 2014 until August 28, 2015. AF No. 1.4. When Ms. Murdoch began her employment with Medjet, she reported to Michelle Lowery (“Ms. Lowery”), who was employed as the Controller. AF No. 2.1. As the Assistant Controller, Ms. Murdoch was responsible for accounts payable, accounts receivable, preparation of the daily sales report (“DSR”), reconciliation of the DSR on a monthly basis and other duties as needed to assist the Controller. AF No. 2.2. The preparation and reconciliation of the DSR was one of Ms. Murdoch's primary responsibilities. AF No. 2.3.

         Ms. Lowery separated from employment with Medjet in mid-December of 2014, leaving Medjet without a Controller for approximately a month. AF No. 3.1. During that month, Ms. Murdoch took on additional responsibilities and reported directly to and worked more closely with Mr. Berger. AF No. 3.2. Ms. Murdoch performed her duties satisfactorily during that time period, and Mr. Berger decided to give her a pay increase to begin 2015 based upon her willingness to step in as needed after Ms. Lowery's unexpected departure. AF No. 3.3.

         On January 12, 2015, Mona Roy (hereinafter “Ms. Roy”) became employed as the Controller for Medjet. AF No. 4.1. Ms. Roy had previously been employed by Medjet and, on January 12, 2015 (doc. 21-1 at 4 at 12), [4] was brought back to help restore order to the company's accounting functions, which had suffered due to Ms. Lowery's performance and departure. AF No. 4.2. When Ms. Roy was rehired, it was expected that she would serve as the Controller for a couple of years to supervise Ms. Murdoch and eventually train Ms. Murdoch to take over her duties. AF No. 4.2.

         C. Medjet's Disciplinary Policy[5]

         Concerning Medjet's disciplinary policy, Ms. Roy testified:

The discipline policy is to document errors, to discuss them with the employee, and when it is of sufficient nature, document it with the employee and have them sign it. Usually there are two people involved. And then termination if the behavior continues or [problems with] performance continues.

(Doc. 21-1 at 8 at 25-26).

         Whitney Kerr (“Ms. Kerr”), Mr. Berger's Executive Assistant (doc. 26-5 at 3 at 8), [6] testified that she does not believe that Medjet has “a written policy for discipline.” (Doc. 26-5 at 9 at 31). Ms. Kerr indicated that “it's usually two days off without pay if you are caught doing something that was wrong or you have not done something that you were supposed to do.” Id.

         Mr. Berger mentioned the use of suspensions in the context of disciplining Ms. Roy. More specifically, Mr. Berger disciplined Ms. Roy once recently and “[t]hrough the years, [he disciplined her] . . . . [p]robably three or four times.” (Doc. 21-2 at 21 at 77).[7] In direct response to the question from opposing counsel about whether he recalled, “what the punishment was or would have been?” Mr. Berger stated, “[i]t would have been a couple of days suspension.” (Doc. 21-2 at 21 at 77).

         His counsel then asked Mr. Berger whether he meant “the one time or other times?” Id. Mr. Berger then modified his prior response with a more specific answer for the most recent time and indicated he had no recollection of what discipline he used for the other instances:

I'm talking about the one time was a couple of days suspension recently. Yes. The other times I have no recollection.


         D. Ms. Murdoch's Job Performance Issues and Discharge

         As Ms. Roy stated in her declaration, “[v]ery soon after [she] began supervising [Ms.] Murdoch, [she] recognized that there were deficiencies in [Ms. Murdoch's] performance.” (Doc. 21-4 at 2 ¶ 4).[9] More specifically, Ms. Murdoch struggled with prepaid memberships and timely completing the DSR, and she made numerous mistakes, including a major payroll error and an overstatement of cash in a monthly closing. Id.

         Ms. Roy testified that she had “multiple discussions” with Ms. Murdoch “[a]bout performance issues” and that she “put a lot of notes in [Ms. Murdoch's] file.” (Doc. 21-1 at 8 at 25).[10] According to Ms. Roy, Ms. Murdoch “didn't have the attention to detail that [the Assistant Controller] position requires.” (Id. at 11 at 37). Ms. Roy also indicated that Ms. Murdoch lacked initiative. (See Id. (“There also has to be initiative to look beyond just the immediate.”)).

         In April of 2015, Ms. Roy realized that Ms. Murdoch “had not applied a payment to a customer, thereby overstating the cash by $15, 000 and potentially shorting people on a bonus.” (Doc. 21-1 at 7 at 24); (see also Id. at 20 at 73-74 (“The fact that she didn't realize that, because she balanced the credit cards, that she could have overstated cash by $15, 000.”); (id. at 74 (“It was a Daily Sales Report error that could have impacted all of the employees within the organization.”)); (Doc. 21-3 at 92 (“MEMO FOR FILE - Darlene Murdoch” from Ms. Roy dated April 20, 2015, pertaining to Ms. Murdoch's failure to “post a credit card payment to an outstanding invoice”)).[11]

         At some point during April 2015, Ms. Roy “told [Ms. Murdoch that she] was concerned about her ability to perform the job [of Assistant Controller]” and indicated that Ms. Murdoch should look for another job. (Doc. 21-1 at 10-11 at 36-37; id. at 27 at 103); (Doc. 21-4 at 3 ¶ 5). “Mr. Berger did not ask [Ms. Roy] to make that communication to [Ms.] Murdoch].” Id.

         On June 25, 2015, Ms. Roy issued a written disciplinary warning to Ms. Murdoch for failing to timely submit the DSR on June 23, 2015. AF No. 6.2. As the “Details” section of the form filled out by Ms. Roy explained:

On June 23, 2015, I discovered that the Sales Report for that day had not been sent. I called [Ms. Murdoch] at 5:00 to let her know that I had not received the DSR. I asked if she had sent it and she said she wasn't sure if she did or not. I asked her to verify that it was sent - it had not been. The report was sent at 5:10 pm.
The DSR is a daily function with the same routine every day.

(Doc. 21-1 at 35).

         This written warning also stated (in boilerplate fashion) at the top of the form:

You are receiving this First Written Warning as a result of the issue(s) described below. Please be aware that this is the first step in MEDJET Assistance's discipline process. We trust that you will correct this matter by improving your performance of your job and/or refraining from the act or omissions that has led to this Warning Notice. Any subsequent Written Warnings will lead to further discipline, up to and including discharge.

(Doc. 21-1 at 35). Ms. Murdoch and Ms. Roy both signed this disciplinary document. Id. During her supervision of Ms. Murdoch, Ms. Roy only recalls that one time in June in which Ms. Murdoch had to sign a written warning regarding her poor performance. (Doc. 21-1 at 8 at 25). Further, the record reflects that from the date of Ms. Murdoch's hire until the date of her discharge, she received only one written reprimand. AAF No. 7.1.

         Ms. Roy has stated that she “recommended to Mr. Berger that [Ms.] Murdoch be terminated-once in April of 2015 and again on June 25, 2015, when [she] issued [Ms.] Murdoch a written warning for failing to send the daily sales report.” (Doc. 21-4 at 3 ¶ 5). According to Ms. Roy, “Mr. Berger declined those recommendations.” Id.

         Ms. Murdoch responds to the foregoing job-related criticisms by pointing out that she received a salary increase from $36, 000 to $40, 000 effective January 1, 2015. (Doc. 21-3 at 7 at 23-24); (see also Id. at 67 (“Compensation Adjustment Form”)). Also, while Ms. Murdoch does not deny that “she made errors during the performance of her job duties” (doc. 25 at 3 ¶ 5), she contends that even though Ms. Roy had been supervising Ms. Murdoch since mid-January 2015, she only began being critical of Ms. Murdoch's job performance in March or April of 2015. AAF No. 6. According to Ms. Murdoch, Ms. Roy's heavy scrutiny coincided with when Mr. Berger learned of her engagement in March 2015. (Doc. 25 at 3 ¶ 5); (see also Doc. 21-3 at 47 at 182 (testifying that “the scrutiny of [her] work was just incredible” and that “[Ms. Roy] definitely started it in March”); id. at 183 (recalling that “the timing was [Ms. Roy] pressed [her] for information regarding [her] personal life and who was in [her] personal life, and from that time forward, the atmosphere, everything changed at work”); id. at 49 at 189-190 (“[A]fter [Mr. Berger] found out that [Ms. Murdoch] was in a personal relationship, he became non-communicative, would not talk to [her], rude, obnoxious. [Her] work was scrutinized. The whole environment for [her] work life changed.”)).

         Mr. Berger testified that Ms. Roy told him about Ms. Murdoch's engagement at the “end of March, beginning of April.” (Doc. 21-2 at 11 at 38). He further stated that the (disputed) “mutual, ” “flirtatious banter” with Ms. Murdoch ended when he “found out [that] she was engaged . . . because she had every opportunity to tell [him], and she never did.” (Doc. 21-2 at 20 at 75). Ms. Roy has stated that “[a]t no time did Mr. Berger ever instruct, ask or otherwise try to convince [her] to scrutinize [Ms.] Murdoch's work or treat her differently from other employees.” (Doc. 21-4 at 2 ¶ 4). Further, Ms. Murdoch has no knowledge of “what [Mr. Berger] told [Ms. Roy].” (Doc. 21-3 at 47 at 183).

         In August of 2015, after Medjet had changed credit card servicers, a series of eleven customers should have received credits on their credit card accounts for refunds from Medjet, but the credits were not actually received by the customers. AF No. 8.1. Ms. Murdoch was aware that there was a problem because credits were posted with Medjet, but the refunds were not actually issued by the credit servicer, resulting in an overstated credit in her reconciliation variance statement. AF No. 8.2. Although Ms. Murdoch was monitoring the situation, she failed to alert Ms. Roy to the issue. AF No. 8.3. One of the customers who was expecting a refund made a series of complaints to Medjet and eventually contacted a potential large corporate customer for Medjet and informed the prospect that he was not satisfied with Medjet's service. AF No. 8.5.

         Ms. Roy became aware of Ms. Murdoch's customer-credit mistake in late August and addressed it with her during her performance review on August 25, 2015. AF No. 9.1. Ms. Murdoch acknowledged the mistake during her review and noted that she should have informed Ms. Roy. AF No. 9.2. Ms. Roy considered Ms. Murdoch's August review to be a very poor one. AF No. 9.3.

         Mr. Berger did not participate in Ms. Murdoch's performance review, which occurred while he was out of town. AF No. 10.1. Mr. Berger first became aware of the customer-credit error and the resulting customer complaints on the day after the review, August 26, 2015. AF No. 10.2. On August 27, 2015, Mr. Berger “made the decision to terminate [Ms. Murdoch's] employment . . . . [and] communicated the termination decision to [her] on the following day, August 28, 2015.” (Doc. 21-5 at 2 ¶ 3).[12]

         Ms. Murdoch asserts that Mr. Berger's decision to fire her was because of her lawyer's letter in June 2015 that accused Mr. Berger of sexually harassing her and the EEOC charge filed in August describing the same wrongful conduct. In response, Mr. Berger has stated in his declaration:

My decision to terminate Ms. Murdoch was not motivated in any way by the fact that Ms. Murdoch had filed a Charge of Discrimination with the Equal Employment Opportunity Commission. I had been aware since late June 2015 that Ms. Murdoch had retained legal counsel and intended to assert a claim of harassment with the EEOC. My decision to terminate Ms. Murdoch was based solely upon her work performance and was precipitated by a specific error in judgment, which she had acknowledged, and which had the potential to cost the company a substantial amount of business.

(Doc. 21-5 at 2 ¶ 3).

         Concerning the August incident more specifically, Mr. Berger explained:

On August 26, 2015, . . . [Ms.] Roy, advised me about a recent accounting error which resulted in eleven Medjet customers not receiving credits on their credit card accounts for refunds to which they were entitled from Medjet. Based upon the information provided to me by Ms. Roy, it was apparent that Ms. Murdoch had been aware that there was a problem because credits were still outstanding on her reconciliation variance sheet. Despite being aware of the variances, Ms. Murdoch failed to notify Ms. Roy or take any other action to remedy the problem. As a result, the problem was not identified until eleven customers had been adversely affected. Ms. Murdoch's failure to be proactive and address the situation was consistent with prior performance problems which had been reported to me by Ms. Roy.

(Doc. 21-5 at 2-3 ¶ 4).

         E. Ms. Murdoch's Sexual Harassment Allegations Against Mr. Berger

         Ms. Murdoch contends that Mr. Berger took her to lunch and that, during the lunches, he asked her personal questions about her dating life and marriages. AF No. 12.1. Ms. Murdoch has testified that she told Mr. Berger that she was “uncomfortable” with the questions that he asked her. (Doc. 21-3 at 29 at 111).

         Ms. Murdoch and Mr. Berger went to lunch together on three occasions. AF No. 12.2. The first occasion was in August of 2014, the second lunch occurred in October of 2014, and the third and final lunch together was on February 18, 2015. AF No. 12.3.

         Ms. Murdoch maintains that, during the first lunch, Mr. Berger told her that he had been in his second marriage for twenty years and that it had been that long since he had sex. AF No. 12.4. During that first lunch and the two subsequent lunches, Ms. Murdoch was not reserved and she told Mr. Berger about her dating life, her three marriages, and her relationships with her family members. AF No. 12.5. After the February 18, 2015 lunch, Ms. Murdoch sent Mr. Berger a text message stating, “You may have taken me to lunch at [Ms. Roy]'s request, but I'm going to pretend it's bc you wanted to.” AF No. 12.6. At the end of the text, Ms. Murdoch included a smiley face. AF No. 12.7.

         Ms. Murdoch alleges that, during a particular conversation with Mr. Berger, he told her she was very attractive and very datable. AF No. 13.; ADF 2.3.[13] According to Ms. Murdoch, Mr. Berger one time entered her personal space to stare into her eyes and told her she has beautiful eyes. AF No. 13.2; ADF 2.2. On other occasion he told her she looked good and that he liked what she was wearing. AF No. 13.2. Ms. Murdoch further asserts that Mr. Berger commented that she “looked good” or that she was “hot.” ADF No. 1.2. Ms. Murdoch believed it was inappropriate for Mr. Berger to tell her he liked what she was wearing or that she looked nice. AF No. 13.3. However, Ms. Murdoch never told Mr. Berger she was offended by any compliment he gave her. AF No. 13.4.

         Although Ms. Murdoch never objected to Mr. Berger's complimenting her on her appearance, she thought it was acceptable to send Mr. Berger messages during the same time frame telling him he was a “very kind and generous boss”; that he had a nice tan; and that things in the office are “just so-so” when he is not there. AF No. 14.1. During the time when Ms. Murdoch claims to have been sexually harassed by Mr. Berger, she regularly sent him unsolicited emails asking him how he was doing or how his travels were going. AF No. 14.2. For example, on February 11, 2015, Ms. Murdoch sent an email to Mr. Berger while he was out of town stating: “Just checking in. Is all as enjoyable there as you had hoped?” AF No. 14.3. Ms. Murdoch ended the message with a smiley face emoji. AF No. 14.4.

         Ms. Murdoch complains about several other inappropriate email communications that she received from Mr. Berger. In response to an email from Ms. Murdoch thanking Mr. Berger for a monthly bonus, Mr. Berger responded, “I actually like you, you seem to be my exception, not my rule around here.” AAF No. 2.2. Prior to March 2015, Mr. Berger sent many email messages to Ms. Murdoch which Mr. Berger characterized as “flirtatious banter”. AAF No. 2.3. Examples include “Look forward to seeing you tomorrow.”; “I can handle you.”; and “B safe going home and get some rest.” AAF No. 2.4.

         On another occasion, Ms. Murdoch sent an email to Mr. Berger thanking him for a donation made in honor of her recently deceased mother. AAF No. 2.5. In response to the thank-you email, Mr. Berger wrote, “you can tell me ‘in person'”. AAF No. 2.6.

         Another time, Ms. Murdoch sent an email advising that the computer “G drive” was freezing up to which Mr. Berger responded, “don't you just hate at your age when the G drive freezes up? Greetings from Tampa. Miss me?” AAF No. 2.7.

         On another occasion, Ms. Murdoch sent Mr. Berger an email thanking him for another bonus. Ms. Murdoch additionally wrote, “Well I hope my work eventually shows I'm worth it” to which Mr. Berger responded “I want you around…”. AAF No. 2.8.

         Ms. Murdoch also claims that Mr. Berger looked at her up and down with his eyes… and that “it was evident” to her that he was noticing parts of her body. AF No. 15.1. Mr. Berger never asked Ms. Murdoch on a date or asked her to have sex, but she “got that feeling” from something he said one time. AF No. 15.2. Ms. Murdoch cannot remember what Mr. Berger said that gave her that feeling. AF No. 15.3. Mr. Berger testified unequivocally that he never advanced on Ms. Murdoch sexually. AF No. 15.4. Ms. Murdoch never told Mr. Berger that she was bothered by any of his comments or behavior. AF No. 15.5.

         Ms. Murdoch claims that she was offended because Mr. Berger sometimes referred to her as “Dear.” AF No. 16.1. Ms. Murdoch thought it was inappropriate if Mr. Berger ever used any term of endearment toward her and thought it was sexually inappropriate that he called her “Dear.” AF No. 16.2. Ms. Murdoch never told Mr. Berger she was bothered that he called her “Dear.” AF No. 16.3.

         On March 10, 2015, when Ms. Murdoch was preparing for neck surgery, Mr. Berger texted her to say, “Good luck tomorrow. All will be just fine.” AF No. 16.4. Ms. Murdoch replied to Mr. Berger by text saying, “Thank you, Dear” with a smiley face emoji. AF No. 16.5. Ms. Murdoch does not know why she used the sexually-offensive term “Dear” toward Mr. Berger. AF No. 16.6.

         Ms. Murdoch alleges that she was offended by Mr. Berger sending her text messages when she was away from work and on weekends. AF No. 17.1; ADF 3.2. Ms. Murdoch never expressed to Mr. Berger that she was offended by him sending her text messages outside of work hours. AF No. 17.2. Ms. Murdoch also regularly sent text messages to Mr. Berger outside of work hours. Id. Ms. Murdoch did not maintain any copies of any texts from Mr. Berger which she contends were offensive. AF No. 17.3.

         Mr. Berger did maintain text messages between himself and Ms. Murdoch, including the following string started by Ms. Murdoch on February 18, 2015:

Darlene: You may have taken me to lunch at Mona's request but I'm going to pretend its bc you wanted to (smiley face emoji)
Roy: Do you pretend a lot?
Darlene: Oh Geez!
Roy: Bad answer. You know I won't let you get away with that.
Darlene: I have an imagination and that's all I'm saying!

AF No. 17.4. Ms. Murdoch maintains that the two texts sent by Mr. Berger from the above exchange were inappropriate, but that her communications sent to him were fine. AF No. 17.5.

         When Mr. Berger was asked during his deposition if he thought that flirtatious banter is appropriate in the workplace, he responded:

We are a very different kind of workplace, sir. We're a very small organization with 24 or 25 people. By and large we're close-knit as a family. Honestly it could be construed or conceived as office culture. We're just different. We're not a two- or three-thousand, four-thousand-person operation and whatever flirtatious banter there might have been was absolutely mutual and, I believe in both our opinions [i.e., his and Ms. Murdoch's] not offensive.

(Doc. 21-2 at 9-10 at 32-33).

         When asked (in a follow-up question) if he believed, given Medjet's smaller size, that flirtatious banter is acceptable, he answered:

No. I don't believe it's accepted. I believe basically it's the way we're created as a family, it happens. We're all close enough, we're in the same work space, we know a lot about each other both personally and professionally. That's the culture, frankly, that I try to create in an organization.

(Doc. 21-2 at 10 at 33).

         In March of 2015, Ms. Murdoch was out of the office for a period of time because of surgery for a tumor in her neck. AF No. 18.1. Ms. Murdoch contends that she was made uncomfortable by Mr. Berger communicating with her that he wanted to come see her while she was out for surgery. AF No. 18.2. The following text string reflects communication between Mr. Berger and Ms. Murdoch while she was out:

Roy (March 10): Good luck tomorrow. All will be just fine.
Darlene: Thank you dear (smiley face emoji)
Roy: If you see this before surgery give Clair my number . . . and ask her to text me when u are in recovery. Thx.
Roy (March 11): Let me know how ur doing if u get ur phone on today.
Darlene (March 12): I'm up and doing ok. Still have bad pain and soreness. They weren't able to get all of the tumor bc of placement so in future if it grows they will use radiation to clear it up.
Roy: That's good, I think. Left you a vm. Call if you get a minute and up to it.
Roy: How are you doing?
Darlene: Just woke up to a nice bouquet of flowers-thank you! Still painful but meds do help.
Roy: Hang. I'll come visit tomorrow. Ok maybe I will just call!
Darlene: Haha you'd laugh if you saw how bad I looked! I'll call when I rouse from drug induced sleep.
Roy (March 13): Good morning. Let me know when u r awake and can take a call.
Darlene: I'm awake but miserable. Couldn't sleep last night and pain is still bad. Not up for chatting just yet. Maybe later in the day after a nap. Thanks for checking on me.
Roy: Hang in.
Darlene (March 14): Is now a good time for a call?
Roy: Give me 30.
Roy (March 15): How r u doing today?
Darlene: About the same. Can't be upright too long before necks (sic) gets tired and hurts but shoulder area is better.
Roy: That's good I guess. Hang in.

AF No. 18.3.

         Following those texts, Ms. Murdoch sent Mr. Berger an unsolicited picture of the surgical scar on her neck with the message, “I have a zipper?” AF No. 18.4. Mr. Berger replied by saying, “I can go a million directions with that but won't. Feel better today.” AF No. 18.5. In her charge of discrimination filed with the EEOC, Ms. Murdoch ...

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