Del-Valle-Perez et al v. Police Department of Puerto Rico et al, No. 3:2006cv02184 - Document 83 (D.P.R. 2009)

Court Description: OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 43 MOTION for Summary Judgment filed by Police Department of Puerto Rico, Richard Robles-Gonzalez, Ismael Martinez, Melvin Soberal, Jose Velez-Cuba, Carlos Merced. We GRANT summary judgment for Defendants on Plaintiffs' tort claims arising from conduct before November 27, 2005, and DENY the remainder of Defendants' motion. We also DENY Defendants' supplemental motion for summary judgment, Docket No. 63 , and Plaintiffs 9; motion to strike, Docket No. 65 , as MOOT. The parties are encouraged to exhaust all settlement possibilities before the trial commences next Monday, February 23, 2009. Signed by Chief Judge Jose A Fuste on 2/20/09.(mrj)

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1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO ANGELICA DEL VALLE Pà REZ, et al., Civil No. 06-2184 (JAF) Plaintiffs, v. POLICE DEPARTMENT OF PUERTO RICO, et al., Defendants. OPINION AND ORDER 12 13 Plaintiffs Angélica Del Valle Pérez ( Del Valle ) and her 14 common-law partner José Padín bring this action against Defendants 15 Police Department of Puerto Rico ( PDPR ), Carlos Merced, Richard 16 Robles, José Vélez Cuba ( Vélez ), Ismael Martínez, Melvin Soberal 17 Morales 18 violations of Title VII of the Civil Rights Act of 1964 ( Title 19 VII ), 42 U.S.C. §§ 2000e to 2000e-17, the Constitution of Puerto 20 Rico, and Puerto Rico laws, 29 L.P.R.A. §§ 146-51 (2001 & Supp. 21 2006), 29 L.P.R.A. §§ 467-74 (2001), 29 L.P.R.A. §§ 1321-41 (2001), 22 29 L.P.R.A. §§ 155-155m (2001), and 31 L.P.R.A. § 5141 (1990). 23 Docket No. 1. Plaintiffs seek injunctive and declaratory relief and 24 damages 25 retaliation. Id. Defendants move for summary judgment, Docket No. 43, 26 and Plaintiffs oppose, Docket No. 54. Defendants have also filed a 27 supplemental motion for summary judgment, Docket No. 63, which ( Soberal ), for sexual and unnamed harassment, PDPR pregnancy supervisors, alleging discrimination, and Civil No. 06-2184 (JAF) move to -2- 1 Plaintiffs strike, Docket No. 65. Also before us is 2 Plaintiffs response to our Show Cause Order of January 26, 2009, 3 Docket No. 75. Docket No. 76. 4 I. 5 Factual and Procedural Synopsis 6 We derive the following factual summary from the parties 7 motions, statements of material facts, and exhibits. Docket Nos. 43, 8 44, 54, 55, 63, 64, 65, 67, 76, 79. 9 Plaintiff Del Valle, a resident of Manatí, Puerto Rico, has been 10 employed as a police officer with PDPR since November 2004. 11 Defendants Merced, Robles, Vélez, and Martínez are members of the 12 PDPR with supervisory authority over Del Valle. Defendant Soberal is 13 a police officer who worked with Del Valle. 14 Plaintiffs allege that, shortly after beginning work at the 15 PDPR, Del Valle began to experience harassment from her co-worker 16 Soberal and later from her supervisors. Plaintiffs submit evidence of 17 the following facts; it is not clear to what extent these facts are 18 contested by Defendants: In January 2005, on Del Valle s first 19 investigative assignment, while she was alone in a police vehicle 20 with Soberal, Soberal began discussing his sexual activities with his 21 wife. He informed Del Valle that he was very sexually open, and 22 stated that he liked using a vibrator on his wife so that he could 23 please her first. Del Valle reported this incident to Martínez, who 24 told her that he would discuss the incident with Soberal. A few days Civil No. 06-2184 (JAF) -3- 1 later, Vélez called Del Valle at night to admonish her for refusing 2 to work with Soberal. On another instance, in February 2005, Soberal 3 approached Del Valle in a hallway at PRPD and asked her, in front of 4 Martínez, to wear a short skirt sometimes so that he could throw a 5 quarter down and look at her. Following this incident, Del Valle was 6 so offended she had to run to the restroom to compose herself. 7 Shortly thereafter, Del Valle met with Vélez to explain her 8 unwillingness to work with Soberal, but Vélez stated that he was not 9 interested in hearing her complaint and that Martínez was responsible 10 for preparing a report on the issue. Del Valle met with Soberal and 11 Martínez later the same day to discuss the situation. At that 12 meeting, Soberal stated that he kn[ew] a lot of attorneys and 13 Assistant District Attorneys. Del Valle requested that she and 14 Soberal not be required to interact with each other at work. After 15 the meeting, Del Valle was no longer assigned to work with Soberal; 16 however, they remained on the same shifts at PRPD. 17 Del Valle states that prior to these incidents she had a good 18 working relationship with Merced, another supervisor. Merced was on 19 vacation during the incidents, but was informed of the situation upon 20 his return. Del Valle states that following this, Merced s conduct 21 toward Del Valle became hostile. 22 In March 2005, Del Valle learned that she was pregnant. Later 23 that month, Del Valle sought an accommodation from Merced for her 24 pregnancy, but Merced refused. Over the next two months, Del Valle Civil No. 06-2184 (JAF) -4- 1 experienced complications with the pregnancy and submitted a total of 2 five 3 Merced repeatedly insisted he had no work for pregnant women and 4 offered no accommodation. In late May 2005, Merced informed Del Valle 5 that he would have to transfer her to Arecibo, although Del Valle 6 alleges that other pregnant women had been accommodated with work in 7 the Bayamón office. Around the same time, Merced brought up Del 8 Valle s complaints of sexual harassment, and told her that there was 9 no harassment, that he didn t know what to do with her, and that her 10 transfer might not be accepted due to the allegations she had made. 11 Merced then arranged a meeting with Robles, a high-ranking PDPR medical At certificates the meeting, to Merced Del Valle requesting presented accommodations. 12 inspector. Robles with a 13 memorandum detailing the harassment she had experienced to that 14 point, but Robles chastised her for doing so. 15 Del Valle was transferred to Arecibo on June 1, 2005. She 16 alleges that the harassment nevertheless continued, as Merced filed 17 false administrative complaints against her. 18 During this time period Del Valle experienced high blood 19 pressure and other medical complications with her pregnancy. She gave 20 birth 21 Plaintiffs 22 December 14, 2005. Docket No. 76-2. to her daughter filed a one charge month of early on discrimination November with 16, the 2005. EEOC on 23 Del Valle returned to work from maternity leave around January 24 or February 2006. At this time, she inquired and discovered that no Civil No. 06-2184 (JAF) -5- 1 action had been taken on her internal harassment complaint. Del Valle 2 also states that Merced continued to harass her by treating her in a 3 hostile manner and filing false charges against her. For example, in 4 May 2006, Merced issued an absent employee report against Del Valle 5 after she had sought vacation leave to take her daughter to the 6 pediatrician. 7 experience emotional anguish, as well as physical symptoms, such as 8 high blood pressure. As a result, Del Valle states she continued to 9 During this time period, Merced attempted to influence América 10 Ortiz García ( Ortiz ), the officer assigned to investigate Del 11 Valle s harassment complaints. He also filed a grievance against 12 Ortiz, falsely alleging that she was biased against him, which 13 resulted in her removal from the case. Del Valle states that to date, 14 no action has been taken on her internal harassment complaints. 15 On June 5, 2006, and August 30, 2006, Del Valle filed additional 16 charges of discrimination with the EEOC. Docket Nos. 76-3, 76-4. The 17 EEOC issued right-to-sue letters on August 31 and September 1, 2006. 18 Docket No. 18-2. 19 On November 27, 2006, Plaintiffs filed the present action. 20 Docket No. 1. Defendants moved for summary judgment on September 15, 21 2008, Docket No. 43, and Plaintiffs opposed on October 8, 2008, 22 Docket No. 54. Defendants filed a supplemental motion for summary 23 judgment on October 23, 2008. Docket No. 63. On October 24, 2008, 24 Plaintiffs moved to strike the supplemental motion, Docket No. 65, Civil No. 06-2184 (JAF) -6- 1 and on October 29, 2008, Defendants opposed, Docket No. 66. On 2 January 26, 2009, we ordered Plaintiffs to show cause as to why we 3 should not dismiss their Title VII claims for failure to exhaust 4 remedies. 5 February 12, 2009. Docket No. 76. Docket No. 75. Plaintiffs responded to our 6 on II. 7 order Summary Judgment Standard under Rule 56(c) 8 We grant a motion for summary judgment if the pleadings, the 9 discovery and disclosure materials on file, and any affidavits show 10 that there is no genuine issue as to any material fact and the movant 11 is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 12 A factual dispute is genuine if it could be resolved in favor of 13 either party, and material if it potentially affects the outcome of 14 the case. Calero-Cerezo v. U.S. Dep t of Justice, 355 F.3d 6, 19 (1st 15 Cir. 2004). 16 The moving party carries the burden of establishing that there 17 is no genuine issue as to any material fact; however, the burden may 18 be discharged by showing that there is an absence of evidence to 19 support the nonmoving party s case. Celotex Corp. v. Catrett, 477 20 U.S. 317, 325, 331 (1986). The burden has two components: (1) an 21 initial burden of production, which shifts to the nonmoving party if 22 satisfied 23 persuasion, which always remains on the moving party. Id. at 331. by the moving party; and (2) an ultimate burden of Civil No. 06-2184 (JAF) -7- 1 In evaluating a motion for summary judgment, we must view the 2 record in the light most favorable to the non-moving party. Adickes 3 v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, the non- 4 moving party may not rely merely on allegations or denials in its 5 own pleading; rather, its response must . . . set out specific facts 6 showing a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). 7 III. 8 Analysis 9 A. Order to Show Cause 10 We ordered Plaintiffs to show cause as to why we should not 11 dismiss their Title VII sex discrimination claims due to their 12 failure to exhaust remedies by filing a charge with the EEOC. Docket 13 No. 75. It appeared from the record that Plaintiffs had only filed 14 an EEOC charge of retaliation. See Docket No. 55-12. Plaintiffs 15 responded by submitting a total of three charges filed with the EEOC, 16 which allege sex discrimination - including sexual harassment and 17 pregnancy discrimination - and retaliation. Docket Nos. 76-2, 76-3, 18 76-4. Plaintiffs have, thus, satisfied us that they exhausted their 19 remedies as to these claims.1 1 Defendants, in their supplemental motion for summary judgment, argue that we lack subject matter jurisdiction over Plaintiffs sex discrimination claims because Plaintiffs filed only a charge of retaliation with the EEOC. Docket No. 63. Plaintiffs submission of their two additional EEOC charges renders this argument moot. See Docket Nos. 76-3, 76-4. Civil No. 06-2184 (JAF) -8- 1 We also ordered Plaintiffs to show cause as to why we should not 2 dismiss their Title VII retaliation claim for failure to file a 3 charge within 180 days. Docket No. 75 (citing 4 5(e)(1) and 29 C.F.R. § 1601 & n.5). The English portions of the 5 then-untranslated Spanish EEOC charge Plaintiffs had filed indicated 6 that the retaliation ended more than 180 days before the filing date. 7 See Docket No. 55-12. Plaintiffs have now submitted an official 8 English translation of that charge, as well as the two additional 9 charges. Docket Nos. 76-2, 76-3, 76-4. The allegations in the 10 charging documents, along with the evidence in the summary judgment 11 record, suggest that Plaintiff may have been subject to a continuing 12 pattern 13 continuing up to or beyond the filing of her last EEOC charge on 14 August 30, 2006. See Docket Nos. 55, 76. Because at least some of 15 these acts fall within 180 days of the filing of the charges, they 16 would, if proven at trial, serve to anchor the remaining acts of 17 discrimination. See, e.g., DeNovellis v. Shalala, 124 F.3d 298, 307- 18 08 (1st Cir. 1997) (explaining that where a series of discriminatory 19 acts occurs, each constituting a separate Title VII violation, at 20 least one actionable violation must occur within the relevant time 21 period). 22 timely filed. of discriminatory acts beginning in 42 U.S.C. § 2000e- January 2005 and We, therefore, find that Plaintiffs EEOC charges were Civil No. 06-2184 (JAF) 1 2 B. -9- Motion for Summary Judgment Defendants move for summary judgment on the grounds that 3 (1) there is insufficient evidence to support a claim for sexual 4 harassment under Title VII, (2) there is insufficient evidence to 5 establish 6 (3) Plaintiffs tort claims are time-barred. a claim for retaliation under Title VII, and Docket No. 43. 7 1. Sexual Harassment 8 Del Valle alleges she was the victim of sexual harassment in the 9 form of a hostile work environment at PRPD. Docket No. 1. Defendants 10 argue that (1) the evidence in the record does not contain facts 11 severe or pervasive enough to constitute sexual harassment, and 12 (2) there is no basis for employer liability. Docket No. 43. 13 Title VII provides that [i]t shall be an unlawful employment 14 practice for an employer . . . to discriminate against any individual 15 with respect to [her] compensation, terms, conditions, or privileges 16 of employment because of such individual s race, color, religion, sex 17 or national origin. 42 U.S.C. § 2000e-2. [S]exual harassment is a 18 form of [sex] discrimination prohibited by Title VII. O Rourke v. 19 City of Providence, 235 F.3d 713, 728 (1st Cir. 2001) (quoting 20 Provencher v. CVS Pharmacy, 145 F.3d 5, 13 (1st Cir. 1998)). 21 To establish a sexual harassment hostile work environment claim 22 under Title VII, a plaintiff must demonstrate that (1) she is a 23 member of a protected class; (2) she experienced unwelcome sexual 24 harassment; (3) the harassment was based on sex; (4) the harassment Civil No. 06-2184 (JAF) -10- 1 was sufficiently severe or pervasive so as to alter the conditions 2 of her employment and create an abusive work environment; (5) the 3 conduct was both objectively and subjectively offensive, such that 4 a reasonable person would find it hostile or abusive and the victim 5 in fact perceived it to be so; and (6) some basis for employer 6 liability exists. O Rourke, 235 F.3d at 728 (citing Faragher v. City 7 of Boca Raton, 524 U.S. 774, 787-88 (1998)). 8 In our analysis, we look to the totality of the circumstances, 9 including but not limited to: the frequency and severity of the 10 discriminatory conduct; whether it is physically threatening or 11 humiliating, or 12 unreasonably interferes 13 Billings v. Town of Grafton, 515 F.3d 39, 48 (1st Cir. 2008) (quoting 14 Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)) (internal 15 quotation marks omitted). The summary judgment standard polic[es] 16 the baseline for hostile environment claims. Id. at 50 (quoting 17 Pomales v. Celulares Telefonica, Inc., 447 F.3d 79, 83 (1st Cir. 18 2006)) (internal quotation marks omitted). However, whether a hostile 19 work environment exists is generally to be determined by the finder 20 of fact. Id. at 47 n.7, 50. a mere offensive with an utterance; employee s and work whether it performance. 21 In the present case, Plaintiffs submit evidence that on Del 22 Valle s first investigative assignment, while she was alone in a 23 police vehicle with Soberal, Soberal began explicitly discussing his 24 sexual activities with his wife. Docket No. 55. Del Valle reported Civil No. 06-2184 (JAF) -11- 1 this incident to Martínez, who told her that he would discuss the 2 incident with Soberal. Id. On another occasion, Soberal approached 3 Del Valle in a hallway at PRPD and asked her, in front of Martínez, 4 to wear a short skirt sometimes so that he could throw a quarter down 5 and look at her, suggesting that he wanted to look at her genitals 6 or underwear. Id. Shortly thereafter, also in front of Martínez, 7 Soberal threatened Del Valle by stating that he kn[ew] a lot of 8 attorneys and Assistant District Attorneys. Id. After the meeting, 9 Del Valle was no longer assigned to work with Soberal; however, they 10 remained on the same shifts at PRPD despite Del Valle s request that 11 they not be required to interact with each other. Id. 12 It is unclear from their filings whether Defendants contest 13 these facts. Nonetheless, drawing all reasonable inferences in 14 Plaintiffs favor, we find that there remains a triable issue for the 15 jury as to whether this conduct was severe or pervasive to constitute 16 a hostile work environment. Soberal subjected Del Valle to harassing 17 comments on at least three occasions. Two of these were explicit and 18 offensive sexual remarks, and the third was a threat. The remarks 19 made in front of her supervisor could be considered humiliating. Del 20 Valle indicates, further, that these remarks and her supervisors 21 failure to correct the situation interfered with her ability to do 22 her job as a police officer by causing her emotional anguish with 23 physical manifestations. Finally, we note that such remarks in the 24 context of a police force, a historically male-dominated field, could Civil No. 06-2184 (JAF) -12- 1 be considered by a factfinder to be especially threatening or 2 offensive compared 3 circumstances. Cf. O Rourke, 235 F.3d at 735 ( We do not believe that 4 a woman who chooses to work in the male-dominated trades relinquishes 5 her right to be free from sexual harassment . . . . (quoting 6 Williams v. Gen. Motors Corp., 187 F.3d 553, 563-64 (6th Cir. 1999) 7 (internal quotation marks omitted)). Although we recognize that these 8 facts may constitute a borderline case of sexual harassment, we do 9 not find that they fall below the summary judgment baseline set by 10 this circuit s hostile work environment case law. See Billings, 515 11 F.3d at 48-52 (limning the boundaries of what conduct a reasonable 12 jury could have found . . . sufficiently severe or pervasive to 13 constitute a hostile environment as a matter of law and citing 14 cases). as with the same remarks made in other 15 Defendants argue, however, that even if Del Valle suffered 16 sexual harassment, Plaintiffs cannot demonstrate that PRPD should be 17 held liable for Soberal s actions.2 Docket No. 43. An employer can 18 only be held liable for an employee s harassment by a co-worker where 2 Specifically, Defendants argue that PRPD is entitled to an affirmative defense to its liability based on Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher, 524 U.S. 775. Docket No. 43. Defendants reliance on the Faragher/Ellerth defense is misplaced, however, as the doctrine provides only a defense to an employer s vicarious liability for hostile work environments created by supervisors. Noviello v. City of Boston, 398 F.3d 76, 95 (1st Cir. 2005). It is uncontested that Soberal is a co-worker, and not a supervisor, of Del Valle. Civil No. 06-2184 (JAF) -13- 1 there exists some negligence on the employer s part. Noviello, 398 2 F.3d at 95. Typically, this involves a showing that the employer 3 knew or should have known about the harassment, yet failed to take 4 prompt action to stop it. Id. (citing Crowley v. L.L. Bean, Inc., 5 303 F.3d 387, 401 (1st Cir. 2002)). 6 Plaintiffs allege that Del Valle complained of Soberal s conduct 7 to her supervisors Martínez, Merced, Vélez, and Robles at various 8 times. Docket No. 55. On one occasion, Del Valle says Vélez called 9 her at night to admonish her for refusing to work with Soberal. 10 Id. Plaintiffs further state that Martínez witnessed some of the 11 harassment. Although Martínez stated he would speak to Soberal, the 12 harassment continued. While Soberal was no longer assigned to work 13 directly with Del Valle, they continued to work on the same shifts 14 and encounter each other at the station, despite Del Valle s request 15 that this not occur. Finally, Del Valle proffers evidence that 16 although she sought assistance through the established channels for 17 complaints of sexual harassment at the PRPD, no action was taken on 18 her complaint. Plaintiffs have, thus, introduced sufficient evidence 19 to generate a genuine issue of material fact as to whether PRPD was 20 on notice of the harassment and failed to take appropriate corrective 21 action. See Noviello, 398 F.3d at 96-97. Summary judgment is, 22 therefore, inappropriate on the sexual harassment claim. Civil No. 06-2184 (JAF) -14- 1 2. Retaliation 2 Plaintiffs allege that Del Valle s supervisors subjected her to 3 continued retaliatory acts and a hostile work environment for her 4 complaints of the alleged sexual harassment. Docket No. 1. Defendants 5 assert that we should dismiss Plaintiffs retaliation claim. Docket 6 No. 43. Defendants, however, fail to state any legal basis on which 7 they are entitled to summary judgment on this claim, arguing only 8 that (1) although Plaintiffs assert that Merced refused Del Valle an 9 accommodation for her pregnancy, she in fact received an appropriate 10 accommodation, and (2) contrary to Plaintiffs assertion, Soberal and 11 Merced are not friends; therefore, this cannot be a reason why Merced 12 would retaliate against Del Valle. Id. As Plaintiffs note, these 13 facts 14 Furthermore, Plaintiffs have proffered evidence on significantly more 15 than these two facts in support of their claim for retaliation. See 16 id. Defendants have wholly failed to demonstrate that no genuine 17 issues exist as to the material facts of this claim. are, by definition, contested. See Docket Nos. 54, 55. 18 3. Statute of Limitations for Tort Claims 19 Finally, Defendants argue that Plaintiffs tort claims are 20 barred by a one-year statute of limitations. Docket No. 43. 21 Defendants assert that the claims accrued when Del Valle s harassment 22 began, between January and March 2005. Id. Plaintiffs do not contest 23 this formulation of the accrual date, but argue instead that their Civil No. 06-2184 (JAF) -15- 1 tort claims were tolled by the filing of the charges before the EEOC. 2 Docket No. 54. 3 The Puerto Rico statute of limitations for tort actions is one 4 year. 31 L.P.R.A. § 5298(2) (1990); Tokyo Marine & Fire Ins. Co. v. 5 Pérez & Cía. de P.R., Inc., 142 F.3d 1, 3-4 (1st Cir. 1998). The 6 statute of limitations begins to run when the aggrieved party has 7 knowledge of the injury sufficient to institute an action. Sánchez 8 v. Autoridad de Energía Eléctrica, 142 D.P.R. 880, 1997 P.R. Eng. 9 878520 (1997). The filing of a charge with an administrative agency, 10 such as the EEOC, does not toll the running of the statute of 11 limitations for a tort action. Leon-Nogueras v. Univ. of P.R., 964 12 F.Supp. 585, 588 (D.P.R. 1997) (citing Cintrón v. E.L.A., 127 D.P.R. 13 582, 595-96 (1990)). 14 Plaintiffs filed the present suit on November 27, 2006. Docket 15 No. 1. Therefore, 16 November 27, 2005 is barred by the statute of limitations. See 31 17 L.P.R.A. § 5298(2). Plaintiffs have introduced evidence of a series 18 of harassing acts committed by Defendants which began in January 2005 19 and continued through at least May 2006 or later. See Docket No. 55. 20 Plaintiffs 21 harassment; therefore, their cause of action accrued at the time the 22 harassing acts occurred. Thus, Plaintiffs may pursue damages only for 23 conduct by Defendants that took place on or after November 27, 2005. had any cause knowledge of of action their that injury at accrued the prior time of to the Civil No. 06-2184 (JAF) -16- 1 Any claim for damages arising from events that took place prior to 2 that date is time-barred. 3 IV. 4 Conclusion 5 For the reasons stated herein, we GRANT Defendants motion for 6 summary judgment IN PART and DENY it IN PART, Docket No. 43. We GRANT 7 summary judgment for Defendants on Plaintiffs tort claims arising 8 from conduct before November 27, 2005, and DENY the remainder of 9 Defendants motion. Remaining are Plaintiffs Title VII claims for 10 sexual harassment, pregnancy discrimination,3 and retaliation; their 11 31 L.P.R.A. § 5141 tort claims arising on or after November 27, 2005; 12 and those under 29 L.P.R.A. §§ 467-74, 29 L.P.R.A. §§ 1321-41, 29 13 L.P.R.A. §§ 155-155m. We also DENY Defendants supplemental motion 14 for summary judgment, Docket No. 63, and Plaintiffs motion to 15 strike, Docket No. 65, as MOOT. 16 The parties are encouraged to exhaust all settlement 17 possibilities before the trial commences next Monday, February 23, 18 2009. 19 IT IS SO ORDERED. 20 San Juan, Puerto Rico, this 20th day of February, 2009. 21 22 23 s/José Antonio Fusté JOSE ANTONIO FUSTE Chief U.S. District Judge 3 Defendants have discrimination claim. not challenged Plaintiffs pregnancy

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