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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Employment Law
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Experience:  19+ Years of Legal Practice in the Employment law arena.
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I need some advice about a situation. Im medically disabled

Customer Question

I need some advice about a situation.
I'm medically disabled and unable to return to the job I was was terminated from.
I filed an EEOc complaint and it originally investigated by them and they sent me a letter saying there were ground for my case. I did not choose to go to mediated resolution because there is no way to get through to these people that Diabetes is a disability and that I have Crone's as well. The Rx's make me pass out due to my Glucose being too high at times. I was not being allowed time to consume something at work to keep my sugar up and passed out at my desk. I provide tons of medical evidence to support this from 3 different doctors. After about 6 months i get another letter stating from the EEOC stating that I was terminated for "sleeping on the job". Yet I was never written up for it and i had doctor's letters explaining what happened." The termination Letter from my employer does NOT state that I was sleeping on the job but that i had used up all my FMLA and i had not more time left as leave. My doctors had put me on LT full time disability and I have been on that one year. Without any recourse I turned to my Congressmen and sent him all of my information because the EEOC is government by the justice dept now. They waited unitl i only have 3 weeks left to file any claim in Federal court before they answered me in a letter stating that although it looks like I have a case against my employer and possibly the EEOC they could not get involved because Congress forbids it under law. (Not sure if this is true or not just double speak!)
I've tried 3 different lawyers and legal aid with no help. The lawyesr all want $2k up front to take the case and Legal Aid will not help in ""Civil" cases, only Criminal ones.
My wife has cancer and a brain tumor. I've had a heart attack and Open heart surgery and we are just about broke living on her SSI and my LT insurance payment which don't even cover my RX's each month. Is there nothing I can do in this matter because I cannot find anyone who will help us and now I"m running out of time?
I also turned in my employer before all this happened because the building they moved us to had severe leaks and it was full of black mold all around the baseboard, windows and every place else that was damp including our A/C system. Last year i developed E.Coli Bacterial pneumonia and was out of work over a month on the strongest Anti-biotic available. i was bed ridden and almost ended up in the hospital. I took a swab culture of the A//C system and my doctor sent it to the lab and it matched the same strain of E.Coli that I had in my lungs. The building inspectors came out and gave them just 30 days to make mandatory repairs {I have documented photos of before and After they came} ( the building was like this for 2 years until i finally called them because the company wouldn't do anything). I also filed a NIOSH request but I was let go before they came so I do not know the status of that. Wouldn't I be protected under some Whistle blower protection act as well? We're lost , we are both suffering ill health and barely surviving. We can't afford our RX's some days. Someone somewhere has to be able to help us somehow I know I just can't find anyone! PLEASE contact me atXXX@XXXXXX.XXX
Thank you!
Submitted: 1 year ago.
Category: Employment Law
Expert:  AlexiaEsq. replied 1 year ago.
Hi, my name is XXXXX XXXXX I thank you for your inquiry. I have been practicing Employment law for 19+ years and look forward to assisting you.

Please note, in regards XXXXX XXXXX request for advice. ("I need some advice about a situation.") We are not permitted to give legal advice since we are not your lawyer and are not permitted to be your lawyer. However, I can share my thoughts on the facts you post, providing legal information that can better direct you. Let me know if you would like me to do that. I will be checking in later, likely, and tomorro was well, and will check in to see if you have had an opportunity to respond.

 

Sincerely,

Alexia Esq.

Customer: replied 1 year ago.

Dear Alexia,


I've had two Congressman and a lawyer from Legal aid tell me to hire an attorney. As I explained if I had the funds I would not be on here looking for some kind of help. PLEASE UNDERSTAND I'm not trying to be rude or ungrateful in any way.


I'm just skeptical of advice unless there is some type of clear direction I can turn to for help. I hope you understand.. I have have many sleepless nights and a lot of emotional stress in dealing with this and my wife's cancer.


Thank you

Expert:  AlexiaEsq. replied 1 year ago.
I understand, and I don't think you rude at all. Unfortunately, as I can not mind read or see the future, and am prohibited by law from giving legal advice, I can only give you pertinent legal information - what you do with it I have no control over. If in doubt of what I say, please do re-read the terms of service you and I are subject to.

That being said,

I'm medically disabled and unable to return to the job I was was terminated from. If you are unable to WORK AT ALL full time, anywhere (not just your old job), consider filing for Social Security Disability Insurance benefits if you paid such taxes over the last 5-10 years.

I filed an EEOc complaint and it originally investigated by them and they sent me a letter saying there were ground for my case. I did not choose to go to mediated resolution because there is no way to get through to these people that Diabetes is a disability and that I have Crone's as well. If you can't manage to get an attorney (and I'd keep looking for a contingent one, sounds like you only talked to 3)... you may want to consider the mediation IF you still can. Or, simply use your spare time now to study up to go pro se as your own attorney when suing the employer - people do it all the time, although it is not easy, it can and has been done successfully.

The Rx's make me pass out due to my Glucose being too high at times. I was not being allowed time to consume something at work to keep my sugar up and passed out at my desk. I provide tons of medical evidence to support this from 3 different doctors. After about 6 months i get another letter stating from the EEOC stating that I was terminated for "sleeping on the job". Yet I was never written up for it and i had doctor's letters explaining what happened." The termination Letter from my employer does NOT state that I was sleeping on the job but that i had used up all my FMLA and i had not more time left as leave. My doctors had put me on LT full time disability and I have been on that one year. Without any recourse I turned to my Congressmen and sent him all of my information because the EEOC is government by the justice dept now. They waited unitl i only have 3 weeks left to file any claim in Federal court before they answered me in a letter stating that although it looks like I have a case against my employer and possibly the EEOC they could not get involved because Congress forbids it under law. (Not sure if this is true or not just double speak!)

I've tried 3 different lawyers and legal aid with no help. The lawyesr all want $2k up front to take the case That actually sounds incredibly cheap, for a retainer. Have you looked, however, for "contingent" fee discrimination lawyers?

and Legal Aid will not help in ""Civil" cases, only Criminal ones. Yes, you have to be an alleged bad guy to get free help. Go figure.

My wife has cancer and a brain tumor.So sorry!

I've had a heart attack and Open heart surgery and we are just about broke living on her SSI She is on SSI? Or is she on the other, Social Security Disability?

and my LT insurance payment which don't even cover my RX's each month. OK, first, consider applying for state medical assistance, and be persistent. However, if that does not work, consider contacting your Rx manufacturer to see about any programs it offers for the low income individual to secure its medications - many of them have a program. Also, look into discount Rx cards, at times one can get 50% off the price of the meds, and also speak to your physician about generic alternatives.

Is there nothing I can do in this matter because I cannot find anyone who will help us and now I"m running out of time? If you are able to work at something, obviously that is what would provide you the extra money to get by (and pay a lawyer to handle your case). HOWEVER, I am presuming that you would be doing that if you were able - which leads me to believe that you are disabled under SSA rules (can't do any job, virtually, on a FT basis) - as such, I urge you to file for SSD, as that will get you Medicare and the ability to get a prescription coverage under Medicare. It CAN take a long time if your doctors are not terribly thorough in their medical record narratives, but starting now is the best bet. Note also that most LTD policies require that you file for SSD, or else you lose that benefit as well, so check your policy. Lawyers that handle SSD, such as myself, usually do not require ANY retainer, so that would be a no brainer, certainly.

I also turned in my employer before all this happened because the building they moved us to had severe leaks and it was full of black mold all around the baseboard, windows and every place else that was damp including our A/C system. Last year i developed E.Coli Bacterial pneumonia and was out of work over a month on the strongest Anti-biotic available. i was bed ridden and almost ended up in the hospital. I took a swab culture of the A//C system and my doctor sent it to the lab and it matched the same strain of E.Coli that I had in my lungs. The building inspectors came out and gave them just 30 days to make mandatory repairs {I have documented photos of before and After they came} ( the building was like this for 2 years until i finally called them because the company wouldn't do anything). I think you may want to consult (free if possible) with a Personal Injury Lawyer who also does Workers Compensation - The Personal Injury aspect, I am thinking the following - IF there was a maintenance company that was hired by your employer to maintain, and IF that mold should have been maintained by that third part, although workers compensation laws typically prevent a lawsuit against your employer for negligence, you CAN sue a negligent 3rd party. Plus, you CAN make a Workers Comp claim (lost income and medical expenses, but not the pain/suffering including in a negligence personal injury case)...

I also filed a NIOSH request but I was let go before they came so I do not know the status of that.

Wouldn't I be protected under some Whistle blower protection act as well? That would depend on whether there is such a law that protects workers in your position, your industry that also is usable against your particular employer - there is typically one WB statutue that covers all - you'd have to research that very complicated area with specificity - it is not an answer than can be pulled out of the air.

We're lost , we are both suffering ill health and barely surviving. We can't afford our RX's some days. I am so sorry, I know it is so very difficult, and I know of so many in this position.

Someone somewhere has to be able to help us somehow I know I just can't find anyone! PLEASE contact me atXXX@XXXXXX.XXX We are prohibited from communicating outside of this forum. However, I do urge you to start acting pro se if you can't get a lawyer on board soon enough. If you haven't contacted employee discrimination firms specifically, do narrow it to them - but DON'T restrict yourself to your town or county - you can get anyone anywhere in VA. And DO also address the PI and WC aspects. I know this isn't easy, but you can not give up soley because you don't have a lawyer - you can start this pro se, using your county law library resources, as well as internet, etc. Lots of reading, but you can do it - if you can work a gentle job PT, that may also help you get by and/or save up for tha $2k retainer you indicate 3 lawyers want (but call more lawyers). If your wife is able to work a gentle very part time job, that can be helpful also, and generally it is not a bar to SSI or SSD, although she must be careful to not exceed certain limits.

Thank you!
You are welcome. You can do this!


I hope this helps! My goal is to provide you with excellent and accurate service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Kindly rate me "excellent" when you are done. I look forward to assisting you in the future, should you have legal questions.

Sincerely,

Alexia Esq.

AlexiaEsq., Managing Attorney
Category: Employment Law
Satisfied Customers: 11781
Experience: 19+ Years of Legal Practice in the Employment law arena.
AlexiaEsq. and 7 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you for your quick reply.


I will try to follow up by answering some of your questions.


 


I've already started the paperwork for SSD with my doctors help. He said I could not work at the most 3-4 hours a day and that if my Chron's were to flare up i would be off my feet for up to a week at a time. Since no employer would put up with this because they could not depend on me for any kind of normal schedule.


 


My wife is on SSD (my error).


 


I have already started the application process for my own SSD as required by my disability insurance carrier.


 


Workers Comp will not recognize this type of illness in Virginia


I already tried this with a WC lawyer here. He said any other state would but no VA.....Figures!


 


I have been to the 4th district Federal court here in Roanoke, VA and tried to file a case against my employer "Pro Se". I was told by the Federal court clerk's office that even if I paid the filing fee, Federal rules prevent me from filing and representing myself in Federal Court.


I've tried this twice and even called the D.C. Federal court and there office told me the same thing. The Courts will not allow you to file Pro Se in Federal Court. You must retain the the services of an Attorney.


 


if you can work a gentle job PT, that may also help you get by and/or save up for tha $2k retainer you indicate 3 lawyers want (but call more lawyers).


This would be nice to do but according to the EEOC letter I only have a 90 day window in which to file a case in Federal court.


That window is now closing....I have less than 2.5 weeks left, so I'm pretty much at the end of any options at this point.



I really thank you for at least trying to give me some guidance and direction. I know you have done your best to give me some options. I've even gone to our bank to obtain a equity line of credit and a loan to pay an attorney's retainer.


The bank said since I'm not working, my wife is on SSD, and I'm on LT disability they would not approve a LOC for us at this time. Even though we owe less then $25K on our $250K house (Which really smoked me after doing business with them for 18 years.)


I could pay an attorney with my VISA but we can't pay 18-22% on money I do not have to cover it. it would destroy our credit rating.


We have paid off 90% of our bills out of our retirement savings so we won't owe too much under the given circumstances.



I'm at a standstill and i guess i have just have to wait for my SSD to be processed.


What I don't understand is the fact the letter from my employer states I was terminated for "unexcused absences" under their attendance policy. Yet they processed my LT disability claim paperwork and was aware i was under a doctors care.


Yet the letter from the EEOC said I was terminated for "Falling Asleep" on the job.. I was never written up for this, I was given one verbal warning only and that was addressed in writing from my TWO doctors. How can they have two different conflicting points of view on the exact same issue and get away with it?



It almost sounds like my employer paid off the EEOC investigator to side with them. That is what really upsets me to no end.


I was told by one young lawyer from Legal Aid that i may be able to bring charges against the EEOC in Federal court and I would have two additional years to do that from the date of their last letter. If I won that case it would overturn the previous 90 day window an my EEOC claim would be re-opened? But I think that is hog wash.......The Chances of overturning a ruling by the EEOC are slim at best and would require a HUGE law firm and a HUGE retainer so I'm back to Square one all over again.


What really hurts is that I've lost all of my beneifts.


Medical, Dental, and all of my Life insurance, Retirement account, and a lot more. I've never been written up for anything before and have a spotless work history for the past 5 years with them.


my reviews even show pay increases and bonuses for different jobs completed ahead of time.


It's insulting, and degrading as well. I worked very hard and even had a Heart Attack because of the stress I was under at work yet I still did my job. But you can't file a claim for a Heart Attack under WC law here in VA! Can you believe that? This state is really odd.



Anyway I will release the funds for your time. You pretty much covered everything I already knew and was aware of, But you could not have known that from my emails. We have discussed trying to sell our home last night and just moving out west somewhere , where it is less expensive to live and use our equity in our house to live off of for our remaining years.


This seems to be one of those battles you just can't win.


My Dad always said pick you fights carefully. It's better to walk away with a bruised ego and a black eye rather than a broken jaw any day. Pick only those fights you know you can win...


I think in this case I'll take the black eye and bruised ego.


The other thing is the fact that I watched my employer do this very same kind of thing to anyone who was disabled in any way for years. I've seen people who were in Wheel Chairs with perfect records get booted out the door for nothing. That's their policy I guess. It's corporate image. Hell they fired one girl who had a baby six months previously and had returned from maternity leave just for having not lost the extra weight and her BMI was too high. I could not believe it! 18 years with them, and they just pushed her out the door.


Welcome to the new economy of America.


Thank you for trying to at least give me some direction.


At this point I'm just pretty tired and sick from all of the stress to my system over this entire issue.


I will make sure you obtain your money for your time. I can't expect you to work for nothing and wouldn't.


God bless and thank you for at least taking the time to listen to my situation.


Alexander Watters


Roanoke,VA Frown

Expert:  AlexiaEsq. replied 1 year ago.
Didn't have time to read it all, but will later.

Have you considered looking to see about STATE law violations so you need not be in federal court? What is amazing is that I know of many a pro se, in federal court - we get them here all the time. Perhaps you should ask the clerk which "federal rule #" he is referring to? Perhaps a state discrimination law - many states have statutes that mimic the federal - yet it is State.

Gotta run!
Expert:  AlexiaEsq. replied 1 year ago.

Thank you for your quick reply. You are welcome Alex.


I will try to follow up by answering some of your questions.



I've already started the paperwork for SSD with my doctors help. He said I could not work at the most 3-4 hours a day If you get denied, be sure to appeal timely - and probably you should get that SSD attorney on it since your doctor seems to be unaware of what opinion of his is considered acceptable medical opinion, and the attorney can develope the evidence for you that your doctor may be not legally trained in or know about.

 

and that if my Chron's were to flare up i would be off my feet for up to a week at a time. He may want to explain how often it is expected that you will have a flair up - ie. needing a week off once a year would not be disabling nor troubling to an employer. However, once a month would be... there is SSRs that describe this, should you end up doing the research.

 

Since no employer would put up with this because they could not depend on me for any kind of normal schedule. Again, if you fail to have a medical opinion on the frequency of the flare ups, this won't be very helpful. You see?



My wife is on SSD (my error). OK.



I have already started the application process for my own SSD as required by my disability insurance carrier.Great.



Workers Comp will not recognize this type of illness in Virginia AH!! Then that is the best news yet. If it is NOT a WC case, then you CAN sue your employer for injury, pain, suffering, lost wages, etc. Many people think WC is a nice law for employees. It is the worst law, in my opinion, for those that are seriously injured and become disabled as a result. It is helpful for those that sprain their pinky toe, but serious stuff - it is very destructive. It is an employer's heaven.


I already tried this with a WC lawyer here. He said any other state would but no VA.....Figures! Like I said, if it doesn't fall into WC, then it can generally be a PI case, and unlike when it involves WC where you CAN'T sue employer, here you can!



I have been to the 4th district Federal court here in Roanoke, VA and tried to file a case against my employer "Pro Se". I was told by the Federal court clerk's office that even if I paid the filing fee, Federal rules prevent me from filing and representing myself in Federal Court. Ridiculous. Just ask this Virginia law firm: http://www.virginiaemploymentattorneyblog.com/2013/03/you-can-represent-yourself-in-your-discrimination-action-but.html


I've tried this twice and even called the D.C. Federal court and there office told me the same thing. The Courts will not allow you to file Pro Se in Federal Court. You must retain the the services of an Attorney. Nope :)



if you can work a gentle job PT, that may also help you get by and/or save up for tha $2k retainer you indicate 3 lawyers want (but call more lawyers).


This would be nice to do but according to the EEOC letter I only have a 90 day window in which to file a case in Federal court. Yes, there are statutes of limitation. So get to work AND file it on your own... and in a few weeks you can hire that lawyer to take the reins.


That window is now closing....I have less than 2.5 weeks left, so I'm pretty much at the end of any options at this point. Instead of speaking to a clerk, why don't you just file your papers pro se. If they can't point you to a rule that says only rich people who can afford lawyers can have their day in court, I'd perhaps not believe them. And, as noted again, there is always state court claims as well.


 


I really thank you for at least trying to give me some guidance and direction. I know you have done your best to give me some options. I've even gone to our bank to obtain a equity line of credit and a loan to pay an attorney's retainer. Ouch. I can't believe you have a right to sue letter and no lawyer will take it - have you tried some others?


The bank said since I'm not working, my wife is on SSD, and I'm on LT disability they would not approve a LOC for us at this time. Get a credit card. You have reliable income, actually!

 

Even though we owe less then $25K on our $250K house (Which really smoked me after doing business with them for 18 years.) Really, that is nuts.


I could pay an attorney with my VISA but we can't pay 18-22% on money I do not have to cover it. it would destroy our credit rating. Apparently your great credit rating is doing nothing for you. But anyway, if you work PT, you can pay it back in a few months. 20% of $2000 is 400, 400/1/4 of a year is only $100. Not that the interest doesn't stick


We have paid off 90% of our bills out of our retirement savings so we won't owe too much under the given circumstances. Ouch. It is so tough, I know, we seem to always be month to month ourselves.


 


I'm at a standstill and i guess i have just have to wait for my SSD to be processed. Plan for the worst, hope for the best.


What I don't understand is the fact the letter from my employer states I was terminated for "unexcused absences" under their attendance policy. Yet they processed my LT disability claim paperwork and was aware i was under a doctors care. That doesn't make it excused. If you only have, say, 5 sick days/year, then anything over is unexcused, even if truely sick. Also, was there any FMLA involvement - where the 12 weeks would be protected?


Yet the letter from the EEOC said I was terminated for "Falling Asleep" on the job.. I was never written up for this, I was given one verbal warning only and that was addressed in writing from my TWO doctors. How can they have two different conflicting points of view on the exact same issue and get away with it? They didn't get away with it - since the EEOC gave you the right to sue letter - now it is up to you to use it. Also, there can be more than one reason for a termination - the two above are not inconsistent.


 


It almost sounds like my employer paid off the EEOC investigator to side with them. That is what really upsets me to no end. But you got you right to sue letter, right? So you won that battle.


I was told by one young lawyer from Legal Aid that i may be able to bring charges against the EEOC in Federal court and I would have two additional years to do that from the date of their last letter. If I won that case it would overturn the previous 90 day window an my EEOC claim would be re-opened? But I think that is hog wash.......The Chances of overturning a ruling by the EEOC are slim at best and would require a HUGE law firm and a HUGE retainer so I'm back to Square one all over again.


What really hurts is that I've lost all of my beneifts.Yes.


Medical, Dental, and all of my Life insurance, Retirement account, and a lot more. I've never been written up for anything before and have a spotless work history for the past 5 years with them. That is why it is sometimes better to buy them yourself than have all the eggs in the employment basket. Or to file for Bankruptcy rather than use ones 401k.


my reviews even show pay increases and bonuses for different jobs completed ahead of time. Remember, in Virginia, employment is "at will". Both employee and employer can terminate it at any time for any reason EXCEPT those illegal ones (like discrimination). It does not matter if we are great performers - they are allowed to end it, just as we are.


It's insulting, and degrading as well. I worked very hard and even had a Heart Attack because of the stress I was under at work yet I still did my job. But you can't file a claim for a Heart Attack under WC law here in VA! Can you believe that? This state is really odd. Extremely difficult to prove that the work caused the HA, as opposed to your bad ticker, coping skills, etc.


 


Anyway I will release the funds for your time. You pretty much covered everything I already knew and was aware of, But you could not have known that from my emails. We have discussed trying to sell our home last night and just moving out west somewhere , where it is less expensive to live and use our equity in our house to live off of for our remaining years. Plus social security, either disability or retirement. We will likely move south for similar reasons (less of a heating bill in the winter!)


This seems to be one of those battles you just can't win.


My Dad always said pick you fights carefully. It's better to walk away with a bruised ego and a black eye rather than a broken jaw any day. Pick only those fights you know you can win... Sometimes.... but I don't agree that you have to know you will win... That means no risk taking, no reward.


I think in this case I'll take the black eye and bruised ego.


The other thing is the fact that I watched my employer do this very same kind of thing to anyone who was disabled in any way for years. I've seen people who were in Wheel Chairs with perfect records get booted out the door for nothing. That's their policy I guess. It's corporate image. Hell they fired one girl who had a baby six months previously and had returned from maternity leave just for having not lost the extra weight and her BMI was too high. I could not believe it! 18 years with them, and they just pushed her out the door. Unethical.


Welcome to the new economy of America.


Thank you for trying to at least give me some direction. Wish it were easier.


At this point I'm just pretty tired and sick from all of the stress to my system over this entire issue. Yes, I understand.


I will make sure you obtain your money for your time. I can't expect you to work for nothing and wouldn't. I think your rating on one of my answers above went through, so thank you .


God bless and thank you for at least taking the time to listen to my situation.


Alexander Watters Best regards, Alexander - I wish you the best regardless which choice you make.

Sincerely,
Alexia
Customer: replied 1 year ago.

I received a letter today from the EEOC stating my time to file a case has expired. So It 's too late to do anything according to them.


Thank you. Please let me know if you got your funds?


God Bless!

Expert:  AlexiaEsq. replied 1 year ago.
So sorry to hear that - now that ONLY includes your discrimination case, it sounds like. So if you decide you have and want to pursue other claims, such as personal injury, etc., you likely still have time - but you MUST research your Statutes of Limitation for each and every kind of claim, and file your complaint before it runs. Good luck and yes, I am pretty sure you took care of me. Much thanks.

Sincerely,
Alexia
Customer: replied 1 year ago.

You mentioned a "Personal injury" with what I've been through with all of this would it be likely I could file for a Personal Injury claim? That is the first i've heard that from anyone?


 

Expert:  AlexiaEsq. replied 1 year ago.
Sorry for the delay, I had an answer I thought was posted, but it is not showing up. Re-read the above, where I discuss PI and WC. And...

Personal injury is a case for injuries caused by the negligence of another who has a dut not to be negligent. When we have a WC injury, we can ONLY make a WC claim, no PI claim against employer. Any PI case would have to be toward a third party. However, if the injury is NOT deemed a WC injury, then you CAN sue your employer, technically, if it was negligent, as well as any 3rd party that was negligent.

WC only pays a portion of lost wages and medical bills related to injury, nothing for the pain and suffering. Pain and suffering is the component that is a wild card (not carved in stone), where a jury, should they like a plaintiff, and dislike a defendant, go "wild" and give a decent award. Never available in WC claim.

PI pays the above (wages/medical) and pain and suffering (i.e. loss of quality of life, abilities to do hobbies, enjoy life, be painfree, etc.)

So if there was a party that caused your INJURY to your body, via its negligence or intentional act, you can sue for damage under PI theory.

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