Estate of Dennis Gumz, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionAug 21, 2009
0120083650 (E.E.O.C. Aug. 21, 2009)

0120083650

08-21-2009

Estate of Dennis Gumz, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.


Estate of Dennis Gumz,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120083650

Agency No. APHIS-990212

DECISION

On May 30, 2008, complainant's estate filed an appeal from the final

decision of the agency concerning his complaints of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964

(Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final decision.

BACKGROUND

In May 1991, complainant was hired as a Plant Protection and Quarantine

Officer (PPQO), and assigned to a post in Kendall, Florida. A year

later, he was promoted to a GS-7 level position. He remained in Kendall,

Florida until March 1993. In April 1993, complainant was assigned as a

PPQO, GS-9, Animal and Plant Health Inspection Services (APHIS), Plant

Protection and Quarantine (PPQ), in Brownsville, Texas.

In January 1995, complainant underwent surgery to repair a hiatal hernia.

In March 1995, complainant returned to work and was placed on light-duty

assignment. On July 13, 1995, complainant was notified that his light

duty had ended and that he must submit supplemental medical documentation

if he required further accommodation. By letter dated July 17, 2005,

complainant's physician (Physician 1) stated that complainant needed

45-minute meal periods as an accommodation due to his gas bloat problems;

should not be required to attend any meeting for more than 50 minutes

because, as a result of his surgery, complainant needed to pass gas; and

recommended that complainant be placed on a set day-shift rather than

a rotating shift schedule because patients such as complainant with an

irritable bowel did poorly with night work. Complainant's first level

supervisor (S-1) agreed to the 45-minute lunch break. However, S-1

stated that complainant would be required to attend meetings longer than

50 minutes but could leave as needed to pass gas. S-1 also determined

that because Physician 1 did not indicate that it was medically necessary

to limit complainant to a set day-shift, he would be required to rotate

shifts. Complainant was returned to the general workforce and assigned

to rotating shifts.

By letter dated August 21, 1995, Physician 1 described complainant's

medical conditions as "complex functional gastrointestinal problems,"

including "post-gastrectomy syndrome." Physician 1 stated that

complainant could not rotate between shifts and needed a consistent

assignment to a day or night shift to regulate eating and bowel movements.

Physician 1 also recommended that, because complainant's condition

resulted in uncontrollable, excess, foul-smelling flatus, complainant

be able to pass gas away from others and given working conditions that

met his needs.

During the same period, complainant was diagnosed with Morton's neuromas

and peripheral neuropathy in his feet. On August 1, 1995, complainant's

podiatrist (Physician 2) asked that complainant be allowed to wear

brown boots as an accommodation, and not the black shoes required by the

agency's uniform regulation. By letter August 22, 1995, another physician

(Physician 3) recommended that, due to complainant's neuromas condition,

complainant should avoid uneven surfaces that produced more pressure on

one point on the bottom of the foot, and described rocks and railroad

tracks as examples of unacceptable walking surfaces.

On August 29, 1995, S-1 notified complainant that his light-duty

assignment would end effective September 15, 1995. S-1 determined

that based on complainant's medical restrictions, complainant could not

perform the essential functions of his job.1 Specifically, the agency

concluded that it did not have a position which was free from social

contact and there was no position where they could place complainant

which would guarantee he would not have to walk on mechanically-crushed

rock. The agency determined that it could not reasonably accommodate

him and that there was no light-duty position at the Brownsville Work

Unit to which complainant could be assigned indefinitely.2 The agency

informed complainant that if his medical requirements were temporary

and requested by his doctors, the agency would review his requests and

attempt to reasonably accommodate him. S-1 also informed complainant

that he could apply for Leave Without Pay (LWOP) given that he had

exhausted his paid leave, but would be place on Absence Without Leave

(AWOL) if he did not request LWOP. Complainant elected not to request

LWOP and was placed on AWOL on November 20, 1995.

On March 19, 1996, S-1 again notified complainant that the agency could

not accommodate his disabilities indefinitely and said that his requested

accommodations did not allow him to perform his essential duties.

S-1 added that the areas complainant claimed he could work in were not

consistent with his medical documentation and requested accommodation.

Complainant remained in AWOL status because he had not requested approved

leave.3

On April 22, 1996, complainant filed two separate formal EEO complaints.

The complaints were consolidated for processing under Agency No. 960502.4

In his complaints, complainant alleged discrimination based on his race

(German/Northern European), disability (unspecified), and age (53) when

he was not selected for the position of PPQO; and when he was placed on

Absence Without Leave effective November 25, 1995.

On May 15, 1996, the agency determined after considering several options

that complainant could not be reasonably accommodated. Management

concluded that complainant could not perform the essential functions

of his position. On June 27, 1996, management issued a proposal to

terminate complainant based on his medical restrictions and inability to

perform essential functions. Management advised complainant to consider

disability retirement.

On July 25, 1996, complainant filed another formal EEO complaint, alleging

discrimination based on his race (White), age (53), and reprisal when

he was not selected for the Rapid Response Team.5 On August 30, 1996,

complainant entered into a settlement agreement with the agency, in which

he agreed to withdraw his complaints and pursue disability retirement.

On April 18, 1997, complainant's disability retirement application was

denied. The Office of Personnel Management (OPM) found that complainant's

medical evidence failed to substantiate a disabling medical condition

that warranted restriction from performing the critical or essential

duties of his position. Accordingly, his complaints were reinstated

and accepted for investigation.

By letter dated June 13, 1997, management informed complainant that it

could not indefinitely accommodate him without imposing an undue hardship

on the agency, and therefore he would be terminated effective June 30,

1997. However, on June 27, 1997, management rescinded complainant's

termination and informed complainant that after review of his latest

medical information, it determined that the only accommodation he required

was exclusion from railroad inspections. Accordingly, complainant was

instructed to report for duty on July 16, 1997. Complainant requested

to postpone his report to work date to September 2, 1997, and the agency

granted his request.

Subsequently, by letter dated August 25, 1997, complainant was notified

that the agency proposed to terminate him based on inappropriate

conduct: making irresponsible statements in correspondence to agency

personnel that attacked the integrity of government officials, including

the President; making pejorative references to the race and national

origin of Brownsville Port employees; and engaging in verbal misconduct

against a USDA employee with respect to inquires regarding a selection

decision for a position vacancy. According to management, complainant

made discriminatory comments to other employees and he verbally abused

an employee in the Central Region and another in the Northeast Region.

Complainant's removal was effective on November 23, 1997.

On December 11, 1997, complainant filed a formal EEO complaint (Agency

No. 990212) alleging that he was discriminated against on the bases of

race (White), national origin (Nordic/German/Polish), sex (male), color

(White), disability (60% disabled veteran), age (54), and in reprisal for

prior protected EEO activity when the agency terminated his employment.

Complainant also filed a formal EEO complaint alleging discrimination

based on his age, sex, race/color, national origin, and disability

when the agency failed to post a vacancy announcement on complainant's

location; he was denied a lateral transfer; and he was not selected for

several positions.6

On December 22, 1997, complainant filed an appeal with the Merit Systems

Protection Board (MSPB) contesting his termination, the denial of his

1996 request for a lateral hardship-transfer, and failure to select

him for certain positions. That appeal was dismissed as premature.

The MSPB Administrative Judge (AJ) found, among other things, that the

MSPB could not adjudicate the termination decision because complainant had

filed a formal EEO complaint before filing the MSPB appeal. See Dennis

F. Gumz v. Department of Agriculture, MSPB Docket No. DA-0752-98-0140-I-1

(February 23, 1998).

On March 16, 1998, the agency consolidated all complainant's complaints

for investigation. At the conclusion of the investigation, complainant

was provided with a copy of the consolidated Report of Investigation and

notice of his right to request a hearing before an EEOC AJ on Agency

Nos. 960729, 960502, and 980209.7 On December 23, 1998, complainant

was informed that his termination claim (Agency No. 990212) would be

processed as a mixed-case complaint and that a Final Agency Decision

(FAD) would be issued with appeal rights to the MSPB.

On May 10, 1999, complainant passed away. The processing of his EEO

complaints proceeded.8 Numerous Reports of Investigation were produced in

the investigation of this case.9 On June 26, 2007,10 the agency issued

a FAD consolidating all the complaints. The agency concluded that

discrimination did occur when complaint was placed on Absence Without

Leave (AWOL) status effective November 25, 1995. As a result of its

finding, the agency ordered, among other things, the following corrective

action: payment to complainant's estate of the appropriate amount of back

pay and benefits for the period from September 16, 1995 until September

29, 1997; and payment of compensatory damages and attorney's fees.

The agency found no discrimination with regard to the remaining claims.

Regarding complainant's removal, the agency concluded that complainant

failed to prove that he was subjected to discrimination as alleged.

Specifically, the agency found that complainant failed to establish that

its proffered legitimate, non-discriminatory reasons for his removal

were a pretext for unlawful discrimination.

On July 31, 2007, complainant's estate timely filed an appeal with the

MSPB concerning complainant's removal. The MSPB dismissed the appeal for

lack of jurisdiction. Specifically, the MSPB AJ found that the statutes

which authorize an appeal to the Board allowed only employees and former

employees to bring an appeal, not their estates. See Estate of Dennis

Gumz v Department of Agriculture, MSPB Docket No. DA-0752-07-0501-I-1

(November 29, 2007). Subsequently, complainant's estate filed a petition

for review with the Board. The Board issued its final order on April 30,

2008, denying the petition. On May 30, 2008, complainant's estate filed

an appeal to the Commission concerning complainant's removal (EEOC Appeal

No. 0120083650).

On December 1, 2008, complainant filed a second appeal (EEOC Appeal

No. 0120090730), challenging the attorney's fees awarded by the agency.

On April 9, 2009, complainant's estate filed another appeal (EEOC Appeal

No. 0120092125), this time contesting the agency's compensatory damages

award.

EEOC Appeal No. 0120083650

As discussed below, complainant's estate filed this appeal contesting

his removal after the MSPB dismissed the matter for lack of jurisdiction.

The Commission has held that where an individual files an appeal

with the MSPB which is dismissed for lack of jurisdiction, the matter

will not be viewed as a "mixed case." Rather, it will be treated as a

"non-mixed" matter and processed accordingly. See Schmitt v. Department

of Transportation, EEOC Appeal No. 01902126 (July 9, 1990) (sets forth

the policy of the Commission assuming jurisdiction over cases dismissed

by the MSPB for lack of jurisdiction); Phillips v. Department of Army,

EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(b).

Where the MSPB dismisses for lack of jurisdiction, the agency must

resume processing the matter from the point processing ceased under 29

C.F.R. Part 1614 (the EEO informal and formal complaints process).

However, we do not remand this matter to the agency for processing

under the above cases and regulation because the agency previously has

processed complainant's complaint and, as complainant's estate requested,

issued its FAD on June 26, 2007. Moreover, complainant's estate does

not request on appeal that the instant case be returned to the agency

for appropriate mixed-case processing. Accordingly, we will proceed

with the issuance of this decision on the merits of the claim.

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

To prevail in a disparate treatment claim such as this, complainant (or in

this instance, his estate) must satisfy the three-part evidentiary scheme

fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). He must generally establish a prima facie case

by demonstrating that he was subjected to an adverse employment action

under circumstances that would support an inference of discrimination.

Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima

facie inquiry may be dispensed with in this case, however, since the

agency has articulated legitimate and nondiscriminatory reasons for its

conduct. See United States Postal Service Board of Governors v. Aikens,

460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,

complainant must prove, by a preponderance of the evidence, that the

agency's explanation is a pretext for discrimination. Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Assuming arguendo that complainant established a prima facie case of

race, national origin, sex , color, disability11, age, and reprisal,

we find that the agency articulated a legitimate, non-discriminatory

reason for its actions. Specifically, the agency removed complainant

because of his irresponsible statements and unprofessional conduct in

violation of the agency standards of conduct (USDA APHIS Directive

4735.1, "Employees Responsibilities and Conduct"). Specifically,

by letter dated April 10, 1997 to a Human Resource Office's employee,

he wrote, "Why does your "Quack" USDA Medical Officer..." In another

statement in the same letter, he wrote: "...is the Current White House

Dictator interested in only hiring more workers who will vote Democrat?"

The record reveals that complainant constantly made derogatory racial

comments, displayed racial prejudice against minorities (Hispanic,

Blacks, Vietnamese and Jews) and women in the workplace, and lacked

respect for authority. Many co-workers testified that complainant was

always making racial slurs about minorities, made frequent comments about

"Mexican people," and engaged in "upsetting" conduct toward Mexican

nationals and Mexican-American coworkers.

Co-workers also testified that complainant often talked about White

Supremacy groups and the Ku Klux Klan. For example, complainant

reportedly said that the KKK should be lined up on the border in the

Brownsville area to stop illegal immigration. Further, the Texas State

Plant Health Director (Texas SPHD) testified that in, deciding to remove

complainant, he [Texas SPHD] considered complainant's disciplinary

record, which included a 14-day suspension for similar misconduct;

his inability to get along with coworkers; his undependability;

the effect of the offense on his ability to perform his duties;

and the fact that complainant had clearly been warned about such

behavior on several occasions. Further, a Senior PPQO stated that

complainant's conduct created a hostile work environment, and that

complainant was confrontational. Finally, the Port Director (Director),

who was complainant's supervisor for a time in Brownsville, described

complainant as a "person who did not get along with his co-workers, who

was confrontational and who had an unpredictable temper." The Director

also stated that complainant created a hostile work environment and

a number of employees avoided work assignments with him because he

engaged in profane outbursts in public areas and frequently made racial

comments.12

Because we have determined that the agency articulated a legitimate,

non-discriminatory reason for complainant's removal, the burden shifts

to complainant to establish by a preponderance of the evidence that

the agency's reason was a pretext for discrimination. We note that

complainant did not dispute that he made the racial comments, nor his

inappropriate conduct. Moreover, when complainant received the Notice of

Removal, he responded to each allegation, "I am entitled to my opinion."

Complainant added that his language and comments were part of his

"culture and writing style." In his affidavit, complainant stated that

his "right to exercise freedom of speech supersedes the Agency's right"

to tell him what he may not say.

On appeal, complainant's estate contends that other coworkers engaged

in similar misconduct or worse than that of complainant, but were not

subjected to discipline. Further, complainant's estate alleged that

each and every one of the "irresponsible statements" that he allegedly

made occurred when he was not in official status because he was on AWOL.

Complainant's estate argued that the agency refused to accommodate

complainant, and instead removed him allegedly for misconduct as a pretext

for discrimination. Specifically, complainant's estate alleged that

officials repeatedly were motivated to terminate complainant to avoid

providing him reasonable accommodation. Complainant's estate pointed

out the three prior attempts to remove complainant from employment due

to his disability. Complainant's estate also pointed out, as other

evidence of pretext, complainant's performance appraisal for the period

October 1, 1996 to September 30, 1997, in which complainant was rated

"Fully Successful," under Performance Element No.5, "Teamwork/Civil

Rights."13 Complainant's estate argues that the agency's action to

remove complainant for improper conduct was in contradiction with its

performance appraisal.

To the extent that complainant's estate is alleging that the agency failed

to provide complainant reasonable accommodation, we find that the issue

was part of a previous complaint, and is not part of the instant appeal.

Specifically, we note that the agency's final decision concluded that

complainant was not denied reasonable accommodation, and that complainant

did not appeal this decision. Therefore, we will address only the matter

of whether complainant established by a preponderance of the evidence

that the agency's articulated reason for his removal - improper conduct -

was a pretext for unlawful discrimination.

We are not persuaded, based on the record of investigation, that

complainant has shown that the agency's articulated reasons for his

removal were a pretext for unlawful discrimination based on complainant's

protected classes. As noted above, complainant's interpersonal problems

and inappropriate behavior were corroborated by several witnesses.

Moreover, complainant did not deny the alleged misconduct. Complainant

argued that other employees engaged in worse conduct and they were not

removed, but he failed to show any evidence of who those employees were

or the conduct they committed in order to prove disparate treatment.

Further, although complainant was rated "Fully Successfully," we find

that he was rated based on his work performance and not his conduct.

It is not clear form the record how complainant was rated or by whom, but

we note that during the period of October 1, 1996 to September 30, 1997,

in which complainant was rated "Fully Successful," he was in AWOL status.

Moreover, the Commission's Enforcement Guidance on the Americans with

Disabilities Act and Psychiatric Disabilities at Question 30 specifically

indicates that an employer may discipline an individual with a disability

for violating work place conduct standards even if the misconduct results

from a disability. Further, to the extent that complainant argued that

the agency should have accommodated him after the incidents instead of

removing him, Question 31 of the same guidance states that reasonable

accommodation is prospective and employers are not required to excuse

past misconduct. Finally, to the extent that complainant is arguing

disparate treatment; he has not shown that the agency's reasons for its

actions were a pretext for discrimination.

On appeal, complainant's estate argues that, in the alternative, that this

matter should be addressed under mixed-motive analysis. "Mixed motive"

cases are those where a finding is made that discrimination was one of

multiple motivating factors for an employment action, i.e., in which

the agency acted on both lawful and unlawful reasons. See EEOC Revised

Enforcement Guidance on Recent Developments in Disparate Treatment Theory,

N-915.002, 21 (July 14, 1992). Based upon this definition, we find that

the present case cannot be characterized as a mixed-motive case, because

the agency has articulated legitimate, non-discriminatory reasons for its

action; namely, complainant's irresponsible statements and unprofessional

conduct. We find no evidence that the agency's reasons lack credibility

or are a pretext for discrimination or retaliation.

Accordingly, we find that complainant failed to establish by the

preponderance of the evidence that he was discriminated against as he

alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we affirm the agency's

final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the

policies, practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. In the absence of a legible postmark, the request

to reconsider shall be deemed timely filed if it is received by mail

within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as the

defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court

that the Court appoint an attorney to represent you and that the Court

also permit you to file the action without payment of fees, costs,

or other security. See Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as

amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request

is within the sole discretion of the Court. Filing a request for an

attorney with the Court does not extend your time in which to file

a civil action. Both the request and the civil action must be filed

within the time limits as stated in the paragraph above ("Right to File

a Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 21, 2009

Date

1 According to Physician 3, complainant was unable to perform railroad

inspections because of railroads tracks, rocks and ladders; maritime

inspections because of the need to walk on uneven boards; aircrafts

inspections because of narrow stairs, compartments, and ladders; cargo

inspections because of debris on floors, uneven surfaces, ladders and

narrow steps; and secondary vehicle and pedestrian vehicle inspections

because of narrow steps, ladders, and uneven and obstructed floors.

2 Complainant was accommodated from March 1995 to September 1995.

3 It is not clear from the record how long complainant remained in AWOL

status.

4 Agency Nos. APHIS-1996-01550; and APHIS-1996-01551 (formerly Agency

No. 960502).

5 Agency No. APHIS-1996-01552 (formerly Agency No. 960729).

6 APHIS-1997-00007 (formerly Agency No. 980209).

7 Complainant requested a hearing only on Agency No. 980209.

8 His estate is represented by his widow, Mary Gumz.

9 They will be identified as follows: a Supplemental ROI dated February

12, 1999; a Supplemental ROI dated March 7, 2003; and a Supplemental

ROI dated December 16, 1998.

10 There is no explanation for the lengthy delay in issuing the final

agency decision. The Commission finds such a delay to be a matter of

concern.

11 For the purposes of analysis only, we assume, without so finding,

that complainant was an individual with a disability.

12 As an example of racial comments, the Director cited that once

complainant said "If the Germans used methyl bromite (a gas used in the

insect fumigating facility at Brownsville), the Germans would have had

a better kill of Jews."

13 The standard describing fully successful performance is: "Participates

in the completion of tasks which have been "handed off" to the team in a

manner which consistently demonstrates fairness, cooperation, and respect

towards co-workers, management, and all internal or external customers.

Works cooperatively with other members to complete team and/or individual

tasks in an effective, efficient and timely manner...."

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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