Handle v. Brennan et al

MOTION for Judgment on the Pleadings or, Alternatively, for Summary Judgment

D.N.J.April 21, 2017

WILLIAM E. FITZPATRICK Acting U.S. Attorney By: J. ANDREW RUYMANN Assistant U.S. Attorney 402 East State Street, Room 430 Trenton, New Jersey 08608 Attorney for Defendants UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY VICTORIA HANDLE, : Hon. Brian R. Martinotti : Plaintiff, : Civil Action No. 15-8071(BRM) : v. : : Document Electronically Filed MEGAN J. BRENNAN and : UNITED STATES POSTAL SERVICE : : Defendants. : NOTICE OF MOTION FOR JUDGMENT ON THE PLEADINGS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT To: David F. Corrigan, Esq. 54B West Front Street Keyport, New Jersey 07735 PLEASE TAKE NOTICE that on May 15, 2017, defendants, Megan J. Brennan and the United States Postal Service, will move before the Honorable Brian R. Martinotti, United States District Judge, United States District Court, at 402 East State Street, Trenton, New Jersey, for judgment on the pleadings or, Case 3:15-cv-08071-BRM-TJB Document 21 Filed 04/21/17 Page 1 of 2 PageID: 490 alternatively, for summary judgment. In support of this motion, defendants will rely upon the brief in support of that motion and the declaration of Joseph G. Hopkins and the exhibits thereto (some of the exhibits will be filed with an appropriate motion to seal). A proposed form of order is submitted along with this notice of motion. Defendants do not request oral argument. Respectfully submitted, WILLIAM E. FITZPATRICK Acting U.S. Attorney s/ J. Andrew Ruymann By: J. ANDREW RUYMANN Assistant U.S. Attorney Dated: April 21, 2017 Case 3:15-cv-08071-BRM-TJB Document 21 Filed 04/21/17 Page 2 of 2 PageID: 491 WILLIAM E. FITZPATRICK Acting U.S. Attorney By: J. ANDREW RUYMANN Assistant U.S. Attorney 402 East State Street, Room 430 Trenton, New Jersey 08608 Attorney for Defendants UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY VICTORIA HANDLE, : Hon. Brian R. Martinotti : Plaintiff, : Civil Action No. 15-8071(BRM) : v. : : MEGAN J. BRENNAN and : Document Electronically Filed UNITED STATES POSTAL SERVICE : : Defendants. : DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT WILLIAM E. FITZPATRICK Acting U.S. Attorney 402 East State Street Room 430 Trenton, New Jersey 08608 On the brief: J. ANDREW RUYMANN Assistant U.S. Attorney Of Counsel: LORI L. MARKLE Attorney USPS Eastern Area Law Department Motion Returnable May 15, 2017 Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 1 of 44 PageID: 492 Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 2 of 44 PageID: 493 Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 3 of 44 PageID: 494 Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 4 of 44 PageID: 495 Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 5 of 44 PageID: 496 2 INTRODUCTION In this employment discrimination matter arising from Victoria Handle’s employment with the Postal Service, Handle (“plaintiff”) alleges claims of sex, age and reprisal discrimination, in addition to a claim alleging an illegal disclosure of confidential medical information in violation of the Rehabilitation Act. Defendants Megan J. Brennan, Postmaster General of the U.S. Postal Service, and the U.S. Postal Service have moved for judgment on the pleadings or, alternatively, for summary judgment due to the failure of plaintiff to properly exhaust the mandatory administrative remedy requirements prior to filing her lawsuit. While plaintiff did invoke the EEO administrative process prior to filing her related lawsuit on 12 issues, defendants are entitled to judgment in their favor – either judgment on the pleadings or on summary judgment – due to her failure to abide by the administrative requirements applicable to federal employment EEO complaints. First, she did not file suit within the required periods. In this regard, she failed to file suit as to 11 of the 12 issues raised in the administrative process within 90 days of an EEOC Office of Federal Operations (“OFO”) decision, and, as to the remaining issue raised in the administrative process, she failed to wait the requisite 180 days after filing her OFO appeal concerning Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 6 of 44 PageID: 497 3 that issue. Second, she failed to comply with the administrative requirements relating to any of her lawsuit claims which were not raised in the EEO process. In support of this motion, defendants rely upon the declaration of Joseph G. Hopkins, an EEO Services Analyst, employed with the Postal Service’s National Equal Employment Investigative Services Office, a statement of material facts submitted pursuant to L. Civ. R. 56.1, and this memorandum. STATEMENT OF FACTS1 Plaintiff began the administrative EEO complaint process, correlating to the claims raised in her lawsuit, on August 8, 2012. On that date, she filed an informal complaint with the Postal Service. Her informal complaint alleged race, sex and age discrimination in connection with 1) the Postal Service’s decision to transfer her from the Monmouth Processing and Distribution Center (“P&DC”) to the Trenton P&DC; 2) a management initiated action to have her escorted by local police to a hospital; 3) management’s dissemination of her personal and medical information to other employees; 4) management’ placement of her in an emergency off duty status; and 5) management’s 1 This factual statement mirrors defendants’ statement of material facts submitted pursuant to L. Civ. R. 56.1, filed with defendants’ motion papers. Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 7 of 44 PageID: 498 4 failure to return her to full duty until September 17, 2012, even though she was cleared to return on September 12, 2017. (Hopkins Dec., para. 6 and Ex. 1). Her informal complaint was designated Agency Case No. 1C-081-0090-12. (Hopkins Dec., para. 7 and Ex. 1). On or about November 6, 2012, the Postal Service notified plaintiff that the agency had finished processing her informal complaint and that she had the right to file a formal EEO complaint. (Hopkins Dec., para. 8 and Ex. 2). On December 18, 2012, plaintiff filed a formal EEO complaint of discrimination with the Postal Service. (Hopkins Dec., para. 9 and Ex. 3). On or about January 16, 2013, the Postal Service notified plaintiff that her formal EEO complaint, in Agency Case No. 1C-081-0090-12, had been accepted for investigation on her claims of race, sex and age discrimination on the following four issues: 1. On July 30, 2012 you were not selected to remain at the Monmouth P&DC; 2. On August 7, 2012 following a telephone conversation, management contacted the police and you were taken to the hospital; subsequently you became aware that your personal and medical information was shared with other employees; 3. On August 11, 2012 you were placed on Emergency Placement; and 4. On September 12, 2012 you were cleared to return to work, but management did not permit you to do so. (Hopkins Dec., para. 10 and Ex. 4). During the investigation of the above issues, plaintiff Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 8 of 44 PageID: 499 5 amended her complaint three times to allege that, subsequent to initiating her EEO complaint, the Postal Service retaliated against her by taking additional actions. The first amendment resulted in the Postal Service accepting for investigation plaintiff’s claim of retaliation on the following two issues: 5. On unspecified dates your Manager subjected you to a hostile work environment when she handed you a business card for the Employee Assistance Program in front of other employees and told you to “use it”, and when she embarrassed you over the CB radio within the hearing of other employees, and; 6. On unspecified dates, your requests for leave on Mother’s Day and Easter were denied. (Hopkins Dec., para. 11 and Ex. 5). The second amendment resulted in the Postal Service accepting for investigation plaintiff’s claim of retaliation on the following two issues: 7. On unspecified dates, you were subjected to Four (4) Pre- disciplinary Interviews (PDIs); and 8. On unspecified date(s), you applied for a position(s), and you were not selected for an interview. (Hopkins Dec., para. 12 and Ex. 6). The third amendment resulted in the Postal Service accepting for investigation plaintiff’s claim of retaliation on the following four issues: 9. On or about December 4, 2012, you were issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail; 10. On or about March 1, 2013, you were issued a Proposed Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 9 of 44 PageID: 500 6 Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail; 11. On or about March 27, 2013, you were issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail; and 12. On or about May 29, 2013, you were issued a Proposed Letter of Warning in Lieu of a Fourteen Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail. (Hopkins Dec., para. 13 and Ex. 7). On or about September 4, 2013, the Postal Service’s contract investigator completed a written Investigative Report (“IR”) concerning Agency Case No. 1C-081-0090-12 , pursuant to 29 C.F.R. § 1614.108. (Hopkins Dec., para. 14 and Ex. 8). On or about September 10, 2013, the Postal Service sent plaintiff a copy of the IR and notification that she could request a hearing on her EEO complaint before an administrative judge employed by the EEOC, or she could request a final agency decision (“FAD”) without a hearing. (Hopkins Dec., para. 15 and Ex. 9). On or about September 26, 2013, plaintiff mailed the Postal Service’s National Equal Employment Investigative Services Office (“NEEOISO”) a notice stating she was “requesting an Agency decision without a hearing”. (Hopkins Dec., para. 15 and Ex. 10). On or about November 6, 2013, the Postal Service issued an FAD on the merits of all of plaintiff’s claims and bases of Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 10 of 44 PageID: 501 7 discrimination. The FAD described plaintiff’s complaint as raising allegations of discrimination based on race, sex and age on the following issues: 1. On July 30, 2012, she was not selected to remain at the Monmouth P&DC; 2. On August 7, 2012, following a telephone conversation, management contacted the police and she was taken to the hospital; subsequently, she became aware that her personal and medical information was shared with other employees; 3. On August 11, 2012, she was placed on an Emergency Placement; and 4. On September 12, 2012, she was cleared to return to work, but management did not permit her to do so. (Hopkins Dec., Ex. 11, p. 1). Further, the FAD described plaintiff’s complaint as raising allegations of retaliation, occurring since August 8, 2012, on the following issues: 5. On unspecified dates, her Manager subjected her to a hostile work environment when: her manager handed her a business card for the Employee Assistance Program in front of other employees and told her to “use it;” and her Manager embarrassed her over the CB radio within the hearing of other employees; 6. On unspecified dates, her requests for leave on Mother’s Day and Easter were denied; 7. On unspecified dates, she was subjected to four (4) Pre- Disciplinary Interviews (PDIs); 8. On unspecified dates, she applied for a position(s), and she was not selected for an interview; 9. On or about December 4, 2012, she was issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail; 10. On or about March 1, 2013, she was issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 11 of 44 PageID: 502 8 Mail; 11. On or about March 27, 2013, she was issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail; and 12. On or about May 29, 2013, she was issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail. (Hopkins Dec., Ex. 11, pp. 1-2). The FAD stated that the above bases of discrimination and issues were cited by plaintiff in her pre-complaints and formal complaints and were fully investigated by the EEO Investigator. (Hopkins Dec., Ex. 11, p. 1, n.1).2 The FAD addressed those bases and issues. The Postal Service made a finding of no discrimination in the FAD. (Hopkins Dec., para. 18 and Ex. 11, p. 39). The FAD advised plaintiff of her right to appeal the decision to the EEOC Office of Federal Operations (“OFO”) or to file a civil action in United States District Court. (Hopkins Dec., para. 18 and Ex. 11, pp. 40-41). On or about November 15, 2 The FAD stated that the Postal Service’s final acceptance letter cited the incorrect bases of discrimination for issues 1 through 6. (Hopkins Dec., Ex. 11, p. 1 n.1 That letter cited race, color and retaliation as the bases for issues 1 through 6 and retaliation as the basis for issues 7 through 12. (Hopkins Dec., Ex. 7, p. 2). As noted in the FAD, plaintiff alleged race, sex and age discrimination in connection with issues 1 through 4 and retaliation only in connection with issues 5 through 12. (Hopkins Dec, Ex. 11, pp. 1-2). Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 12 of 44 PageID: 503 9 2013, plaintiff filed an appeal of the FAD with the OFO. (Hopkins, para. 19 and Ex. 12). On June 10, 2015, the OFO issued a decision on plaintiff’s appeal. (Hopkins Dec., para. 20 and Ex. 13). Plaintiff did not specifically identify a violation of the Rehabilitation Act during the processing of Agency Case No. 1C-081-0090-12 and the Postal Service did not accept for investigation a claim of discrimination under the Rehabilitation Act. Nonetheless, the first paragraph of the OFO’s decision characterized plaintiff’s complaint as alleging employment discrimination in violation of Title VII, the Age Discrimination in Employment Act (“ADEA”) and the Rehabilitation Act. (Hopkins Dec., Ex. 13, p. 1). Further, in the background section of the decision, the OFO decision characterized plaintiff’s complaint as alleging race, sex, age and reprisal discrimination as to all 12 issues. (Hopkins Dec., Ex. 13, pp. 1-2). In contrast, the Postal Service’s FAD, reflecting the claims articulated by plaintiff during the EEO process, stated that plaintiff’s complaint raised allegations of race, sex and age discrimination with regard to Issues 1 through 4 and allegations of retaliation, occurring since August 8, 2012, concerning Issues 5 through 12. (Hopkins Dec., Ex. 11, pp. 1-2). The OFO affirmed in part and reversed in part the Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 13 of 44 PageID: 504 10 Postal Service’s FAD. As to Issues 1 and 3 through 12, the OFO affirmed the Postal Service’s final decision. (Hopkins Dec., Ex. 13, p. 4). In considering Issue 2 - in which plaintiff alleged, among other things, that management shared personal and medical information with other employees - the OFO stated that improper disclosure of medical information constitutes a per se violation of the Rehabilitation Act, even if the complainant does not have a disability, (Hopkins Dec., Ex. 13, p. 4), and found that “the record establishes that in fact management disclosed [confidential medical information] to individuals who did not have a reason to have it.” (Hopkins Dec., Ex. 13, p. 4). Accordingly, the OFO reversed the Postal Service’s final decision with respect to Issue 2 and remanded that matter to the Postal Service in accordance with its order. The Conclusion section in the OFO’s decision was as follows: CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the final decision with respect to Issue 2 only, and REMAND the matter to the agency in accordance with the ORDER below. We AFFIRM the agency’s final decision with respect to the remaining claims. (Hopkins Dec., Ex. 13, p. 4). The Order section in the OFO’s decision stated the Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 14 of 44 PageID: 505 11 following, in pertinent part: ORDER 1. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall undertake a supplemental investigation to determine Complainant’s entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993) and request objective evidence from Complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency’s notice. No later than one hundred and twenty (120) calendar days after the date this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below. . . . 5. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include supporting documentation of the Agency’s calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. (Hopkins Dec., Ex. 13, pp. 4-5). The OFO’s decision stated the following as to plaintiff’s right to file a civil action: COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 15 of 44 PageID: 506 12 days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. (Hopkins Dec., Ex. 13, p. 7). The above notice provided to plaintiff by the OFO regarding her right to file a civil action reflected the EEOC’s pertinent regulation regarding the time limits for filing a civil action at 29 C.F.R. § 1614.407, which states as follows: A complainant who has filed an individual complaint, an agent who has filed a class complaint, an agent or a claimant who has filed a claim for individual relief pursuant to a class complaint is authorized under title VII, the ADEA and Rehabilitation Act to file a civil action in an appropriate United States District Court: (a) Within 90 days of receipt of the final action on an individual or class complaint if no appeal has been filed; (b) After 180 days from the date of filing an individual or class complaint if an appeal has not been filed and final action has not been taken; (c) Within 90 days of receipt of the Commission’s final decision on an appeal; or Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 16 of 44 PageID: 507 13 (d) After 180 days from the date of filing an appeal with the Commission if there has been no final decision by the Commission. 29 C.F.R. § 1614.407. On or about June 22, 2015, as part of the supplemental investigation directed by the OFO, the Postal Service (specifically, the NEEOISO) issued plaintiff a request for evidence in support of her request for compensatory damages. (Hopkins Dec., para. 21 and Ex. 14, pp. 1-2). The request, among other things, stated: Return the completed, signed and dated forms and any accompanying documentary forms and any accompanying documentary evidence to this office as soon as possible but no later than 45 days from the date of your receipt of this letter. The sooner you respond, the sooner the agency can adjudicate your entitlement. Enclosed is a pre- addressed envelope for your convenience in responding. (Hopkins Dec., para. 21 and Ex. 14, pp. 1-2). Plaintiff did not send the NEEOISO a response to its request for compensatory damages information. (Hopkins Dec., para. 22). On or about August 19, 2015, the Postal Service issued a FAD addressing the issue of compensatory damages concerning Issue 2 – that is, that management shared personal and medical information with other employees. (Hopkins Dec., para. 23 and Ex. 15). By that FAD, concerning compensatory damages on Issue 2, the Postal Service awarded plaintiff $1,000.00 in non- Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 17 of 44 PageID: 508 14 pecuniary compensatory damages. (Hopkins Dec., para. 24 and Ex. 15, p. 5). The Postal Service’s August 19, 2015, FAD concerning compensatory damages on Issue 2 stated the following as to plaintiff’s right to appeal the decision to the OFO: Appeal to the EEOC You have the right to appeal the Postal Service’s final decision to the Director, Office of Federal Operations, Equal Opportunity Commission (EEOC), P.O. Box 77960, Washington, DC 20013-8960, within 30 calendar days of your receipt of this decision. You must use Form 3573, a copy of which is enclosed, in connection with your appeal. You may also deliver your appeal in person or by facsimile provided that briefs filed by facsimile are ten or fewer pages in length. Any supporting statement or brief must be submitted to the EEOC within 30 calendar days of filing the appeal. Along with your appeal, you must submit proof to the EEOC that a copy of the appeal and any supporting documentation or brief were also submitted to the Executive Manager National EEO Investigative Services Office, USPS, P.O. Box 21979, Tampa, FL 33622-1979. You are advised that if you file your appeal beyond the 30-day period set forth in the Commission’s regulations, you should provide an explanation as to why your appeal should be accepted despites its untimeliness. If you cannot explain why your untimeliness should be excused in accordance with 29 C.F.R. 1614.604, the Commission may dismiss the appeal as untimely. (Hopkins Dec., para. 25 and Ex. 15, p. 5). The Postal Service’s August 19, 2015, FAD, concerning compensatory damages on Issue 2, stated the following as to plaintiff’s right to file a civil action: Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 18 of 44 PageID: 509 15 Right To File Civil Action Alternatively, if you are dissatisfied with the Postal decision in this case, you may file a civil action in an appropriate U.S. District Court within 90 calendar days of your receipt of the Postal Service’s final decision, within 90 calendar days of the EEOC’s final decision on any appeal, or after 180 days from the date of filing any appeal with the EEOC if no final decision has been rendered. If you chose to file a civil action, that action should be captioned Victoria Handle v. Megan J. Brennan, Postmaster General. You may also request the court to appoint an attorney for you and to authorize the commencement of that action without the payment of fees, costs, or security. Whether these requests are granted or denied is within the sole discretion of the District Judge. Your application must be filed within the same 90-day time period for filing the civil action. (Hopkins Dec. para. 25 and Ex. 15, p. 5)(Emphasis in original omitted). The above notice provided to plaintiff by the Postal Service regarding her right to file a civil action reflected the EEOC’s pertinent regulation regarding the time limits for filing a civil action at 29 C.F.R. § 1614.407, which states as follows: A complainant who has filed an individual complaint, an agent who has filed a class complaint, an agent or a claimant who has filed a claim for individual relief pursuant to a class complaint is authorized under title VII, the ADEA and Rehabilitation Act to file a civil action in an appropriate United States District Court: (a) Within 90 days of receipt of the final action on an individual or class complaint if no appeal has been filed; (b) After 180 days from the date of filing an individual or class complaint if an appeal has not been filed and final action has not been taken; (c) Within 90 days of receipt of the Commission’s Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 19 of 44 PageID: 510 16 final decision on an appeal; or (d) After 180 days from the date of filing an appeal with the Commission if there has been no final decision by the Commission. 29 C.F.R. § 1614.407. On August 25, 2015, the Postal Service provided the OFO with a copy of its FAD regarding compensatory damages on Issue 2 and notified the OFO that plaintiff had not responded to its request for a submission on compensatory damages. (Hopkins Dec., para. 26 and Ex. 16). On September 17, 2015, plaintiff filed an appeal to the OFO from the Postal Service FAD regarding compensatory damages on Issue 2. (Hopkins Dec., para. 27 and Ex. 17). In response to its receipt of plaintiff’s appeal, the OFO issued a letter to the Postal Service, dated October 8, 2015, acknowledging the OFO’s receipt of plaintiff’s appeal of the FAD regarding compensatory damages on Issue 2 and directing the Postal Service to submit the complaint file, along with any related or consolidated complaint files, to the OFO within 30 days. (Hopkins Dec., para. 28 and Ex. 18). The OFO designated plaintiff’s appeal as EEO Appeal No. 0120160036. (Hopkins Dec., para. 28 and Ex. 18). On or about November 4, 2015, the Postal Service filed a response to plaintiff’s appeal to the OFO from the FAD Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 20 of 44 PageID: 511 17 concerning compensatory damages on Issue 2. (Hopkins Dec., para. 31 and Ex. 19). On November 13, 2015 – that is, 156 days after the OFO’s final decision of June 10, 2015, on Issues 1 and 3 through 12 and 57 days after plaintiff’s September 17, 2015, appeal to the OFO regarding the Postal Service’s FAD regarding compensatory damages on Issue 2 – plaintiff filed the instant lawsuit. Her four-count lawsuit, naming the Postmaster General, Megan J. Brennan, and the Postal Service as defendants, includes four counts. (Complaint). Count One asserts that the actions of the Postal Service cited in the Complaint constitute sex discrimination in violation of Title VII. (Complaint, p. 8). Count Two asserts that, at the time of the occurrences covered in the Complaint, plaintiff was between 59 and 60 years old, and that the actions of the Postal Service cited in the Complaint constitute age discrimination in violation of the Age Discrimination in Employment Act. (Complaint, pp. 9-10). Count Three asserts that four disclosures made by Mary Ducey, identified as plaintiff’s supervisor, to numerous Postal Service employees violated Section 501 of the Rehabilitation Act. (Complaint, pp. 10-11). Plaintiff identifies the four disclosures allegedly made by Ducey as the following: A. Handle had threatened suicide, “became missing”, ran Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 21 of 44 PageID: 512 18 away, and her husband was not aware of whereabouts; B. As a result, she was forced to go to the hospital against her will; C. Handle had a nervous breakdown; and D. Ducey disclosed related information concerning Handle’s medical condition to Postal employees. (Complaint, para. 23). Finally, Count Four - which is labeled as a retaliation claim, but does not cite to any specific employment discrimination statute violated by defendants - asserts that as a result of the discrimination complaints and affidavits she filed, she “was repeatedly discriminated against and subject to the adverse employment actions set forth” in the complaint. (Complaint, p. 12). The alleged actions covered in the complaint’s recitation of facts correlate to the actions cited by plaintiff in Issues 1 to 12 of her EEO complaint lodged with the Postal Service: paragraphs 5, 6 and 10 address plaintiff’s transfer to the Monmouth P&DC (corresponding to Issue 1); paragraph 7 addresses the Postal Service’s contact with the Keyport Police and the sharing of plaintiff’s medical information with other employees (corresponding to Issue 2); paragraph 7 also addresses the placement of plaintiff in an emergency status (corresponding to Issue 3); paragraph 8 addresses the clearing of plaintiff to return to work (corresponding to Issue 4); paragraph 14 Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 22 of 44 PageID: 513 19 addresses providing plaintiff with an EAP card in the presence of other employees and embarrassing her over the CB radio (corresponding to Issue 5); paragraph 14 addresses the denial of leave on Mother’s Day and Easter (corresponding to Issue 6); paragraph 13 addresses failing to promote plaintiff and not interviewing plaintiff after she applied for a position (corresponding to Issue 8); and paragraph 11 addresses the four letters of warning issued between December 4, 2012, and May 29, 2013 (corresponding to Issues 9 through 12 and, apparently, Issue 7). On March 10, 2016, the OFO dismissed Appeal No. 0120160036 – that is, plaintiff’s appeal of the Postal Service’s FAD regarding compensatory damages on Issue 2 – due to plaintiff’s filing of the instant lawsuit. (Hopkins Dec., para. 32 and Ex. 20). The OFO’s dismissal decision stated that, because the claim of improper disclosure of medical information (covered by Issue 2) was raised in her lawsuit, filed November 13, 2015, plaintiff’s appeal relating to that same claim had to be dismissed pursuant to 29 C.F.R. § 1614.409, which provides that the filing of a civil action “shall terminate Commission processing of the appeal.” (Hopkins Dec., Ex. 20, p. 2). Plaintiff has not filed a formal EEO complaint with the Postal Service other than Agency Case No. 1C-081-0090-12 since Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 23 of 44 PageID: 514 20 2012. (Hopkins Dec., para. 33). ARGUMENT DEFENDANTS ARE ENTITLED TO JUDGMENT IN THEIR FAVOR BECAUSE PLAINTIFF FAILED TO COMPLY WITH APPLICABLE ADMINISTRATIVE REQUIREMENTS. A. CLAIMS OF DISCRIMIANTION AND/OR RETALIATION IN THE FEDERAL EMPLOYMENT CONTEXT MUST BE ADMINISTRATIVELY EXHAUSTED PRIOR TO FILING SUIT. “[A] federal employee seeking redress for unlawful workplace discrimination and/or retaliation must first exhaust administrative remedies against the federal employer prior filing suit in federal court.” Marley v. Donahue, 133 F. Supp. 3d 706, 715 (D.N.J. Sept. 23, 2015)(citing 42 U.S.C. § 2000e- 16(c) and 29 C.F.R. pt. 1614). This is true whether a plaintiff’s claims arise under Title VII, the Rehabilitation Act or the ADEA. See Slingland v. Donahue, 542 Fed. Appx. 189, 193 (3d Cir. 2013)(describing the exhaustion requirement under the ADEA); Wilson v. MVM, Inc., 475 F.3d 166, 173 (3d Cir. 2007)(noting that Title VII and Rehabilitation Act claims brought by federal employees against federal employers require exhaustion of administrative remedies); Freed v. Consolidated Rail Corp., 201 F.3d 188, 194 (3d Cir. 2000) (same); Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997). “[A] federal employee’s claims under Title VII, the [Rehabilitation Act], and the ADEA must be, and routinely are, Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 24 of 44 PageID: 515 21 dismissed if the employee fails to properly exhaust.” Marley, 133 F. Supp. 3d at 716 (citing as examples Scheidt v. Donahue, No. 13-836, 2014 WL 6991982, at *3 (D.N.J. Dec. 10, 2014)(dismissing a Rehabilitation Act claim for failure to exhaust); Fanciullo v. U.S. Postal Serv., No. 12-5467, 2013 WL 5467169, at *8-*10 (D.N.J. Sept. 30, 2013 (dismissing Rehabilitation Act and ADEA claims for failure to exhaust); Cross v. Donahue, No. 12-2670, 2013 WL 4518049, at *4 (D.N.J. Aug. 23, 2013)(dismissing Title VII claims for failure to exhaust)). The purpose of requiring exhaustion of administrative remedies prior to filing suit is to encourage “quicker, less formal, and less expensive resolution of disputes within the Federal Government and outside of court.” West v. Gibson, 527 U.S. 212, 218-19 (1999). As the Third Circuit explained: [W]e note pragmatic, prudential reasons for [an exhaustion] requirement. Allowing a plaintiff to abandon the administrative remedies he has initiated would tend to frustrate the ability of the agency to deal with complaints. All participants would know that at any moment an impatient complainant could take his claim to court and abort the administrative proceedings. Moreover, such a course would unnecessarily burden courts with cases that otherwise might be terminated successfully by mediation and conciliation. Purtill v. Harris, 658 F.2d 134, 138 (3d Cir. 1981). Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 25 of 44 PageID: 516 22 B. REQUIREMENTS FOR EXHAUSTING DISCRIMINATION AND/OR RETALIATION CLAIMS BROUGHT UNDER TITLE VII, THE ADEA AND THE REHABILITATION ACT IN THE FEDERAL EMPLOYMENT CONTEXT. The administrative procedures for exhausting a complaint of employment discrimination in the federal sector are set forth in 29 C.F.R. Part 1614. Among other requirements, the employee must seek relief from the EEO department of the employing agency by initiating contact with a counselor within 45 days of each allegedly discriminatory event, file a formal EEO complaint within 15 days of receipt of the notice of right to file a complaint, obtain a final agency decision and bring a timely action in federal district court. 42 U.S.C. § 2000e-16(c); 29 C.F.R. §§ 1614.105-1614.110, 1614.401-409; see also Robinson, 107 F.3d at 1020-21. As relevant here, once a federal agency has issued a final action on a complaint, the employee, if dissatisfied with the final action, may pursue one of two courses: (1) she may forego any administrative appeal and immediately file an action in district court within 90 days of receipt of the final decision, or (2) she may file an appeal of the agency’s decision with the EEOC Office of Federal Operations (“OFO”) within 30 days of receipt of the final agency decision. See 29 C.F.R. § 1614.401, Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 26 of 44 PageID: 517 23 1614.402, 1614.407.3 3 29 C.F.R. 1614 provides in pertinent part: § 1614.401 Appeals to the Commission. (a) A complainant may appeal an agency’s final action or dismissal of a complaint. . . . § 1614.402 Time for appeals to the Commission. (a) Appeals described in section 1614.401(a) and (c) must be filed within 30 days of receipt of the dismissal, final action or decision. . . . (b) If the complainant is represented by an attorney of record, then the 30-day time period provided in paragraph (a) of this section within which to appeal shall be calculated from the receipt of the required document by the attorney. In all other instances, the time within which to appeal shall be calculated from the receipt of the required document by the complainant. § 1614.407 Civil action: Title VII, Age Discrimination in Employment Act and Rehabilitation Act. A complainant who has filed an individual complaint . . . is authorized under Title VII, the ADEA and Rehabilitation Act to file a civil action in an appropriate United States District Court: (a) Within 90 days of receipt of the final action on an individual . . . complaint if no appeal has been filed; (b) After 180 days from the date of filing an individual . . . complaint if an appeal has not been filed and final action has not been taken: (c) Within 90 days of receipt of the Commission’s final decision on an appeal; or Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 27 of 44 PageID: 518 24 If the complainant pursues the second course described above, i.e., she files an appeal with the OFO, and the OFO subsequently issues an adverse decision, the complainant may then file a civil action in federal district court within 90 days of receipt of the OFO decision. 29 C.F.R. § 1614.407(c). Further, if the complainant files an appeal with the OFO and does not receive any decision from the OFO within 180 days, she may file a civil action in federal district court after the 180 days has elapsed. 29 C.F.R. § 1614.407(d). These administrative exhaustion requirements apply to claims brought under Title VII and the Rehabilitation Act. See Fanciullo, 2013 WL 5467169, at **3-4 (discussing applicable requirements to Rehabilitation Act claims); Rodriguez v. USPS, No. 4-916, 2005 WL 486610, at *3 (E.D. Pa. Mar. 1, 2004)(“Claims brought by federal employees against the federal government under Title VII and the Rehabilitation Act are governed by the same administrative requirements”). The requirements also apply to claims brought under the ADEA where the complainant, as is the case here, invoked the EEOC’s administrative process. See (d) After 180 days from the date of filing an appeal with the Commission if there has been no final decision by the Commission. Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 28 of 44 PageID: 519 25 Galante v. Cox, No. 05-06739, 2006 WL 1371191, at **4-5 (E.D. Pa. May 16, 2006); Holmes v. FAA, No. 98-5071, 1999 WL 771594, at *4 (D.N.J. Sept. 29, 1999).4 C. DEFENDANTS’ MOTION ALLEGING FAILURE TO PROPERLY EXHAUST ADMINISTRATIVE REMEDIES IS PROPERLY BROUGHT AS A MOTION FOR JUDGMENT ON THE PLEADINGS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT. The Third Circuit has recognized that “[t]imeliness of exhaustion requirements [is] best resolved under Rule 12(b)(6) covering motions to dismiss for failure to state a claim.” 4 Pursuant to the ADEA, a federal employee alleging age discrimination has “two alternative routes for pursuing a claim of age discrimination.” Podobnik v. United States Postal Serv., 409 F.3d 584, 589 (3d Cir. 2005)(quoting Stevens v. Dept. of Treasury, 500 U.S. 1, 5 (1991). First the employee may invoke the EEOC’s administrative process set forth in 29 C.F.R. § 1614.105 et seq., and bring suit in federal court if she is dissatisfied with the outcome of that process. See Podobnik, 409 F.3d at 589; Galante, 2006 WL 1371191, at **4-5. If the employee chooses to exhaust administrative remedies, she must comply with all of the preconditions to suit – including time limitations – in that process. See id. at *5; Holmes, 1999 WL 771594, at *4. Alternatively, the employee may proceed directly to district court, so long as she provides the EEOC with at least thirty-days’ notice of an intent to file such an action. See Podobnik, 409 F.3d at 589-90. To take advantage of this “direct path,” the employee must file the notice of intent to sue with the EEO within 180 days of the date when the allegedly discriminatory practice took place. See Stevens, 500 U.S. at 6. Failure to comply with this notice requirement will prevent a plaintiff from proceeding with her unexhausted age discrimination claims. See Green v. Potter, 687 F. Supp. 2d 502, 513, n. 6 & 514 (D.N.J. 2009)(where plaintiff failed to exhaust EEO remedies or file a notice of intent to sue within 180 days of discriminatory action, court dismissed ADEA claim; Metsopulos v. Runyon, 918 F. Supp. 851, 859 (D.N.J. 1996)(same). Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 29 of 44 PageID: 520 26 Robinson, 107 F.3d 1018, 1022 (3d Cir. 1997); see also Gallina v. Potter, No. 09-3842, 2010 WL 5013844, at *2 (same) (citing Robinson); Ilgenfritz v. Gates, No. 09-1502, 2010 WL 2978090, at *3 (W.D. Pa. July 26, 2010) (“The failure to exhaust administrative remedies commonly is raised as an affirmative defense in the nature of statute of limitations and subject to a motion to dismiss under Rule 12(b)(6). Motions under Rule 12(b)(6) are typically filed when the administrative exhaustion dispute involves a matter of timeliness.”). This is because “[a] complaint does not state a claim upon which relief may be granted unless it asserts the satisfaction of the precondition of suit specified by Title VII: prior submission of the claim to the EEOC for conciliation or resolution.” Robinson, 107 F.3d at 1022. For a complaint to survive dismissal on a Rule 12(b)(6) motion, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Notably, the court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the non-moving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). However, the court is not Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 30 of 44 PageID: 521 27 required to accept “legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputably authentic documents if the complainant’s claims are based upon these documents. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010); see also Ruddy v. U.S. Postal Serv., 455 F. App’x 279, 283 (3d Cir. 2011)(“The Magistrate Judge and District Court properly relied on Ruddy’s EEOC file, which Ruddy referenced in his complaint and which is integral to his claim . . . “). Accordingly, courts may rely upon EEO complaint processing documents in considering a Rule 12(b)(6) motion without converting the motion to one for summary judgment under Rule 56. See, e.g., Fanciullo, 2013 WL 5467169, at *10 (granting motion to dismiss pursuant to Rule 12(b)(6)); Rogan v. Giant Eagle, Inc., 113 F. Supp. 2d 777, 782 (W.D.Pa. 2000)(“[W]e may consider the EEOC charge and related EEOC documents, including the letter from the EEOC summarizing its investigation, the right to sue letter, and the intake questionnaire, either as undisputed documents referenced in the complaint or central to the plaintiff’s claim, or as information which is a matter of public record, without converting this Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 31 of 44 PageID: 522 28 motion to one for summary judgment.”). In that defendants did not make a Rule 12(b)(6) motion at the outset of this case, but instead filed an answer, defendants have brought a Rule 12(c) motion for judgment on the pleadings, and raise the threshold exhaustion issue via such a motion. Defendants respectfully assert that the Rule 12(c) motion arguing for the dismissal of plaintiff’s complaint for failure to exhaust required administrative remedies should be adjudicated in the same manner as a Rule 12(b)(6) motion and that judgment should be entered in their favor. Such an approach is well-supported. It is well-established that a motion for judgment on the pleadings is subject to the same standard of review as a motion to dismiss pursuant to Rule 12(b)(6). See, e.g., Rose v. Bartle, 871 F.2d 331, 342 (3d Cir. 1989). “Where a defendant’s motion is one for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), it is treated under the same standards as a Rule 12(b)(6) motion where it alleges that a plaintiff has failed to state a claim.” Ortiz v. New Jersey, 2015 WL 3755063, at *5 (June 16, 2015). In deciding a Rule 12(c) motion, as with a motion under Rule 12(b)(6), the court must accept as true all well-pled factual allegations in the complaint and reasonable inferences that can be drawn therefrom, and view them in the light most favorable to Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 32 of 44 PageID: 523 29 the non-moving party. See Fleeger v. Principi, No. 03-735, 2005 WL 3019110 (W.D. Pa. Nov. 9, 2005) aff'd, 221 F. App'x 111 (3d Cir. 2007) (citing Jablonski v. Pan American World Airways, Inc. 863 F.2d 289, 290 (3d Cir. 1988)). Moreover, similar to Rule 12(b)(6) motions, when a court decides a Rule 12(c) motion it may consider the pleadings and “exhibits attached, matters of public record, and factual allegations within documents described or identified in the complaint.” Vecchio v. Engergy Corp. of America, 2012 WL 6631638 (W.D. Pa. May 18, 2012). Accordingly, defendants’ failure to exhaust argument is properly raised by a motion for judgment on the pleadings. See Fleeger, 2005 WL 3019110, **2-3 (granting motion for judgment on the pleadings based upon plaintiff’s failure to exhaust administrative remedies applicable to claim brought under Whistleblower Protection Act). Alternatively, defendants move for summary judgment and respectfully assert that they are entitled to judgment in their favor due to plaintiff’s failure to exhaust required administrative remedies. Summary judgment is appropriate whenever “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986). A genuine dispute exists “only if there is a Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 33 of 44 PageID: 524 30 sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). D. PLAINTIFF FAILED TO EXHAUST HER ADMINISTRATIVE REMEDIES CONCERNING ISSUE 2 BECAUSE SHE FILED HER LAWSUIT PREMATURELY AND ON ISSUES 1 AND 3 THROUGH 12 BECAUSE SHE FILED HER LAWSUIT TOO LATE. As an initial matter, plaintiff’s complaint does not allege that she exhausted her administrative remedies prior to filing suit. She mentions that she “filed an EEO Complaint because of Ducey’s actions”, (Complaint, para. 10), and disciplinary actions were taken as a result of her filing of the EEO complaint, (Complaint, para. 11), but she fails to allege exhaustion of her administrative remedies. This alone is a sufficient basis to dismiss the complaint. See, e.g., Gallina, 2010 WL 5013844, at *2 (dismissing complaint because plaintiff “does not allege anywhere in his complaint that he has satisfied his administrative remedies . . . . Therefore, he has failed to state a claim upon which relief may be granted and the complaint must be dismissed.”); Pizio v. HTMT Global Solutions, No. 09- 1136, 2010 WL 3359524, at *2 (D.N.J. Aug. 25, 2010) (“A Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 34 of 44 PageID: 525 31 complaint does not state a claim upon which relief may be granted unless it asserts the satisfaction of the precondition to suit specified by Title VII: prior submission of the claim to the EEOC for conciliation or resolution”). Recognizing, however, that failure to exhaust is an affirmative defense and that defendants bear the burden of establishing that plaintiff failed to exhaust, Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997), the record here establishes that plaintiff failed to exhaust on any of the issues raised by her administrative EEO complaint. She failed to file suit in a timely manner in two ways. First, plaintiff failed to file suit within 90 days of the OFO’s final decision of June 10, 2015, on Issues 1 and Issues 3 through 12. Second, as to Issue 2 – her claim that the Postal Service shared her confidential medical information with other employees – her suit was premature as she failed to wait the passage of the required 180 days after her appeal to the OFO regarding the Postal Service’s FAD on compensatory damages applicable to Issue 2. 1. PLAINTIFF FAILED TO FILE SUIT ON ISSUES 1 AND 3 THROUGH 12 WITHIN 90 DAYS OF THE OFO’S FINAL DECISION OF JUNE 10, 2015. As stated in the notice provided to plaintiff in the OFO’s decision of June 10, 2015, plaintiff was required to file suit in district court no later than within 90 days of her receipt of Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 35 of 44 PageID: 526 32 that notice regarding Issues 1 and 3 through 12. See 29 C.F.R. § 1614.407(c). That decision constituted a final decision of the OFO on plaintiff’s appeal of the FAD regarding Issues 1 and 3 through 12. See 29 C.F.R. § 1614.405. As such, plaintiff was required to file suit “[w]ithin 90 days of receipt of the Commission’s final decision on an appeal.” 29 C.F.R. § 1614.407(c). Notwithstanding this requirement, plaintiff failed to file her suit on Issues 1 and 3 through 12 within 90 days of her receipt of the June 10, 2015, decision of the OFO. Instead, she filed her suit on November 13, 2015, 156 days after the OFO’s final decision of June 10, 2015. Courts routinely dismiss employment discrimination claims on which plaintiffs fail to initiate a timely suit against federal agencies, including the Postal Service. See, e.g., Estacio v. Postmaster General, 344 Fed. Appx. 810, 813 (3d Cir. 2009)(upholding district court’s dismissal of claims on which plaintiff failed to file suit within 90 days of EEOC’s decision); Marley, 133 F. Supp. 3d at 717 (dismissing Title VII, Rehabilitation Act and ADEA claims on which the plaintiff did not sue “within the required ninety (90) day period”); Metsopulos v. Runyon, 918 F. Supp. 851, 860-61 (D.N.J. 1996) (dismissing discrimination claim filed more than 90 days after EEOC’s final action). The same result is required here as to Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 36 of 44 PageID: 527 33 plaintiff’s discrimination and reprisal discrimination claims based upon Issues 1 and 3 through 12 due to plaintiff’s failure to file suit within 90 days of the OFO’s June 10, 2015, decision regarding those issues. 2. PLAINTIFF FAILED TO WAIT THE REQUIRED 180 DAYS FOLLOWING HER OFO APPEAL OF SEPTEMBER 17, 2015, BEFORE FILING SUIT ON ISSUE 2. The applicable EEO regulations make it clear that a federal employee who alleges discrimination and is unhappy with the agency’s final action may pursue one of two options: file a lawsuit in district court within 90 days of the final action, or file an appeal with the OFO and await the outcome of the appeal, or the passage of 180 days. See 29 C.F.R. § 1614.407. What a plaintiff cannot do is what plaintiff did here – that is, appeal the agency’s FAD to the OFO and then abandon the administrative process by filing suit in federal court before the expiration of the 180-day period during which the OFO may issue a decision on the appeal. Numerous courts have recognized that a plaintiff who does so fails to give the EEOC the requisite opportunity to address the appeal, and, thus, fails to exhaust her administrative remedies. For example, in Hicks v. Wynne, No. 06-5699, 2009 WL 5206198 (D.N.J. Dec. 21, 2009), the plaintiff filed an appeal to the OFO on June 20, 2006, and the OFO did not render a decision Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 37 of 44 PageID: 528 34 until November 28, 2007. However, “on the 161st day after filing the appeal with the EEOC, plaintiff filed this Complaint in federal court.” Id. at *6. This Court held that the complaint was “untimely filed” because “plaintiff did not wait the requisite 180 days after filing her appeal as is required by EEOC regulations. Her premature filing is grounds for entering judgment against her for failure to exhaust administrative remedies.” Id. More recently, this Court reached the same result in Scheidt. In that case, a former Postal Service employee raised disability discrimination claims via an EEO complaint lodged with the Postal Service, appealed the Postal Service’s final decision on those claims to the OFO, and filed suit in district court before the OFO decided the appeal and before the expiration of the requisite 180-day period following the appeal. In opposition to the Postal Service’s motion to dismiss, which sought the dismissal of plaintiff’s disability discrimination claims due to the plaintiff’s failure to wait 180 days following his appeal to the OFO before filing suit, the plaintiff argued “that because the time for filing the appeal was expiring, counsel had no choice but to file a notice with the EEOC that Plaintiff would appeal, and after having time to contemplate a course of action, changed his mind and decided to file the Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 38 of 44 PageID: 529 35 instant action.” Scheidt, 2014 WL 6991982, at *4. This Court rejected the plaintiff’s argument and dismissed the plaintiff’s unexhausted claims as follows: Plaintiff’s logic is flawed, however, because he did have another choice – he could have foregone an OFO appeal and pursued a civil action immediately. Conversely, however, to the extent Plaintiff made a last minute decision to file an OFO appeal and subsequently changed his mind, Plaintiff merely had to wait for a final decision or for 180 days to pass and could have subsequently filed this suit. Plaintiff did neither. As such, Plaintiff’s wrongful termination and failure to accommodate claims pursuant to the Rehabilitation Act must be dismissed, as Plaintiff failed to properly exhaust his administrative remedies. Id. at *4. The same result reached by this Court in Hicks and Scheidt is required here. Here, plaintiff appealed the Postal Service’s FAD regarding Issue 2 compensatory damages to the OFO on September 17, 2015, but, instead of waiting the requisite 180 days before filing suit on that issue, she abandoned the process and filed her suit on November 13, 2015, a mere 57 days after her appeal to the OFO. Accordingly, her claim that the Postal Service violated the Rehabilitation Act by improperly disclosing her confidential medical information to other employees must be dismissed for failure to exhaust administrative remedies. The Third Circuit, though not discussing this issue extensively, also has endorsed this rule. See Wadwha v. Sec’y Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 39 of 44 PageID: 530 36 Dep’t Veterans Affairs, 396 Fed. Appx. 881, 885 (3d Cir. 2010) (noting that “at the time [plaintiffs’] civil action was filed in federal district court, 180 days had not yet passed from the date of filing [their EEOC appeal], as is required to be permitted to initiate a civil action”). Scheidt, Hicks and Wadwha do not stand alone, as the majority of courts to have addressed this issue have concluded that a complaint that is filed in district court before 180 days has elapsed since filing the OFO appeal is premature and therefore subject to dismissal. See Tolbert v. United States, 916 F.2d 245, 249 (5th Cir. 1990)(holding Postal Service employee could not abandon EEO process and file suit prematurely, following appeal to the EEOC, and stating “this construction does not impose any additional burden . . . [and] [t]he rule is simple: file in the time allotted, and neither before nor after.”); Jennings v. Panetta, 492 Fed. Appx. 698, 699 (7th Cir. 2012) (“Once Jennings appealed to the EEOC, she was barred from filing a civil suit in federal court until either the EEOC issued a final decision or 180 days had passed”); Fleming v. Potter, No. 04-444, 2005 WL 1185806, at *5 (E.D. Va. May 17, 2005) (“Once a complainant has chosen to appeal a final agency action for review by the EEOC, the complainant is committed to that course of action, and cannot abandon administrative review in favor of bringing a civil Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 40 of 44 PageID: 531 37 action.”); Andrews v. Potter, No. 05-70693, 2007 WL 325348, at *2 (E.D. Mich. Jan. 31, 2007) (“Since Plaintiff chose to appeal the Postal Service’s decision, she was required to wait for the EEOC’s final decision or 180 days from October 25, 2004, before she could file a suit in federal court . . . Since the EEOC has not made a final decision and Plaintiff did not wait 180 days as required, she did not exhaust her administrative remedies.”); Thompson v. West, 883 F. Supp. 2d 1502, 1509 (M.D. Ala. 1995) (plaintiff failed to exhaust administrative remedies by prematurely filing complaint 176 days, rather than 180 days, after pursuing EEOC remedies); Weng v. Solis, 842 F. Supp. 2d 147, 159 (D.D.C. 2012) (plaintiff failed to exhaust administrative remedies because she filed her EEOC complaint on July 23, 2010, and, “therefore, a civil action concerning this complaint could not properly be filed in district court until January 23, 2011”); Martini v. Federal Nat. Mortg. Ass’n, 178 F.3d 1336, 1347 (D.C. Cir. 1999) (“Title VII complainants must wait 180 days after filing charges with the EEOC before they may sue in federal court”); but see Bullock v. Berrien, 688 F.3d 613 (9th Cir. 2012) (complainant need not wait 180 days); Brown v. Snow, 440 F.3d 1259 (11th Cir. 2006) (plaintiff’s premature filing was excused because EEOC was not notified of his lawsuit until the 183rd day and therefore early filing “did not prevent Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 41 of 44 PageID: 532 38 EEOC from investigating his complaint for the full 180 days”). As these authorities make clear, plaintiff’s complaint regarding Issue 2, the subject of her September 17, 2015, appeal to the OFO, was premature because she filed it before the OFO had issued a decision on the appeal, and before 180 days had elapsed since she had filed her OFO appeal. Accordingly, she failed to exhaust administrative remedies, and her Rehabilitation Act claim based upon the Postal Service’s alleged disclosure of her confidential medical information must be dismissed. To the extent that plaintiff’s September 17, 2015, OFO appeal, which only concerned compensatory damages associated with Issue 2, could be construed as an appeal of all issues – that is, Issues 1 through 12, covered by her EEO complaint filed with the Postal Service in Agency Case No. 1C-081-0090-12, all of her lawsuit claims are untimely for the same reasons cited above. Whether her September 17, 2015, OFO appeal is construed as an appeal relating to Issue 2 only or an appeal of her entire EEO complaint at Agency Case No. 1C-081-0090-12, her suit was still filed before 180 days had elapsed since filing the OFO appeal and is untimely for the reasons stated above. Moreover, to the extent plaintiff attempts to argue that her failure to exhaust was cured because the OFO issued its Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 42 of 44 PageID: 533 39 decision after she filed this lawsuit, the argument should be rejected. See Tolbert, 916 F.2d at 249 (“In such a case, the rule must be that the defect was not cured.”); Fleming, 2005 WL 1185806, at *5 (“It is not relevant to this proceeding that one month after this action was filed, the EEOC issued its final decision.”). E. PLAINTIFF HAS NOT EXHAUSTED HER ADMINISTRATIVE REMEDIES ON CLAIMS NOT RAISED IN THE EEO PROCESS. In the event this Court fails to dismiss plaintiff’s complaint in its entirety due to her failure to file a timely suit, as argued above, defendants seek the dismissal of any lawsuit claims which were not properly raised during the EEO administrative process. Proper exhaustion of all asserted claims is required. “The exhaustion requirements applicable in this instance generally required ‘both consultation with an agency counsel’ and filing an EEO complaint and federal complaint ‘within the required times.’” Marley, 133 F. Supp. 3d at 716 (quoting Robinson, 107 F. 3d at 1020). Here, the record of plaintiff’s administrative EEO complaint indicates that, with respect to Issues 1 through 4, her EEO complaint alleged claims of race, sex and age discrimination, and, with respect to Issues 5 through 12, her EEO complaint alleged claims of retaliation. While plaintiff Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 43 of 44 PageID: 534 40 did not specifically identify a violation of the Rehabilitation Act during the processing of Agency Case No. 1C-081-0090-12 and no disability discrimination claim was accepted for investigation by the Postal Service, the OFO did find that the disclosure of confidential medical information, which was alleged in plaintiff’s EEO complaint, is a per se violation of the Rehabilitation Act. To the extent that plaintiff’s complaint could be construed as stating claims broader than those asserted in her EEO complaints and raised in the administrative process, those claims must be dismissed for failure to exhaust administrative remedies in accordance with the authorities cited above. CONCLUSION For the foregoing reasons, defendants respectfully request that the Court grant defendants’ motion, grant judgment in defendants’ favor and dismiss the complaint in its entirety. Respectfully submitted, WILLIAM E. FITZPATRICK Acting U.S. Attorney s/ J. Andrew Ruymann By: J. Andrew Ruymann Assistant U.S. Attorney Date: April 21, 2017 Case 3:15-cv-08071-BRM-TJB Document 21-1 Filed 04/21/17 Page 44 of 44 PageID: 535 WILLIAM E. FITZPATRICK Acting U.S. Attorney By: J. ANDREW RUYMANN Assistant U.S. Attorney 402 East State Street, Room 430 Trenton, New Jersey 08608 Attorney for Defendants UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY VICTORIA HANDLE, : Hon. Brian R. Martinotti : Plaintiff, : Civil Action No. 15-8071(BRM) : v. : : MEGAN J. BRENNAN and : Document Electronically Filed UNITED STATES POSTAL SERVICE : : Defendants. : DEFENDANTS’ STATEMENT OF MATERIAL FACTS PURSUANT TO LOCAL CIVIL RULE 56.1 Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 1 of 19 PageID: 536 2 Pursuant to Local Civil Rule 56.1, defendants Megan J. Brennan, Postmaster General of the U.S. Postal Service, and the U.S. Postal Service respectfully submit this statement of material facts not in dispute in support of defendants’ motion for summary judgment:1 1. Victoria Handle (“plaintiff”) began the administrative EEO complaint process, correlating to the claims raised in her lawsuit, on August 8, 2012. On that date, she filed an informal complaint with the Postal Service. (Hopkins Dec., para. 6 and Ex. 1). 2. Plaintiff’s informal complaint alleged race, sex and age discrimination in connection with 1) the Postal Service’s decision to transfer her from the Monmouth Processing and Distribution Center (“P&DC”) to the Trenton P&DC; 2) a 1 Defendants have filed a motion for judgment on the pleadings or, alternatively, for summary judgment. To the extent that the Court views a motion for summary judgment under Fed. R. Civ. P. 56 as the most appropriate vehicle to adjudicate defendants’ effort to secure judgment in its favor and dismiss the complaint due to plaintiff’s failure to comply with mandatory administrative requirements, rather than a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c), defendants rely upon this statement of facts submitted pursuant to L. Civ. R. 56.1. The statement of the facts in defendants’ supporting memorandum mirrors the facts stated herein. This statement of facts and the statement of facts contained in defendants’ supporting memorandum contain citations to the complaint and the declaration of Joseph G. Hopkins, an EEO Services Analyst, employed with the Postal Service’s National Equal Employment Investigative Services Office, and the declaration’s exhibits. Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 2 of 19 PageID: 537 3 management initiated action to have her escorted by local police to a hospital; 3) management’s dissemination of her personal and medical information to other employees; 4) management’ placement of her in an emergency off duty status; and 5) management’s failure to return her to full duty until September 17, 2012, even though she was cleared to return on September 12, 2017. (Hopkins Dec., para. 6 and Ex. 1). 3. Her informal complaint was designated Agency Case No. 1C-081-0090-12. (Hopkins Dec., para. 7 and Ex. 1). On or about November 6, 2012, the Postal Service notified plaintiff that the agency had finished processing her informal complaint and that she had the right to file a formal EEO complaint. (Hopkins Dec., para. 8 and Ex. 2). 4. On December 18, 2012, plaintiff filed a formal EEO complaint of discrimination with the Postal Service. (Hopkins Dec., para. 9 and Ex. 3). 5. On or about January 16, 2013, the Postal Service notified plaintiff that her formal EEO complaint, in Agency Case No. 1C-081-0090-12, had been accepted for investigation on her claims of race, sex and age discrimination on the following four issues: 1. On July 30, 2012 you were not selected to remain at the Monmouth P&DC; 2. On August 7, 2012 following a telephone conversation, Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 3 of 19 PageID: 538 4 management contacted the police and you were taken to the hospital; subsequently you became aware that your personal and medical information was shared with other employees; 3. On August 11, 2012 you were placed on Emergency Placement; and 4. On September 12, 2012 you were cleared to return to work, but management did not permit you to do so. (Hopkins Dec., para. 10 and Ex. 4). 6. During the investigation of the above issues, plaintiff amended her complaint three times to allege that, subsequent to initiating her EEO complaint, the Postal Service retaliated against her by taking additional actions. The first amendment resulted in the Postal Service accepting for investigation plaintiff’s claim of retaliation on the following two issues: 5. On unspecified dates your Manager subjected you to a hostile work environment when she handed you a business card for the Employee Assistance Program in front of other employees and told you to “use it”, and when she embarrassed you over the CB radio within the hearing of other employees, and; 6. On unspecified dates, your requests for leave on Mother’s Day and Easter were denied. (Hopkins Dec., para. 11 and Ex. 5). 7. The second amendment resulted in the Postal Service accepting for investigation plaintiff’s claim of retaliation on the following two issues: 7. On unspecified dates, you were subjected to Four (4) Pre- disciplinary Interviews (PDIs); and 8. On unspecified date(s), you applied for a position(s), and you were not selected for an interview. Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 4 of 19 PageID: 539 5 (Hopkins Dec., para. 12 and Ex. 6). 8. The third amendment resulted in the Postal Service accepting for investigation plaintiff’s claim of retaliation on the following four issues: 9. On or about December 4, 2012, you were issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail; 10. On or about March 1, 2013, you were issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail; 11. On or about March 27, 2013, you were issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail; and 12. On or about May 29, 2013, you were issued a Proposed Letter of Warning in Lieu of a Fourteen Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail. (Hopkins Dec., para. 13 and Ex. 7). 9. On or about September 4, 2013, the Postal Service’s contract investigator completed a written Investigative Report (“IR”) concerning Agency Case No. 1C-081-0090-12 , pursuant to 29 C.F.R. § 1614.108. (Hopkins Dec., para. 14 and Ex. 8). 10. On or about September 10, 2013, the Postal Service sent plaintiff a copy of the IR and notification that she could request a hearing on her EEO complaint before an administrative judge employed by the EEOC, or she could request a final agency decision (“FAD”) without a hearing. (Hopkins Dec., para. 15 and Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 5 of 19 PageID: 540 6 Ex. 9). 11. On or about September 26, 2013, plaintiff mailed the Postal Service’s National Equal Employment Investigative Services Office (“NEEOISO”) a notice stating she was “requesting an Agency decision without a hearing”. (Hopkins Dec., para. 15 and Ex. 10). 12. On or about November 6, 2013, the Postal Service issued an FAD on the merits of all of plaintiff’s claims and bases of discrimination. The FAD described plaintiff’s complaint as raising allegations of discrimination based on race, sex and age on the following issues: 1. On July 30, 2012, she was not selected to remain at the Monmouth P&DC; 2. On August 7, 2012, following a telephone conversation, management contacted the police and she was taken to the hospital; subsequently, she became aware that her personal and medical information was shared with other employees; 3. On August 11, 2012, she was placed on an Emergency Placement; and 4. On September 12, 2012, she was cleared to return to work, but management did not permit her to do so. (Hopkins Dec., Ex. 11, p. 1). 13. Further, the FAD described plaintiff’s complaint as raising allegations of retaliation, occurring since August 8, 2012, on the following issues: 5. On unspecified dates, her Manager subjected her to a hostile work environment when: her manager handed her a business card for the Employee Assistance Program in Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 6 of 19 PageID: 541 7 front of other employees and told her to “use it;” and her Manager embarrassed her over the CB radio within the hearing of other employees; 6. On unspecified dates, her requests for leave on Mother’s Day and Easter were denied; 7. On unspecified dates, she was subjected to four (4) Pre- Disciplinary Interviews (PDIs); 8. On unspecified dates, she applied for a position(s), and she was not selected for an interview; 9. On or about December 4, 2012, she was issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail; 10. On or about March 1, 2013, she was issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail; 11. On or about March 27, 2013, she was issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail; and 12. On or about May 29, 2013, she was issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance – Delay of Mail. (Hopkins Dec., Ex. 11, pp. 1-2). 14. The FAD stated that the above bases of discrimination and issues were cited by plaintiff in her pre-complaints and formal complaints and were fully investigated by the EEO Investigator. (Hopkins Dec., Ex. 11, p. 1, n.1).2 The FAD 2 The FAD stated that the Postal Service’s final acceptance letter cited the incorrect bases of discrimination for issues 1 through 6. (Hopkins Dec., Ex. 11, p. 1 n.1). That letter cited race, color and retaliation as the bases for issues 1 through 6 and retaliation as the basis for issues 7 through 12. (Hopkins Dec., Ex. 7, p. 2). As noted in the FAD, plaintiff alleged race, sex and age discrimination in connection with issues 1 through 4 and retaliation only in connection with issues 5 Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 7 of 19 PageID: 542 8 addressed those bases and issues. The Postal Service made a finding of no discrimination in the FAD. (Hopkins Dec., para. 18 and Ex. 11, p. 39). 15. The FAD advised plaintiff of her right to appeal the decision to the EEOC Office of Federal Operations (“OFO”) or to file a civil action in United States District Court. (Hopkins Dec., para. 18 and Ex. 11, pp. 40-41). 16. On or about November 15, 2013, plaintiff filed an appeal of the FAD with the OFO. (Hopkins, para. 19 and Ex. 12). 17. On June 10, 2015, the OFO issued a decision on plaintiff’s appeal. (Hopkins Dec., para. 20 and Ex. 13). 18. Plaintiff did not specifically identify a violation of the Rehabilitation Act during the processing of Agency Case No. 1C-081-0090-12 and the Postal Service did not accept for investigation a claim of discrimination under the Rehabilitation Act. Nonetheless, the first paragraph of the OFO’s decision characterized plaintiff’s complaint as alleging employment discrimination in violation of Title VII, the Age Discrimination in Employment Act (“ADEA”) and the Rehabilitation Act. (Hopkins Dec., Ex. 13, p. 1). 19. Further, in the background section of the decision, through 12. (Hopkins Dec, Ex. 11, pp. 1-2). Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 8 of 19 PageID: 543 9 the OFO decision characterized plaintiff’s complaint as alleging race, sex, age and reprisal discrimination as to all 12 issues. (Hopkins Dec., Ex. 13, pp. 1-2). In contrast, the Postal Service’s FAD, reflecting the claims articulated by plaintiff during the EEO process, stated that plaintiff’s complaint raised allegations of race, sex and age discrimination with regard to Issues 1 through 4 and allegations of retaliation, occurring since August 8, 2012, concerning Issues 5 through 12. (Hopkins Dec., Ex. 11, pp. 1-2). 20. The OFO affirmed in part and reversed in part the Postal Service’s FAD. (Hopkins Dec., Ex. 13, p. 4). 21. As to Issues 1 and 3 through 12, the OFO affirmed the Postal Service’s final decision. (Hopkins Dec., Ex. 13, p. 4). 22. In considering Issue 2 - in which plaintiff alleged, among other things, that management shared personal and medical information with other employees - the OFO stated that improper disclosure of medical information constitutes a per se violation of the Rehabilitation Act, even if the complainant does not have a disability, (Hopkins Dec., Ex. 13, p. 4), and found that “the record establishes that in fact management disclosed [confidential medical information] to individuals who did not have a reason to have it.” (Hopkins Dec., Ex. 13, p. 4). Accordingly, the OFO reversed the Postal Service’s final Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 9 of 19 PageID: 544 10 decision with respect to Issue 2 and remanded that matter to the Postal Service in accordance with its order. 23. The Conclusion section in the OFO’s decision was as follows: CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the final decision with respect to Issue 2 only, and REMAND the matter to the agency in accordance with the ORDER below. We AFFIRM the agency’s final decision with respect to the remaining claims. (Hopkins Dec., Ex. 13, p. 4). 24. The Order section in the OFO’s decision stated the following, in pertinent part: ORDER 1. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall undertake a supplemental investigation to determine Complainant’s entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993) and request objective evidence from Complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency’s notice. No later than one hundred and twenty (120) calendar days after the date this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below. Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 10 of 19 PageID: 545 11 . . . 5. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include supporting documentation of the Agency’s calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. (Hopkins Dec., Ex. 13, pp. 4-5). 25. The OFO’s decision stated the following as to plaintiff’s right to file a civil action: COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. (Hopkins Dec., Ex. 13, p. 7). 26. The above notice provided to plaintiff by the OFO Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 11 of 19 PageID: 546 12 regarding her right to file a civil action reflected the EEOC’s pertinent regulation regarding the time limits for filing a civil action at 29 C.F.R. § 1614.407, which states as follows: A complainant who has filed an individual complaint, an agent who has filed a class complaint, an agent or a claimant who has filed a claim for individual relief pursuant to a class complaint is authorized under title VII, the ADEA and Rehabilitation Act to file a civil action in an appropriate United States District Court: (a) Within 90 days of receipt of the final action on an individual or class complaint if no appeal has been filed; (b) After 180 days from the date of filing an individual or class complaint if an appeal has not been filed and final action has not been taken; (c) Within 90 days of receipt of the Commission’s final decision on an appeal; or (d) After 180 days from the date of filing an appeal with the Commission if there has been no final decision by the Commission. 29 C.F.R. § 1614.407. 27. On or about June 22, 2015, as part of the supplemental investigation directed by the OFO, the Postal Service (specifically, the NEEOISO) issued plaintiff a request for evidence in support of her request for compensatory damages. (Hopkins Dec., para. 21 and Ex. 14, pp. 1-2). The request, among other things, stated: Return the completed, signed and dated forms and any accompanying documentary forms and any accompanying documentary evidence to this office as soon as possible but no later than 45 days from the date of your receipt of this letter. The sooner you respond, the sooner the agency can adjudicate your entitlement. Enclosed is a pre- Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 12 of 19 PageID: 547 13 addressed envelope for your convenience in responding. (Hopkins Dec., para. 21 and Ex. 14, pp. 1-2). 28. Plaintiff did not send the NEEOISO a response to its request for compensatory damages information. (Hopkins Dec., para. 22). 29. On or about August 19, 2015, the Postal Service issued a FAD addressing the issue of compensatory damages concerning Issue 2 – that is, that management shared personal and medical information with other employees. (Hopkins Dec., para. 23 and Ex. 15). By that FAD, concerning compensatory damages on Issue 2, the Postal Service awarded plaintiff $1,000.00 in non- pecuniary compensatory damages. (Hopkins Dec., para. 24 and Ex. 15, p. 5). 30. The Postal Service’s August 19, 2015, FAD concerning compensatory damages on Issue 2 stated the following as to plaintiff’s right to appeal the decision to the OFO: Appeal to the EEOC You have the right to appeal the Postal Service’s final decision to the Director, Office of Federal Operations, Equal Opportunity Commission (EEOC), P.O. Box 77960, Washington, DC 20013-8960, within 30 calendar days of your receipt of this decision. You must use Form 3573, a copy of which is enclosed, in connection with your appeal. You may also deliver your appeal in person or by facsimile provided that briefs filed by facsimile are ten or fewer pages in length. Any supporting statement or brief must be submitted to the EEOC within 30 calendar days of filing the appeal. Along with your appeal, you must submit proof to Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 13 of 19 PageID: 548 14 the EEOC that a copy of the appeal and any supporting documentation or brief were also submitted to the Executive Manager National EEO Investigative Services Office, USPS, P.O. Box 21979, Tampa, FL 33622-1979. You are advised that if you file your appeal beyond the 30-day period set forth in the Commission’s regulations, you should provide an explanation as to why your appeal should be accepted despites its untimeliness. If you cannot explain why your untimeliness should be excused in accordance with 29 C.F.R. 1614.604, the Commission may dismiss the appeal as untimely. (Hopkins Dec., para. 25 and Ex. 15, p. 5). 31. The Postal Service’s August 19, 2015, FAD, concerning compensatory damages on Issue 2, stated the following as to plaintiff’s right to file a civil action: Right To File Civil Action Alternatively, if you are dissatisfied with the Postal decision in this case, you may file a civil action in an appropriate U.S. District Court within 90 calendar days of your receipt of the Postal Service’s final decision, within 90 calendar days of the EEOC’s final decision on any appeal, or after 180 days from the date of filing any appeal with the EEOC if no final decision has been rendered. If you chose to file a civil action, that action should be captioned Victoria Handle v. Megan J. Brennan, Postmaster General. You may also request the court to appoint an attorney for you and to authorize the commencement of that action without the payment of fees, costs, or security. Whether these requests are granted or denied is within the sole discretion of the District Judge. Your application must be filed within the same 90-day time period for filing the civil action. (Hopkins Dec. para. 25 and Ex. 15, p. 5)(Emphasis in original omitted). 32. The above notice provided to plaintiff by the Postal Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 14 of 19 PageID: 549 15 Service regarding her right to file a civil action reflected the EEOC’s pertinent regulation regarding the time limits for filing a civil action at 29 C.F.R. § 1614.407, which states as follows: A complainant who has filed an individual complaint, an agent who has filed a class complaint, an agent or a claimant who has filed a claim for individual relief pursuant to a class complaint is authorized under title VII, the ADEA and Rehabilitation Act to file a civil action in an appropriate United States District Court: (a) Within 90 days of receipt of the final action on an individual or class complaint if no appeal has been filed; (b) After 180 days from the date of filing an individual or class complaint if an appeal has not been filed and final action has not been taken; (c) Within 90 days of receipt of the Commission’s final decision on an appeal; or (d) After 180 days from the date of filing an appeal with the Commission if there has been no final decision by the Commission. 29 C.F.R. § 1614.407. 33. On August 25, 2015, the Postal Service provided the OFO with a copy of its FAD regarding compensatory damages on Issue 2 and notified the OFO that plaintiff had not responded to its request for a submission on compensatory damages. (Hopkins Dec., para. 26 and Ex. 16). 34. On September 17, 2015, plaintiff filed an appeal to the OFO from the Postal Service FAD regarding compensatory damages on Issue 2. (Hopkins Dec., para. 27 and Ex. 17). 35. In response to its receipt of plaintiff’s appeal, the Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 15 of 19 PageID: 550 16 OFO issued a letter to the Postal Service, dated October 8, 2015, acknowledging the OFO’s receipt of plaintiff’s appeal of the FAD regarding compensatory damages on Issue 2 and directing the Postal Service to submit the complaint file, along with any related or consolidated complaint files, to the OFO within 30 days. (Hopkins Dec., para. 28 and Ex. 18). The OFO designated plaintiff’s appeal as EEO Appeal No. 0120160036. (Hopkins Dec., para. 28 and Ex. 18). 36. On or about November 4, 2015, the Postal Service filed a response to plaintiff’s appeal to the OFO from the FAD concerning compensatory damages on Issue 2. (Hopkins Dec., para. 31 and Ex. 19). 37. On November 13, 2015 – that is, 156 days after the OFO’s final decision of June 10, 2015, on Issues 1 and 3 through 12 and 57 days after plaintiff’s September 17, 2015, appeal to the OFO regarding the Postal Service’s FAD regarding compensatory damages on Issue 2 – plaintiff filed the instant lawsuit. (Complaint). 38. Her four-count lawsuit, naming the Postmaster General, Megan J. Brennan, and the Postal Service as defendants, includes four counts. (Complaint). 39. Count One asserts that the actions of the Postal Service cited in the Complaint constitute sex discrimination in Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 16 of 19 PageID: 551 17 violation of Title VII. (Complaint, p. 8). 40. Count Two asserts that, at the time of the occurrences covered in the Complaint, plaintiff was between 59 and 60 years old, and that the actions of the Postal Service cited in the Complaint constitute age discrimination in violation of the Age Discrimination in Employment Act. (Complaint, pp. 9-10). 41. Count Three asserts that four disclosures made by Mary Ducey, identified as plaintiff’s supervisor, to numerous Postal Service employees violated Section 501 of the Rehabilitation Act. (Complaint, pp. 10-11). Plaintiff identifies the four disclosures allegedly made by Ducey as the following: A. Handle had threatened suicide, “became missing”, ran away, and her husband was not aware of whereabouts; B. As a result, she was forced to go to the hospital against her will; C. Handle had a nervous breakdown; and D. Ducey disclosed related information concerning Handle’s medical condition to Postal employees. (Complaint, para. 23). 42. Finally, Count Four - which is labeled as a retaliation claim, but does not cite to any specific employment discrimination statute violated by defendants - asserts that as a result of the discrimination complaints and affidavits she filed, she “was repeatedly discriminated against and subject to the adverse employment actions set forth” in the complaint. (Complaint, p. 12). Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 17 of 19 PageID: 552 18 43. The alleged actions covered in the complaint’s recitation of facts correlate to the actions cited by plaintiff in Issues 1 to 12 of her EEO complaint lodged with the Postal Service: paragraphs 5, 6 and 10 address plaintiff’s transfer to the Monmouth P&DC (corresponding to Issue 1); paragraph 7 addresses the Postal Service’s contact with the Keyport Police and the sharing of plaintiff’s medical information with other employees (corresponding to Issue 2); paragraph 7 also addresses the placement of plaintiff in an emergency status (corresponding to Issue 3); paragraph 8 addresses the clearing of plaintiff to return to work (corresponding to Issue 4); paragraph 14 addresses providing plaintiff with an EAP card in the presence of other employees and embarrassing her over the CB radio (corresponding to Issue 5); paragraph 14 addresses the denial of leave on Mother’s Day and Easter (corresponding to Issue 6); paragraph 13 addresses failing to promote plaintiff and not interviewing plaintiff after she applied for a position (corresponding to Issue 8); and paragraph 11 addresses the four letters of warning issued between December 4, 2012, and May 29, 2013 (corresponding to Issues 9 through 12 and, apparently, Issue 7). 44. On March 10, 2016, the OFO dismissed Appeal No. 0120160036 – that is, plaintiff’s appeal of the Postal Service’s Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 18 of 19 PageID: 553 19 FAD regarding compensatory damages on Issue 2 – due to plaintiff’s filing of the instant lawsuit. (Hopkins Dec., para. 32 and Ex. 20). 45. The OFO’s dismissal decision stated that, because the claim of improper disclosure of medical information (covered by Issue 2) was raised in her lawsuit, filed November 13, 2015, plaintiff’s appeal relating to that same claim had to be dismissed pursuant to 29 C.F.R. § 1614.409, which provides that the filing of a civil action “shall terminate Commission processing of the appeal.” (Hopkins Dec., Ex. 20, p. 2). 46. Plaintiff has not filed a formal EEO complaint with the Postal Service other than Agency Case No. 1C-081-0090-12 since 2012. (Hopkins Dec., para. 33). Respectfully submitted, WILLIAM E. FITZPATRICK Acting U.S. Attorney s/ J. Andrew Ruymann By: J. Andrew Ruymann Assistant U.S. Attorney Date: April 21, 2017 Case 3:15-cv-08071-BRM-TJB Document 21-2 Filed 04/21/17 Page 19 of 19 PageID: 554 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICTORIA HANDLE, Plaintiff, v. Civil Action No. 15-8071 (BAM) MEGAN J. BRENNAN and UNITED STATES POSTAL SERVICE, Defendants. DECLARATION OF JOSEPH G. HOPKINS I, Joseph G. Hopkins, make the following declaration pursuant to 28 u.s.c. §1746: 1. provide this declaration and the documents attached in support of defendant's motion for judgment on the pleadings or for summary judgment in the above-cited civil action that has been brought by Victoria Handle against the United States Postal Service ("Postal Service") alleging issues of discrimination and retaliation in employment. 2. I am over the age of 18, and am competent to testify. 3. The statements made herein are based upon my personal knowledge, and upon information made available to me in my official position with the Postal Service. 4. I am employed by the Postal Service in the position of EEO Services Analyst at the Postal Service's National Equal Employment Opportunity Investigative Services Office ("NEEOISO") which is located in Tampa, Florida. I have held this position in the Postal Service for approximately twelve years, and have been an employee of the Postal Service for a total of forty-four years. The Postal Service's Case 3:15-cv-08071-BRM-TJB Document 21-3 Filed 04/21/17 Page 1 of 10 PageID: 555 NEEOISO is responsible for the processing of all EEO complaints filed by all Postal Service employees nationwide, in accordance with the regulations of the Equal Employment Opportunity Commission (hereinafter "EEOC") governing the processing of EEO complaints against federal-sector employers set forth at 29 C.F.R. Part 1614. NEEOISO maintains the records of all EEO complaints, and pre-complaints, filed by all . Postal Service. employees, as well as non-employees such as applicants for employment, who file EEO complaints against the Postal Service dating back to the year 2004. It also maintains records of some EEO complaints filed prior to that date. Statistical data which track claims, bases, and major steps in the processing of complaints are also available in the iComplaints data base. The duties of my position include monitoring the quality of acceptances and dismissals of complaints, investigations, and final agency decisions and recommending and preparing policies concerning all aspects of complaint processing. The documents attached hereto are true and correct copies of the EEO documents maintained by the Postal Service concerning EEO complaints filed by Postal Service employee Victoria Handle. 6. On August 8, 2012, employee Victoria Handle made initial contact with the Postal Service's 1-888 EEO telephone number to request pre-complaint counseling. On August 21, 2012, she filed an "Information for Pre-Complaint Counseling" form (a.k.a., an "informal complaint" or "pre-complaint") with the NEEOISO in accordance with 29 C.F.R. Part 1614.105. (See the copy of the referenced informal EEO complaint and the envelope in which it was received attached as "Exhibit 1. '1 7. The complaint was assigned/designated Agency Case No. 1C-081-0090- 12. ( See also "Exhibit 1 ".) 2 Case 3:15-cv-08071-BRM-TJB Document 21-3 Filed 04/21/17 Page 2 of 10 PageID: 556 8. On or about November 6, 2012, the Postal Service notified Ms. Handle that the agency had finished processing her pre-complaint that she had the right to file a formal EEO complaint. (See the copy of the "Notice of the Right to File an Individual Complaint of Discrimination" attached hereto as "Exhibit 2".) 9. On December 18, 2012, Ms. Handle filed a formal EEO complaint of discrimination. (See the formal EEO complaint and the envelope in which it was received attached as "Exhibit 3. 'J 10. On or about January 16, 2013, the Postal Service notified Ms. Handle (hereinafter "Plaintiff'') that her formal EEO complaint, designated as Agency Case No. 1C-081-0090-12, had been accepted for investigation of the following four (4) allegations/issues: [D]iscrimination based on Race (Unspecified), Sex (Female) and Age (DOB: 077128/1953) when: 1. On July 30, 2012 you were not selected to remain at the Monmouth P&DC; 2. On August 7, 2012 following a telephone conversation, management contacted the police and you were taken to the hospital; subsequently you became aware that your personal and medical information was shared with other employees; 3. On August 11, 2012 you were placed on Emergency Placement; and 4. On September 12, 2012 you were cleared to return to work, but management did not permit you to do so. (See the copy of the "Acceptance For Investigation" notice dated January 16, 2013 attached hereto as "Exhibit 4".) 11. On or about April 19, 2013, the Postal Service notified Plaintiff that it had accepted an amendment to Agency Case No. 1C-081-0090-12 to include the following additional allegations/issues: 3 Case 3:15-cv-08071-BRM-TJB Document 21-3 Filed 04/21/17 Page 3 of 10 PageID: 557 [D]iscrimination on the basis of Retaliation (instant complaint) when: 5. On unspecified dates your Manager subjected you to a hostile work environment when she handed you a business card for the Employee Assistance Program in front of other employees and told you to "use it", and when she embarrassed you over the CB radio within the hearing of other employees, and; 6. On unspecified dates, your requests for leave on Mother's Day and Easter were denied. ( See the copy of the ''Acknowledgment of Amendment to Complaint" dated April 19, 2013 attached hereto as "Exhibit 5".) 12. On or about June 12, 2013, the Postal Service notified Plaintiff that it had accepted a second amendment to Agency Case No. 1C-081-0090-12 to include the following additional allegations/issues: [D]iscrimination on the basis of Retaliation (instant Complaint) when since August 8, 2012, you have been subjected to the following: 7. On unspecified dates, you were subjected to Four (4) Pre-disciplinary Interviews (POis); and 8. On unspecified date(s), you applied for a position(s), and you were not selected for an interview. (See the copy of the ''Acknowledgement of ~d Amendment To Complaint" dated June 12, 2013 attached as "Exhibit 6".) 13. On or about June 19, 2013, the Postal Service notified Plaintiff that it had accepted a third amendment to Agency Case No. 01C-081-0090-12 to include the addition of the following allegations/issues: [D]iscrimination on the basis of Retaliation (Instant Complaint) when since August 8, 2012, you have been subjected to the following: 9. On or about December 4, 2012, you were issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance- Delay of Mail; 4 Case 3:15-cv-08071-BRM-TJB Document 21-3 Filed 04/21/17 Page 4 of 10 PageID: 558 10. On or about March 1, 2013, you were issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance - Delay of Mail; 11. On or about March 27, 2013, you were issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance- Delay of Mail; and 12. On or about May 29, 2013, you were issued a Proposed Letter of Warning in Lieu of a Fourteen Day Time-Off Suspension, for Unsatisfactory Job Performance - Delay of Mail. ( See the copy of the "Acknowledgement of ~ Amendment to Complaint" dated June 19, 2013 attached as "Exhibit 7".) 14. On or about September 4, 2013, the Postal Service's contract investigator completed a written Investigative Report (hereinafter "IR") concerning Agency Case No. 1C-081-0090-12, pursuant to 29 C.F.R. § 1614.108. (See the copy of the notice stating that the IR was submitted on September 4, 2013 attached as "Exhibit 8".) 15. On or about September 10, 2013, the Postal Service sent Plaintiff a copy of the IR and notification that she could request a hearing on her EEO complaint before an administrative judge employed by the EEOC, or she could request a final agency decision (hereinafter "FAD") without a hearing. (See copy of the "Transmittal of Investigative File" and notice of right to request a hearing or a FAD attached as "Exhibit 9".) 16. On or about September 26, 2013, Plaintiff mailed NEEOISO a notice that stated she was "requesting an Agency decision without a hearing". (See the copy of the letter from Plaintiff requesting a FAD without a hearing attached as "Exhibit 10".) 17. On or about November 6, 2013, the Postal Service issued a final agency decision ("FAD") on the merits of all of the Plaintiffs claims and bases of discrimination. (See the copy of the FAD dated November 6, 2013 attached hereto as "Exhibit 11".) 5 Case 3:15-cv-08071-BRM-TJB Document 21-3 Filed 04/21/17 Page 5 of 10 PageID: 559 18. The aforesaid FAD made a finding of no discrimination. (See "Exhibit 11", p. 39.) The aforesaid FAD advised Plaintiff of the right to appeal the decision to the EEOC Office of Federal Operations (hereinafter "OFO"), or to file a civil action in United States District Court. (See "Exhibit 11", pp. 40-41.) 19. On or about November 15, 2013, Plaintiff filed an appeal of the FAD to the EEOC's OFO. (See the copy of the notice of appeal to OFO attached as "Exhibit 12".) 20. On or about June 10, 2015, OFO issued a decision on Plaintiffs appeal which had been designated as EEOC Appeal No. 0120140480. (See the copy of the OFO decision attached as "Exhibit 13':) 21. The OFO decision dated June 10, 2015 in EEOC Appeal No. 0120140480 stated, in part: CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the final decision with respect to Issue 2 only, and REMAND the matter to the agency in accordance with the ORDER below. We AFFIRM the agency's final decision with respect to the remaining claims. ORDER 1. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall undertake a supplemental investigation to determine Complainant's entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of her right to submit objective evidence .. . and request objective evidence from Complainant in support of his request for compensatory damages within forty- five (45) calendar days of the date Complainant receives the Agency's notice. No later than one hundred and twenty (120) days after the date this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. 6 Case 3:15-cv-08071-BRM-TJB Document 21-3 Filed 04/21/17 Page 6 of 10 PageID: 560 ... 5. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." ("Exhibit 13", pp. 4-5.) 21. On or about June 22, 2015, the Postal Service issued Plaintiff a request for evidence in support of her request for compensatory damages. (See the copy of the request for evidence concerning compensatory damages attached hereto as "Exhibit 14".) The last paragraph of the request stated, in part: Return the completed, signed and dated forms and any accompanying documentary evidence to this office as soon as possible but no later than 45 days from the date of your receipt of this letter. Enclosed is a pre-addressed envelope for your convenience in responding. ("Exhibit 14", pp. 1-2.) 22. The Plaintiff did not send NEEOISO a response to the aforesaid request for compensatory damages information. (See further details below.) 23. On or about August 19, 2015, the Postal Service issued a final Agency decision addressing the issue of compensatory damages concerning Issue 2. (See the copy of the "Notice of Final Decision" regarding compensatory damages on Issue 2 attached as "Exhibit 15".) 24. The Postal Service's final agency decision concerning compensatory damages on Issue 2 awarded Plaintiff $1,000.00 in non-pecuniary compensatory damages. (See "Exhibit 15", p. 5, first full ,r.) 7 Case 3:15-cv-08071-BRM-TJB Document 21-3 Filed 04/21/17 Page 7 of 10 PageID: 561 25. The Postal Service final agency decision concerning compensatory damages on Issue 2 advised Plaintiff of the right to appeal the decision to OFO or to file a civil action in federal district court. (See "Exhibit 15", p. 5.) 26. On August 25, 2015, the Postal Service provided the OFO Compliance Officer with a copy of its final agency decision regarding compensatory damages, and notified OFO that Plaintiff had not responded to its request for a submission on compensatory damages. ( See the copy of the August 25, 2015 submission to OFO attached hereto as "Exhibit 16".) 27. On September 17, 2015, Plaintiff filed an appeal to OFO from the Postal Service final agency decision regarding compensatory damages on Issue 2. (See the copy of the Plaintiffs appeal to OFO from the final agency decision regarding compensatory damages on Issue 2 attached hereto as "Exhibit 17''.)1 28. On or about October 8, 2015, OFO issued a letter (dated October 8, 2015) acknowledging receipt of Plaintiffs appeal of the final agency decision regarding compensatory damages on Issue 2. OFO designated this appeal as EEOC Appeal No. 0120160036. (See the copy of the acknowledgement letter attached as "Exhibit 18".) 29. In her OFO appeal regarding the compensatory damages decision, Plaintiff stated that she had mailed in her "completed affidavit and additional evidence [regarding compensatory damages] as instructed." (Underlining added.) (See "Exhibit 17': p. 1.) She also stated in her appeal: This was mailed to Washington DC on 7/6/2015 and received on 7/8/2015. (Underlining added.) 1 The appeal contains a stamp indicating OFO received it on September 21, 2015. (See "Exhibit 17", p. 1.) OFO, which considers the date of mailing as the filing date, subsequently issued an acknowledgment letter that recognized September 17, 2015 as the filing date. (See, "Exhibit 18".) 8 Case 3:15-cv-08071-BRM-TJB Document 21-3 Filed 04/21/17 Page 8 of 10 PageID: 562 ("Exhibit 17", p. 1, ,r 2.) The appeal included a copy of a receipt for mailing an envelope to Washington, DC 20013-8960. (See "Exhibit 17': p. 3.)2 30. Plaintiff was not instructed by the Postal Service to mail her compensatory damages documentation to Washington, D.C. She was instructed to mail the documentation to the NEEOISO office in Tampa, Florida - where she had sent all other submissions in the instant EEO case. ( See "Exhibit 14", pp. 1-2.) She was also provided with a pre-addressed envelope in which to submit the compensatory damages documents. (See "Exhibit 14", p. 2. See also, "Exhibit 19, p. 1, ,r 2.) The address in Tampa, FL that she was instructed to use was the same address to which she had previously mailed her informal EEO pre-complaint (See the envelope at "Exhibit 1", p. 12); her formal EEO complaint (See the envelope at "Exhibit 3", p. 5); her request for a FAD rather than a hearing (See the envelope at "Exhibit 10", p. 2); and her notice of her first OFO appeal. (See the envelope at "Exhibit 12" p. 3). 31. On or about November 4, 2015, the Postal Service filed a response to Plaintiff's appeal to OFO from the final decision concerning compensatory damages on Issue 2. ( See the copy of the Postal Service's response filed with OFO attached hereto as "Exhibit 19".) 32. On March 10, 2016, OFO issued its decision in EEOC Appeal No. 0120160036 dismissing the appeal because Plaintiff had chosen to file a civil action in United States District Court. ( See the copy of the OFO decision attached as "Exhibit 20".) 2 Neither the receipt, nor Plaintiffs appeal, identifies the street address in Washington, D.C. to which the documents were mailed. It is noted that the office of OFO is in Washington, D.C and its unique ZIP Code for the post office box used as its mailing address is 20013-8960, the ZIP Code identified on the receipt. 9 Case 3:15-cv-08071-BRM-TJB Document 21-3 Filed 04/21/17 Page 9 of 10 PageID: 563 33. Victoria Handle has not filed any formal EEO complaint with the Postal Service other than Agency EEO Case No. 1C-081-0090-12 since 2012. The only EEO claim raised after 1C-081-0090-12 was an allegation which was withdrawn on January 12, 2015 during pre-complaint processing with no formal complaint filed. (See the copies of the printouts from the Postal Service's iComplaints data base identifying the plaintiffs complaint history and the events in Agency Case No. 1 C-081-0013-15 attached as Exhibit 21.) I declare or certify under penalty of perjury th~ the foregoing is true and correct to the best of my knowledge and belief. Dated this~ cfay of April 2017. ~os~~~Jµ , -- EEO Services Analyst U.S. Postal Service NEEOISO P.O. Box 21979 Tampa, FL 33622-1979 10 Case 3:15-cv-08071-BRM-TJB Document 21-3 Filed 04/21/17 Page 10 of 10 PageID: 564 HOPKINS DECLARATION EXHIBIT 4 Case 3:15-cv-08071-BRM-TJB Document 21-4 Filed 04/21/17 Page 1 of 4 PageID: 565 National EEO Investigative Services Ice & UNITEDST/JTES POST/JL SERVICE VICTORIA HANDLE 47 Manchester Ave Keyport, NJ 07735-1864 Complainant, v. UNITED STATES POSTAL SERVICE EQUAL EMPLOYMENT OPPORTUNITY IN THE MATTER OF: Delivery Confirmation Complainant: 0312 3190 0002 47881443 Agency Case Number: 1C-081-0090-12 PATRICK R. DONAHOE Postmaster General United States Postal Service Eastern Area Agency. Date Formal Filed: December 18, 2012 ACCEPTANCE FOR INVESTIGATION Receipt of your formal complaint of discrimination referenced above, is herein acknowledged. Your complaint has been accepted for investigation. The scope of the investigation will include the following issue(s) only: Specific lssue(s) Alleged: You alleged discrimination based on Race (Unspecified), Sex (Female) and Age (DOB: 07/28/1953) when: I. On July 30, 2012 you were not selected to remain at the Monmouth P&DC; 2. On August 7, 2012 following a telephone conversation, management contacted the police and you were taken to the hospital; subsequently you became aware that your personal and medical information was shared with other employees; 3. On August 11, 2012 you were placed on Emergency Placement; and 4. On September 12, 2012 you were cleared to return to work, but management did not permit you to do so. NOTE: If your complaint involves an allegation of age discrimination, the Postal Service is required by the Age Discrimination in Employment Act of 1967, as amended, to advise you that you may consult with an attorney should you desire to do so before signing any agreement resolving your complaint of age discrimination. If you do not agree with the defined accepted issue(s), you must provide a written response specifying the nature of your disagreement within seven (7) calendar days of receipt of this letter to the EEO Services Analyst at the address below. You are reminded that any notification of disagreement with the defined accepted issues Is not an opportunity or forum to raise additional, unrelated allegations of discrimination. Additional unrelated issues must be pursued through established procedures with your local EEO Office. P.O. Box 21979 Tampa, FL 33622•1979 00125 Issues To Investigate Page~ of JS Case 3:15-cv-08071-BRM-TJB Document 21-4 Filed 04/21/17 Page 2 of 4 PageID: 566 • -2- Your case will be assigned for investigation. Please be prepared to go forward with your case and provide an affidavit when the Investigator contacts you in the near future. The investigation of the accepted Issues will be completed within 180 calendar days of the date of your filing of the complaint, except that the complainant and the Postal Service may voluntarily agree, in writing, to extend the time period up to an additional 90 calendar days. -. - . -· - . Should-yoU-Seek-to .amend- the complaintrthe.amendment-wiU-exteAd-the. tlme-for-.pmcessing-. . - an additional 180 days from the date of the amendment with the total allowable time for processing the complaint and all amendments no more than 360 days. If you have a grievance pending on the same issue(s) as those addressed in your complaint of discrimination, the agency may, at its discretion, defer the processing of this complaint until the grievance procedure has run Its course and there has been a final resolution of the grievance. When an investigation is deferred, pending the outcome of the grievance process, the 180-day time period for processing the complaint is stopped temporarily, and does not restart until the grievance is resolved. If your complaint is deferred, you will be notified, in writing, of the options which may be available to you as a result. When the investigation is completed, you will receive a copy of the investigative report, and you will be notified of your right to a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge or of your right to a final decision by the agency head or designee without a hearing. You may request a final agency decision without a hearing, at the appropriate time, by writing the NEEOISO-FADS, P.O. Box 21979, Tampa, FL 33622-1979. You may request a hearing by an EEOC Administrative Judge by notifying, in writing, the Equal Employment Opportunity Commission at the following address: Chief Administrative Judge EEOC New York District Office 33 Whitehall St. 5lh Floor New York, NY 10004-2167 You must make your hearing request within 30 calendar days of your receipt of the investigative report and you must provide the Manager NEEOISO-Hearings, P.O. Box 21979, Tampa, FL 33622-1979 with a copy of that hearing request. If you do not receive your investigative report and notification concerning your appeal rights within 180 calendar days from the date on which you filed your formal complaint, you may request a hearing by writing directly to the EEOC District Office shown above, with a copy to the Manager NEEOISO- Hearings, P.O. Box 21979, Tampa, FL 33622-1979. If you are dissatisfied with the Postal Service's final agency decision where there has been no hearing, or with the Postal Service's final action on the decision of an Administrative Judge following a hearing, you have certain appeals rights. You may appeal to the Office of Federal Operations, Equal Employment Opportunity Commission (EEOC), at the address shown below, within 30 calendar days of the date of your receipt of the final agency decision or you may file a 00126 Issues 12Jnvestlgate Page~of..l!i__ Case 3:15-cv-08071-BRM-TJB Document 21-4 Filed 04/21/17 Page 3 of 4 PageID: 567 • • -3- civil action in the appropriate U. S. District Court within 90 calendar days of your receipt of the decision. You may also appeal a final action by the Postal Service implementing a decision of an Administrative Judge following a hearing within 30 calendar days of the date of your receipt of that final action or you may file a civil action in an appropriate U. S. District Court within 90 calendar days of the date of your receipt of the final action. Finally, you may respond to an - . -appeal by the P-0stal SeMce-JA..connection.with. its.final action not to .implemeAt a decision of an.. Administrative Judge following a hearing or you may file a cMI action in an appropriate U. S. District Court within 90 calendar days of the date of your receipt of the final action and appeal. Any appeal to the EEOC should be addressed to the Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, D.C. 20013-8960. Along with your appeal, you must submit proof to the EEOC that a copy of the appeal and any supporting documentation were also submitted to NEEOISO-FADS, P.O. Box 21979, Tampa, Fl 33622-1979. After 180 calendar days from the date of filing your formal complaint, you may file a cMI action in an appropriate U. S. District Court if the Postal Service has not issued a final decision on your complaint or if no final action has been taken on a decision by an Administrative Judge. If you decide to appeal to the Office of Federal Operations, EEOC, you may file a civil action in an appropriate U. S. District Court within 90 calendar days after your receipt of the Office of Federal Operation's decision. If you do not receive a decision on your appeal within 180 calendar days from the date of your appeal, you may file a civil action. January 16, 2013 Date Attachment: PS Form 2570, EEO Dispute Resolution Specialist's Inquiry Report and Report of Investigative FIie Media Selection Letter 00127 Issues To Investigate Page .J§__ of .J.S_ Case 3:15-cv-08071-BRM-TJB Document 21-4 Filed 04/21/17 Page 4 of 4 PageID: 568 HOPKINS DECLARATION EXHIBIT 5 Case 3:15-cv-08071-BRM-TJB Document 21-5 Filed 04/21/17 Page 1 of 5 PageID: 569 National EEO lnvelative Services Office .:!!!!!II UNITED STATES ~ POSTAL SERVICE VICTORIA HANDLE UNITED STATES POSTAL SERVICE EQUAL EMPLOYMENT OPPORTUNITY IN THE MATTER OF: 47 Manchester Ave Keyport, NJ 07735-1864 Complainant, Delivery Confirmation Complainant: 0310 2640 00011192 7036 v. PATRICK R. DONAHOE Postmaster General United States Postal Service Eastern Area Agency. Agency Case Number: 1C-081-0090-12 Date Formal Flied: December 18, 2012 ACKNOWLEDGEMENT OF AMENDMENT TO COMPLAINT We received a PS Form 2564-A, Information for Pre-Complaint Counseling, dated March 12, 2013, for which you requested counseling on March 6, 2013. Your response was malled on March 15, 2013, and was received by the agency on March 18, 2013. Title 29 C.F.R. § 1614.106 (d), permits the amendment of a pending EEO complaint to add claims that are like or related to those claims raised in the pending complaint. There Is no requirement that the complainant seek or receive counseling on these new claims. The additional matters raised in your request are like or related to the matters raised in your formal complaint filed on December 18, 2012. Therefore your complaint is hereby amended. Specific Amended Issue: You allege discrimination on the basis of Retaliation (instant complaint) when: 5. On unspecified dates your Manager subjected you to a hostile work environment when she handed you a business card for the Employee Assistance Program in front of other·employees and told you to "use it", and when she embarrassed you over the CB radio within the hearing of other employees, and; 6. On unspecified dates, your requests for leave on Mother's Day and Easter were denied. P.O. Box 21979 Tampa, FL 33622•1979 00121 Issues J:0. lnvest115: Page ..::L.._ of Case 3:15-cv-08071-BRM-TJB Document 21-5 Filed 04/21/17 Page 2 of 5 PageID: 570 -2- The Issues now accepted for Investigation Include only the following: Specific lssue(s): You allege discrimination based on Race (Black), Color (Black), and Retaliation (instant complaint} when: 1. On July 30, 2012 you were not selected to remain at the Monmouth P&DC; 2. On August 7, 2012 following a telephone conversation, management contacted the police and you were taken to the hospital; subsequently you became aware that your personal and medical information was shared with other employees; 3. On August 11, 2012 you were placed on Emergency Placement; 4. On September 12, 2012 you were cleared to return to work, but management did not permit you to do so; · 5. On unspecified dates your Manager subjected you to a hostile work environment when she handed you a business card for the Employee Assistance Program in front of other employees and told you to "use if', and when she embarrassed you over the CB radio within the hearing of other employees, and; 6. On unspecified dates, your requests for leave on Mother's Day and Easter were denied. NOTE: If your complaint involves an allegation of age discrimination, the Postal Service is required by the Age Discrimination in Employment Act of 1967, as amended, to advise you that you may consult with an attorney should you desire to do so before signing any agreement resolving your complaint of age discrimination. If you do not agree with the defined accepted issue(s), you must provide a written response specifying the nature of your disagreement within seven (7) calendar days of receipt of this letter to the EEO Services Analyst at the address below. You are reminded that any notification of disagreement with the defined accepted issues is not an opportunity or forum to raise additional, unrelated allegations of discrimination. Additional unrelated issues must be pursued through established procedures with your local EEO Office. Please be prepared to go forward with your case and provide an affidavit when the Investigator contacts you in the near future. The investigation must now be completed within the earlier of 180 days of this amendment or 360 days from the date the original complaint was filed, except that you may request a hearing on the original complaint and amendments to it at any time after 180 days from the date the original complaint was filed. You may request a hearing by sending your request, In writing, within the applicable time period, to: Chief Administrative Judge EEOC New York District Office 33 Whitehall St. 5th Floor New York, NY 10004-2167 00122 Issues To lnvestl!Ji!s Page JQ_ of 1; Case 3:15-cv-08071-BRM-TJB Document 21-5 Filed 04/21/17 Page 3 of 5 PageID: 571 -3- lf you have a grievance pending on the same lssue(s) as those addressed In your complaint of discrimination, the agency may, at its discretion, defer the processing of this complaint until the grievance procedure has run its course and there has been a final resolution of the grievance. When an investigation is deferred, pending the outcome of the grievance process, the 180-day time period for processing the complaint is stopped temporarily, and does not restart until the grievance is resolved. If your complaint is deferred, you will be notified, in writing, of the options which may be available to you as a result. When the Investigation is completed, you will receive a copy of the investigative report, and you will be notified of your right to a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge or of your right to a final decision by the agency head or deslgnee without a hearing. You may request a final agency decision without a hearing, at the appropriate time, by writing the National EEO Investigative Services Office- FADS, P.O. Box 21979, Tampa, FL 33622-1979. You may request a hearing by an EEOC Administrative Judge by notifying, in writing, the District Director of the EEOC at the address stated above. You must make your hearing request within 30 calendar days of your receipt of the investigative report and you must provide the National EEO Investigative Services - Hearings, P.O. Box 21979, Tampa, FL 33622-1979 with a copy of that hearing request. If you do not receive your Investigative report and notification concerning your appeal rights within 180 calendar days from the date on which you filed your formal complaint, you may request a hearing by writing directly to the EEOC District Office shown above, with a copy to the National EEO Investigative Services Office - Hearings, P.O. Box 21979, Tampa, FL 33622-1979, at any time up to 30 calendar days after receipt of the investigative report. If you are dissatisfied with the Postal Service's final agency decision where there has been no hearing, or with the Postal Service's final action on the decision of an Administrative Judge following a hearing, you have certain appeals rights. You may appeal to the Office of Federal Operations, Equal Employment Opportunity Commission (EEOC), at the address shown below, within 30 calendar days of the date of your receipt of the final agency decision or you may file a civil action in the appropriate U.S. District Court within 90 calendar days of your receipt of the decision. Any appeal to the EEOC should be addressed to the Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, D.C. 20013-8960. Along with your appeal, you must submit proof to the EEOC that a copy of the appeal and any supporting documentation were also submitted to the Manager, National EEO Investigative Services Office, P. 0. Box 21979, Tampa, FL 33622-1979. After 180 calendar days from the date of filing your formal complaint, you may file a cMI action in an appropriate U. S. District Court if the Postal Service has not Issued a final 00123 Issues To lnvestlfl!le Page JL_ of _n_ Case 3:15-cv-08071-BRM-TJB Document 21-5 Filed 04/21/17 Page 4 of 5 PageID: 572 -4- decislon on your complaint or if no final action has been taken on a decision by an Administrative Judge. If you decide to appeal to the Office of Federal Operations, EEOC, you may file a civil action in an appropriate U. S. District Court within 90 calendar days after your receipt of the Office of Federal Operation's decision. If you do not receive a decision on your appeal within 180 calendar days from the date of your appeal, you may file a civil action. April19,2013 Lee Davis Date EEO Services Analyst 00124 Issues To lnvestlfs: Page_Q.._of Case 3:15-cv-08071-BRM-TJB Document 21-5 Filed 04/21/17 Page 5 of 5 PageID: 573 HOPKINS DECLARATION EXHIBIT 6 Case 3:15-cv-08071-BRM-TJB Document 21-6 Filed 04/21/17 Page 1 of 5 PageID: 574 National EEO lnvestigle Services Office Q UNITEDSTJ!TES POSTJ!L SERVICE VICTORIA HANDLE UNITED STATES POSTAL SERVICE EQUAL EMPLOYMENT OPPORTUNITY IN THE MATTER OF: 47 Manchester Ave Keyport, NJ 07735-1864 Complainant, Delivery Confirmation Complainant: 0310 2640 0000 0716 0493 V. PATRICK R. DONAHOE Postmaster General United States Postal Service Eastern Area Agency. Agency Case Number: 1C-081-0090-12 Date Formal Filed: December 18, 2012 ACKNOWLEDGEMENT OF 2"d AMENDMENT TO COMPLAINT On June 5, 2013, the Agency received your Affidavit (PS Form 2568-A), dated May 6, 2013. Title 29 C.F.R. § 1614.106 (d), permits the amendment of a pending EEO complaint to add claims that are like or related to those claims raised In the pending complaint. There Is no requirement that the complainant seek or receive counseling on these new claims. The additional matters raised in your request are like or related to the matters raised in your formal complaint filed on December 18, 2012. Therefore your complaint is hereby amended. Specific Amended lssue1: You allege discrimination on the basis of Retaliation (instant Complaint) when since August 8, 2012, you have been subjected to the following: 7. On unspecified dates, you were subjected to Four (4) Pre-disciplinary Interviews (POis); and 8. On unspecified date(s), you applied for a position(s), and you were not selected for an interview. The Issues now accepted for Investigation Include only the following: Specific lssue(s}: You allege discrimination based on Race (Black), Color (Black), and Retaliation (instant complaint) when: 1 During the course of the investigation, you will be expected to provide specific information regarding the alleged incidents (this includes dates, what exactly occurred, who took the alleged action, etc). The agency does not waive its right to dismiss all or part of your claim at a later date in accordance with 29 C.F.R. § 1614.107. P.O. Box 21979 Tampa, FL 33622·1979 00117 Issues To lnvestlg£s- Page~ of Case 3:15-cv-08071-BRM-TJB Document 21-6 Filed 04/21/17 Page 2 of 5 PageID: 575 -2- 1. On July 30, 2012 you were not selected to remain at the Monmouth P&DC; 2. On August 7, 2012 following a telephone conversation, management contacted the police and you were taken to the hospital; subsequently you became aware that your personal and medical information was shared with other employees; 3. On August 11, 2012 you were placed on Emergency Placement; 4. On September 12, 2012 you were cleared to return to work, but management did not permit you to do so; 5. On unspecified dates your Manager subjected you to a hostile work environment when she handed you a business card for the Employee Assistance Program in front of other employees and told you to "use ir, and when she embarrassed you over the CB radio within the hearing of other employees, 6. On unspecified dates, your requests for leave on Mother's Day and Easter were denied; and You allege discrimination on the basis of Retaliation (instant Complaint) when since August 8, 2012, you have been subjected to the following: 7. On unspecified dates, you were subjected to Four (4) Pre-disciplinary Interviews (POis); and 8. On unspecified date(s), you applied for a position(s), and you were not selected for an interview. NOTE: If your complaint involves an allegation of age discrimination, the Postal Service is required by the Age Discrimination in Employment Act of 1967, as amended, to advise you that you may consult with an attorney should you desire to do so before signing any agreement resolving your complaint of age discrimination. If you do not agree with the defined accepted issue(s), you must provide a written response specifying the nature of your disagreement within seven (7) calendar days of receipt of this letter to the EEO Services Analyst at the address below. You are reminded that any notification of disagreement with the defined accepted issues is not an opportunity or forum to raise additional, unrelated allegations of discrimination. Additional unrelated issues must be pursued through established procedures with your local EEO Office. Please be prepared to go forward with your case and provide an affidavit when the Investigator contacts you in the near future. The investigation must now be completed within the earlier of 180 days of this amendment or 360 days from the date the original complaint was filed, except that you may request a hearing on the original complaint and amendments to it at any time after 180 days from the date the original complaint was filed. You may request a hearing by sending your request, in writing, within the applicable time period, to: Chief Administrative Judge EEOC New York District Office 33 Whitehall St. 51n Floor New York, NY 10004-2167 00118 Issues To Investigate Page-'- of _JS Case 3:15-cv-08071-BRM-TJB Document 21-6 Filed 04/21/17 Page 3 of 5 PageID: 576 -3- If you have a grievance pending on the same issue(s) as those addressed in your complaint of discrimination, the agency may, at its discretion, defer the processing of this complaint until the grievance procedure has run its course and there has been a final resolution of the grievance. When an investigation is deferred, pending the outcome of the grievance process, the 180-day time period for processing the complaint is stopped temporarily, and does not restart until the grievance is resolved. If your complaint is deferred, you will be notified, in writing, of the options which may be available to you as a result. When the investigation is completed, you will receive a copy of the investigative report. and you will be notified of your right to a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge or of your right to a final decision by the agency head or deslgnee without a hearing. You may request a final agency decision without a hearing, at the appropriate time, by writing the National EEO Investigative Services Office - FADS, P.O. Box 21979, Tampa, FL 33622-1979. You may request a hearing by an EEOC Administrative Judge by notifying, in writing, the District Director of the EEOC at the address stated above. You must make your hearing request within 30 calendar days of your receipt of the investigative report and you must provide the National EEO Investigative Services - Hearings, P.O. Box 21979, Tampa, FL 33622-1979 with a copy of that hearing request. If you do not receive your investigative report and notification concerning your appeal rights within 180 calendar days from the date on which you filed your formal complaint, you may request a hearing by writing directly to the EEOC District Office shown above, with a copy to the National EEO Investigative Services Office - Hearings, P.O. Box 21979, Tampa, FL 33622-1979, at any time up to 30 calendar days after receipt of the investigative report. ff you are dissatisfied with the Postal Service's final agency decision where there has been no hearing, or with the Postal Service's final action on the decision of an Administrative Judge following a hearing, you have certain appeals rights. You may appeal to the Office of Federal Operations, Equal Employment Opportunity Commission (EEOC), at the address shown below, within 30 calendar days of the date of your receipt of the final agency decision or you may file a civil action in the appropriate U. S. District Court within 90 calendar days of your receipt of the decision. Any appeal to the EEOC should be addressed to the Office of Federal Operations, Equal Employment Opportunity Commission, P .0. Box 77960, Washington, D.C. 20013-8960. Along with your appeal, you must submit proof to the EEOC that a copy of the appeal and any supporting documentation were also submitted to the Manager, National EEO Investigative Services Office, P. 0. Box 21979, Tampa, FL 33622-1979. After 180 calendar days from the date of filing your formal complaint, you may file a civil action in an appropriate U. S. District Court if the Postal Service has not issued a final decision on your complaint or if no final action has been taken on a decision by an Administrative Judge. 00119 Issues To lnvesti~ Pase_2_ot Case 3:15-cv-08071-BRM-TJB Document 21-6 Filed 04/21/17 Page 4 of 5 PageID: 577 It -4- lf you decide to appeal to the Office of Federal Operations, EEOC, you may file a civil action in an appropriate U. S. District Court within 90 calendar days after your receipt of the Office of Federal Operation's decision. If you do not receive a decision on your appeal within 180 calendar days from the date of your appeal, you may file a civil action. P~fle.u,y Penny Fleury EEO Services Analyst June 12, 2013 Date 00120 Issues J,i Invest!(\~ Page _1:2._ of _J;l Case 3:15-cv-08071-BRM-TJB Document 21-6 Filed 04/21/17 Page 5 of 5 PageID: 578 HOPKINS DECLARATION EXHIBIT 7 Case 3:15-cv-08071-BRM-TJB Document 21-7 Filed 04/21/17 Page 1 of 5 PageID: 579 National EEO lnvestig.e Services Office .:f!f!!I UNITEDSTIJTES IJ.a POST/JL SERVICE VICTORIA HANDLE 47 Manchester Ave Keyport, NJ 07735-1864 Complainant, v. UNITED STATES POSTAL SERVICE EQUAL EMPLOYMENT OPPORTUNITY IN THE MATTER OF: Delivery Confirmation Complainant: 0310 2640 0000 0716 0455 Agency Case Number: 1C-081-0090-12 PATRICK R. DONAHOE Postmaster General United States Postal Service Eastern Area Agency. Date Formal Filed: December 18, 2012 ACKNOWLEDGEMENT OF 3rd AMENDMENT TO COMPLAINT On June 5, 2013, the Agency received your Affidavit (PS Form 2568-A), dated May 6, 2013. Title 29 C.F.R. § 1614.106 (d), permits the amendment of a pending EEO complaint to add claims that are like or related to those claims raised in the pending complaint. There is no requirement that the complainant seek or receive counseling on these new claims. The additional matters raised in your request are like or related to the matters raised in your formal complaint filed on December 18, 2012. Therefore your complaint is hereby amended. Specific Amended Issue: You allege discrimination on the basis of Retaliation (Instant Complaint) when since August 8, 2012, you have been subjected to the following: 9. On or about December 4, 2012, you were issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance- Delay of Mail1; 10. On or about March 1, 2013, you were issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance - Delay of Mall; 11. On or about March 27, 2013, you were issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance - Delay of Mail; and 12. On or about May 29, 2013, you were issued a Proposed Letter of Warning in Lieu of a Fourteen Day Time-Off Suspension, for Unsatisfactory Job Performance - Delay of Mail. The Issues now accepted for Investigation Include only the followlng2: ' It is noted that you filed an appeal under ELM 650 and on January 31, 2013, you signed a settlement agreement, dated January 18, 2013, wherein your 7-Day Suspension was reduced to a Letter of Warning. 2 Under part 29 C.F.R. 1614.105(a)(1), an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory. Therefore, only those incidents that occurred on and after June 24, 2012, are considered timely. This date was arrived at because It is 45 days from the date you initiated EEO contact on August 8, 2012. P.O. Box 21979 Tampa, FL 33622-1979 00113 Issues To Investigate Page_l__ot~ Case 3:15-cv-08071-BRM-TJB Document 21-7 Filed 04/21/17 Page 2 of 5 PageID: 580 -2- Specific lssue{s): You allege discrimination based on Race (Black), Color (Black), and Retaliation (Instant Complaint) when: 1. On July 30, 2012 you were not selected to remain at the Monmouth P&DC; 2. On August 7, 2012 following a telephone conversation, management contacted the police and you were taken to the hospital; subsequently you became aware that your personal and medical information was shared with other employees; 3. On August 11, 2012 you were placed on Emergency Placement; 4. On September 12, 2012 you were deared to return to work, but management did not permit you to do so; 5. On unspecified dates your Manager subjected you to a hostile work environment when she handed you a business card for the Employee Assistance Program in front of other employees and told you to "use ir, and when she embarrassed you over the CB radio within the hearing of other employees, 6. On unspecified dates, your requests for leave on Mother's Day and Easter were denied; and You allege discrimination on the basis of Retaliation (Instant Complaint) when since August 8, 2012, you have been subjected to the following: 7. On unspecified dates, you were subjected to Four (4) Pre-disciplinary Interviews {POis); 8. On unspecified date{s), you applied for a position(s), and you were not selected for an interview; and 9. On or about December 4, 2012, you were issued a Proposed Letter of Warning in lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance - Delay of Mail3; 10. On or about March 1, 2013, you were Issued a Proposed Letter of Warning in lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance - Delay of Mail; 11. On or about March 27, 2013, you were issued a Proposed Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension, for Unsatisfactory Job Performance - Delay of Mail; and 12. On or about May 29, 2013, you were Issued a Proposed Letter of Warning in lieu of a Fourteen Day Time-Off Suspension, for Unsatisfactory Job Performance - Delay of Mail. NOTE: If your complaint involves an allegation of age discrimination, the Postal Service is required by the Age Disaimination in Employment Act of 1967, as amended, to advise you that you may consult with an attorney should you desire to do so before signing any agreement resolving your complaint of age discrimination. If you do not agree with the defined accepted lssue(s), you must provide a written response specifying the nature of your disagreement within seven (7) calendar days of receipt of this letter to the EEO Services Analyst at the address below. You are reminded that any notification of disagreement with the defined accepted Issues Is not an opportunity or forum to raise additional, unrelated allegations of discrimination. Additional unrelated Issues must be pursued through established procedures with your local EEO Office. 3 It is noted that you flied an appeal under ELM 650 and on January 31, 2013, you signed a settlement agreement, dated January 18, 2013, wherein your 7-Day Suspension was reduced to a Letter of Warning. 00114 Issues To lnvestiJ.s Pase .;;L_ of Case 3:15-cv-08071-BRM-TJB Document 21-7 Filed 04/21/17 Page 3 of 5 PageID: 581 -3- Please be prepared to go forward with your case and provide an affidavit when the Investigator contacts you in the near future. The investigation must now be completed within the earlier of 180 days of this amendment or 360 days from the date the original complaint was flied, except that you may request a hearing on the original complaint and amendments to it at any time after 180 days from the date the original complaint was filed. You may request a hearing by sending your request, in writing, within the applicable time period, to: Chief Administrative Judge EEOC New York District Office 33 Whitehall St. 51t1 Floor New York, NY 10004-2167 If you have a grievance pending on the same lssue(s) as those addressed in your complaint of discrimination, the agency may, at its discretion, defer the processing of this complaint until the grievance procedure has run its course and there has been a final resolution of the grievance. When an investigation is deferred, pending the outcome of the grievance process, the 180-day time period for processing the complaint is stopped temporarily, and does not restart until the grievance is resolved. If your complaint is deferred, you will be notified, in writing, of the options which may be available to you as a result. When the investigation is completed, you will receive a copy of the investigative report, and you will be notified of your right to a hearing before an Equal Employment Opportunity Commission (EEOC} Administrative Judge or of your right to a final decision by the agency head or designee without a hearing. You may request a final agency decision without a hearing, at the appropriate time, by writing the National EEO Investigative Services Office - FADS, P.O. Box 21979, Tampa, FL 33622-1979. You may request a hearing by an EEOC Administrative Judge by notifying, in writing, the District Director of the EEOC at the address stated above. You must make your hearing request within 30 calendar days of your receipt of the investigative report and you must provide the National EEO Investigative Services - Hearings, P.O. Box 21979, Tampa, FL 33622-1979 with a copy of that hearing request. If you do not receive your investigative report and notification concerning your appeal rights within 180 calendar days from the date on which you filed your formal complaint, you may request a hearing by writing directly to the EEOC District Office shown above, with a copy to the National EEO Investigative Services Office - Hearings, P.O. Box 21979, Tampa, FL 33622-1979, at any time up to 30 calendar days after receipt of the investigative report. If you are dissatisfied with the Postal Service's final agency decision where there has been no hearing, or with the Postal Service's final action on the decision of an Administrative Judge following a hearing, you have certain appeals rights. You may appeal to the Office of Federal Operations, Equal Employment Opportunity Commission (EEOC), at the address shown below, within 30 calendar days of the date of your receipt of the final agency decision or you may file a civil action in the appropriate U. S. District Court within 90 calendar days of your receipt of the decision. 00115 Issues JQ lnvestf* Page~of~ Case 3:15-cv-08071-BRM-TJB Document 21-7 Filed 04/21/17 Page 4 of 5 PageID: 582 -4- Any appeal to the EEOC should be addressed to the Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, D.C. 20013-8960. Along with your appeal, you must submit proof to the EEOC that a copy of the appeal and any supporting documentation were also submitted to the Manager, National EEO Investigative Services Office, P. 0. Box 21979, Tampa, FL 33622-1979. After 180 calendar days from the date of filing your formal complaint, you may file a civll action in an appropriate U. S. District Court if the Postal Service has not issued a final decision on your complaint or if no final action has been taken on a decision by an Administrative Judge. If you decide to appeal to the Office of Federal Operations, EEOC, you may file a civil action in an appropriate U. S. District Court within 90 calendar days after your receipt of the Office of Federal Operation's decision. If you do not receive a decision on your appeal within 180 calendar days from the date of your appeal, you may file a civil action. Pet'l.t'.\¥ flewy Penny Fleury EEO Services Analyst June 19, 2013 Date 00116 Issues To lnvesti~ Page~of Case 3:15-cv-08071-BRM-TJB Document 21-7 Filed 04/21/17 Page 5 of 5 PageID: 583 HOPKINS DECLARATION EXHIBIT 9 Case 3:15-cv-08071-BRM-TJB Document 21-8 Filed 04/21/17 Page 1 of 5 PageID: 584 National EEO SeMces Office ~ UNITEDSTi1TES J!a P0STJ1L SERVICE , ________ _ SEP 1 0 2013 Victoria Handle 47 Manchester Ave Keyport Complainant v. Patrick R. Donahoe Postmaster General Respondent Agency UNITED STATES POSTAL SERVICE EQUAL EMPLOYMENT OPPORTUNITY CASE IN THE MATTER OF: ) ) Delivery ConflnnatJon Complalnant 9114 9010 7574 2894 9399 65 NJ 07736-1884 ) ) ) ) Agency Case Number 1C-081-0090-12 ) ) ) ) ) Date Formal Flied: December 18, 2012 TRANSMITTAL OF INVESTIGATIVE FILE In accordance with Title 29, Code of Federal Regulations, Part 1614.108(f) and (g), this is notification that the Postal Service has completed the Investigation of the formal complaint of discrimination referenced above. Enclosed is a copy of the report of that investigation. At this time, you have the right to do either of two things within thirty (30) calendar day of the date of your receipt of this notice: Request a hearing before an Administrative Judge appointed by the Equal Employment Opportunity Commission, OR Request a final agency decision on the merits of your complaint without a hearing. For more Information on the two alternatives, refer to the Explanation of Options described below. If you fail to make a choice between the two available options, the Postal Service will issue a final agency decision. If you do not wish to pursue the complaint any further, please sign and date the enclosed PS Form 2564-C and return it to: WITHDRAWALS NATIONAL EEO INVESTIGATIVE SERVICES PO BOX21979 TAMPA FL 33622-1979 NOTE: If you are represented by an attorney, all time frames are calculated from the date on which your attorney received this notice. EXPLANATION OF OPTIONS To requaat a hearing , you must fill out the enclosed form, which the Commission has suggested for such requests, and mail it within thirty (30) calendar day of your receipt of this notice to the following address: P0Box21979 Tampa FL 33822-1979 Tel. (813) 739-2027 FAX (650) 578-3279 HEARINGS UNIT NEW YORK DISTRICT OFFICE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 33 WHITEHALL ST, 5TH FLOOR NEW YORK NY 10004-2167 00001 Case 3:15-cv-08071-BRM-TJB Document 21-8 Filed 04/21/17 Page 2 of 5 PageID: 585 • Pg.2 Equal Employment Opportunity Commission regulations require that you provide a copy of your request for a hearing to the following address so that a copy of the report of investigation can be furnished to the EEOC: HEARINGS NATIONAL EEO INVESTIGATIVE SERVICES POB0X21979 TAMPA FL 33622-1979 Title 29 C.F.R 1614.110{b) authorizes an agency to issue a final decision if it does not receive notice of request for a hearing from a complainant. Therefore, your failure to timely provide a copy of your hearing request to the address listed above will result in the issuance of a final decision by the Postal Service and the forfeiture of your right to a hearing. Following the hearing, the Administrative Judge will issue a decision, with findings of fact and conclusions of law, and transmit it to the Postal Service for consideration and the issuance of a final order. EEOC regulations (29 C.F.R. 1614.109{g){3)) also permit Administrative Judges to issue decisions without holding a hearing or to issue orders limiting the scope of a hearing. The Postal Service has forty (40) calendar days from the date of its receipt of the decision of the Administrative Judge and the associated hearing record, where applicable, within which to decide whether or not to implement that decision. If the Postal Service decides not to implement the decision, It must file an appeal with the Office of Federal Operations of the Equal Employment Opportunity Commission within the same forty-day time period. You will receive a copy of that appeal and any brief in support of it and you may file your own brief or arguments in support of your position. If you wish to request a final agency decision without a hearing , you should direct your written request to the following address within thirty (30) calendar days of the date of your receipt of this notice: FADS NATIONAL EEO INVESTIGATIVE SERVICES PO BOX 21979 TAMPA FL 33622-1979 If you are dissatisfied with the Postal Service's final agency decision or final order taking action on a decision by an Administrative Judge, you may do one of two things: You may file a civil action in an appropriate United States District Court within ninety (90) calendar days of receipt of the final agency decision or final action. Any such action should be styled VICTORIA HANDLE V. PATRICK R. DONAHOE, POSTMASTER GENERAL You may file an appeal with the Office of Federal Operations of the Equal Employment Opportunity Commission within thirty (30) calendar days of the date of your receipt of the final agency decision of final action. Leslie Cedola Manager, EEO Services cc: Enclosures: Report of Investigation, PS Form 2564C, and Request for Hearing Form 00002 Case 3:15-cv-08071-BRM-TJB Document 21-8 Filed 04/21/17 Page 3 of 5 PageID: 586 .,LIEST FOR HEARING FORM • HEARINGS UNIT DISTRICT DIRECTOR NEW YORK DISTRICT OFFICE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 33 WHITEHALL ST, 5TH FLOOR NEW YORK NY 10004-2167 Dear Sir/Madam: I am requesting the appointment of an Administrative Judge pursuant to Title 29, Code of Federal Regulations, Part 1614.108(g). I am certifying that either more than 180 days have passed since I filed my formal complaint or I have received a notice from the Postal Service that I have thirty (30) days within which to request a hearing. Complainant My Postal District: Agency Case No. Filed On: Victoria Handle South Jersey District 1 C-081-0090-12 12/18/2012 My signature below certifies that I have sent a copy of this request for a hearing to the Postal Service to the following address: NATIONAL EEO INVESTIGATIVE SERVICES U.S. POSTAL SERVICE PO B0X21979 TAMPA FL 33622-1979 I understand that, If I have not provided the Postal Service with a copy of this request for a hearing to the address listed above, the Postal Service will Issue a final decision on my complaint, resulting In the loss of my right to a hearing. Sincerely, Complainant 's Signature Date Complainant's Address Complainant's City, State, ZIP Code Complainant's Telephone No. 00003 Case 3:15-cv-08071-BRM-TJB Document 21-8 Filed 04/21/17 Page 4 of 5 PageID: 587 d UN/TEDST/JTES POST/JL SERVICE ,,__ ___ I Caae umber: 1C.081.0090-12 Withdrawal of Complaint of Discrimination I, _________ V_lc_to_ri_a_H_a_n_d_le ________ _. do hereby voluntarily withdraw ' my formal EEO complaint in Its entirety. 3 the following allegation(s) ONLY I fully understand that by wthdrawing the complaint or allegatlon(s) I have withdrawn, I am waiving my rights to any further appeal of this allegation(s) through the EEO Process. I further stipulate that my withdrawal did not result from threat, coercion, intimidation, promise or inducement Privacy Act Notice Privacy Act Notice. The collectlon of this lnfonnatlon Is authorized by the Equal Employment Opportunity Act of 19n, 42 U.S.C. 2000E-16; The Age Discrimination In Employment Act of 1967, as amended, 29 U.S.C. 633a; The Rehabllltatlon Ari. of 1973, as amended, 29 U.S.C. 794a; and Executive Order 11478, as amended. This infonnation will be used to adjudicate complaints of alleged discrimination and to evaluate the effectlvaneas of the EEO program. As a routine use, this information may be disclosed to an appropriate govemment agency, domestic or foreign, for law enforcement purposes; where pertinent, In a legal proceeding to which the USPS la a party or has an Interest; to a government agency In order to obtain infonnation relev11nl to a USPS decision concerning employment, security clearances, contrari.8, licenses, grants, pennits or other benaflts; to a government agency upon its request when relevant to its declaion concerning employment, security clearances, security or suttabUlty investigations, contracts, licenses Signature of Complainant PS Fonn 2564-C, November 1999 grants or other benefits; to a congressional office at your request; to an expert, consultant. or other person under contract with the USPS to fulfill an agency function; to the Federal Records Center for storage; to the Office of Management and Budget for review of private relief leglslaUon; to an Independent certlflec:I public accountant during an official audit of USPS finances; to an Investigator, admlnlatratlve Judge or complaints examiner appointed by the Equal Employment Opportunity Commlsalon for Investigation of a formal EEO complalnt under 29 CFR 1614; to the Merit Systems Protection Board or Office of Special Counsel for proceedings or Investigations lnvolvlng personnel practices and other matters within their Jurisdiction; and to a labor organization as required by the National Labor Relations Act. Under the Privacy Act provision, the lnfonnation requested la voluntary for the complainant. and for Postal Service employees and other witnesses. Date . --··· ·--··- -- -------~~- ---··-· .... ·····-- -··--· ---., r WITHDRAWALS : ; NATIONAL EEO INVESTIGATIVE SERVICES : PO BOX 21979 j TAMPA FL 33622-1979 ---------·-----·-- ; 00004 Case 3:15-cv-08071-BRM-TJB Document 21-8 Filed 04/21/17 Page 5 of 5 PageID: 588 HOPKINS DECLARATION EXHIBIT 10 Case 3:15-cv-08071-BRM-TJB Document 21-9 Filed 04/21/17 Page 1 of 3 PageID: 589 FADS National EEO Investigative Services PO Box 21979 Tampa Florida 33622-1979 To Whom It May Concern: I am respectfully requesting an Agency decision without a hearing at this time, in the case Number 1 C-081-0090-12. I understand that if I am not satisfied wit~ the decision of the agency I may appeal such decision or institute a civil action. Thank you in advance, ~ 1 ~ A q· .,/\ ~ /{ ) ~1gards - .. UJUL-- cF> · ··,J~ Victona Handle SDOT-1 Trenton Processing and Distribution Center Case 3:15-cv-08071-BRM-TJB Document 21-9 Filed 04/21/17 Page 2 of 3 PageID: 590 Mn. Vkld HaadJe 47 Manchester Ave Keyport, NJ 07735 ........... oJ..i.;. .. .i ....... , .. ' 11, 1,111 I 11 :.,, ~",·, .. , .. ,a, ., .•. '.''·•>' ,;, • .-,, ..... ·;;.·r·>&··'1'C··k ' · • :· • , ... • •C.' ·:".' ·,~ · : : :: · >!- : '. · : · · ·•J. :· J. f 8>icc;.t_c_;;; 7012 3460 0002 6151 3670 ~ ll//ll/1//////II//I ::~ft 33622 000451J6- 07 ~~~~ ~17 I CLA!f 1- r ~ ~ o ,.1c; 77 33G22S 197 9 ) IIJll)1 )1)IIIIJIJIJ11•1/ul/11JI 11111•IJl,/l,lllu .. 1J ,l,l1o1l)I, Case 3:15-cv-08071-BRM-TJB Document 21-9 Filed 04/21/17 Page 3 of 3 PageID: 591 HOPKINS DECLARATION EXHIBIT 14 Case 3:15-cv-08071-BRM-TJB Document 21-10 Filed 04/21/17 Page 1 of 12 PageID: 592 NATIONAL EEO INVESTIGATIVE SERVICES OFFICE d UNITEDST1.1TE'S POSTilL SERVICE June 22, 2015 Ms. Victoria Handle 47 Manchester Avenue Keyport, NJ 07735-1864 USPS TRACKING t &CUSTOMER RECEIPT 9114 9899 4431 4685 9477 84 Fo, lnicldr.i ar ll'lla.tw go lo USPS.com or cal 1-I00-222-1811. USPS Tracking Number 9114 9999 4431 4565 9477 84 Dear Ms. Handle: RE: Victoria Handle v. Megan J. Brennan, Postmaster General EEOC Appeal Number 0120140480 Agency Case Number 1C-081-0090-12 The June 10, 2015 decision of the Office of Federal Operations of the Equal Employment Opportunity Commission in EEOC Appeal Number 0120140480 ordered the agency to conduct a supplemental investigation of your possible entitlement to an award of compensatory damages and then to issue a final agency decision on that subject. This is your opportunity to submit evidence in support of that possible entitlement. The only issue which entitles you to consideration for an award of compensatory damages is: 2. Subsequent to August 7, 2012, you became aware that your personal and medical information had been shared with other employees. Enclosed are relevant questions which you must answer to support your claim for compensatory damages. Please answer them in full on the enclosed PS Form 2568-A, EEO Investigative Affidavit, and the continuation sheets provided. Also, please complete the enclosed PS Form 2569-C, EEO Investigative Affidavit for Compensatory Damages. You should print or type your responses to ensure that they are legible. You must sign and date each page of the affidavit and sign and date PS Form 2571, Certification, which indicates that you are providing the testimony under penalty of perjury. You should support your testimony with available documentary evidence. Return the completed, signed, and dated forms and any accompanying documentary evidence to this office as soon as possible but no later than 45 days from the date of your receipt of this letter. The sooner you respond, the P.O. 80J< 21979 TAMP-', FL 33822•1979 WWW.USPS.COM Case 3:15-cv-08071-BRM-TJB Document 21-10 Filed 04/21/17 Page 2 of 12 PageID: 593 -2- sooner the agency can adjudicate your entitlement. Enclosed is a pre-addressed envelope for your convenience in responding. Sincerely, Enclosures: Certificate of Service PS Forms 2568-A, 2569, 2569-C, and 2571 Return Envelope Case 3:15-cv-08071-BRM-TJB Document 21-10 Filed 04/21/17 Page 3 of 12 PageID: 594 U. S. Postal Service I Pag1No. No. Pages I Case No. EEO INVESTIGATIVE AFFIDAVIT (COMPLAINANT) 1C-081-0090-12 1. Affianrs Name (First, Middle, Last) 2. Employing Postal Facility Victoria Handle Trenton. NJ P&DC 3. Position Title 4. Grade Level 5. Postal Address and Zip + 4 6. Unit Assigned Supervisor, Dist Ops. EAS-17 680 US Highway 130 Trenton P&DC Trenton, NJ 08650-9998 Privacv Act Notice/USPS Standards of Conduct Privacy Act Notice. The collection of this Information Is authorized by lo a congressional office al your request; to an expert, consultant, or the Equal Employment Opportunity act of 1972, 42 U.S.C. § 2000e-16; other person under contract with the USPS to fulfill an agency the Age Discrimination In Employment Ad. of 1967, as amended, 29 function; to the Federal Records Center for storago; to the Office of U.S.C. § 633a; the RehabilitaUon Act of 1973, as amended. This Management and Budget for review of private relief leglslatlon; to an information will be used to adjudicate ccmplalnts of alleged independent certified pubUc accountant during an offlclal audit of dlsaiminaUon and to evaluate the effectiveness of the EEO program. USPS finances: to an Investigator, administrative judge or complaints As a routine use, this information may be disclosed to an appropriate examiner appointed by the Equal Employment Opportunity government agency, domestic or foreign, for law enforcement purposes: Commission for Investigation of a formal EEO complaint under 29 where pertinent, In a legal proceeding to which the USPS Is a party or CFR 1614; to the Merit Systems Protection Board or Office of has an Interest: to a government agency In order to obtain Information Special Counsel for proceedings or Investigations Involving relevant to a USPS decision concerning employment,·securrty personnel practices and other matters within their jurisdiction; and to clearances, contracts, licenses, grants, pennits or other benefits; to a a labor organization as required by the National Labor Relations Ad.. government agency upon its request when relevant to Its decision Under the Privacy Ad. provision, the Information requested is concerning employment, security clearances, security or suitability volunta,y for the complainant, and for Postal Service employees and investigations, contracts, licenses, grants or other benefits; other witnesses. Important Information Regarding Your Complaint This PS Form 2568-A, EEO Investigative Affidavit (Complainant), and Failure lo complete your statement and return the fonns within the the other form mentioned below, are being provided for you to use to allotted time period could result in your complaint being dismissed fully respond to the accompanying questions. Mall or deliver your based upon your fallure to proceed. EEOC complaints processing completed statement to the EEO complaints Investigator within15 regulation. 29 C.F.R. 1614.107(a)(7), states, in part, [A complaint calendar days of the date you received the forms. Use PS Fonn(s) may be dismissed] "Where the agency has provided the complainant 2569, EEO Investigative Affidavit (Continuation Sheet), as needed, to with the written request to provide relevant information or otherwise complete your written statemenl Remember to number the top of each proceed with the complaint, and the complainant has failed to page and sign and date the bottom of each page of your statement. If respond to the request within 15 days of its receipt, or the you return your statement by mail, the return envelope must be complainant's response does not address the agency's request, postmarked on or before the 15u, calendar day after the date that you provided that the request included a notice of the proposed received the affidavit forms. dismlssar.· 7. Statement AfContinue on Form 2569 if additional soace Is reauiredl The supplemental investigation involves the complainant's alleged entitlement to an award of compensatory damages based on the following discriminatory act: Issue 2. Subsequent to August 7, 2012, you became aware that your personal and medical Information had been shared with other employees. 1. Please state your full name, current hon:ie address, personal email address, and personal telephone number. I declare under penalty of perjury that the foregoing is true and correct. Affiant's Signature Date Signed PS Form 2568·A, March 2001 Case 3:15-cv-08071-BRM-TJB Document 21-10 Filed 04/21/17 Page 4 of 12 PageID: 595 · S UNITEQST1.1TES Page No. No. Pages Case No. P0STl1L SERVICE.® 2 1 C-081-0090-12 EEO Investigative Affidavit (Continuation Sheet) 2. If you have a representative, please state his/her name, address, email address, and telephone number, If your representative is an attorney, please indicate so. 3. Please provide a statement in support of every element of compensatory damages you are claiming and the dollar amount that you are requesting for that element. Please provide an explanation concerning how the dollar amount was calculated/arrived at and its causal connection to the discriminatory act and provide copies of any documentary evidence you have to support both the fact and amount of the claimed damages. I declare under penalty of perjury that the foregoing is true and correct. Afftant's Signature Date Signed PS Fonn 2669, March 2001 Case 3:15-cv-08071-BRM-TJB Document 21-10 Filed 04/21/17 Page 5 of 12 PageID: 596 Q UNITEC).STllTES Page No. No. Pages Case No. POST& SERVICE.® 3 1C-081-0090-12 EEO Investigative Affidavit (Continuation SheetJ 4. For each element of the compensatory damages you are claiming, please submit objective evidence to support the damages allegedly incurred due to the incident found to be discriminatory. Objective evidence may include, but is not limited to, receipts or bills for medical care, medication, or transportation to the doctor, if you obtained medical care. Other evidence can take the form of a statement from you describing emotional distress or statements from witnesses, both on or off the job, describing distress. Such statements should include detailed information on physical or behavioral manifestations of the distress, if any, and any other information on the extent or duration of the distress and the effects that it may have produced. Your evidence should establish the connection between the expenses incurred and the emotional distress experienced. I.declare under penalty of perjury that the foregoing Is true and correct. Aff'iant's Signature Date Signed PS Form 2569, March 2001 Case 3:15-cv-08071-BRM-TJB Document 21-10 Filed 04/21/17 Page 6 of 12 PageID: 597 Q UNITE_QSTllTES Page No. No.Pages Case No. POSTtlL SERVICE"® 4 1 C-081-0090-12 EEO Investigative Affidavit (Continuation SheetJ 5. Please complete and submit the attached PS Form 2569-C, EEO Investigative Affidavit for Compensatory Damages. 6. Please provide any other information or documentary evidence that you believe are relevant to your claim for compensatory damages. I declare under penalty of perjury that the foregoing is true and correct. Affiant's Signature Date Signed PS Form 2569, Marcil 2001 I _ ___J Case 3:15-cv-08071-BRM-TJB Document 21-10 Filed 04/21/17 Page 7 of 12 PageID: 598 S UNITEQSTIJTES Page No. No. Pages Case No. POST& SERVICE11® EEO Investigative Affidavit (Continuation Sheet) I declare under penalty of perjury that the foregoing Is true and correcl Affiant's Signature I D,18S~nod PS Fonn 2569, Mareh 2001 Case 3:15-cv-08071-BRM-TJB Document 21-10 Filed 04/21/17 Page 8 of 12 PageID: 599 U.S. Postal Service Certification I Case No. I have read the proceeding attached statement, consisting of __ pages, and it is true and complete to the best of my knowledge and belief. In making this statement, I understand Section 1001, Title 18 of the U.S. Code which states: "Whoever, in any manner within the jurisdiction of any department or agency of the Unlted States knowingly and wilfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representation, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both." · Privacy Act Notice · · · · . Privacy Act Notice, The coll~cllon of this information Is authorized by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16; the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 633a; the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794a; and Executive Order 11478, as amended. This Information will be used to adjudicate complaints of alleged discrimination and to evaluate the effectiveness of the EEO program. As a routine use, this information may be disclosed to an appropriate government agency, domestic or foreign, for law enforcement purposes; where pertinent, in a legal proceeding to which the USPS is a party or has an interest; to a government agency in order to obtain Information relevant to a USPS decision concerning employment, security clearances, contracts, licenses, grants, permits or other benefits; to a government agency upon its request when relevant to its decision concerning employment, security clearances, security or suitability lnvestigat.ions, contracts, licenses, grants or other benents; to a congressional office at your ~uest, to an expert, consultant or other person under contract with the USPS to fulfill an agency functlon; to the Federal Records Center for storage; to the Office of Management and Budget for review of private relier legislaUon; to an independent certified public accountant during an official audit of USPS finances; to an inve.stlgator, administrative Judge or complaints examiner appointed by the Equal Employment Opportunity Commission for investigation or a formal EEO complaint under 29 CFR 1614; to the Merit Systems Protection Board or Office of Special Counsel for proceedlngs or investigation.s involving personnel practices and other matters within their jurisdiction; and to a labor organization as required by the National Labor Relations Act. Under the Privacy Act provision, the Information requested is voluntary for the complainant. and for Postal Service employees and other witnesses. . USPS Standards of Conduct . . . Postal SeNice regulations require all postal employees to cooperate in any postal investigation. Failure to supply the requested information could result in disciplinary action (ELM 666). · . · Oath I Affirmation : . . · · · · · : · . .. ·.. · · · · · : .': · Subscribed and (sworn) (affirmed) before me on this _ __ day of ________ , 20 __ . · Affiant's Si nature SI n In the resence of EEO lnvesti ator Signature of EEO Complaints Investigator Signature of Affiant · · Declaration · · : · .. · . · ·. , · · . . · · -' · · : · ·. I declare, under penalty of perjury, that the foregoing is true and correct. 'Affiant si n and date if attached statement was not com feted in the roscnce of the EEO lnvcsti a tor. Affiant's Signature Date Signed PS Form 25_71 , May 2001 Case 3:15-cv-08071-BRM-TJB Document 21-10 Filed 04/21/17 Page 9 of 12 PageID: 600 INSTRUCTIONS FOR COMPLETING AFFIDAVIT (Complainant) Note: You are entitled to have a representative assist you in completing your affidavit statement. If a representative assists you, begin your statement by stating the name, title, and.address of your representative. 1. Type or use black ink. 2. Complete items 1 through 6 on PS Form 2568-A. 3. Begin your statement on the first line after the Privacy Act Notice. Begin at the left margin and use all the space on the line until you reach the right margin. Record your statement in block form. Do not skip lines, indent paragraphs or leave blank spaces. 4. Answer all questions in complete sentences and in narrative form. Do not use abbreviated terms or acronyms. 5. Date and sign each page of the U.S. Postal Service Equal Employment Opportunity Investigative Affidavit (PS Form 2568-A). 6. Equal Employment Opportunity Investigative Affidavit (Continuation Sheet) is provided for additional space. You may photocopy the continuation sheet if additional sheets are needed. Record page numbers and case numbers at the top of each continuation sheet and sign and date each sheet. If you cross out a word or insert a word or make any changes in the statement, please initial above the change. 7. After writing the last sentence on the last page of your affidavit, write the phrase, "End of Statement" and draw an •x• over the remaining blank lines and sign your name on one of the lines of the "X." Remember to sign and date the bottom of each page. 8. If you are claiming compensatory damages, you must complete PS Form 2569- C, EEO Investigative Affidavit (Continuation Sheet/Compensatory Damages), sign and date that page and attach it to your affidavit. 9. Please remember to sign the Certification page (PS Form 2571). Record the number of pages and case number at the top of the form and sign and date the form in the lower portion of the Certification page, under the section titled, 'Declaration'. 10. Return all original forms to the Investigator. If you have any questions regarding the completion of these forms, contact the EEO Investigator assigned to this complaint., Case 3:15-cv-08071-BRM-TJB Document 21-10 Filed 04/21/17 Page 10 of 12 PageID: 601 EEO Investigative Affidavit for Compensatory Damages Note: Not a I/cable to A e Dlscrtmfnati.on In Em lo ent Act :ADEA Claims Case No. Page No. No. of Pages 1 . Instructions for the Complainant: . During an Investigation into alleged discrimination, The Postal Service is required to gather evidence regarding appropriate remeaies, which may include compensatory damages. The remedy that you are seeking to resolve this complaint includes your dalm that you are entitled to receive a monetary award. Therefore, you must provide testimony and evidence concerning the nature, extent and severity of the harm you suffered due to the alleged discriminatory conduct. PS Form 2569-C contains a number of questions and/or statements regarding your claim for damages. Please read the questions or statements carefully before responding. If you need additional space, please use an additional sheet(s). Any additional sheet(s} must show the number of this fonn (Form 2569-C}, the item number(s} to which H pertains, a page number and the total number of pages submitted for this form. You must declarv under penalty of perjury that the lnfonnation you provide on this fonn including any attached sheets is true and correct. 1. I experienced financial difficulties because of the discriminatory act{s) alleged in my complaint. D Yes D No If yes, provide full explanation. Please include description and cause of difficulty(ies), when occurred, duration of occurrence, and severity. 2. I experienced medical problems because of the discriminatory act(s) alleged in my complaint. D Yes D No If yes, provide full explanation. Please include description and cause of problems, when occurred, duration of occurrence, and severity. · 3. I obtained psychological or psychiatric counseling and/or treatment because of the discriminatory act{s) alleged in my complaint. D Yes D No If yes, provide _full explanation. Please include description and cause of problems, when occurred, duration of · occurrence, and severity. 4. I have had to take medication because of the discriminatory act(s) alleged In my complaint. D Yes O No If yes, list type of medication, reason for the medication, and the cost of the medication. PS FORM 2569-C (Page 1 of 2) February 2004 Case 3:15-cv-08071-BRM-TJB Document 21-10 Filed 04/21/17 Page 11 of 12 PageID: 602 5. I Page ~ - I No. of Pages I · Did any of the difficulties for which you checked "Yes" in items 1-4 exist prior to the act(s) of discrimination alleged in your complaint? 0 Yes D No If yes, please complete question 6 below. 6. Describe for each pre-existing condition how that condition was made worse by the act(s) of discrimination alleged in your complaint. Begin each description with the item number on page 1 (items 1 through 4) to which it pertains. 7. Is there any other information o·r evidence regarding your claim for entitlement to compensatory damages that you want to include with your affidavit? D Yes D No If yes, please provide a full explanation of the information you wish to include. Attach additional pages if necessary. IMPORT ANTI You must attach or provide the investigator with copies of documentation, such as bills, doctor's statements, pharmacy bills, statements from other persons, or other paperwork relevant to the difficulty that you claim is related to the discriminatory act(s) alleged in your complaint. If you do not have copies of your documentation, you may provide the original to the investigator who will copy relevant records and return the original documents to you. Alternatively, for medical information and records, you may provide a signed authorization from your health care provider to the investigator permitting him/her to obtain information directly from your health care provider or pharmacy. Or, you may sign a medical information release provided by the investigator if you prefer. Privacy Act Notice : · · :·. · Privacy Act NoUce. The colleci!on or !his lnfO/Tllatlon Is aulhorlzed by nie Equal Employment Oppor11Jnfty Ad or 1972. 42 U.S.C. 2000e-1B; The AJe Discrimination In Employment Ac! of 1967. as amended, 29 U.S.C.633a; The Rehabilitation Aci o/ 1973, a.s amended, 29 U.S.C. 794a; and Executive Order 1 H78, as amended. This lnfom,ation win be used to adjudicate complaints ot alleged discrimination and to evaluate !he effectiveness of !he EEO program. As n rOU1ine use, this lllf01TTiaUon may be dlsclosed to nn appropriate government agency, domestic or foreign, tor law enforcement purposes; where portlnent, In a legal proceeding to which the USPS Is a party or has an Interest to a government agency In order to obtain Information relevant to a USP.S decision concerning emptoymen~ security dearance3, contracts, licenses, grants, permits or 01h01 benefits; to a government agency upon Its request when relevant to Its decision concerning emp.'oymen~ security clearances, security 01 sultablliry lnvestlgations, con!racts, Dct!l\ses, grants or other benefits; to a congressional office at your request to an oxpert. consultan~ or other person under conlraci with the USPS to tulnn an agency function; to the Federal Records Center for storage; to tho Office or Management and Budget for review of private rener toglstation; to an Independent ce1Ufied pubflc accountant durtng an official audN of USPS finances; to an tnvesUgatD1, administrative Judgo or complaints examiner appointed by the Equal Employment Opportunity Commlulon for tnvesUgaUon of a formal EEO complaint under 29 CFR 1614; to !he Martt System$ Protection Board or Of!lce o{ Special Counsel for proceedings 0t Investigations Involving personnel practices and other matters within thelr Jwisdlctlon; and to a laboc- organiutlon as required by the National Laboe- Relations Act. Under the Privacy Act provlslon, the lnfonnaUon requested Is voluntary for the complainan~ and for Postal Service employees and other witnesses. I declare under penalty of perjury that the foregoing, including any attached sheets, is true and correct. Affiant's Signature I o, ••• ,,. PS FORM 2569-C (Page 2 of 2) February 2004 Case 3:15-cv-08071-BRM-TJB Document 21-10 Filed 04/21/17 Page 12 of 12 PageID: 603 HOPKINS DECLARATION EXHIBIT 16 Case 3:15-cv-08071-BRM-TJB Document 21-11 Filed 04/21/17 Page 1 of 2 PageID: 604 NATIONAL EEO INVESTIGATIVE SERVICES OFFICE ~ UNITEDST.dTES ~ POSTllLSERVICE August25,2015 Compliance Officer Compliance and Control Division Office of Federal Operations Equal Employment Opportunity Commission P. 0. Box 77960 Washington, DC 20013-8960 Dear Compliance Officer: RE: Victoria Handle v. Megan J. Brennan, Postmaster General Compliance Docket Number 0620150634 EEOC Appeal Number 0120140480 Agency Case Number 1 C-081-0090-12 The June 10, 2015 decision of the Office of Federal Operations in EEOC Appeal Number 0120140480 required the agency to give the complainant an opportunity to submit evidence in support of her claim for compensatory damages and to issue a final agency decision on that subject. Enclosed, please find copies of the agency's June 22, 2015 letter to the complainant requesting her submission on compensatory damages. The complainant has not submitted anything in response to date. Also enclosed is a copy of the agency's August 19, 2015 final agency decision awarding the complainant $1,000.00 in non-pecuniary compensatory damages. Further compliance activity will be reported by the agency's Eastern Area Compliance and Appeals office. Sincerely, i~.Jl.~- EEO Services Analyst Enclosures cc: Regional Manager, EEO Compliance and Appeals, Region Four P .0. Box 21979 TAMPA, FL 33622•1979 WWW.USPS.COM Case 3:15-cv-08071-BRM-TJB Document 21-11 Filed 04/21/17 Page 2 of 2 PageID: 605 HOPKINS DECLARATION EXHIBIT 18 Case 3:15-cv-08071-BRM-TJB Document 21-12 Filed 04/21/17 Page 1 of 4 PageID: 606 • U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. 0. Box 77960 Washington, D.C. 20013 Oct 08, 2015 U.S. Postal Service~ USPS Eastern RE: Victoria Handle Docket# : 0120160036 Region , NEEOSIO - Appeals P.O.B. 21979 Tampa, FL 33622 Dear Sir/Madam: Filed : 09/17/15 Agency Number(s): 1C081009012 This is to acknowledge that the above referenced appeal has been received on the date indicated. The agency must submit the complaint file, along with any related or consolidated complaint files, to the Office of Federal Operations WITHIN 30 DAYS OF INITIAL NOTIFICATION THAT THE COMPLAINANT HAS FILED AN APPEAL. See 29 C.F.R. Section l614.403(e). In addition, any related material developed subsequent to the initial submission of the complaint file, i.e., attorney fees, supplemental invest- igation, etc. must be forwarded upon notification of any related appeal. The agency must ensure that all materials submitted to the Commission have also been provided to the complainant. Enclosed is an "Agency Checklist" for your use in identifying records to submit in your agency file. IF THE COMPLAINT FILE IS NOT SUBMITTED TO THIS OFFICE WITHIN THE TIME FRAME SET FORTH ABOVE, THE COMMISSION MAY TAKE APPROPRIATE ACTION, INCLUDING DRAWING AN INFERENCE ADVERSE TO THE AGENCY IN ALL MATTERS WHERE THE EVIDENCE IS NOT AVAILABLE TO THE COMMISSION. THIS COULD RESULT IN A DECISION UNFAVORABLE TO THE AGENCY. The agency must submit the complaint file within the time frame specified above regardless of whether or not the complainant has timely provided the agency a copy of any supporting statement or brief, and regardless of whether or not the agency• s comments or brief relative to the appeal itself are completed. Any agency statement or brief in opposition to an appeal must be submitted to the Commission and served on the complainant within 30 days of receipt of the statement or brief supporting the appeal. If no statement or brief supporting the appeal is filed, the statement or brief in opposition to the appeal must be filed within 60 days of the receipt of the appeal. See 29 C. F. R. 1614. 403 ( f) . The Commission will accept statements or briefs in opposition to an appeal by facsimile transmission (Fax Number 202-663-7022) provided they are no more than ten (10) pages long. Case 3:15-cv-08071-BRM-TJB Document 21-12 Filed 04/21/17 Page 2 of 4 PageID: 607 The agency should reference the above docket number(s) in all submissions and correspondence to the Commission. Sincerely, Robert J. Barnhart, Director Compliance and Control Division Office of Federal Operations Enclosure CC: CERTIFICATE OF SERVICE I certify that the Notification of Appeal/Request for Complaint File was sent by regular mail this day to the agency. EQUAL OPPORTUNITY ASSISTANT: Sherise Callwood Date: Oct 08, 2015 Case 3:15-cv-08071-BRM-TJB Document 21-12 Filed 04/21/17 Page 3 of 4 PageID: 608 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. 0. Box 77960 Washington, D.C. 20013 OFO Docket# : 0120 1 60036 Hearing tt: AGENCY CHECKLIST Agency Number{s) :1C08 1009 01 2 The checklist below is provided for your convenience and to assist us in ensuring that the documents you send us are complete and properly associated with the correct case file. We would appreciate it if you would use this checklist when you submit your complaint f ile . Please check off all i terns where applicable. EEO Counselor's Report Notice of Final Interview Formal Complaint Notice of Agency Acknowledgement of Complaint Partial Dismissal Letter/Supporting Documentation Investigat i ve Report and File(s) {for a l l complaints noted above) Settlement Agreement Request to reinstate complaint/specific performance for Settlement Breach Hearing Request/Rights/Evidence of receipt of hearing rights ALL DOCUMENTS SUBMITTED BY THE PARTIES TO THE AJ: (Including, but not limited to: All discovery related requests, responses motions, oppositions, exhibits, and all summary judgment relat ed pleadings and documents) ALL NOTICES, RULINGS, AND ORDERS SUBMITTED BY THE AJ (Including , but not limited t o: Acknowledgement orders, Discovery Rulings Notice of Summary Judgment, Summary Judgment Rul ings , Sanction Ruling) Hearings Transcript(s) **all volumes of multiple transcripts•• Hearing Exhibits * *all exhibits offered at the hearing ** AJ 's Findings and Conclusions/Proof of date of agency receipt Final Agency Action/Decision Evidence of receipt/mailing of the Final Action/Decision Compensatory Damages Documentation/Decision Attorney 's Fees Petition/Decision Complete Grievance File (If an appeal from a grievance decision i s involved) •• Please check with Agency Lega l Unit for any missing documents REVISED 06/03 Case 3:15-cv-08071-BRM-TJB Document 21-12 Filed 04/21/17 Page 4 of 4 PageID: 609 HOPKINS DECLARATION EXHIBIT 20 Case 3:15-cv-08071-BRM-TJB Document 21-13 Filed 04/21/17 Page 1 of 5 PageID: 610 ' ' • 1Compla1nts updated U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Victoria Handle, ~a. Reita M.,1 Complainant, v. Megan... Brennan, Post! · ·: ·!I' General, United f; ... -~ Postal Service (E:- :rn Area), ,gency. Appeal No. 01~0160036 Agency No. lC-031-0090-12 DISMISSAL OF APPEAL Complainant filed an appeal with this Commission from the August 19, 2015 final Agency decision regard her claim for compensatory damages following the Commission's decision in EEOC Appeal No. 01201404:10 (June 10, 201S) finding that she established that the Agency violated Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as worked as a Supervisor, Distributions Operations at the Agency's Monmouth Distribution and Processing Center in Eatontown, New Jersey. She was later reassigned to toe Trenton Processing and Distribution Center, in Trenton, New Jersey. On December U, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), disability, age (59), and prior EEO activity. In EEOC Appeal No. 01201404:10, the Commission determined that the Agency violated the Rehabilitation Act when it disclosed confidential medical information. The decision ordered the Agency to corrective action including: calculating Complainant's claim for compensatory damages, provide training to 1 This ca..C!C bas been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. Case 3:15-cv-08071-BRM-TJB Document 21-13 Filed 04/21/17 Page 2 of 5 PageID: 611 I 2 0120160036 management, and to consider disciplinary action against the management official who made the improper medical disclosure. On August 19, 2015, the Agency issued a final decision regarding Complainant's claim for compensatory damages. On November 13, 2015, Complainant filed a civil action (identified as Civil Action No. 3:15- cv-03071-PGS-TJB) in the United States District Court for the District of New Jersey. The record further di..~loses that Complainant bas raised her claim of improper medical disclosure in the civil action. As such, we determine that the claim raised therein is the same raised in the instant complaint. The regulation found at 29 C.F.R. § 1614.409 provides that the filing of a civil action "shall terminate Commission processing of the appeal." Commission regulations mandate dismissal of the EEO complaint under these circumstances so as to prevent a Complainant from simultaneously pumiing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep't of Justice, EEOC Appeal No. OU93513 (October 19, 19S9); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05SS0114 (Oi:tober 25, 1983). CONCLUSION Accordingly, Complainanfs appeal is hereby dismissed. See 29 C.F.R. § 1614.409. STATEMENT OF RIOHTS - ON APPEAL RECONSIDERATION (MOS 15) 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) witlUD thirty (30) caleudar clays of receipt of this decision or within twenty (20) ·calendar clays 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), at Chap. 9 § VII.B (Aug. S, 2015). 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 tiling period. See 29 C.F.R. § 1614.604. The request or opposition must aL~ include proof of service on the other party. Case 3:15-cv-08071-BRM-TJB Document 21-13 Filed 04/21/17 Page 3 of 5 PageID: 612 ./' ( 3 0120160036 Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely tiling of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration tiled after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). · COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court withJn ninety (90) calendar days from the date that you receive this decision. If you tile 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 organiution, and not the local office, facility or department in which you work. If you tile 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 (Z031S) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attomey for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph tided Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ~Ii.~ Office of Federal Operations NAR 1 0 2018 Date Case 3:15-cv-08071-BRM-TJB Document 21-13 Filed 04/21/17 Page 4 of 5 PageID: 613 4 0120160036 CERTIFICATE OF MAilJNG For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below: Victoria Handle 47 Manchester Ave Keyport, NI 07735 David F. Corrigan, Esq. The Corrigan Law Finn 54B West Front Street Keyport, NI 07735 U.S. Postal Service (Eastern Area) NEEOISO - Appeals U.S. Postal Service PO Box 21979 Tampa, FL 33622-1979 MAR 1 0 201& Date Case 3:15-cv-08071-BRM-TJB Document 21-13 Filed 04/21/17 Page 5 of 5 PageID: 614 WILLILAM E. FITZPATRICK Acting U.S. Attorney By: J. ANDREW RUYMANN Assistant U.S. Attorney 402 East State Street, Room 430 Trenton, New Jersey 08608 Attorney for Defendants UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY VICTORIA HANDLE, : Hon. Brian R. Martinotti : Plaintiff, : Civil Action No. 15-8071(BRM) : v. : : MEGAN J. BRENNAN and : UNITED STATES POSTAL SERVICE : : Defendants. : [PROPOSED] ORDER This matter having been brought before the Court upon the motion for judgment on the pleadings or, alternatively, for summary judgment by defendants, Megan J. Brennan and United States Postal Service, and the Court having considered the positions of the parties, and good cause having been shown, It is on this the day of , 2017, hereby ORDERED that defendants’ motion is GRANTED; and it is further ORDERED that judgment is granted in favor of defendants and this case is DISMISSED in its entirety. BRIAN R. MARTINOTTI U.S. District Judge Case 3:15-cv-08071-BRM-TJB Document 21-14 Filed 04/21/17 Page 1 of 1 PageID: 615 PAUL J. FISHMAN United States Attorney By: J. ANDREW RUYMANN Assistant U.S. Attorney 402 East State Street, Room 430 Trenton, New Jersey 08608 Attorney for Defendants UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY VICTORIA HANDLE, : Hon. Brian R. Martinotti : Plaintiff, : Civil Action No. 15-8071(BRM) : v. : : MEGAN J. BRENNAN and : Document Electronically Filed UNITED STATES POSTAL SERVICE : : Defendants. : CERTIFICATE OF SERVICE I hereby certify that the notice of motion for judgment on the pleadings or, alternatively for summary judgment, the supporting brief, defendants’ statement of material facts pursuant to Local Civil Rule 56.1, the declaration of Joseph G. Hopkins and the exhibits thereto, except for exhibits 1, 2, 3, 8, 11, 12, 13, 15, 17, 19 and 21, (which defendants will move to be filed under seal), a proposed order and this certificate of service were served upon plaintiff’s counsel, David F. Corrigan, Case 3:15-cv-08071-BRM-TJB Document 21-15 Filed 04/21/17 Page 1 of 2 PageID: 616 Esq., via this Court’s electronic case filing system on April 21, 2017. I further certify that a paper copy of the notice of motion for judgment on the pleadings or, alternatively for summary judgment, the supporting brief, defendants’ statement of material facts pursuant to Local Civil Rule 56.1, the declaration of Joseph G. Hopkins and all exhibits thereto (exhibits 1 to 21), including the exhibits that defendants will move to have filed under seal (that is, exhibits 1, 2, 3, 8, 11, 12, 13, 15, 17, 19 and 21), a proposed order and this certificate of service were served upon plaintiff’s counsel, David F. Corrigan, Esq., by mailing same by First Class U.S. Mail to his office, at 54B West Front Street, Keyport, New Jersey 07735, on April 21, 2017. s/ J. Andrew Ruymann J. ANDREW RUYMANN Assistant U.S. Attorney Case 3:15-cv-08071-BRM-TJB Document 21-15 Filed 04/21/17 Page 2 of 2 PageID: 617