Thompson v. United States Department of Agriculture et al

MOTION to Dismiss for Failure to Serve, Failure to Administratively Exhaust and, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.September 7, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA GAINESVILLE DIVISION SHAYLE V. THOMPSON PLAINTIFF, v. UNITED STATES DEPARTMENT OF AGRICULTURE, FOOD SAFETY AND INSPECTION SERVICE, AND MAR-JAC POULTRY DEFENDANTS. Civil Action No. 2:16-cv-0033-WCO-JCF DEFENDANT USDA FSIS’S MOTION TO DISMISS NOW COMES Defendant, United States Department of Agriculture, Food Safety Inspection Service (“USDA FSIS” or “Defendant”), by and through the United States Attorney for the Northern District of Georgia, John A. Horn, and moves the Court for an order dismissing this case for failure to serve under Rule 4(m), failure to administratively exhaust, and failure to state a claim under Rule 12(b)(6). The grounds for this motion are more particularly set forth in the accompanying memorandum of law. Case 2:16-cv-00033-WCO-JCF Document 8 Filed 09/07/16 Page 1 of 3 2 Respectfully submitted, JOHN A. HORN UNITED STATES ATTORNEY /s/ Ellen H. Persons ELLEN H. PERSONS ASSISTANT U.S. ATTORNEY Georgia Bar No. 930133 United States Attorney’s Office Richard B. Russell Building 75 Ted Turner Dr., SW, Suite 600 Atlanta, GA 30303 (404) 581-4640 (404) 581-6181 (facsimile) Ellen.persons@usdoj.gov Case 2:16-cv-00033-WCO-JCF Document 8 Filed 09/07/16 Page 2 of 3 3 Certificate of Service I have served the foregoing Motion to Dismiss and Memorandum of Law in Support today by filing it using the Court’s CM/ECF system, and by causing a true and correct copy thereof to be sent to the following pro se party by first class U.S. Mail, properly addressed and with sufficient postage affixed: Shayle V. Thompson 2640 Austin Ridge Dr. Dacula, Georgia 30019 September 7, 2016 /s/ Ellen H. Persons Ellen H. Persons Assistant United States Attorney Case 2:16-cv-00033-WCO-JCF Document 8 Filed 09/07/16 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA GAINESVILLE DIVISION SHAYLE V. THOMPSON PLAINTIFF, v. UNITED STATES DEPARTMENT OF AGRICULTURE, FOOD SAFETY AND INSPECTION SERVICE, AND MAR-JAC POULTRY DEFENDANTS. Civil Action No. 2:16-cv-0033-WCO-JCF MEMORANDUM IN SUPPORT OF DEFENDANT USDA FSIS’S MOTION TO DISMISS Defendant United States Department of Agriculture Food Safety and Inspection Service (“USDA FSIS” or “Defendant”), by and through the United States Attorney for the Northern District of Georgia, files this Memorandum of Law in Support of the Motion to Dismiss Plaintiff’s Complaint under Rule 12(b)(4) and 12(b)(5) for failure to serve under Rule 4(m), failure to administratively exhaust under Rule 12(b)(1), and failure to state a claim of discrimination, retaliation, or hostile work environment under Rule 12(b)(6). Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 1 of 16 2 BACKGROUND On April 6, 2014, the USDA FSIS hired Plaintiff as a GS-5 Intermittent Food Inspector. On August 31, 2015, Plaintiff filed a formal Equal Employment Opportunity (“EEO”) complaint of discrimination against the USDA FSIS. See Dkt. No. 1 at p. 23. The USDA FSIS issued a letter accepting Plaintiff’s administrative EEO complaint for investigation on November 13, 2015. See Dkt. No. 1 at p. 39. On November 23, 2015, Plaintiff amended her EEO complaint to include additional allegations. On December 3, 2015, the USDA FSIS issued a letter accepting Plaintiff’s amended EEO complaint for investigation. See Dkt. No. 1 at p. 41. On February 18, 2016, before the completion of the agency investigation and prior to the expiration of 180 days from her amended EEO complaint, Plaintiff filed a Complaint in district court. See Dkt. No. 1. Plaintiff’s Complaint alleges employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. based on her race (black), gender (female), and prior EEO activity, which allegedly resulted or manifested itself in the failure to promote, a reduction of wages, harassment, working under terms and conditions of employment that differed from similarly situated employees, and retaliation. See Dkt. No. 1 at p. 6. The USDA FSIS was served with the Complaint on March 18, Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 2 of 16 3 2016. See Dkt. No. 3. Plaintiff has still not served the Attorney General or the United States Attorney’s Office with the Complaint. In her Complaint Plaintiff incorrectly checked “yes” to indicate she had completed the administrative process regarding her EEO complaint.1 See Dkt. No. 1 at p. 5. The administrative process has not been completed and is still ongoing. Since filing her Complaint in district court, the Agency has continued to investigate Plaintiff’s EEO complaint. On May 31, 2016, Plaintiff received a letter from the Agency, along with a copy of the administrative report of investigation (“ROI”), requiring Plaintiff to notify the Agency of her choice, going forward, for the processing of her EEO complaint. See May 25, 2016 Letter and Delivery confirmation, attached hereto as Exhibit A.2 Plaintiff could either (1) withdraw 1 Plaintiff was removed from federal service on April 20, 2016, after the district court complaint was already pending. On May 11, 2016, Plaintiff filed an appeal with the Merit Systems Protection Board (“MSPB”) regarding her removal. The litigation before the MSPB is ongoing. Because the issue of Plaintiff’s removal was not the subject of the underlying EEO complaint, it is not before this court. 2 The Court can consider any document attached to a motion to dismiss without converting the motion to a motion for summary judgment where the document is central to the plaintiff’s claim and its authenticity is not challenged. Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). Further, when considering a Rule 12(b) motion to dismiss for failure to exhaust administrative remedies, “it is proper for a judge to consider facts outside of the pleadings and to resolve factual disputes as long as the factual disputes do not decide the merits and the parties have sufficient opportunity to develop a record.” Brady v. Postmaster Gen., U.S. Postal Serv., 521 F. Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 3 of 16 4 her formal EEO Complaint; (2) Request a Final Agency Decision (“FAD”); or (3) request a hearing before an EEOC Administrative Judge. Id. Plaintiff did not respond to this letter; by default, her administrative EEO complaint is currently pending a FAD.3 ARGUMENT AND CITATION OF AUTHORITY A. Failure to Serve First, this case should be dismissed for failure to effect proper service under Federal Rule of Civil Procedure 4(m). In order to serve an agency of the United States, a United States= employee sued in an official capacity, or an officer of the United States, Federal Rule of Civil Procedure 4(i)(2) requires a plaintiff to Aserve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.@ Fed. R. Civ. P. 4(i)(2). In order to serve the United States, a plaintiff must: App’x 914, 916 (11th Cir. 2013) (citing Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008)). 3 To prevent duplicative processing of Plaintiff’s EEO claims, USDA FSIS is seeking to hold the administrative EEO complaint in abeyance, pending the outcome of this civil action. See Motion to Hold Administrative EEO Complaint in Abeyance, attached hereto as Exhibit B. Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 4 of 16 5 (A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought--or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk-or (ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office; (B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and (C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer. Fed. R. Civ. P. 4(i). If, as here, a plaintiff fails to effect proper service of the complaint and a summons within 90 days of the date on which the complaint is filed with the Court, the complaint must be dismissed. Fed. R. Civ. P. 4(m);4 see Dorman v. Simpson, 893 F. Supp. 1073, 1079 (N.D. Ga. 1995) (dismissing plaintiff=s claims against those defendants who were not served within 120 days of date on which plaintiff=s complaint was filed); Daniel v. United States, 891 F. Supp. 600, 605 (N.D. 4 Rule 4(m) was amended on December 1, 2015 to shorten the 120-day service period to 90 days. This amendment applies to pending cases pursuant to Rule 86(a)(2) of the Federal Rules of Civil Procedure. Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 5 of 16 6 Ga. 1995) (same). Plaintiff=s pro se status does not excuse her failure to comply with the service requirements of Rule 4. See Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988) (holding that a pro se litigant=s ignorance of the law is no excuse for failing to comply with the service requirements); Mitchell v. Am. Home Mortg. Servicing, Inc., 1:07-CV-2856, 2008 WL 2064662, at *2 (N.D. Ga. May 13, 2008) (dismissing pro se complaint for failure to perfect timely service of process and failure to prosecute case); Sanders v. Fluor Daniel, Inc., 151 F.R.D. 138, 139 (M.D. Fla. 1993) (A[T]here can be no lenient exception granted for a [pro se] Plaintiff=s failure to comply with the formal Rules of Civil Procedure@). In this case, Plaintiff filed her Complaint on February 18, 2016. See Dkt. No. 1. Since that time, despite the passage of more than 90 days, Plaintiff has failed to effectuate proper service of her Complaint and Summons on the United States Attorney=s Office and the Attorney General of the United States. Consequently, Plaintiff has failed to comply with the requirements of Rules 4(i) and (m) of the Federal Rules of Civil Procedure. In light of the requirements for effective service on a United States agency or officer, there can be no Agood cause@ for Plaintiff=s failure to serve Defendant in accordance with the Rules. See Lepone-Dempsey v. Carroll Cnty. Comm'rs, 476 F.3d 1277, 1281 (11th Cir. 2007) (explaining that good cause exists only where an outside Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 6 of 16 7 factor, rather than inadvertence or negligence, prevented service); Profit v. Americold Logistics, LLC., 1:07-CV-1920, 2008 WL 1902190, at *4 (N.D. Ga. Apr. 25, 2008) (same); Denton v. United States, 1:04-CV-3285, 2006 WL 3783595, at *2 (N.D. Ga. Dec. 21, 2006) (dismissing case pursuant to Rule 4(m) and explaining failure to show good cause for not serving defendants within the 120 days). This matter should, therefore, be dismissed for failure to effect proper service. B. Failure to Exhaust Administrative Remedies Additionally, this case should be dismissed for failure to exhaust administrative remedies. Before filing an action under Title VII in federal court, a plaintiff must exhaust her administrative remedies by filing a charge of discrimination with the EEOC. See Brown v. Gen. Servs. Admin., 425 U.S. 820 (1976); Grier v. Sec. of Army, 799 F.2d 721, 724 (11th Cir. 1986); Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999). Exhaustion requirements give the agency notice of the allegations that it faces and allow it the opportunity to internally investigate and resolve the matter. Basel v. Sec’y of Def., 507 F. App’x 873, 875 (11th Cir. 2013) (citing Gregory v. Georgia Dep’t of Human Res., 355 F.3d 1277, 1279-80 (11th Cir. 2004)). The exhaustion requirement “is not a technicality ‘[r]ather it is part and parcel of the congressional design to vest in the federal agencies and officials engaged in hiring and promoting personnel ‘primary responsibility’ for maintaining non- Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 7 of 16 8 discrimination in employment.’” Grier, 799 F. 2d at 724 (quoting Kizas v. Webster, 707 F.2d 524, 544 (D.C. Cir. 1983)); Brown, 425 U.S. at 833 (explaining that the rules regarding exhaustion are not mere technicalities, but integral parts of Congress’s statutory scheme of achieving a “careful blend of administrative and judicial enforcement powers.”). Exhausting administrative remedies requires a number of steps. Specifically, a federal employee must initiate contact with an EEO counselor within 45 days of the date of the matter alleged to be discriminatory. 29 C.F.R. § 1614.105(a)(1). Within 15 days of receiving notice from the EEO Counselor after informal counseling, the employee must file an administrative EEO complaint with the agency against which she alleges discrimination. 29 C.F.R. § 1614.105(a)- (c). The agency then must complete an investigation of the accepted claims. 29 C.F.R. § 1614.106(e). Title VII permits an aggrieved federal employee to file a civil action in the district court 180 days after filing an administrative EEO complaint, when there has not been any final action on the EEO complaint. 42 U.S.C. § 2000e- 16(c); 29 C.F.R. § 1614.407(b). In the instant case, Plaintiff prematurely filed the instant civil action on February 18, 2016, only 171 days after she filed her August 31, 2015 administrative EEO complaint. Plaintiff states in her complaint that she “[r]eceived letter with Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 8 of 16 9 acceptance of claims letter. . .”, this however, is not the same as a right-to-sue letter5 as asked for on the form complaint. See Dkt. No. 1 at p. 4. Further, no final action by the agency has been made and there is a request to hold the administrative action in abeyance pending the resolution of this district court matter. See Exhibit B. The issue of exhaustion of administrative remedies is appropriately raised in a Rule 12(b) motion to dismiss. See Tillery v. United States Dep’t of Homeland Sec., 402 F. App’x 421, 424 (11th Cir. 2010). The “[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded out of a vague sympathy for particular litigants.” Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984). A plaintiff may only bring an action in district court after she has followed the administrative remedies provided under 42 U.S.C. § 2000e- 16 and the Code of Federal Regulations, and failure to do so subjects a complaint to dismissal. See, e.g., Murthy v. Vilsack, 609 F.3d 460, 465 (D.C. Cir. 2010) (affirming the district court’s dismissal, with prejudice, of a plaintiff’s Title VII claims, where the plaintiff filed his district court complaint only 131 days after filing his EEO 5 The equivalent of a right to sue letter in federal sector EEO cases is the Notice of Right to file, which gives the complainant 15 days to file a formal EEO complaint with the agency. Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 9 of 16 10 complaint, and finding that plaintiff did not cure the failure to exhaust by filing an amended complaint after 180 days had passed). When the defendant raises the exhaustion issue in a motion to dismiss, the plaintiff bears the burden of proving that the conditions precedent to a suit have been met. Bloodworth v. Colvin, 17 F. Supp.3d 1245, 1253 (11th Cir. 2014). Plaintiff states in her Complaint at Paragraph 8 that she received a Right-to-Sue letter from the EEOC, but then states she “[r]eceived letter with acceptance of claims letters dated Nov 13, 2015 and Dec 3, 2015”. See Dkt. No. 1 at p. 4. Plaintiff attaches these letters to her Complaint. See Dkt. No. 1 at pp. 20, 39, and 41. None of these letters, however, constitute a Right-to-Sue letter or Notice of Right to file and they are inapposite to the exhaustion analysis. Because Plaintiff filed her Complaint before the expiration of the requisite 180-day period and failed to make a good-faith effort to comply with EEOC regulations, this case should be dismissed for failure to exhaust administrative remedies. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407(b). Additionally, to the extent Plaintiff’s Complaint includes claims that were not included in her administrative EEO complaint, those claims should be dismissed for failure to exhaust. See Lambert v. Alabama Dep’t of Youth Servs., 150 F. App’x 990, 993 (11th Cir. 2005) (affirming district court’s dismissal of claims that Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 10 of 16 11 were not included in the plaintiff’s administrative EEO complaint, where the new claims did not clarify, amplify, or focus the administrative allegations); Wills v. Postmaster Gen., 300 F. App’x 748, 750 (11th Cir. 2008) (affirming district court’s dismissal of claims that were not included in the plaintiff’s administrative EEO complaint). C. Plaintiff’s Claims Fail to State a Claim for Which Relief Can Be Granted The Supreme Court has provided detailed instruction for review of a complaint challenged by a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662 (2009) (explaining and applying pleading standard of Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Iqbal instructs that to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A complaint must offer more than “naked assertion[s],” “labels and conclusions, [or] a formulaic recitation of the elements of a cause of action.” Id. at 555, 557. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). The complaint must “contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 11 of 16 12 viable legal theory.” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) (citation omitted). Plaintiff’s allegations do not contain sufficient factual matter that, if accepted as true, states a plausible claim for relief. In Paragraph 12 Plaintiff complains that the lawsuit involves the failure to promote, reduction in wages, working under terms and conditions of employment that differed from similarly situated employees, harassment, and retaliation. See Dkt. No. 1 at p. 6. Then in Paragraph 13, Plaintiff states her belief that she was discriminated against because of her race, sex, and her opposition to a practice of her employer that she believed violated the federal anti-discrimination laws or her participation in an EEOC investigation. Id. Rather than lay out the essential facts of her claims, Plaintiff simply attaches numerous rambling documents to her Complaint. See Dkt. No. 1. Plaintiff identifies no facts to show that she was treated differently because of her race, gender, or prior EEO activity. There is no specific factual allegation demonstrating that she was discriminated against with respect to her compensation, terms, conditions or privileges of employment because of her race or sex. She identifies no similarly situated employees outside of her protected class. Further, there are no specific factual allegations demonstrating that Plaintiff was discriminated against for engaging in protected conduct as is required to Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 12 of 16 13 bring a retaliation claim or that she was subjected to harassment because of her protected class. In fact, all Plaintiff does is check the boxes on the form complaint and then attach numerous confusing documents that provide no basis for any claim. Although the pleadings of pro se parties are construed more liberally than pleadings drafted by attorneys, pro se plaintiffs are not excused from complying with the Federal Rules of Civil Procedure or the pleading standards set forth in Twombly and Iqbal. See Loor v. Puente, No. 14-15431, 2015 WL 5833964, at *1 (11th Cir. Oct. 7, 2015); Logan v. Hall, 604 F. App’x 838, 839 (11th Cir. 2015) (“This liberal construction, though, does not give a court license to rewrite an otherwise deficient pleading in order to sustain an action”). Even with this standard, Plaintiff’s allegations in her Complaint fail as a matter of law to state a claim of unlawful discrimination that entitles her to relief. Plaintiff has utilized a shotgun type pleading in which “it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” See Anderson v. Dist. Bd. of Trustees of Cent. Fl. Comm. Coll., 77 F.3d 364, 366 (11th Cir. 1996). The Eleventh Circuit has “roundly, repeatedly, and consistently condemn[ed]” shotgun pleadings. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979, abrogated on other grounds by Iqbal, 556 U.S. 662, and Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 13 of 16 14 Twombly, 550 U.S. 544; see also, LaCroix v. Western Dist. Of Kentucky, 627 F. App’x 816, 818 (11th Cir. 2015). Such pleadings “wreak havoc on the judicial system.” Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 2001), abrogated on other grounds by Douglas Asphalt Co. v. QORE, Inc., 657 F.3d 1146 (11th Cir. 2011). The Eleventh Circuit has further instructed that a “defendant served with a shotgun complaint should move the district court to dismiss the complaint pursuant to Rule 12(b)(6) or for a more definite statement pursuant to Rule 12(e) on the ground that the complaint provides it with insufficient notice to enable it to file an answer.” Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1126-27 (11th Cir. 2014). It is virtually impossible to determine Plaintiff’s allegations of fact or her claims for relief based on the barrage of documents attached to her Complaint and the rambling nature of her allegations. Under the Federal Rules of Civil Procedure, a defendant faced with a complaint such as this could not be expected to frame a responsive pleading. As such, Plaintiff’s Complaint should be dismissed in its entirety for failure to state a claim. D. The USDA is an Improper Title VII Defendant Finally, in a Title VII action involving allegations of employment discrimination by USDA employees, the proper government defendant is the Secretary of the United States Department of Agriculture, Tom Vilsack. The plain Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 14 of 16 15 language of 42 U.S.C. § 2000e-16(c) provides that the department head is the proper defendant in a Title VII action against a federal agency. All other parties are improperly named. In this case, the USDA FSIS Defendant is not a proper defendant in this case for Plaintiff’s Title VII claims. Consequently, Plaintiff’s claims against the USDA FSIS should be dismissed for failure to state a claim. CONCLUSION For the foregoing reasons, Defendant respectfully requests that this Court grant its motion to dismiss Plaintiff’s Complaint in its entirety. Respectfully submitted, JOHN A. HORN UNITED STATES ATTORNEY /s/ Ellen H. Persons ELLEN H. PERSONS ASSISTANT U.S. ATTORNEY Georgia Bar No. 930133 United States Attorney’s Office 75 Ted Turner Dr., SW, Suite 600 Atlanta, GA 30303 (404) 581-4640 (404) 581-6181 (facsimile) Ellen.persons@usdoj.gov Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 15 of 16 16 Certificate of Compliance I hereby certify, pursuant to Local Rules 5.1 and 7.1D, that the foregoing brief has been prepared using Book Antiqua, 13 point font. /s/ ELLEN H. PERSONS Assistant United States Attorney Case 2:16-cv-00033-WCO-JCF Document 8-1 Filed 09/07/16 Page 16 of 16 EXHIBIT A Case 2:16-cv-00033-WCO-JCF Document 8-2 Filed 09/07/16 Page 1 of 8 United States Department of Agriculture Office of the Assistant Secretary for Civil Rights Office of Adjudication 14001ndependence Avenue SW Washington, DC 20250 Shayle V. Thompson 2640 Austin Ridge Drive Dacula, GA 30019 Re: Shayle V. Thompson MAY 2 5 2016 Complaint No.: FSIS-2015-00704 Report oflnvcstigation Dear Ms. Thompson: Please be advised that the investigation pe1tain.ing to the subject discrimination complaint filed on August 31, 2015 has been completed. In accordance with Title 29, Code of Federal Regulations Section 1614.108 (f), you are hereby provided a copy of the Report of Investigation (ROI) on the above-referenced complaint. This ROI does not constitute a final U.S. Department of Agriculture (USDA) decision on your complaint. Its primary purpose is to develop the facts of the case and provide the basis for deciding this complaint. The contents of the enclosed ROI are protected by the Privacy Act of 1974, which prohibits the unwarranted release of sensitive and confidential information. As such, access to this ROI is limited to employees within the USDA and the Equal Employment Opportunity Commission (EEOC) who have an official need for the information cited therein. No other use of this report is authorized or permitted. If you wish to supplement the enclosed ROI, four ( 4) copies of any written statement and/or supporting documentation must be submitted to thjs office, within 30 calendar days of your receipt of the ROI, at the following address: USDA, Office of Adjudication Employment Investigations Division (EID) 355 E Street SW, Room 7-146 Washington, D.C. 20024 Attn: Dona M. Marshall, Chief Please note that providing supplemental written statements and/or documents will not delay or extend the 30 calendar day timeframe to make an election for processing. Additionally, within 30 calendar days of your receipt of the ROI, you have the right to exercise one of the following options: • Option 1: Withdraw Formal EEO Complaint; • Option 2: Request a Final Agency Decision (FAD) by the USDA, based on the factual record; or, AN EQUAL OPPORTUNITY EMPLOYER Case 2:16-cv-00033-WCO-JCF Document 8-2 Filed 09/07/16 Page 2 of 8 Shayle V. Thompson, Complaint No. FSIS-2015-00704 • Option 3: Request a Hearing before an EEOC Administrative Judge (AJ). If you wish to exercise Option 1, Withdraw Formal EEO Complaint, please complete, sign, and date the EEO CompJaint Withdrawal form (Enclosure 1 ). If you wish to exercise Option 2, Request a FAD by the USDA, please complete, sign, and date the Request for FAD form (Enclosure 2). If you wish to exercise Option 3, "Request for an EEOC Hearing" please complete the Request for an Administrative Hearing fo1m (Enclosure 3), sign, date and send it to the appropriate EEOC Field Office within 30 calendar days ofreceipt of the ROI. A copy of the completed Enclosure 3, Request for an Administrative Hearing form, must also be concurrently sent to this office and your agency Civil Rights Office, at the aforementioned addresses. Please note that if these offices are not served with a completed copy of the "Request for an Administrative Hearing form," the EEOC will not be able to process your request. If Complainant elected Option 1, Option 2, or Option 3, please return the specific election form within 30 calendar days of your receipt of the ROI to the following addresses: USDA, Food Safety and Inspection Service (FSTS) Civil Rights Office 5601 Sunnyside Avenue, MS 5261 Room 1-2260 Beltsville, MD 20705 Attn: Angela Kelly, Civil Rights Director AND USDA, Office of Adjudication Employment Investigations Division (EID) 355 E Street SW, Room 7-146 Washington, D.C. 20024 Attn: Dona M. Marshall, Chief You are also advised that if this office does not receive any of the enclosed election forms specifying your election for processing your complaint within 30 calendar days ofreceipt of the ROI, this office will notify USDA, Office of Adjudication, Employment Adjudication Division, that an election has not been made and the EEO complaint wil I be processed through the issuance of a FAD pursuant to Title 29, Code of Federal Regulations Section 1614.110. Lastly, consistent with EEOC Regulations and the Secretary of Agriculture's strong commitment to the early resolution of EEO complaints, parties are encouraged to seek Case 2:16-cv-00033-WCO-JCF Document 8-2 Filed 09/07/16 Page 3 of 8 Shayle V. Thompson, Complaint No. FSIS-2015-00704 resolution to complaint(s) at any stage of the EEO complaint process. Settlement discussions may take place throughout the administrative complaint process. If you have any additional questions please contact Sharon Rice-Hicks, EEO Specialist at (202) 690-5478. Sincerely, • a. (A y tt. 11 t). c. /c_ ofla M. Marshall Chief, Employment Investigations Division Office of Assistant Secretary for Civil Rights Enclosmes Rep01t oflnvestigation EEO Complaint Withdrawal Form Request a Final Agency Decision Form EEOC Administrative Hearing Request Form Case 2:16-cv-00033-WCO-JCF Document 8-2 Filed 09/07/16 Page 4 of 8 Shay le V. Thompson, Complaint No. FSIS-2015-00704 EEO COMPLAINT WITHDRAWAL Complainant's Name: Complainant's Address: Complaint Number: I hereby notify that I wish to withdraw my complaint of employment discrimination. Enclosure ,I It is my understanding that my compJaint(s) will be closed without a decision. Complainant's Signature Date Return this form to: USDA, Food Safety and Inspection Service (FSIS) Civil Rights Office 5601 Sunnyside Avenue, MS 5261 Room 1-2260 Beltsville, MD 20705 Attn: Angela Kelly, Civil Rights Director AND USDA, Office of Adjudication Employment Investigations Division (EID) 355 E Street SW, Room 7-146 Washington, D.C. 20024 Attn: Sharon Rice-Hicks, EEO Specialist Fax: 202-245-9995 Case 2:16-cv-00033-WCO-JCF Document 8-2 Filed 09/07/16 Page 5 of 8 Shayle V. Thompson, Complaint No. FSlS-2015-00704 Enclosure 2 REQUEST FOR A FINAL AGENCY DECISION Complainant's Name: Complainant's Address: Complaint Number: I hereby notify that I have reviewed the Report of Investigation issued by your office and I elected to receive a Final Decision by the U.S. Department of Agriculture based on the record.Comments and/or supplemental information, if any, are enclosed. Complainant's Signature Return this form to: Date USDA, Food Safety and Inspection Service (FSIS) Civil Rights Office 5601 Sunnyside Avenue, MS 5261 Room 1-2260 Beltsville, MD 20705 Attn: Angela Kelly, Civil Rights Director AND USDA, Office of Adjudication Employment Investigations Division (EID) 355 E Street SW, Room 7-146 Washington, D.C. 20024 Attn: Dona M. Marshall, Chief Fax: 202-245-9995 Case 2:16-cv-00033-WCO-JCF Document 8-2 Filed 09/07/16 Page 6 of 8 Shayle V. Thompson, Complaint No. FSIS-2015-00704 Enclosure 3 ADMINISTRATIVE HEARING REQUEST (Mail Original to EEOC) U.S. Equal Employment 01>portunity Commission Dallas District Office 207 S. Houston Street 3rd Floor Dallas, TX 75202 Dear Sir/Madam: I am requesting the appointment of an Equal Employment Opportunity Commission (EEOC) Administrative Judge, pursuant to 29 C.F.R. 1614. l 08 (g). I hereby certify that I have received notice from the Agency that I have thitty (30) days to elect a Hearing or a final agency decision (FAD). My Name/ Address: USDA Agency: USDA Complaint No.: Shayle V. Thompson Food Safety and Inspection Service (FSIS) FSIS-2015-00704 In accordance with section 1614.108 (g), I hereby certify that I have sent a copy of this request for an EEOC Hearing to the following addresses: USDA, Food Safety and Inspection Service (FSIS) Civil Rights Office 5601 Sunnyside Avenue, MS 5261 Room 1-2260 Beltsville, MD 20705 Attn: Angela Kelly, Civil Rights Director AND USDA, Office of Adjudication Employment Investigations Division (EID) 355 E Street SW, Room 7-146 Washington, D.C. 20024 Attn: Dona M. Marshall, Chief I understand that ifl have not provided the agency with a copy of my Request for an Administrative Hearing, this request will have no effect and an Administrative Judge will not be appointed, or if appointed, the Administrative Judge will place my request into an inactive docket until such time as I inform the Agency of my Request for a Hearing. Case 2:16-cv-00033-WCO-JCF Document 8-2 Filed 09/07/16 Page 7 of 8 Shayle V. Thompson, Complaint No. FSIS-2015-00704 Sincerely, Complainant's Signature Date Case 2:16-cv-00033-WCO-JCF Document 8-2 Filed 09/07/16 Page 8 of 8 EXHIBIT B Case 2:16-cv-00033-WCO-JCF Document 8-3 Filed 09/07/16 Page 1 of 12 OFFICE OF THE ASSISTANT SECRETARY FOR CIVIL RIGHTS Employment Adjudication Division ) SHA YLE THOMPSON, ) ) Complainant, ) ) V. ) ) TOM VILSACK, ) Secretary, U.S. Department of Agriculture, ) ) Agency. ) Agency Case No. FSIS-2015-00704 August 12, 2016 AGENCY'S NOTICE OF DISTRICT COURT COMPLAINT AND MOTION TO HOLD ADMINISTRATIVE EEO COMPLAINT IN ABEYANCE The Food Safety Inspection Service (" FSIS") of the U.S. Department of Agriculture (" USDA" or " the Agency"), through the undersigned Agency Representative, respectfully notifies the Office of the Assistant Secretary for Civil Rights ("OASCR") that Shay le Thompson ("Complainant") who filed an EEO complaint with the Agency on August 31 , 2015 , filed a civil action, Civil Action No. 2: l 6-CV-00033 , in U.S. District Court for the Northern District of Georgia, Gainesville Division, 172 days later, on February 19, 2016, alleging employment discrimination. See attached District Court Complaint. The instant administrative EEO complaint appears to be the basis for the civil action . Therefore, the Agency respectfully requests that OASCR hold the instant administrative EEO complaint in abeyance pending the outcome of the civil action. Respectfully submitted, Isl Vuuuu S4'; DIONNE SHY Agency Representative Case 2:16-cv-00033-WCO-JCF Document 8-3 Filed 09/07/16 Page 2 of 12 CERTIFICATE OF SERVICE l hereby certify that the foregoing Notice of District Court Complaint was sent to the following recipients in the manner indicated below, this 12th day of August 2016: Via Email Kirk Perry Chief, Employment Adjudication Division Kirk.Perry@ascr.usda.gov Shayle Thompson Complainant Slv9 l 6@aol.com DIONNE SHY Agency Representative U.S. Department of Agriculture Civil Rights, Labor, and Employment Law Division 1718 Peachtree Street, NW, Suite 576 Atlanta, GA 30309 Telephone: (404) 347-1080 Facsimile: (404) 347-1064 Emai I: Dionne.Shy@ogc.usda.gov Case 2:16-cv-00033-WCO-JCF Document 8-3 Filed 09/07/16 Page 3 of 12 Case 2:16-cv-00033-WCO-JCF Document 1 Filed 02/19/16 Page 1 of 42 IN THE UNITED STATES DISTRICT COURT FllEOu(~.~~~~ICE . FOR m~o~fk DISTRICT OF GEORGIA 2016 J Jne.a 114 ~ DIVISION • FEB 1 8 ~ JAMES N. lll\JlfEN, Clerk( t _\J. :To~ By. ~~" (Print ur full name) Plaintiff pro se, CML ACTION FILE NO. v. 2-:16-CV-0033 (to be assigned by Clerk) (Print full name of each defendant; an employer is usually the defendant) 1. Defendant( s ). ,fRQ SE EMPLOYMENT DISCRIMINATION COMPLAINT FORM Claims and Jurisdiction This employment discrimination lawsuit is brought under ( check only those that apply): V Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., for employment discrimination on the basis of race, color, religion, sex, or national origin, orretaliation for exercising rights under this statute. NOTE: To sue under Title VII, you generally must have received a notice of right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC"). Page I of 9 Case 2:16-cv-00033-WCO-JCF Document 8-3 Filed 09/07/16 Page 4 of 12 Case 2:16-cv-00033-WCO-JCF Document 1 Filed 02/19/16 Page 2 of 42 Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seg., for employment discrimination against persons age 40 and over, or retaliation for exercising rights under this statute. NOTE: To sue under the Age Discrimination in Employment Act, you generally must first file a charge of discrimination with the EEOC. Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., for employment discrimination on the basis of disability, or retaliation for exercising rights under this statute. NOTE: To sue under the Americans With Disabilities Act, you generally must have received a notice of right-to-sue letter from the EEOC. Other (describe) 2. This Court has subject matter jurisdiction over this case under the above-listed statutes and under 28 U.S.C. §§ 1331 and 1343. Page 2 of 9 Case 2:16-cv-00033-WCO-JCF Document 8-3 Filed 09/07/16 Page 5 of 12 Case 2:16-cv-00033-WCO-JCF Document 1 Filed 02/19/16 Page 3 of 42 Parties 3. Plaintiff. Print your full name and mailing address below: Name Address 4. Defendant(s). Name Address Name Address Name Address Print below the name and address of each defendant listed on page 1 of this fonn: Location and Time 5. If the alleged discriminatory conduct occurred at a location different from the address provided for defendant( s ), state where that discrimination occurred: BAD!t Addris~ M Ahw.: \D20 J\tJ~0v.-h~:Blvl Ga,n~v,11~, e}t 3Q5DI Page 3 of 9 Case 2:16-cv-00033-WCO-JCF Document 8-3 Filed 09/07/16 Page 6 of 12 Case 2:16-cv-00033-WCO-JCF Document 1 Filed 02/19/16 Page 4 of 42 6. When did the alleged discrimination occur? (State date or time period) Administrative Procedures 7. Did you file a charge of discrim.inati;m against defendant( s) with the EEOC or any other federal agency? V Yes No If you checked "Yes," attach a copy of the charge to this complaint. ~~ed 8. Have you received a Notice of Right-to-Sue letter from the EEOC? 9. v"'Yes No -- 60 days or more have elapsed since I filed my charge of age discrimination with the EEOC Less than 60 days have passed since I filed my charge of age discrimination with the EEOC Page4 of 9 Case 2:16-cv-00033-WCO-JCF Document 8-3 Filed 09/07/16 Page 7 of 12 Case 2:16-cv-00033-WCO-JCF Document 1 Filed 02/19/16 Page 5 of 42 10. If you were employed by an agency of the State of Georgia or unsuccessfully sought employment with a State agency, did you file a complaint against defendant( s) with the Georgia Commission on Equal Opportunity? 11. __ Yes No / Not applicable, because I was not an employee of, or applicant with, a State agency. If you checked "Yes," attach a copy of the complaint you filed with the Georgia Commission on Equal Opportunity and describe below what happened with it (i.e., the complaint was dismissed, there was a hearing before a special master, or there was an appeal to Superior Court): If you were employed by a Federal agency or unsuccessfully sought employment with a Federal agency, did you complete the administrative process established by that agency for persons alleging denial of equal employment opportunity? ~ - Yes --No __ Not applicable, because I was not an employee of, or applicant with, a Federal agency. If you checked "Yes," describe below what happened in that administrativ~s~ J Page 5 of 9 Case 2:16-cv-00033-WCO-JCF Document 8-3 Filed 09/07/16 Page 8 of 12 Case 2:16-cv-00033-WCO-JCF Document 1 Filed 02/19/16 Page 6 of 42 Nature of the Case 12. The conduct complained about in this lawsuit involves (check only those that apply): failure to hire me failure to promote me demotion - , ' reduction in my wages ~ \.J\.. ~- ~uJ.tov working under terms and conditions of employment that differed from similarly situated employees harassment retaliation termination of my employment*' failure to accommodate ~abilityA other (please specify) --=~~cac... .... Atfn~.-l'-L,..._,.,~""'-------- 13. I believe that I was discriminated against because of (check only those that apply): ./ 7 / / my race or color, which is -~.sz;;;;jl~;..::l-Y-. ________ _ my religion, which is------------~-- my sex (gender), which is male Vfemale my national origin, which is ____________ _ my age (my date of birth is ___________ __, my disability or perceived disability, which is: my opposition to a practice of my employer that I believe violated the federal anti-discrimination laws ot my participation in an EEOC investigation other (please specify) $eg; A+/ot.J,J Page 6 of 9 Case 2:16-cv-00033-WCO-JCF Document 8-3 Filed 09/07/16 Page 9 of 12 Case 2:16-cv-00033-WCO-JCF Document 1 Filed 02/19/16 Page 7 of 42 14. Write below, as clearly as possible, the essential facts of your claim(s). Describe specifically the conduct that you believe was discriminatory or retaliatory and how each defendant was involved. Include any facts which show that the actions you are complaining about were discriminatory or retaliatory. Take time to organize your statements; you may use numbered paragraphs if you find that helpful. Do not make legal arguments or cite cases or statutes. ~ ~ l?le.a~. l'o~ V1CL ci>bont< lo']3,lJla3,8008 ~\; 8\vq tto&&Q\.CO'l'\A-1 (Attach no more than five additional sheets if necessary; type or write legibly only on one side of a page.) Page 7 of 9 Case 2:16-cv-00033-WCO-JCF Document 8-3 Filed 09/07/16 Page 10 of 12 Case 2:16-cv-00033-WCO-JCF Document 1 Filed 02/19/16 Page 8 of 42 ' 15. Plaintiff ~still works for defendant( s) fvo\-~ cutl4 \(~l~ no longer works for defendant(s) or was not hir~d ~\~ If this is a disability-related claim, did defendant(s) deny a req~al.~~ reasonable accommodation? Yes No .,-rl-eA.ie CJ.M., Llr\.5A.k.., ~rt.~vl·rt 17. If your case goes to trial, it will be heard ~ a judge unless you elect a jury trial. Do you request a jury trial? V Yes No Request for Relief As relief from the allegations of discrimination and/or retaliation stated above, plaintiff prays that the Court grant the following relief ( check any that apply): t.,! Defendant(s)bedirectedto ~1$bf\-f6+5 ~ Q~~ \ffiQtUJ~ roova.lt, ~ ... Gud w cll&:u.ss. Money damages (list amounts) ne£d :\u ol\&C~~ 'w}d.~ / trox-1- I ~~• 'ro\h {'~ rmcl loo~~<> Costs and fees involved in litigating this case Such other relief as my be appropriate Page 8 of 9 Case 2:16-cv-00033-WCO-JCF Document 8-3 Filed 09/07/16 Page 11 of 12 Case 2:16-cv-00033-WCO-JCF Document 1 Filed 02/19/16 Page 9 of 42 PLEASE READ BEFORE SIGNING THIS COMPLAINT Before you sign this Complaint and file it with the Clerk, please review Rule 11 of the Federal Rules of Civil Procedure for a full description of your obligation of good faith in filing this Complaint and any motion or pleading in this Court, as well as the sanctions that may be imposed by the Court when a litigant (whether plaintiff or defendant) violates the provisions ofRule 11. These sanctions may include an order directing you to pay part or all of the reasonable attorney's fees and other expenses incurred by the defendant( s ). Finally, if the defendant(s) is the prevailing party in this lawsuit, costs (other than attorney's fees) may be imposed upon you under Federal Rule of Civil Procedure 54(d)(l). Signed, this \~ day of WJ<\J.OJ(~ , 20 \le (City, State, and zip code) S\vq \ lo@a.D I. cD'l'O ( email address) l,}£ I lf(o '3• s 6 og (telephone number) Page 9 of 9 Case 2:16-cv-00033-WCO-JCF Document 8-3 Filed 09/07/16 Page 12 of 12