Edna N. Zulueta v. United States

In the United States Court of Federal Claims

Not for Publication

No. 09-681 C

(Filed: January 29, 2013)

************************************

*

EDNA N. ZULUETA, *

* Breach of Settlement Agreement;

Plaintiff, * Subject Matter Jurisdiction; Money-

* Mandating Source of Law;

v. * Relationship to Future Employment;

* Failure to State a Claim; Breach of

THE UNITED STATES, * Duty; Damages Caused by Breach

*

Defendant. *

*

*************************************

Edna N. Zulueta, Nashville, TN, Plaintiff, pro se.

Lauren S. Moore, Commercial Litigation Branch, Civil Division, United States

Department of Justice, Washington, D.C., for Defendant; of counsel, Morgan E. Rehrig,

Office of General Counsel, United States Postal Service.

___________________

OPINION

___________________

DAMICH, Judge:

Plaintiff, acting pro se, seeks money damages for the alleged breach of a

settlement agreement dated October 13, 2006, that she reached with her then-employer,

the United States Postal Service (“Postal Service” or “USPS”), arising from the attempted

resolution of equal employment opportunity complaints Plaintiff made to the USPS in

September of 2006.

The Government has moved, pursuant to Rule 12(b)(1) of the Rules of the Court

of Federal Claims (“RCFC”) to dismiss the complaint for lack of subject matter

jurisdiction or, in the alternative, pursuant to RCFC 12(b)(6), for failure to state a claim

upon which relief can be granted.1

1

While Defendant‟s actual motion, Docket # 42, is based on RCFC 12(b)(1) or, in the alternative, RCFC

12(b)(6), oddly, both Plaintiff‟s response brief, see Docket # 43, and Defendant‟s Reply brief, see Docket #

46, refer to the “alternative” to 12(b)(1) as that of a motion for summary judgment. The Court determines

-1-

For the reasons stated below, the court finds that it has jurisdiction over Plaintiff‟s

complaint, but grants Defendant‟s motion to dismiss for failure to state a claim.

I. Background

Plaintiff was hired by the USPS in 2005 as a mail processing clerk. Def.‟s Mot.

Dismiss or, in the alt., Mot. Summ. J. 2 (“Def.‟s Mot.”). In August 2006, she was given a

letter of warning for unsatisfactory attendance and undependability in reporting for duty.

Id., App. 1.2 On September 1, 2006, Plaintiff contacted the USPS‟s Equal Employment

Opportunity office disputing the complaint against her and submitting a handwritten

document complaining in response that she was being harassed and threatened with

physical harm by fellow employees. App. 3-15.

On October 13, 2006, Ms. Zulueta and the USPS executed a settlement

agreement. App. 16-17. The agreement, styled “In the matter of mediation between”

Ms. Zulueta and USPS “Management Officials,” recited that it was a “complete and final

settlement” of Ms. Zulueta‟s equal employment opportunity complaint. The parties

mutually agreed that

Management, Ryan Jenkins, will conduct a full

investigation regarding threats made toward Edna Zulueta.

The investigation will be based upon names in Mrs.

Zulueta‟s EEO complaint.

In the interim, Mrs. Zulueta will be granted one week leave

without pay, beginning 4 pm, Oct. 13, 2006, ending

October 30, 2006. Mrs. Zulueta will report back to work

October 21, 2006.

Id.

In late October and early November 2006, Mr. Jenkins, the Supervisor of

Distribution Operations at the USPS facility where Ms. Zulueta worked, interviewed the

individuals named in her complaint, took their statements, and “found there to be no

merit to her claims.” App. 18-27; see also Zulueta v. United States, 2009 WL 1651172

(M.D. Tenn. June 10, 2009) (“Zulueta I”). After stating his findings, Mr. Jenkins

“strongly recommended that Mrs. Edna Zulueta be scheduled for a Fitness for Duty

Examination.” App. 18; Zulueta I at *2.

On December 8, 2006, subsequent to the investigation conducted by Mr. Jenkins

pursuant to the Settlement Agreement, the Postal Service notified Ms. Zulueta of a seven-

that Defendant has moved in the alternative for dismissal per RCFC 12(b)(6), rather than for summary

judgment.

2

“App. __” refers to the Appendix to Defendant‟s Motion to Dismiss.

-2-

day suspension for having taken unscheduled sick leave in November. Def.‟s Mot. 3;

Zulueta I at *1. On December 11, 2006, Ms. Zulueta complained that the Postal Service

had failed to comply with the October 13 Settlement Agreement. On December 12,

2006, the Postal Service issued her a Request for Fitness for Duty Examination

(“FFDE”). App. 28. The purpose of a FFDE is “to determine whether or not an

employee is medically able to perform his or her job responsibilities.” Id. Mr. Jenkins

stated that the reason for requesting the examination was that “Employee made serious

claims against co-workers about wanting to take her life and property.” Id.

On December 15, 2006, Ms. Zulueta was examined by Dr. W. Lassiter, who

determined that she was “not fit for duty.” Zulueta I at *2. Dr. Lassiter reported that,

“Physically, she is able to perform her work duties, however, pt. exhibits paranoia that

has a potential to deteriorate while at work.” Id. She was placed in a non-duty paid leave

status. Id. On December 20, 2006, Ms. Zulueta also saw Dr. Greg Kyser for an FFDE.

Dr. Kyser found that she was “suffering from a psychotic disorder of chronic duration.

While I did not believe that she is in imminent harm to herself or others, I do not believe

that she is fit for duty as an employee of the United States Postal Service.” Id. On

December 29, 2006, the USPS issued her a Notice of Separation based on inability to

perform the requirements of her position, effective January 31, 2007. App. 29-30.

In follow-up letters to the EEO Office of the Postal Service, Ms. Zulueta

reiterated her complaint that the Settlement Agreement had not been honored as well

stating complaints against her discharge as discriminatory under the Americans with

Disabilities Act and the Rehabilitation Act and retaliatory discharge for having asserted

EEO violations. App. 31; Zulueta I at *3; Zulueta v. United States (“Zulueta II”), Case

No. 09-681, Court of Federal Claims, Docket # 13, “Defendant‟s Notice of Filing Court

Documents” (Complaint filed in United States District Court, Middle District of

Tennessee, at 1-3).

In a letter to Ms. Zulueta dated May 2, 2007, the USPS reviewed its handling of

the Settlement Agreement, concluded that the agreement had not been breached because

Mr. Jenkins had in fact conducted the investigation, and accordingly issued a final agency

determination (“FAD”) that it would not reinstate Ms. Zulueta‟s EEO complaint that led

to the Settlement Agreement. App. 31-32. The USPS EEO investigation of the

Settlement Agreement was assigned a case number, or “Agency No.,” of 4H-370-0016-

06 (subsequently corrected to 1H-371-0016-6; see A. Compl. Exh. 36, App. 61).3 Ms.

Zulueta then appealed to the United States Equal Employment Opportunity Commission

(“EEOC” or “the Commission”) on June 4, 2007. App. 33-36.

In the interim, on March 10, 2008, Ms. Zulueta filed a complaint, Case No. 3-08-

0246, in United States District Court for the Middle District of Tennessee alleging

discrimination and retaliation in connection with her discharge effective in January 2007.

Zulueta II, Docket # 13.

3

Ms. Zulueta‟s complaints regarding discrimination and retaliation, etc., were apparently the subject of a

separate USPS EEO investigation, assigned a case number of 1H-371-0004-07. See A. Compl. Exh. 36;

App. 61.

-3-

On July 8, 2008, the EEOC found that the USPS had failed to supply

documentation of its investigation pursuant to the Settlement Agreement and accordingly

reinstated Ms. Zulueta‟s original EEO complaint. App. 40-45. The Commission held

that the agency had failed to meet its burden of proof in support of its FAD. “Therefore,

we find that the agency breached the agreement.” App. 41. The EEOC decision advised,

however, that “complainant‟s FFDE, termination, and concerns with complaint

processing are matters that should be addressed as part of” Ms. Zulueta‟s separate

complaint, not as part of her “settlement breach claim.” Id. It recommended instead that

Ms. Zulueta reinstate the particular EEO concerns that had led to the Settlement

Agreement.

In resuming her complaint to the USPS EEO Office on August 29, 2008,

however, Ms. Zulueta alleged “discrimination under a very hostile workplace

environment.” More specifically, she asserted

The most important of which are the FFDE issues,

termination issues, and concerns with complaint processing

are matters that should be addressed as part of my

complaint not just the instant settlement breach claim as

noted by the EEOC in its decision and order found in the

attached folder, page 11, last paragraph.

App. 53.

Based on this iteration of post- rather than pre-Settlement Agreement EEO

complaints, the USPS EEO Office again dismissed her case. App. 61-63. In its

dismissal, dated September 24, 2008, it observed that Ms. Zulueta had previously

initiated an identical complaint in “Case Number 1H-371-0004-07.” That complaint was

accepted for investigation on March 28, 2007, in which the accepted issues read:

The Complainant alleges discrimination based on Physical

Disability (Unspecified), Mental Disability (Unspecified),

and Retaliation (prior EEO activity) in that since August

29, 2006, she was subjected to harassment when she was

bullied and threatened with words and acts, her wages were

withheld and her pay records were delayed, and physicians

were conspired with to create a condition of physical and

mental stability; on December 8, 2006, she was issued a

Notice of 7-day suspension; on December 14, 2006, she

was instructed to report for a fitness-for-duty examination;

on December 15, 2006, she was placed in a non-duty paid

leave status; and on December 29, 2006, she was issued a

Notice of Separation charging her with Medical Inability to

Perform the Requirements of her Position.

-4-

A. Compl. Exh. 36.

The Postal Service had already issued a final decision in that case, on January 11,

2008, finding no discrimination. Id. In its September 2008 dismissal, the USPS EEO

Office explained that, under EEOC regulations, an agency must dismiss a complaint that

states the same claim as one pending or that has already been decided. Thus, rather than

articulating her breach of Settlement Agreement claim, in the latter case the Postal

Service found that “you are alleging discrimination based on retaliation when you were

threatened, scheduled for fitness for duty examination(s), suspended, and terminated. It

is clear that you are raising the same issues for which AJ [Administrative Judge]

Rodriguez made a finding of no discrimination in Case Number 1H-371-004-07.” Id.

As a result, on October 10, 2008, Ms. Zulueta then filed a second complaint, Case

No. 3-08-0998, in the United States District Court for the Middle District of Tennessee,

in which she asserted as a cause of action, “Breach of Settlement Agreement.” The

District Court, however, determined on March 3, 2009, that Plaintiff‟s breach of

settlement agreement claim against the Federal Government, seeking damages exceeding

that court‟s jurisdictional limit, belonged more properly in the United States Court of

Federal Claims.

In June 2009, on Plaintiff‟s separate disability discrimination and retaliation

claim, the United States District Court granted summary judgment in favor of the

Government on all counts. Zulueta I at *10.

II. Standards of Review

It is well-established that subject-matter jurisdiction is “a threshold question that

must be resolved . . . before proceeding to the merits” of a claim. Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 88-89 (1998). When jurisdiction is challenged, the inquiry

thus goes not to whether a plaintiff will ultimately prevail, but whether this court has

jurisdiction to hear the matter in the first instance. See Patton v. United States, 64 Fed.

Cl. 768, 773 (2005) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). “Without

jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare

the law, and when it ceases to exist, the only function remaining to the court is that of

announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.)

506, 514 (1868).

In weighing a motion to dismiss for lack of subject-matter jurisdiction, the Court

is “obligated to assume all factual allegations to be true and to draw all reasonable

inferences in [the] plaintiff‟s favor.” Henke v. United States, 60 F.3d 795, 797 (Fed. Cir.

1995). Nevertheless, when this court‟s jurisdiction is challenged, it is the plaintiff‟s

burden to demonstrate jurisdiction by a preponderance of the evidence. McNutt v. Gen.

Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Reynolds v. Army & Air Force

Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).

-5-

When a party is acting pro se, courts generally accord the party greater leeway

than if he or she had professional representation. See, e.g., Haines v. Kerner, 404 U.S.

519, 520-21 (1972) (requiring that allegations contained in a pro se complaint be held to

“less stringent standards than formal pleadings drafted by lawyers”); Forshey v. Principi,

284 F.3d 1335, 1337 (Fed. Cir. 2002).

“While a court should be receptive,” however, “to pro se plaintiffs and assist

them,” it must not cross the line between finder of fact and advocate. Demes v. United

States, 52 Fed. Cl. 365, 369 (2002). Moreover, “the leniency afforded to a pro se litigant

with respect to mere formalities does not relieve the burden to meet jurisdictional

requirements.” Minehan v. United States, 75 Fed. Cl. 249, 253 (2007) (citing Kelley v.

Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987)).

Even where subject matter jurisdiction over a claim has been established, the

claim may be subject to dismissal for “failure to state a claim upon which relief may be

granted,” pursuant to RCFC 12(b)(6). The allegations of the complaint are construed

favorably to the pleader, Scheuer, 416 U.S. at 236, but 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 Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). “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.” Id.

Dismissal for failure to state a claim is warranted only when it is “„beyond doubt

that the plaintiff can prove no set of facts in support of his claim [that] would entitle him

to relief.‟” Ponder v. United States, 117 F.3d 549, 552-53 (Fed. Cir. 1997) (cert. denied,

522 U.S. 1110 (1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

III. Discussion

A. Motion to Dismiss for Lack of Jurisdiction

The jurisdiction of the United States Court of Federal Claims is established by the

Tucker Act. 28 U.S.C. § 1491. The Act provides:

The United States Court of Federal Claims shall have

jurisdiction to render judgment upon any claim against the

United States founded either upon the Constitution, or any

Act of Congress or any regulation of an executive

department, or upon any express or implied contract with

the United States, or for liquidated or unliquidated damages

in cases not sounding in tort.

28 U.S.C. § 1491(a)(1).

-6-

The Tucker Act itself, however, “does not create substantive rights. Rather, it is a

jurisdictional provision „that operate[s] to waive sovereign immunity for claims premised

on other sources of law (e.g., statutes or contracts).‟” Holmes v. United States, 657 F.3d

1303, 1309 (Fed. Cir. 2011) (quoting United States v. Navajo Nation, 556 U.S. 287, 290

(2009)).

The Federal Circuit has explained that the substantive right must stem from

another source of law, such as a “money-mandating constitutional provision, statute or

regulation that has been violated, or an express or implied contract with the United

States.” Loveladies Harbour, Inc. v. United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994).

The “other source of law,” however, “need not explicitly provide that the right or duty it

creates is enforceable through a suit for damages, but it triggers liability only if it „can

fairly be interpreted as mandating compensation by the Federal Government.‟” Holmes,

657 F.3d at 1309 (quoting Navajo Nation, 556 U.S. at 290).

Defendant argues that Ms. Zulueta‟s present claims for reinstatement, money

damages, and back pay should be dismissed for lack of jurisdiction because the

settlement agreement at issue “does not contain a money-mandating source.” Def.‟s

Reply 1. Defendant noted that the agreement itself “makes no mention of money owed to

Ms. Zulueta, or money damages that she would be entitled to in the event of a breach,”

nor does it “„inherently relate to monetary compensation.‟” Id. at 1-2 (quoting Holmes,

657 F.3d at 1315).

In Holmes, the Federal Circuit addressed whether a claimant‟s two agreements

with the Navy “could support a fair inference that he is entitled to the payment of money

damages for breach, or was required to demonstrate that the two agreements could fairly

be interpreted that way.” Id. at 1312. The plaintiff argued that the agreements were

express contracts and, as such, money damages were the presumptive remedy. The court

determined that the money-mandating inquiry for Tucker Act jurisdiction was different

for contract-based claims than for constitutional, statutory, or regulatory claims because,

generally, damages are the default remedy for breach of contract. The court observed,

“[I]n a contract case, the money-mandating requirement for Tucker Act jurisdiction

normally is satisfied by the presumption that money damages are available for breach of

contract, with no further inquiry being necessary.” Id. at 1314. Nevertheless, the Federal

Circuit recognized that the government‟s “„consent to suit under the Tucker Act does not

extend to every contract,‟” id. (quoting Rick’s Mushroom Service, Inc. v. United States,

521 F.3d 1338, 1343 (Fed. Cir. 2008)), such as contracts expressly disavowing money

damages or agreements in a criminal case. Thus, it found it proper for the trial court “to

require a demonstration that the agreements could fairly be interpreted as contemplating

money damages in the event of breach.” Id. at 1315.

In that respect, the court in Holmes found that the two agreements in question,

under which the Navy agreed to remove certain adverse performance evaluations and

records of disciplinary action and to expunge reference to a suspension, “clearly was to

prevent Mr. Holmes from being denied future employment based on his record as the

Navy maintained it prior to the agreements.” Id. at 1316. “In short, the agreements

-7-

inherently relate to monetary compensation through relationship to Mr. Holmes‟s future

employment.” Id. Accordingly, the court found jurisdiction in the Court of Federal

Claims over the plaintiff‟s action for breach of the agreements.

In Cunningham v. United States, 2012 WL 6720428 (Fed. Cl., Dec. 20, 2012), the

Court of Federal Claims faced a similar inquiry. There, the plaintiff alleged breach of a

settlement agreement under which the United States Office of Personnel Management

had agreed to replace his termination record with a record indicating that he had resigned

his position, to remove his termination letter, and to delimit responses to employment

inquiries about his past service. The trial court found that the “clear purpose of those

obligations was to ensure that Mr. Cunningham‟s ability to secure future employment (by

which plaintiff obviously expected to earn money) would not be harmed by his dispute

with OPM.” Id. at *12. In light of the Federal Circuit‟s holding in Holmes, the

Cunningham court found that “Mr. Cunningham‟s settlement agreement with OPM may

be fairly interpreted as mandating the payment of damages by the government in the

event of breach by the government” and therefore denied the Government‟s motion to

dismiss for lack of subject matter jurisdiction. Id. at *13.

The question before the court here, for purposes of subject matter jurisdiction, is

whether the court may reasonably infer from the Settlement Agreement that the USPS

reached with Ms. Zulueta on October 13, 2006, a contemplation of the payment of money

damages in the event of breach of the agreement. While the agreement specifically

merely required that the Postal Service “investigate” Ms. Zulueta‟s allegations that

threats of physical harm were directed against her by fellow employees, “based on names

in Mrs. Zulueta‟s EEO complaint,” the handwritten notes in which she made her

complaint in two instances clearly state a fear that she was being driven from her job.

“Or another [illegible] closely working w/ my employer – by making all things hard for

me hoping to make me quit my job . . .” App. 10. “One even said „that‟s what you get if

you don‟t quit.‟” App. 15.

Whether such fears were sound, it can reasonably be inferred that the purpose of

the Agreement – that the Postal Service perform its investigation – was to assuage the

workplace environment such that Ms. Zulueta would not be driven to resign her position

and lose the income from her employment there. The Court therefore finds, under these

particular factual circumstances, that the Settlement Agreement was money-mandating

for purposes of establishing subject matter jurisdiction. Accordingly, Defendant‟s motion

to dismiss pursuant to RCFC 12(b)(1) is denied.

B. Dismissal for Failure to State a Claim

The Government argues, in the alternative, that Ms. Zulueta‟s complaint fails to

state a claim because the alleged breach of the Settlement Agreement is not the proximate

cause of the damages sought. It notes that, to recover for breach of contract, a plaintiff

must allege and establish: “(1) a valid contract between the parties, (2) an obligation or

duty arising out of that duty, (3) a breach of that duty, and (4) damages caused by the

-8-

breach.” San Carlos Irrigation and Drainage Dist. v. United States, 877 F.2d 957, 959

(Fed. Cir. 1989); see also Westover v. United States, 71 Fed. Cl. 635, 640 (2006).

With respect to the fourth element above, “damages caused by the breach,”

Defendant notes that, in her complaint, Ms. Zulueta seeks $300,000 in damages or an

unspecified amount of back pay, reinstatement to her position (with no loss in seniority),

and to be put “back into the situation she would have been in if the discrimination had not

occurred.” A. Compl. 8.

It appears, however, that the remedies Plaintiff seeks relate not to the breach of

the Settlement Agreement, but rather to the subsequent actions of the Postal Service in

relieving her of her position. As Defendant argues, “Indeed, the alleged failure to

investigate could not be the source of Ms. Zulueta‟s entitlement to reinstatement,

damages related to separation, or back pay, because she was not separated from her

position until after her allegation of breach of the settlement agreement.” Def.‟s Mot. 13.

In this regard, the Court notes that Ms. Zulueta‟s instant complaint for breach of

the Settlement Agreement reflects the same, albeit understandable, confusion that

stymied her administrative entreaty to the Postal Services‟ EEO office – that of conflating

two potential avenues of complaint, first, the Settlement Agreement, and second, the

subsequent complaint regarding the loss of her job at the Post Office. The focus of her

cause of action in this court, as transferred from the United District Court for the Middle

District of Tennesee, is an allegation of breach of contract, i.e., the Settlement

Agreement. Her other cause of action – for discrimination, etc. – was lodged separately

at that same court and was decided against her. See Zulueta I.

This Court concurs with Defendant that Plaintiff has failed to allege damages

caused by the breach of contract. On that basis alone, the Court finds it necessary to

grant Defendant‟s motion to dismiss for failure to state a claim. In addition, moreover,

the Court finds that Ms. Zulueta‟s complaint founders as well on the requirement that she

establish a breach of the Settlement Agreement in the first place, the third element

required under the Federal Circuit‟s guidance in San Carlos.

Ordinarily, matters outside the pleadings are not considered in a motion to dismiss

for failure to state a claim (or for lack of jurisdiction, unless they relate to the

jurisdictional issue; see Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991)),

or else the motion must be converted to one for summary judgment and allowance made

for the parties to obtain discovery. Sebastain v. United States, 185 F.3d 1368, 1374 (Fed.

Cir. 1999).4 “In deciding whether to dismiss a complaint under Rule 12(b)(6),” however,

“the court may consider matters of public record.” Id.; see also Ground Improvement

Techniques, Inc. v. United States, 2012 WL 6061763 at *4 n.5 (Fed. Cl. Dec. 5, 2012)

(court documents may be considered without converting motion to dismiss into motion

for summary judgment); Albino v. United States, 104 Fed. Cl. 801, 807 n.2 (2012); 5B

4

In Schism v. United States, 239 F.3d 1280, 1289 n.2, the Federal Circuit noted that the lead appellant‟s

name in Sebastain was misspelled. “It should be Sebastian,” but the court determined it would use the case

name as reported in the Federal Reporter (including in prior and subsequent case history).

-9-

Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed.

2004) (“items subject to judicial notice” may be considered without converting Rule

12(b)(6) motion to motion for summary judgment).

Thus, this Court notes the findings of fact taken from the decision of the U.S.

District Court in Zulueta I, in which the district court found as follows:

Supervisor Jenkins interviewed Plaintiff‟s co-workers

regarding Plaintiff‟s allegations that they threatened and

harassed her. (Docket Entry No. 12, Attachment 8). The

co-workers submitted written statements denying Plaintiff‟s

factual allegations. Id. Based upon the „serious claims

against co-workers about wanting to take her life and

property,‟ Jenkins recommended that Plaintiff participate in

a Fitness-For-Duty investigation. (Docket Entry No. 12,

Attachment 9).

Zulueta I at *2.

Taking judicial notice of this finding by the District Court in Tennessee, this

Court finds therefore that Plaintiff can prove no set of facts that would entitle her to relief

on her allegation of breach of contract. Per the Settlement Agreement, the USPS was

obliged to conduct an investigation into the threats against her alleged by Ms. Zulueta. It

did in fact conduct such an investigation. 5 Accordingly, Defendant‟s motion to dismiss

for failure to state a claim is granted.

IV. Conclusion

For the reasons stated above, although the Court denies Defendant‟s motion to

dismiss for lack of jurisdiction, Plaintiff‟s complaint is dismissed for failure to state a

claim on which relief can be granted.

The Clerk is ordered to enter judgment accordingly.

________________________

EDWARD J. DAMICH

Judge

5

In her response to the Government‟s motion to dismiss, Plaintiff does not even directly contest whether

the USPS conducted an investigation per the Settlement Agreement. Rather, she only alludes to the finding

of the EEOC that the Agreement was breached, which the EEOC had concluded on the grounds that the

Postal Service had apparently failed to provide documentation of its investigation.

-10-