0120093084
08-14-2012
Adrienne F. McGlone,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093084
Agency No. 200H-0010-2008101866
DECISION
On July 8, 2009, Complainant filed an appeal from the Agency's June 29, 2009, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
The record reveals that Complainant worked as an Administrative Officer, GS-9, for the Technology Assessment Program (TAP) in the Agency's Medical Center in Boston, Massachusetts from June 2003, through July 2008. During the relevant time, Complainant's first-level supervisor was the Manager of TAP (S1). Complainant's second-level supervisor was the Associate Chief of Patient Care (S2).
Complainant filed an EEO complaint dated June 2, 2008, as amended, alleging that the Agency discriminated against her on the bases of race (African-American), color (brown), and sexual orientation (heterosexual). The Agency defined Complainant's complaint as alleging:
A. Whether on the bases of race, color, and sexual orientation, Complainant was treated in a disparate manner in matters of assignment of duties when:
1. From July 2004 thru March 2005, TAP staff member, Employee X, attempted to coerce Complainant into allocating funds to the Health Technology Assessment International (HTAI) which would enable staff to attend the organization's annual meeting in 2005; and
2. From July 2004 through March 2005, Complainant was expected to create a purchase order payable to the library aspect of HTAI so that the funds could be used for registration and fees for the organization's annual meeting.
B. Whether on the bases of race, color, and sexual orientation Complainant was treated in a disparate manner in matters of reassignment when:
On January 2005, Complainant requested to be detailed out of the program.
C. Whether on the bases of race, color, and sexual orientation Complainant was treated in a disparate manner in matters of performance when:
In May 2005, Complainant's supervisor (S1) wrote negative comments on her Supervisory Appraisal of Employee for Promotion form in an attempt to "blackball" Complainant from selection for other positions.
D. Whether on the bases of race, color, and sexual orientation Complainant was treated in a disparate manner in matters of disciplinary action when:
On February 4, 2008, Complainant received a proposed suspension letter which was sustained on February 21, 2008.
E. Whether on the bases of race, color, and sexual orientation Complainant was treated in a disparate manner in matters of working conditions when:
On March 19, 2008, S1 denied Complainant due process when she responded to Complainant's informal grievance eight months after the grievance was filed.
F. Whether on the bases of race, color, and sexual orientation Complainant was subjected to harassment when:
1. From July 2004 through March 2005, Employee X has attempted to coerce Complainant into allocating funds to the Health Technology Assessment International (HTAI) which would enable staff to attend the organization's annual meeting in 2005;
2. From July 2004 thru March 2005, Complainant was expected to create a purchase order payable to the library aspect of HTAI so that the funds could be used for registration and fees for the organization's annual meeting;
3. In November 2004, during a staff meeting, Complainant was told by Employee X that "sometimes she was the dog and sometimes she was the tree;"
4. On January 2005, Complainant requested to be detailed out of the program;
5. In March 2005, a co-worker (Employee Y) became physically aggressive with Complainant when she placed herself in front of the supervisor's door and would not allow Complainant to enter;
6. In May 2005, S1 wrote negative comments on her Supervisory Appraisal of Employee for Promotion form in an attempt to "blackball" her from selection for other positions;
7. In July 2005, during a staff meeting, Complainant was told by Employee X "I hope you get cancer and die;"
8. On April 10, 2006, S1 sent Complainant an electronic mail message regarding her appraisal and threatened her with an unacceptable rating;
9. In May 2006, S1 told Complainant that her position was a "term" position and that "her time was up," a comment Complainant found very intimidating;
10. In October 2006, Employee Y became physically aggressive with Complainant when she stepped off the elevator, stood in front of Complainant and glared at her;
11. On October 31, 2006, S1 informed Complainant via electronic mail that she was pursuing documentation of her performance problems and that it would be best for Complainant to continue to look (for other positions);
12. On January 25, 2007, Complainant's supervisor sent Complainant an electronic mail message warning her to never appear in her office uninvited;
13. On February 4, 2008, Complainant received a proposed suspension letter which was sustained on February 21, 2008;
14. On February 20, 2008, a co-worker insulted Complainant in front of her supervisor and no action was taken;
15. On March 19, 2008, S1 denied Complainant due process when she responded to Complainant's informal grievance eight months after the grievance was filed;
16. As of April 22, 2008, S1 failed to follow up on the formal grievance filed by Complainant; and
17. On May 13, 2008, after Complainant took out a restraining order against a co-worker (Person Z), she was placed on "non duty with pay status" to ensure her safety.
In its August 25, 2008 Notice of Partial Acceptance, the Agency dismissed Complainant's complaint of sexual orientation pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency noted that sexual orientation is outside the Commission's jurisdiction. Additionally, the Agency dismissed issue A for failure to state a claim. Specifically, the Agency stated there is no indication that Complainant suffered a change to her working conditions in relation to the incidents identified in issue A. Moreover, the Agency noted that the incidents described in issue A do not rise to the level of creating a hostile work environment. The Agency noted that no disciplinary action or other adverse action resulted from these circumstances and found no indication that these circumstances were more than isolated occurrences. The Agency stated that although claim A is dismissed as a discrete act, it is being included as part of the harassment claim.
The Agency also dismissed issues A, B, and C pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that these incidents occurred from July 2004 to January 2007, but Complainant did not contact an EEO Counselor until February 20, 2008. The Agency noted that although these claims are dismissed as discrete acts, they will be included as part of the harassment claim.
At the conclusion of the investigation on the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency reiterated its decision to dismiss Complainant's sexual orientation claim for failure to state a claim. The Agency also reiterated its decision to dismiss issue A for failure to state a claim. Additionally, the Agency dismissed issue E for failure to state a claim. Specifically, the Agency stated that the management action described in issue E did not have a concrete effect on Complainant's employment status. The Agency noted Complainant had not alleged that she suffered any harm with respect to a term, condition, or privilege of employment with regard to her supervisor's delay in responding to her July 30, 2007 grievance.
The Agency reiterated its position that issues A, B, and C were untimely raised with an EEO Counselor. Specifically, the Agency noted that its acceptance letter had determined that issues A, B, and C were discrete acts which it dismissed for untimely EEO Counselor contact. In its final decision, the Agency acknowledged that issues A and B were not discrete acts as the claims did not suggest that an employment action occurred. Nevertheless, the Agency found that Complainant failed to contact an EEO counselor within 45 days of when issues A and B occurred, and held that these issues were untimely. The Agency found issue C was a discrete act which was not brought to the attention of the EEO Counselor within the applicable time frame. However, the Agency determined issues A, B, and C would remain as background evidence in Complainant's hostile environment claim.
Additionally, with regard to issue F(14), the Agency noted that Complainant alleged in her complaint that she was harassed on February 20, 2008, when a coworker insulted her in front of her supervisor and no action was taken. The Agency noted that when she was asked about the issue during the investigation, she said she did not know what this incident is about. Thus, the Agency decided it would not address the incident as background evidence in support of Complainant's harassment claim.
The Agency proceeded to address the merits of issues D and F(17) as disparate treatment claims as well as Complainant's harassment claim identified in F. The Agency noted that with regard to issues F(3), F(5), F(7), and F(10), the record did not contain sufficient evidence to determine whether these issues occurred as alleged by Complainant. The Agency noted that Employee X and Employee Y were the alleged harassers in these issues. The Agency noted that Employee X and Employee Y were not interviewed during the investigation and that there was no reason given as to why they were not interviewed. Thus, the Agency assumed that issues F(3), F(5), F(7), and F(10) occurred as alleged by Complainant. Upon review, the Agency determined that Complainant failed to show that she was subjected to discrimination or harassment based on her race or color as alleged.
On appeal, Complainant claimed that the Agency's decision rehashed her claim of discrimination based on sexual orientation in an attempt to convolute her complaint. Additionally, Complainant disputed the Agency's position that she did not show that she was harmed. Specifically, Complainant stated that while working for the Agency she suffered continual racial harassment and discrimination by her White, female supervisor and other White, female personnel through: sabotage of actual work; sabotage of rapport established with internal and external customers; sabotage of Complainant's ability to transfer out of the section; loss of wages and potential future earnings; meritless based poor performance appraisals; denial of the opportunity for advancement and training; and denial and interference with the due process of administrative grievance procedures. With regard to the timeliness of her EEO claims, Complainant stated that before she could go to EEO, she was required to discuss issues, write statements, utilize alternative dispute resolution, and use the grievance procedures.
In her statement in support of her appeal, Complainant stated that as early as July 2004, she experienced harassment, was the subject of prohibited employment practices, was subjected to micro inequalities, and was denied due process of the administrative grievance and appeal process by White, female staff members. Complainant also detailed disclosing the coercion to misappropriate funds to various Agency personnel, the OIG, and her Congressman. She also stated she used the chain of command to make known the harassment she experienced.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
At the outset, we find Complainant does not challenge the Agency's dismissal of her claim of discrimination based on sexual orientation. However, to the extent Complainant is attempting to challenge the dismissal of her claim of discrimination on the basis of sexual orientation, we find that such a claim is not within the EEOC's purview. See Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (December 20, 2011). The Commission has held, however, that Title VII does prohibit sex stereotyping discrimination. Id. (citations omitted). In the present case, however, we note that Complainant has not claimed or shown that she was subjected to any sex stereotyping discrimination.
With regard to issue A (also listed as F(1) and F(2)), Complainant alleged that she was subjected to discrimination with regard to her assignment of duties when: 1) From July 2004 through March 2005, Employee Y attempted to coerce Complainant into allocating funds to the HTAI which would enable Staff to attend the organization's annual meeting in 2005; and 2) From July 2004 through March 2005, Complainant was expected to create a purchase order payable to the library aspect of HTAI so that the funds could be used for registration and fees for the organization's annual meeting. Complainant contented that Employee Y was attempting to do something illegal so Employee Y and Employee X could use the funds at a later date to pay their registration and fees at the annual meeting. Upon review, we find these issues do not constitute discrete incidents of discrimination. Rather, we find that this issue compromises part of Complainant's timely raised harassment complaint. Thus, we will consider this issue as part of the overall complaint of harassment
With regard to issue B (also listed as F(4)), Complainant alleged that in January 2005, she requested to be detailed out of the program. Complainant stated that she went to the Associate Director of the Medical Center and requested to be detailed out of TAP. Complainant stated that the Associate Director told her that she did not have the authority to detail her and that she must make a request through the Central Office. Complainant stated that she did not make a request through the Central Office, but rather, she tried to apply for other positions. Upon review, we find issue B fails to state a claim since Complainant was not actually denied a detail. Even if issue B stated a claim, we find that Complainant failed to rebut the Agency's legitimate, non-discriminatory reasons and show that the alleged denial was motivated by race or color discrimination.
With regard to issue C (also listed as issue F(6)), Complainant alleged that in May 2005, S1 wrote negative comments on her Supervisory Appraisal of Employee for Promotion form in an attempt to "blackball" Complainant from selection for other positions. Upon review, we find that this issue was a discrete incident of discrimination which Complainant failed to bring to the attention of an EEO Counselor within the applicable limitations period. However, issue C will be considered as part of Complainant's timely hostile work environment claim.
With regard to issue E (also listed as issue F(15)), Complainant alleged that on March 19, 2008, S1 denied her due process when S1 responded to Complainant's informal grievance eight months after the grievance was filed. In issue F(16), Complainant also alleged that as of April 22, 2008, S1 failed to follow up on her formal grievance. Upon review, we find issues E, F(15), and F(16) are properly dismissed for failure to state a claim. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (September 22, 1994). Complainant's concerns regarding a denial of due process to the grievance process or delay in processing her grievance are not within the Commission's jurisdiction and should be addressed under the collective bargaining agreement.
With regard to issue D (also listed as issue F(13)), the record reveals that Complainant received a proposed seven-day suspension for disrespectful conduct. The Agency charged Complainant with sending a disrespectful electronic mail message to her coworkers on January 8, 2008, and January 15, 2008, and for sending a disrespectful electronic mail message to S1 on January 9, 2008. The proposed seven-day suspension was upheld by S1 on February 21, 2008.
Complainant contended that on January 8, 2008, she received "a discouraging email" from Employee X and she responded to the electronic mail message. Complainant acknowledged that she replied to the coworker in her electronic mail message that instead of interfering with Complainant's job duties, Employee X should just "play solitaire." Complainant explained that previously she had seen Employee X playing solitaire on her computer. Complainant stated she disagreed with the management's reason for the suspension and believed the action was discriminatory because she did not initiate the matter but rather was responding to the electronic mail message received from Employee X.
Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for proposing and subsequently issuing Complainant the seven-day suspension at issue. Complainant failed to show that the Agency's actions were based on discriminatory animus.
With regard to issues F(1) and F(2), Complainant claimed that Employee Y tried to coerce her into allocating funds to HTAI by setting up a "dummy" purchase order so the funds could be used for travel. Complainant contented that Employee Y was attempting to do something illegal so Employee Y and Employee X could use the funds at a later date to pay their registration and fees at the annual meeting. Complainant stated that she asked Employee Y for written justification for taking the stated actions and no written justification was provided. Complainant stated that she did not establish the account.
In her affidavit, S1 stated that there were several different discussions on ways to get travel funding; however, she did not remember the specific mechanism described by Complainant. Since Employee Y was not interviewed for the investigation, we will assume that Employee Y took the actions described in issues F(1) and F(2). Upon review, we find Complainant failed to show that the stated actions were based on Complainant's race or color.
With regard to issue F(6), Complainant alleged that in May 2005, S1 wrote negative comments on her Supervisory Appraisal of Employee for Promotion form in an attempt to "blackball" Complainant from selection for other positions. Complainant stated that S1 noted that Complainant did well when she first arrived at her position and then subsequently faltered which was largely attributed to her lack of compatibility with the work environment. S1 acknowledged providing comments on the Supervisory Appraisal for Complainant's application. S1 noted that for some of the skills that were required for the new position were not required for Complainant's current position and that she did not have any experience with Complainant's ability to perform those skills. The record reveals that Complainant was in an Administrative Officer GS-9 position and was applying for an Administrative Officer GS-11 position. The record confirms that S1 made the notations alleged by Complainant. Upon review, we find Complainant failed to show that S1's comments were based on her race or color.
Issues F(8), F(9), and F(11) concern comments by S1 regarding Complainant's performance. In issue F(8), Complainant stated that on April 10, 2006, S1 sent her an electronic mail message regarding her appraisal and threatened her with an unacceptable rating. In issue F(9), Complainant stated in May 2006, S1 told Complainant that her position was a "term" position and that "her time was up." In issue F(11), Complainant stated that on October 31, 2006, S1 informed Complainant in an electronic mail message that she was pursuing documentation on Complainant's performance problems and that it would be best for Complainant to look for another position.
The record contains a copy of the April 10, 2006 electronic mail message S1 sent to Complainant. In the message S1 stated she did not know about the process needed before "making an unacceptable rating stick" so she said she would have to redo the rating as "acceptable" and write a performance plan with "measurable outcomes." S1 noted that absent significant improvement, she would write Complainant an "unacceptable" rating. In her affidavit, S1 stated that Complainant was "in trouble" and she felt she had to get Complainant's attention regarding the problem. S1 noted that management was not happy with her service to the program.
Complainant averred that after S1 stated that he position was a "term" appointment, she contacted Human Resources and was informed her position was not a "term" appointment. S1 stated that at the time she sent the electronic mail message, she believed at the time that Complainant's job was a "term" position; however, S1 later found out she was mistaken. S1 stated that shortly thereafter Complainant learned that her position was not a "term" position.
The record contains an October 31, 2006 electronic mail message from S1 to Complainant that S1 was pursuing documentation of Complainant's performance problems. The message informed Complainant that it would be best if she continued to look for another position.
We note the record confirms that the issues alleged in issues F(8),(9), and (11) occurred as alleged by Complainant. However, we find Complainant failed to show that any of the Agency's actions with regard to issues F(8), F(9), or F(11) were based on her race or color.
Issue F(12) alleged that on January 25, 2007, S1 sent Complainant an electronic mail message warning Complainant to never appear in her office uninvited. Complainant stated that she had a visitor in her office discussing a safety issue. She stated the person wanted to talk to S1, so she went and knocked on S1's office and S1 told her to come in the office. Complainant stated that the next day, S1 sent her an electronic mail message informing her never to come into her office uninvited again.
In her affidavit S1 stated that she was in her office with someone and that Complainant "barged into her office" and sat down. S1 stated that Complainant did not knock on the door, but that she opened the door and walked in the office. S1 stated that she sent Complainant an electronic mail message after the incident because she did not want to bring it up while the outside person was in her office.
The record contains a copy of the electronic mail message in which S1 informed Complainant to never insinuate herself into S1's office to listen to something for which she was not invited. The message also informed Complainant that bringing a trainer to S1's office and sitting herself in the office puts S1 in the unacceptable position of having to "evict" Complainant from her office and "make a scene in front of a non-TAP person."
Upon review, we find Complainant failed to show by a preponderance of evidence that the incident occurred as she alleged. Moreover, assuming the event did occur we find that Complainant did not show that S1's actions were based on her race or color.
Issue F(14) alleges that on February 20, 2008, a co-worker insulted Complainant in front of her supervisor and no action was taken. In her affidavit, when she was asked about this allegation, Complainant stated she did not know what the allegation was about. Moreover, when asked who made the alleged insult, Complainant did not identify anybody. Upon review, we find Complainant failed to show by a preponderance of evidence that a co-worker insulted her on February 20, 2008.
In issue F(17), Complainant stated that on May 13, 2008, after she took out a restraining order against a co-worker (Person Z), she was placed on "non duty pay status" to ensure her safety. Complainant stated that on May 12, 2008, she was assaulted at a bowling alley during non-duty hours by Person Z who worked at a different Agency facility. She stated that she then took out a restraining order against Person Z and management placed her on administrative leave from March 12 through July 2, 2008, to ensure her safety. Complainant stated that she received a termination letter while she was on leave.1
The record contains a letter dated May 12, 2008, placing Complainant on non-duty with pay status effective May 12, 2008. The letter noted that Complainant was placed on non-duty pay status due to her "escalating behavior which is creating disruption in the workplace" and as a result of an Abuse Prevention Order on Person Z who is a patient and employee of the Agency. The letter noted that as Person Z is a patient and cannot be denied care, Complainant would be placed in a non-duty with pay status to ensure her safety.
In her affidavit, S1 stated that Complainant was placed on non-duty with pay status due to her escalating and disruptive behavior. S1 noted that Complainant sent inappropriate electronic mail messages to senior officials in which she attacked S1. S1 explained that Complainant appeared at the Boston Health Care System Director's Office and demanded to be heard about issues which S1 stated should have been dealt with at the program level. S1 noted that the Director's Office called S1 because they did not know what do with Complainant and they directed Complainant back to S1.
Upon review, we find the Agency presented legitimate, non-discriminatory reasons for its actions in placing Complainant on non-duty with pay status. Complainant failed to show that the Agency's actions were a pretext for discrimination.
Issues F(3), F(5), F(7), and F(10) concern alleged actions and comments taken by Employee X and Employee Y. The record reveals that neither Employee X nor Employee Y were interviewed during the investigation of Complainant's complaint. Moreover, the report of investigation provides no explanation for the reason Employee X and Employee Y were not interviewed. Thus, the Commission will assume that the actions described in issues F(3), F(5), F(7), and F(10) occurred as described by Complainant. However, we find Complainant failed to show that the identified incidents were sufficiently severe or pervasive to constitute a hostile work environment. Moreover, Complainant did not show that the actions taken by Employee X and Employee Y were based on her race or color. Even if the incidents in issues F(3), F(5), F(7), and F(10) were discriminatory (for the sake of argument), we find that Complainant has not shown that she was subjected to a discriminatory hostile work environment in the complaint because no other incidents were shown to be discriminatory and because we find issues F(3), F(5), F(7), and F(10) are insufficient to constitute a hostile work environment.
CONCLUSION
The Agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 14, 2012
__________________
Date
1 Complainant stated that she is not challenging her removal from the Agency in the subject EEO complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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