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Deidra A. Lintz v. John E. Potter

July 20, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the court is defendant's amended motion for summary judgment (Dkt. No. 72).*fn1 The court heard this matter on its February 23, 2012 law and motion calendar. Assistant United States Attorney J. Earlene Gordon appeared on behalf of defendant. Plaintiff, who is proceeding without an attorney, appeared at the hearing and represented herself. The undersigned has fully considered the parties' briefs, the parties' oral arguments, and appropriate portions of the record.*fn2 For the reasons that follow, the undersigned recommends that defendant's amended motion for summary judgment be granted, judgment be entered in defendant's favor, and this case be closed.


Plaintiff is a former employee of the U.S. Postal Service ("USPS"). (Def.'s Statement of Undisputed Material Facts ("SUMF") ¶ 1.) She started her career in 1987 as a letter carrier in the Mountain View, California Post Office, and it is undisputed that plaintiff's permanent duty station was at all times Mountain View, regardless of the location of her physical workplace.*fn4 (Id. ¶¶ 3, 7.) In 1992 and 1994, plaintiff sustained on-the-job injuries to her back that precluded her from continuing to perform the job duties of a letter carrier. (Id. ¶ 4.) From 1996 through the remainder of her Postal Service career, USPS placed plaintiff in jobs which it contends were designed to accommodate plaintiff's medical restrictions.*fn5 (Id. ¶ 5.)

In 2000, plaintiff was placed in the position of Postal Vision Coordinator. (Def.'s SUMF ¶ 8.) Defendant describes plaintiff's Postal Vision Coordinator position as an ad hoc, "make work" position designed to accommodate plaintiff's injuries, and that plaintiff's duties consisted of preparing slides of information for posting on monitors at the San Francisco facilities. (Id. ¶¶ 9-11.) Although plaintiff disputes defendant's disparaging characterization of plaintiff's position, she does not dispute the duties attendant to that job. When plaintiff began working as a Postal Vision Coordinator, she was physically located in San Francisco. (Id. ¶ 14.)

In 2005, plaintiff moved her personal residence from the San Francisco Bay Area to Elk Grove, California. (Def.'s SUMF ¶ 15.) After plaintiff moved to the Sacramento area, Horace Hinshaw, a "corporate relations specialist," arranged to have plaintiff use temporary, available space in Sacramento, and permitted plaintiff to divide her time between offices in Sacramento and San Francisco. (Id. ¶¶ 13, 17.) Don Smeraldi, plaintiff's supervisor, had advised plaintiff-plaintiff uses the term "harassed"-to attempt to officially transfer her permanent carrier job to Sacramento or some nearby post office before actually moving her home. (Id. ¶ 16: Lintz Decl. ¶ 3.) Plaintiff did not do so because she was concerned she would lose the seniority that she had accrued as a postal carrier in the San Francisco District. (Def.'s SUMF ¶ 16.)

As explained in greater detail below, USPS eliminated plaintiff's job as Postal Vision Coordinator in 2007. (Def.'s SUMF ¶ 19.) The parties contest the timing of, and reasons for, the decision. However, the undisputed evidence supports that the decision was made as early as May 2007, with an official elimination date of July 2007, and that plaintiff was advised of that decision as early as May 2, 2007. (See Def.'s Ex. 2 (Response to Pl.'s Interrogs., Set One, Nos. 5, 14); compare Def.'s SUMF ¶ 41, with Pl.'s Statement of Disputed Facts In Opp'n to Def.'s Mot. for Summ. J. ("SDF"), Fact No. 41.)

In light of the elimination of the Postal Vision Coordinator, USPS offered plaintiff the position of "Lobby Director" at the Mountain View office, a job which USPS contends was specifically tailored to meet plaintiff's medical restrictions, as provided by plaintiff's physician. (Def.'s SUMF ¶ 44.) Plaintiff contends that the Lobby Director position did not meet her medical restrictions. (Pl.'s SDF, Fact No. 44.) Plaintiff accepted the Lobby Director allegedly "under protest," and reported to work on June 22, 2007. (Def.'s SUMF ¶ 46;*fn6 Pl.'s SDF, Fact No. 46.) Also on June 22, 2007, plaintiff allegedly suffered another on-the-job injury, and was forced to leave work. (Def.'s SUMF ¶ 47.) Plaintiff never returned to work after June 22, 2007. (Id. ¶ 48.) Plaintiff was ultimately terminated from her employment in November 2008 for missing one continuous year of work due to a disability or injury. (See id. ¶¶ 55, 57-58, 60, 63; see also Lintz. Decl., Ex. 4.)

As discussed in more detail below, plaintiff claims to have sought reasonable accommodations for her disability between 2007 and 2008, which were allegedly not granted. Plaintiff also filed two Equal Employment Opportunity ("EEO") complaints, with Agency Case numbers of 4F-956-0143-07 and 4F-940-0183-08. Following resolution of those administrative cases, plaintiff filed a complaint in this court.

Plaintiff's Third Amended Complaint (Dkt. No. 22) is the operative complaint and alleges four claims for relief: (1) employment discrimination based on disability in violation of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 791; (2) retaliation in violation of the Rehabilitation Act; (3) employment discrimination based on race in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-16; and (4) retaliation in violation of Title VII.

II. LEGAL STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT Federal Rule of Civil Procedure 56(a) provides that "[a] party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought." It further provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).*fn7 A shifting burden of proof governs motions for summary judgment under Rule 56. Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 56(c). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact").

If the moving party meets its initial responsibility, the opposing party must establish that a genuine dispute as to any material fact actually exists. SeeMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). To overcome summary judgment, the opposing party must demonstrate the existence of a factual dispute that is both material, i.e., it affects the outcome of the claim under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th Cir. 2010), and genuine, i.e., "'the evidence is such that a reasonable jury could return a verdict for the nonmoving party,'" FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010) (quoting Anderson, 477 U.S. at 248). A party opposing summary judgment must support the assertion that a genuine dispute of material fact exists by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."*fn8 Fed. R. Civ. P. 56(c)(1)(A)-(B). However, the opposing party "must show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Anderson, 477 U.S. at 252).

In resolving a motion for summary judgment, the evidence of the opposing party is to be believed. SeeAnderson, 477 U.S. at 255. Moreover, all reasonable inferences that may be drawn from the facts placed before the court must be viewed in a light most favorable to the opposing party. SeeMatsushita, 475 U.S. at 587; Walls v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). However, to demonstrate a genuine factual dispute, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).


Broadly stated, defendant moves for summary judgment on two different grounds.

First, defendant moves for summary judgment on the basis of the affirmative defenses that plaintiff failed to administratively exhaust certain claims and failed to timely file suit in this court. Second, defendant challenges plaintiff's claims on the merits. The undersigned addresses these two grounds in turn.

A. Exhaustion of Administrative Remedies and Timeliness of Suit Defendant moves for summary judgment as to several aspects of plaintiff's Third Amended Complaint on the grounds that plaintiff failed to exhaust her administrative remedies and failed to timely file her lawsuit in this court. (See Def.'s Memo. of P. & A. In Supp. of Mot. for Summ. J. ("Def.'s Memo.") at 4-6, Dkt. No. 72, Doc. No. 72-1.) First, defendant contends that plaintiff failed to file her lawsuit within 90 days of receiving the Final Agency Decision in Agency Case No. 4F-940-0183-08, and that, accordingly, plaintiff's claims raised in that administrative case are time-barred. Second, defendant argues that plaintiff completely failed to exhaust her claim for race discrimination during the administrative process, and, accordingly, that claim is not properly before this court. As part of the second argument, defendant also contends that plaintiff failed to exhaust several other "claims" during the administrative process; defendant understandably derives these claims from passing allegations in the Third Amended Complaint. The undersigned addresses defendant's arguments in reverse order.

1. Exhaustion of Race Discrimination Claim and Other Allegations in Third Amended Complaint

Defendant argues that plaintiff failed to administratively exhaust her race discrimination claim and, therefore, that claim is not properly before this court. Moreover, defendant contends that certain other allegations in plaintiff's Third Amended Complaint, characterized as "claims" by defendant, remain unexhausted and are thus not properly before the court. Specifically, defendant contends:

No claim for race discrimination was exhausted in either EEO filing, and thus Plaintiff's race discrimination claims are barred as well.

Additionally, Plaintiff's claims with regard to COP payments, USPS's refutation of her unemployment claim, the USPS's alleged refusal to engage in FMLA, the investigation by the Office of the Inspector General into allegations that Plaintiff was guilty of time sheet fraud, the rescinding of her medical authorization, and USPS's reclassification of her leave as "leave without pay" have not been exhausted, and the Court is without jurisdiction to hear them. [UMF 156-163] (See Def.'s Memo. at 4.) Plaintiff's opposition brief addresses the question of exhaustion of plaintiff's race discrimination claim, but does not address the remaining allegations raised by defendant. The undersigned separately addresses exhaustion of plaintiff's race discrimination claim and the remaining allegations.

Coverage of Title VII of the Civil Rights Act of 1964 is extended to reach federal employees through 42 U.S.C. § 2000e-16, such that "all personnel actions affecting federal employees and applicants for federal employment shall be made free from any discrimination based on race, color, religion, sex, or national origin." Brown v. Gen. Servs. Admin., 425 U.S. 820, 829-30 (1976) (citation and quotation marks omitted). However, an aggrieved federal employee must seek relief from the agency that allegedly discriminated against him or her as a "precondition" to filing an action in federal district court. Id. at 832.

A plaintiff must achieve "substantial compliance" with this exhaustion requirement to provide a district court with jurisdiction over his or her claims. Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003). Generally, "[t]he jurisdictional scope of the plaintiff's court action depends on the scope of the EEOC charge and investigation," and "[t]he specific claims made in district court ordinarily must be presented to the EEOC." Id. "[T]he district court has jurisdiction over any charges of discrimination that are 'like or reasonably related to' the allegations made before the EEOC, as well as charges that are within the scope of an EEOC investigation that reasonably could be expected to grow out of the allegations." Id. (citation omitted); see also B.K.B. v. Maui Police Dep't., 276 F.3d 1091, 1100 (9th Cir. 2002) ("Allegations of discrimination not included in the plaintiff's administrative charge may not be considered by a federal court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge.") (citations and quotation marks omitted). The court must construe an EEOC charge with "the utmost liberality," e.g., B.K.B., 276 F.3d at 1100, but "there is a limit to such judicial tolerance when principles of notice and fair play are involved," Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002). "Whether a plaintiff in a Title VII action has timely exhausted her administrative remedies is an affirmative defense, [so] the defendant bears the burden of pleading and proving it." Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1046 n.7 (9th Cir. 2009) (citation and quotation marks omitted).

Here, the undersigned need not resolve whether plaintiff exhausted separate claims premised on the allegations concerning "COP payments," USPS's refutation of plaintiff's unemployment claims, etc., identified in the latter portion of the block-quoted text above. (See Def.'s Memo. at 4.) Plaintiff's failure to address these allegations in her written opposition had caused some initial confusion in regards to whether these allegations actually constitute separate claims. However, plaintiff clarified at the hearing that those allegations are merely examples of defendant's "adverse actions" against plaintiff stemming from underlying discrimination or mistreatment, but are not actually separate claims that are pending before this court. Accordingly, defendant's exhaustion-related arguments as to those allegations are moot.

Not mooted, however, is defendant's argument that plaintiff did not exhaust her race discrimination claim. Defendant contends that plaintiff did not include a claim of race discrimination in her EEO claims pertaining to the Agency Cases numbered 4F-956-0143-07 and 4F-940-0183-08. (See Def.'s Memo. at 4-5.) However, defendant does not cite to or discuss, and has not included in the record, plaintiff's administrative complaints or subsequent filings supporting plaintiff's charges. Without plaintiff's actual complaints or claims, the undersigned cannot conclude that defendant is entitled to judgment as a matter of law on the question of exhaustion. Because exhaustion is an affirmative defense for which defendant has the ultimate burden to prove at trial, it is insufficient for defendant to generally point to plaintiff's inability to produce evidence of exhaustion. See, e.g., Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) ("Where, as here, the moving party bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.") (citation and quotation marks omitted); see also Kraus, 572 F.3d at 1046 n.7 (describing a challenge premised on administrative exhaustion as an affirmative defense); Tovar v. U.S. Postal Serv., 3 F.3d 1271, 1284 (9th Cir. 1993) ("In every civil case, the defendant bears the burden of proof as to each element of an affirmative defense.") (Thompson, J., concurring in part and dissenting in part). Defendant has not shown an absence of a genuine dispute of material fact as to the affirmative defense of exhaustion and, accordingly, has not met his initial burden in connection with a motion for summary judgment.

Instead of relying on the administrative complaints actually filed or lodged by plaintiff, defendant only cites to the EEOC's Final Decision in Agency Case No. 4F-956-0143-07 and the Final Agency Decision in Agency Case No. 4F-940-0183-08. Defendant appears to contend, without any legal support, that the text of the final decision of an agency or the EEOC conclusively provides the scope of a plaintiff's administrative charge. See, e.g., B.K.B., 276 F.3d at 1099 ("The EEOC's failure to address a claim asserted by the plaintiff in her charge has no bearing on whether the plaintiff has exhausted her administrative remedies with regard to that claim."). Although it is true that neither administrative decision relied on by defendant affirmatively refers to or resolves a claim of race discrimination, the Final Agency Decision in Agency Case No. 4F-940-0183-08 leaves open the question of whether plaintiff attempted to raise a race discrimination claim in the administrative proceedings. In summarizing the claims presented, the Final Agency Decision states, in relevant part:

The complaint alleged discrimination based on Religion (Jehovah [sic] Witness), Sex (Female), Age . . . , Retaliation (Prior and Current EEO Activity), physical disability (Cervical Disc Disease/Lumbar Herniation) and Mental Disability (Depression) . . . ."

Initially, the complaint included two (2) additional allegations. However, on December 10, 2008, these allegations were dismissed for failure to state a claim and as an identical matter. A review of the record established that this (these) allegations were properly dismissed . . . . Consequently, the December 10, 2008 decision explaining the rationale for the dismissal is herein endorsed and incorporated by reference for the purpose of this final agency decision.

(Def.'s Ex. 11, Sub-Ex. A at 1.) Nothing in this Final Agency Decision assures the court that the recitation of claims therein reflects all of the claims raised by plaintiff. Moreover, defendant has not provided the court with a copy of the December 10, 2008 agency decision addressing the two allegations that were dismissed earlier in the administrative proceedings.

Adding to the uncertainty regarding defendant's argument about administrative exhaustion are two pieces of evidence relied on by plaintiff that suggest a real possibility that plaintiff raised a race discrimination claim at the administrative level. (Pl.'s Opp'n at 5, Dkt.

No. 73.) First, plaintiff cites her Exhibit 19 as substantiating her race discrimination claim. Plaintiff contends that Exhibit 19 is her "October 5, 2007 EEO complaint," although nothing on the face of that exhibit assures the court that this document is indeed plaintiff's formal administrative complaint.*fn9 (Lintz Decl. ¶ 34 & Ex. 19.) Assuming that Exhibit 19 is plaintiff's complaint, defendant correctly argues that this document does not explicitly mention a race-related claim or race discrimination claim. However, this document does complain about the filling of a certain position at USPS with another permanent employee, but that plaintiff was not advised of the job opening. It also seeks the job description and notification announcement for the position currently filled by James Wigdel. In connection with her race discrimination claim, plaintiff argues that James Wigdel was a similarly situated, Caucasian employee who was hired in plaintiff's work unit after plaintiff's Postal Vision Coordinator position was eliminated. (Pl.'s Opp'n at 10-11.) Defendant also addresses the hiring of Wigdel in addressing the merits of plaintiff's claim of race discrimination in the alternative, which readily suggests that plaintiff's claim of race discrimination is focused in large part on Wigdel. (See Def.'s Memo. at 8-9; Def.'s Reply Br. at 7, Dkt. No. 74.) Exhibit 19 raises the possibility that the agency was on notice during the administrative proceedings that plaintiff had asserted a race discrimination claim.

Second, plaintiff's Exhibit 22, which is a form entitled "Information for Pre-Complaint Counseling," plainly refers to "race" and "disparate treatment." Although the information provided by plaintiff is far from detailed, that form again raises the possibility that race was at issue at some point during the administrative proceedings. Defendant counters this evidence by arguing that there is no case number listed on the Information for Pre-Complaint Counseling form. (Def.'s Reply Br. at 5-6.) However, it is not possible to conclude as a matter of law that this form did not raise allegations that are reasonably related to allegations that were the subject of the EEO investigation.

Taking all of these documents together, and construing the evidence in a light most favorable to plaintiff, defendant is not entitled to summary judgment on the grounds of failure to exhaust administrative remedies. To be clear, however, even without plaintiff's rather vague evidence, defendant is not entitled to judgment as a matter of law. Simply put, defendant has the burden of proving plaintiff's failure to exhaust, but failed to prove that plaintiff failed to exhaust her race discrimination claim in a manner sufficient to warrant summary judgment.

2. Timeliness of Filing Suit Relative to Agency Case No. 4F-940-0183-08 Defendant further contends that plaintiff failed to timely file her complaint in this court following receipt of the Final Agency Decision in Agency Case No. 4F-940-0183-08, which addressed plaintiff's charges of disability discrimination and retaliation premised on the termination of plaintiff's employment and Federal Employee Health Benefits. (See Def.'s Memo. at 4; see also id. at 5-6.) Thus, defendant contends that such claims are time-barred. In short, defendant argues that the Final Agency Decision was issued on April 8, 2009, and that as a result plaintiff had to file her civil action in this court by July 10, 2009, but that plaintiff failed to file her civil action until July 13, 2009. Neither party has produced evidence of the actual date that plaintiff received the Final Agency Decision, and defendant relies exclusively on applicable presumptions pertaining to the receipt of an agency decision.

Relevant here, a plaintiff generally has 90 days from the receipt of a right-to-sue notice letter from the EEOC, or relevant agency decision, to file a civil action. See, e.g., Steifel v. Bechtel Corp., 624 F.3d 1240, 1245 (9th Cir. 2010). The "ninety-day period operates as a limitations period," and "the start of the limitations period [is measured] from the date on which a right-to-sue notice letter arrived at the claimant's address of record." Payan v. Aramark Mgmt. Servs. Ltd. P'ship, 495 F.3d 1119, 1121-22 (9th Cir. 2007).*fn10 "Where the date of actual receipt is unknown, [the court] will estimate that date based on the date of EEOC disposition and issuance of notice, with some compensation for mailing time."*fn11 Id. at 1122. The Ninth Circuit Court of Appeals has held that certain rebuttable presumptions govern the calculation of the date of receipt where the actual date of receipt is not known. First, courts in this Circuit presume "that the letter issuance date is also the date on which the letter was mailed." Id. at 1123. Next, courts in this Circuit presume that, consistent with the timing prescriptions in then-numbered Federal Rule of Civil Procedure 6(e)*fn12 and suggestive Supreme Court authority, a plaintiff received the right-to-sue notice within three days of mailing. Id. at 1125-26. A plaintiff may rebut this presumption by producing "evidence suggesting that receipt was delayed beyond the presumed period." Id. at 1126.

Here, defendant does not argue that either the actual date of mailing of the right-to-sue notice letter or the date that plaintiff actually received that letter is known. Instead, defendant relies solely on the rebuttable presumptions described above. Like defendant, plaintiff has not produced evidence supporting the proposition that the actual date of mailing of the rightto-sue notice letter or the date that plaintiff actually received that letter are known.

In regards to the date of mailing, the notice of the "Right To File A Civil Action" is contained in the Final Agency Decision, which is dated April 8, 2009. (Def.'s Ex. 11, Sub-Ex. A at 17.) Accordingly, the date of mailing is presumed to be Wednesday, April 8, 2009, and plaintiff does not dispute this date of mailing.

In terms of the date of receipt, defendant does not assert what he believes the date of receipt is presumed to be. Instead, he simply contends that, applying the three-day rule announced in Payan, plaintiff's 90-day deadline to file a civil action was July 10, 2009. Defendant then argues that because plaintiff did not file her lawsuit in this court until July 13, 2009, all of plaintiff's claims asserted in Agency Case No. 4F-940-0183-08 are time-barred.

Before addressing whether plaintiff has rebutted the presumed date of receipt, the undersigned briefly addresses whether defendant's calculation of the relevant dates is proper. As note above, the presumed date of mailing is undisputed to be Wednesday, April 8, 2009. Adding three days for mailing, plaintiff is presumed to have received the right-to-sue letter on April 11, 2009, which was a Saturday. Counting 90 days from April 11, 2009, leads to a filing deadline of Friday, July 10, 2009. Accordingly, as defendant argues, plaintiff is presumed to have been required to file her civil action in federal court no later than July 10, 2009. Plaintiff did not file her complaint until Monday, July 13, 2009. Thus, unless plaintiff adequately rebuts the presumed filing deadline, her claims asserted in Agency Case No. 4F-940-0183-08 are time-barred.

Plaintiff contends that she "believes that she received notice of her right to file a federal action on around*fn13 April 14, 2009, not April 10, 2009 as defendant assumes,*fn14 because she wrote on the envelope when she received it that July 13, 2009 was when the 90 days was [sic] 'over.'" (Pl.'s Opp'n at 5.) Plaintiff attempts to rebut the presumed date of receipt with her declaration and one piece of evidence. If plaintiff actually received the right-to-sue notice letter on April 14, 2009, her deadline to file a civil action in this court would have been July 13, 2009. Again, plaintiff filed her lawsuit on July 13, 2009.

In relevant part, plaintiff's declaration states:

I received the Final Agency Decision which informed me that I had 90 days to file a lawsuit on or around April 14, 2009. I remembered that date because it was the day before April 15, which is the anniversary of my father's death and also is when taxes is [sic] due. I saw that I had 90 days to file a lawsuit and I wrote on the envelope that 90 days was over [sic] on July 13, 2009.

(Lintz Decl. ¶ 13.) Appended to plaintiff's declaration as Exhibit 20 is a copy of a U.S. Postal Service Priority Mail Envelope. (Id., Ex. 20.) The envelope is addressed to plaintiff and is from:



(Id.) The copy does not indicate an official date of mailing or a date of receipt.*fn15 However, the following handwritten ...

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