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Appeal: 13-1890 Doc: 11 Filed: 09/16/2013 Pg: 1 of 24

No. 13-1890

In the

United States Court of Appeals

for the Fourth Circuit

TEMPIE ANN BELL,

Plaintiff-Appellant,

v.

ERIC SHINSEKI, SECRETARY,
DEPARTMENT OF VETERANS AFFAIRS

Defendant-Appellee.



ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA AT

GREENSBORO, NORTH CAROLINA

BRIEF OF PLAINTIFF-APPELLANT

Daniel F. Read
Attorney at Law
115 E. Main St.
Durham, North Carolina 27701
919-683-1900
Counsel for Plaintiff

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JURISDICTIONAL STATEMENT

STATEMENT OF THE ISSUES

STATEMENT OF THE CASE

STATEMENT OF THE FACTS

ARGUMENT

Summary of Argument

Standard of Review–Applicable to Both Points

The Decision Below

Review of Undisputed Facts

Disability Discrimination

Discrimination Based on Retaliation

CONCLUSION

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE

1

1

2

2

6

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8

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14

17

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TABLE OF CASES AND AUTHORITIES

Federal Cases

15

7

13

12
10
7
12

AFGE, AFL-CIO, Local 2096 v. Federal Labor Relations Authority, 738
F.2d 633 (4th Cir.1984)
Ballinger v. North Carolina Agricultural Extension Serv., 815 F.2d 1001
(4th Cir.), cert. denied, 484 U.S. 897, 98 L.Ed. 191, 108 S.Ct. 232 (1987)
Blocher v. Department of Veterans Affairs, Appeal No.0120111937
(April 17, 2013)
Bracey v. OPM, 231 F.3d 1356 (2001)
Brennerman v. Midcentral Health Sys., 366 F.3d 412 (6th Cir., 2004)
Celotex v. Catrett, 477 U.S. 317, 91 L.Ed. 265, 106 S.Ct. 2548 (1986)
Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 143
L.Ed.2d 966, 119 S.Ct. 1597 (1999)
De Arroyo v. Sindicato de Trabajadores Packing, AFL-CIO, 425 F.2d 281 10
(1st Cir., 1970)
Farwell v. Un, 902 F.2d 282 (4th Cir.1990)
Haulbrook v. Michelin N. America, 252 F.3d 696 (4th Cir., 2001)
International Brotherhood of Teamsters v. United States, 431 U.S. 324,
52 L.Ed.2d 396, 97 S.Ct. 1843 (1977)
Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir., 2012)
O'Donnell v. Vencor Inc., 466 F.3d 1104 (9th Cir., 2006)
Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 75 L.Ed. 403,
103 S.Ct.1478 (1983)
Reeves v. Sanderson Plumbing Products, Inc, 530 U.S. 133, 147 L.Ed.2d
105, 120 S.Ct. 2097 (2000)
Ross v. Communications Satellite Corp., 759 F.2d 355 (4th Cir.1985)
Schierhoff v. Glaxo Smith Kline Consumer Healthcare, LP, 444 F.3d 961
(8th Cir. 2006)
Wilson v. Dollar General Corp., __F.3d __ (4th Cir. 2013)

15
10
14

7
15
10

14

7
10

11

Federal Statutes

5 C.F.R. §833.1203
28 U.S. Code §1291

12
1

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JURISDICTIONAL STATEMENT

The court has jurisdiction over the persons and subject matter in that this is

an appeal of a civil matter. A final judgment disposing of all claims was entered in

the United States District Court and appeal lies to this Court under 28 U.S. Code

§1291.

STATEMENT OF THE ISSUES

The District Court decided four issues, (1) that it had subject matter

jurisdiction only over the matter of Plaintiff’s discharge, (2) that Plaintiff could

not prove she was illegally discharged because of disability discrimination, (3)

that Plaintiff could not prove she was illegally discharged because of retaliation,

and (4) that certain records were correctly sealed.

In this brief, Plaintiff will demonstrate that the District Court erred in

deciding as a matter of law that Plaintiff could not prove wrongful discharge, as

the evidence was not conclusive that she was incapacitated for all work.

Additionally, she will show that the evidence allowed an inference of retaliatory

motive.

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STATEMENT OF THE CASE

Plaintiff was terminated from her employment with the Department of

Veterans Affairs, Durham Medical Center and filed an EEO claim. The notice

closing her EEO claim stated she could file suit in the District Court, and she did

so. That was decided against her on a motion for summary judgment by the United

States; no other claims remain pending, and this appeal follows.

STATEMENT OF THE FACTS

Tempie Ann Bell is a registered nurse who was employed at the Durham

Veterans Affairs Medical Center (“DVAMC”) for over 20 years. She was

terminated effective March 11, 2011. After a back injury limited her ability to lift,

Plaintiff worked as a diabetes educator from 2005 through January 2010, having

been assigned to that position as part of a settlement agreement in an earlier

discrimination suit. Part of the agreement was that she would obtain certification

as a diabetes educator.

In September 2009, after she had just completed her masters in nursing

education, funded by the VA (T. Bell Aff. ¶ 7, JA st 50), Defendant notified her

she needed to get certified. Plaintiff never obtained certification as a diabetes

educator.

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It had been her understanding from talking to her supervisors while she was

working on her Masters that she should focus her energy on completing it instead

of worrying about the certification (T. Bell Aff. ¶ 6, JA at 46).

In January 2010, Plaintiff was reassigned from her position in diabetes

education to a ward nursing position. The stated requirements of the ward nursing

position were modified to accommodate Plaintiff’s work restrictions. Despite these

modifications, Plaintiff found the ward nursing job extremely difficult, especially

due to her lifting restrictions (T. Bell Aff. ¶ 8, JA at 50). Even her preceptor on the

ward felt that it was unsafe for Plaintiff to be assigned there (Sharon Faison

Testimony before EEOC, JA at 96, 101). Her supervisor admitted she could not

perform an essential function of the job, to handle patients in emergencies.

Plaintiff protested the reassignment to ward nursing and asked that she be

allowed to continue in her role in diabetes education (T. Bell Aff. ¶ 7, JA at 47).

She wound up filing suit over the alleged breach of contract, which wound up in

federal court in June 2010, reference file 10-CV-475 (M.D.N.C., 2010). Id.

Plaintiff was also able to find administrative work in another section of

DVAMC in late 2009 or early 2010, where work needed to be done and the

supervisor was willing to take her on, but she was not permitted to take that

position (T. Bell Aff. ¶ 8, JA at 48, D. Bell Aff. ¶ 8, JA at 58, Testimony of Joseph

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Smith, JA at 105-6).

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Plaintiff struggled to do the ward nursing duty from January to August

2010. On August 10, 2010, Plaintiff fell at work. After a meeting where Gwen

Waddell-Schultz, her second-line supervisor, threatened to suspend her and report

her to the nursing board, she went to the employee health office, where she passed

out (T. Bell Aff. ¶ ¶ 9-11, JA at 48-9). When Plaintiff regained consciousness, she

was on the floor and felt pain in her face, left shoulder, and left knee. She heard

Jackie Rogers tell someone that Plaintiff had fallen and hit her head on the desk

(T. Bell Aff. ¶ 12, JA at 49). (Rogers later changed her story (D. Bell Aff. ¶ 11-2,

JA at 57-8).) Plaintiff was helped into a wheelchair and taken from the room, and

then to the ER.

The next day Plaintiff had MRIs taken and was diagnosed with a new tear of

the meniscus of her left knee and a labral tear in her left shoulder (T. Bell Aff. ¶

13-4, JA at 49-50; Dellaero Depo, p. 12, JA at 72). Dr. Dellaero explained that

these injuries were consistent with a fall and explained the mechanism by which

they probably occurred (Dellaero Depo, pp. 13-6, JA at 74-7).

Plaintiff filed a workers compensation claim. DVAMC took the position

that Plaintiff did not fall but rather was gently lowered to the floor. In support of

this position, DVAMC staff produced a reenactment of the events that included

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photographs, a description of events, and witness statements. According to Dr.

Dellaero, the injuries he saw were inconsistent with Plaintiff having been assisted

to the ground (Dellaero Dep. 20-1, 28-9, JA at 61-2, 69-70). The claim has

remained denied and is now on appeal to the ECAB.1

Plaintiff requested FMLA and LWOP leave but these remained denied after

November 2010. She requested donations of leave from other employees but those

were blocked by the hospital administration (T. Bell Aff. ¶ 15, JA at 50). The only

communications she received from the hospital were letters threatening her job

because of her absence (T. Bell Aff. ¶ 16, JA at 51). She was carried as AWOL

after November 2010.

Plaintiff did not return to work at DVAMC any time after August 10, 2010

and no work, other than the ward nursing job, was ever offered to her.

On December 11, 2012, Plaintiff’s application for disability retirement from

the VA was approved (JA at 182-5).

Defendant issued return to duty letters on December 27, 2010, and January

11, 2011, based on Plaintiff’s continuing AWOL status (JA at 143-6), then a

notice of proposed discharge and discharge (JA at 147-52).

Since her discharge, Plaintiff has sought other employment in nursing

1Filed August 2013, no docket number yet assigned.

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education or administration without success (T. Bell Aff. ¶ 19-20,, JA at 52). Dr.

Dellaero felt she could not return to ward nursing but would encourage her to try

to work in an administrative capacity (Dellaero Dep. at 18, JA at 79); his excuse

of February 2011 expressed concern only about her ability to lift patients.

Plaintiff has filed several other EEO complaints against Defendant in the

past, two of which are still in the administrative process: Case No. 2004-0558-

2010100080 and Case No. 2004-0558-2010103561. In these she challenges the

agency’s reassignment from the diabetes education position to ward nursing and

failure to provide her other reasonable accommodation; she never gave up the

hope of being reassigned to education (T. Bell Aff. ¶ 7, JA at 47, and ¶ 17, st 51).2

ARGUMENT

Summary of Argument

The District Court erred by finding it was futile for the agency to try to

accommodate Plaintiff when her desire for accommodation was established, the

assigned job was unsafe for her to do, and in fact it was futile for the employee to

2After the summary judgment documents had been filed the EEO judge made a
finding that the VA had discriminated against Plaintiff on at least one occasion.

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ask again for accommodation or try to get her physicians to release her to other

work. Likewise the District Court erred by finding no retaliatory animus where

there was a history of, and ongoing, struggle between the parties about working

conditions.

Standard of Review–Applicable to Both Points

Review of a grant of summary judgment presents an issue of law and

therefore is de novo. See for example Farwell v. Un, 902 F.2d 282, 287 (4th

Cir.1990). Summary judgment is proper where there is no genuine issue as to any

material fact; if so, the moving party is entitled to a judgment as a matter of law.

Celotex v. Catrett, 477 U.S. 317, 322, 91 L.Ed. 265, 273, 106 S.Ct. 2548, 2552

(1986). All inferences must be drawn in a light most favorable to the party

opposing the motion. Ross v. Communications Satellite Corp., 759 F.2d 355, 364

(4th Cir.1985). Summary judgment is a drastic remedy and should not be granted

unless “it is perfectly clear that there are no genuine issues of material fact.”

Ballinger v. North Carolina Agricultural Extension Serv., 815 F.2d 1001, 1004-05

(4th Cir.), cert. denied, 484 U.S. 897, 98 L.Ed. 191, 108 S.Ct. 232 (1987).

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The Decision Below

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Judge Osteen held that the only issue in this case was Plaintiff’s

termination, that other issues relevant to her transfer from diabetes education were

outside the Court’s jurisdiction, although she could use prior acts as background

evidence in support of her timely-filed claims based on termination (Slip op. at 11-

3, JA at 29-31).

He ruled that Plaintiff failed to prove that, before she was terminated, she

was qualified to perform any job, with or without reasonable accommodation, and

therefore could not prove disability discrimination after Defendant issued return to

duty letters on December 27, 2010 and January 11, 2011 (Slip op. at 15-6, JA at

33-4). The Court held that the employer had no duty to engage in any interactive

process to identify reasonable accommodation since there was no evidence that

she would have been able to perform the essential functions of any job at the

hospital, including diabetes educator, during the months she was absent without

leave. Any attempt at accommodation would thus have been futile (Slip op. at 17-

9, JA at 35-6).

Review of Undisputed Facts

For purposes of summary judgment, and therefore for the purposes of this

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appeal, it is clear that Plaintiff protested her reassignment to ward nursing, that she

was and still is actively involved in EEO litigation challenging her reassignment,

and that she felt remaining in her diabetes educator position would have been a

reasonable accommodation to her disability. She sought and found other

administrative work that needed to be done in the hospital but that it was rejected

without explanation. Plaintiff’s preceptor felt it was unsafe for her to be on the

ward and her supervisor felt she could not perform essential emergency functions.

She had a new tear of her knee when she fell and her shoulder tear was most

consistent with a sudden trauma. Plaintiff was denied the opportunity to obtain

donated leave from other employees. The only job that Defendant ever offered her

was the ward nursing job; that was the job she told to report back to. No effort was

made in late 2010 and early 2011 to accommodate her with any kind of light duty

or even to inquire if she could do administrative work. Plaintiff began looking for

administrative work as soon as she was discharged, and Dr. Dellaero thought she

could do it.

Disability Discrimination

The premise of the summary judgment on disability was that Plaintiff was

incapable of doing any job at the hospital and therefore it would be futile for ths

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hospital to engage in any interaction to try to accommodate her. However, the

hospital staff had made it abundantly clear over the preceding year that no other

job would be offered to her. It would have been equally futile for her to have

asked--again--for an administrative position.

In International Brotherhood of Teamsters v. United States, 431 U.S. 324,

52 L.Ed.2d 396, 97 S.Ct. 1843 (1977), the Court made this clear: “When a

person's desire for a job is not translated into a formal application solely because

of [her] unwillingness to engage in a futile gesture [s]he is as much a victim of

discrimination as is [s]he who goes through the motions of submitting an

application.” Id. at 365, 52 L.Ed.2d at 433-4, 97 S.Ct. at 1870.

Where an employer itself creates the situation that makes it impossible or

futile for the employee to obtain relief, then the employer cannot then assert (and a

judge should not find) that the employee is at fault for not filing properly. De

Arroyo v. Sindicato de Trabajadores Packing., AFL-CIO, 425 F.2d 281, 291 n. 13

(1st Cir., 1970) (company could not argue that wrongfully discharged plaintiffs

could not be rehired because they were now less useful than retained employees);

see also O'Donnell v. Vencor Inc., 466 F.3d 1104, 1114 (9th Cir., 2006) (employer

had filed bankruptcy, tolling allowed).

The government cited two cases in its brief Schierhoff v. Glaxo Smith Kline

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Consumer Healthcare, LP, 444 F.3d 961, 966 (8th Cir. 2006) and Brennerman v.

Midcentral Health Sys., 366 F.3d 412, 420 (6th Cir., 2004). Both of these are

clearly distinguishable. Schierhoff was “worn out” from a long career doing heavy

mechanic work and no other work he could do was suggested. Accordingly his

protracted absences made accommodation unfeasible. Brennerman had been

discharged under a progressive points policy that called for automatic termination

for unexcused absences which had been piling up for 6 years. Moreover he failed

to mention the medical condition that allegedly caused his absence for over a

month after his suspension. Neither had a concurrent challenge to a reassignment

pending. Here, on the other hand, Plaintiff had ben successful in, and was fighting

to return to, work other than the onerous work the agency offered. She had been

sponsored by the agency to get a degree in education to move permanently to more

administrative/education work. And she had no discipline prior to being

reassigned. She had been trained expressly for the kinds of jobs the agency refused

to even consider for her.

The case of Wilson v. Dollar General Corp., __F.3d __ (4th Cir. 2013), also

cited by the District Court, provides an interesting contrast. There the only

accommodation requested was leave. The Court noted that as long as the employee

gives “adequate notice” of their request for accommodation, the burden shifts to

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the employer to engage in the interactive process contemplated by the

ADA/Rehabilitation Act. In that case, while it is true that Wilson, like Plaintiff,

could not specify a date when he could return, he was only trying to return to one

job he was physically unable to do when he was fired. He never identified other

jobs he thought he could do. He was not currently engaged in administrative

hearings against the employer to try to get an accommodation job back. He had not

been penalized by discretionary decisions to cut off donated leave and denied

LWOP. Wilson, while instructive, is thus clearly distinguishable.

Both the agency and the District Court noted, in support of their position,

that Plaintiff had been approved for disability retirement. Approval for disability

retirement means only that the employee cannot perform the duties of their regular

position. 5 C.F.R. §833.1203; Bracey v. OPM, 231 F.3d 1356, 1358-60 (2001). If

the agency will not accommodate them with a new regular position, or

accommodate them in their old one, then they qualify. Id. at 1360. So the approval

of disability retirement only means the agency could not or would not

accommodate her–the agency did not contest on the grounds that there was work

available. (Even if she had applied for and qualified for Social Security disability

benefits, which requires proof that it is unreasonable to expect her to get any

employment at all in the open market, that would not automatically disqualify her

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from seeking accommodation from the agency. See Cleveland v. Policy

Management Systems Corp., 526 U.S. 795, 802-4, 143 L.Ed.2d 966, 974-5, 119

S.Ct. 1597, 1602-3 (1999)).

The government may argue that all the medical notes say no duty at all and

that, if she thought she could do light duty, Plaintiff should have asked her

physicians for a new note that released her to administrative duty. Dr. Dellaero

specifically addressed only lifting patients in February 2011. Under all the

circumstances of the case, where she had been pursuing such a course for a year

with no success, a reasonable employee in her position would have understood

that such an effort would be futile. This is a question the jury should decide.

Where the agency itself creates the situation that makes it futile for the

employee to request further accommodation, makes no effort to even inquire if she

can do other work, cuts off leave that is available, and insists on returning the

employee to a job that its own supervisor thinks is unsafe, there is at a minimum a

jury question as to whether it has engaged in disability discrimination.3 When the

District Court found that it was futile for the agency to engage in any interactive

3 In a recent administrative decision, Blocher v. Department of Veterans Affairs,
Appeal No.0120111937 (April 17, 2013), the Commission ruled that the VA
subjected the complainant to disability discrimination when it likewise flatly
denied her request to telework part-time as a reasonable accommodation for her
hip disorder.

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process aimed at accommodation, it turned the table on, and blamed, the victim,

for whom it was even more futile to ask again. This was error.

Discrimination Based on Retaliation

The District Court assumed Plaintiff had satisfied her burden of presenting

a prima facie case of retaliation, in that her EEO cases were still pending when she

was discharged. However, it noted that no evidence was presented that suggested

any rationale for discharge other than her continuing inability to work. And it

dismissed as irrelevant in time other evidence, of the reassignment, of the SF-71s,

and of the reenactment of the fall. It found that the deciding officials had nothing

to do with these and their motivation in discharging Plaintiff was, as a matter of

law, strictly a business decision.

As the Supreme Court has held repeatedly, decisions regarding whether an

employment decision was discriminatory, since such is rarely admitted openly, are

“sensitive and difficult,” Postal Service Bd. of Governors v. Aikens, 460 U.S. 711,

716, 75 L.Ed. 403, 411, 103 S.Ct.1478, 1482 (1983), and usually hinge on careful

analysis of circumstantial evidence. Proof that an employer’s proffered

explanation is false is but one type of circumstantial evidence that may justify a

finder in rejecting the employer’s explanation for discharge. Reeves v. Sanderson

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Plumbing Products, Inc, 530 U.S. 133, 146, 147 L.Ed.2d 105, 119, 120 S.Ct.

--15--

2097, 2108 (2000).

Here the EEOC proceedings to challenge the original reassignment were

still spending at the time Plaintiff was discharged. Agency staff assigned to

supervise Plaintiff knew she was having trouble doing ward nursing; Waddell-

Schultz obviously knew this because she was the one who threatened Plaintiff’s

nursing license on August 10, 2010. All Plaintiff’s requests to the agency after

August 10, 2010 were met with denials–her requests for workers compensation,

for donated leave, for LWOP. She was a successful employee for over twenty

years and the agency took the harsh position, despite valid medical excuses, of

carrying her as AWOL.

The District Court relied on the fact that months had elapsed between many

of the events alleged to show retaliatory motive and the actual discharge.

Proximity in time may alone support a finding of intent, see for example

Haulbrook v. Michelin N. America, 252 F.3d 696, 706 (4th Cir., 2001), its

presence or absence is not determinative. This is especially so in a case such as

this where there is uncontested proof of an ongoing battle between the agency and

the discharged employee over reassignment and working conditions. Compare

Lacey v. Maricopa Cnty., 693 F.3d 896, 917 (9th Cir., 2012) (course of conduct is

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--16--

clear proof of animus). Employment decisions are not made in a vacuum; the

District Court isolated the decision to fire Plaintiff from its context, contrary to the

approach this court has taken, especially with remedial statutes. See AFGE,

AFL-CIO, Local 2096 v. Federal Labor Relations Authority, 738 F.2d 633, 636

(4th Cir.1984).

Additionally, it is established at least at this point that the only agency

eyewitness to the fall, Rogers, told two different stories to David Bell. Whether

Waddell-Schultz or Gigliotti actually knew the reenactment was a lie, it fits in

with all the other evidence that Plaintiff was being targeted for elimination by

management and that when they found a chance to do it they did. The fact that

they never made any effort to seek other work for Plaintiff in late 2010 or asked

her if she could do other work, as outlined, was disability discrimination, and

supports the further inference that retaliation for her previous and ongoing

protected activity was also a motivating factor. Again, Plaintiff does not contend

at this point that she is entitled to judgment on this point, only that she is entitled

to a trial by a jury.

For these reasons the District Court also erred in denying the retaliation

claim.

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CONCLUSION

For the foregoing reasons the decision of the District Court should be

reversed and the case remanded for trial.

This day is September 16, 2013


Daniel F. Read
Attorney for Plaintiff
State Bar No. 11172
115 E. Main St.
Durham, North Carolina 27701-3601
919-683-1900 (FAX 919-682-4955)
Email: [email protected]

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CERTIFICATE OF SERVICE

I, Daniel F. Read, hereby certify that I have this day served a copy of the
foregoing document, namely: Brief, upon the following parties to this action by
sending them a copy of the same by electronic transmission (email), same sent to
them at their address below, and further that the document was announced sent by
my server and no error report has since been received. Name and email address of
person served:

Lynne P. Klauer, Esq.
Assistant United States Attorney
Middle District of North Carolina
P.O. Box 1858
Greensboro, North Carolina 27402
[email protected]

Served care of the US Court website per standard e-filing procedure

This day is September 16, 2013.


Attorney for Plaintiff
115 E. Main St.
Durham, North Carolina 27701-3601
Telephone: 919-683-1900
Fax: 919-682-4955
Email: [email protected]
State Bar No. 11172

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