IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 03-1245 CAROLYN E. O’CONNOR, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. On Appeal from the United States District Court for the District of Massachusetts BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE NICOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716TABLE OF CONTENTS STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE 2 1. Nature of the Case and Proceedings Below 2 2. District Court’s Decision 4 SUMMARY OF ARGUMENT 5 ARGUMENT 7 I. THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFF’S COMPLAINT AGAINST THE COMMISSION UNDER 28 U.S.C. § 1915(E)(2)(b) 7 II. THE DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION OVER PLAINTIFF’S CLAIMS 10 III. THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFF’S TORT CLAIMS AGAINST THE COMMISSION 13 IV. O’CONNOR’S CLAIM THAT SHE IS ENTITLED TO THE EEOC’S ENTIRE INVESTIGATIVE FILE REGARDING HER CHARGE OF DISCRIMINATION WAS PROPERLY DISMISSED 13 CONCLUSION 16 Certificate of Compliance With Rule 32(a) ADDENDUMTABLE OF AUTHORITIES Cases Archie v. Chicago Truck Drivers, Helpers and Warehouse Workers Union, 585 F.2d 210 (7th Cir. 1978) 9 Baba v. Japan Travel Bureau International, Inc., 111 F.3d 2 (2d Cir. 1997) 8 Bender v. Williamsport Area School District, 475 U.S. 534 (1986) 10 Bradshaw v. Correctional Medical Services, Inc., 2001 WL 3914971 (1st Cir., April 12, 2001) (unpublished) 7 Brumley v. U.S. Department of Labor, 767 F.2d 444 (8th Cir.1985) 15 Cole v. United States, 657 F.2d 107 (7th Cir.), cert. denied, 454 U.S. 1083 (1981) 12 Evans v. C & P Tel. Co., 30 FEP Cases (BNA) 1814, 1815 (D. Md. 1981) 11 FDIC v. Meyer, 510 U.S. 471 (1994) 5, 13 Feldstein v. EEOC, 547 F. Supp. 97 (D. Mass. 1982) 10 Francis-Sobel v. University of Maine, 597 F.2d 15 (1st Cir.) 5, 8, 9 Golyar v. McCausland, 738 F. Supp. 1090 (W.D. Mich. 1990) 9 Holloman v. Watt, 708 F.2d 1399 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984) 12 TABLE OF AUTHORITIES (cont’d) Cases Lockerty v. Phillips, 319 U.S. 182 (1943) 10, 11 McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984) 8 McDonnell v. United States, 4 F.3d 1227 (3rd Cir. 1993) 15 Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977) 9 Oglesby v. U.S. Department of the Army, 920 F.2d 57 (D.C. Cir 1990) 15 Pollack v. Department of Justice, 49 F.3d 115 (4th Cir 1995) 14 Reed v. EEOC, 100 F.3d 957, 1996 WL 636171 (6th Cir. Oct. 30, 1996) 9 Scheerer v. Rose State College, 950 F.2d 661 (10th Cir. 1991) 9 Selden Apts. v. United States Department of HUD, 785 F.2d 152 (6th Cir. 1986) 11 State of Maine v. U.S. Department of Interior, 298 F.3d 60 (1st Cir. 2002) 15 In re Steele, 799 F.2d 461 (9th Cir 1986) 15 Taylor v. Appleton, 30 F.3d 1365 (11th Cir. 1994) 14 United States Department of Energy v. Ohio, 503 U.S. 607 (1992) 12 TABLE OF AUTHORITIES (cont’d) Cases United States v. Mitchell, 463 U.S. 206 (1983) 12 United States v. Nordic Village, Inc., 503 U.S. 30 (1992) 12 Voinche v. F.B.I., 999 F.2d 962 (C.A.5 (La.),1993) 14 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983) 8, 9 Statutes 28 U.S.C. § 1291 2 28 U.S.C. § 1343 6 28 U.S.C. § 1915(e) 3, 4, 7, 8 29 C.F.R. § 1610.11(a) 14 42 U.S.C. § 2000e-5(b) 8, 9, 11 Federal Tort Claims Act, 28 U.S.C. § 2680(h) 5, 13 Freedom of Information Act, 5 U.S.C. § 552 et seq. 14, 15 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 03-1245 CAROLYN E. O’CONNOR, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION , Defendant-Appellee. On Appeal from the United States District Court for the District of Massachusetts BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE STATEMENT OF JURISDICTION The district court did not have jurisdiction over this action because there is no statutory or constitutional basis for plaintiff’s claims against the Equal Employment Opportunity Commission, an agency of the federal government. Final judgment was entered against the plaintiff on January 24, 2003. Addendum (“Add.”). at 2 (doc. no. 7).1 The plaintiff filed a timely notice of appeal on January 30, 2003. Id. (doc. no. 8). This Court has jurisdiction over the appeal under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court properly dismissed Plaintiff's claim alleging that the Equal Employment Opportunity Commission improperly processed and disposed of her charge of discrimination against a private employer. STATEMENT OF THE CASE 1. Nature of the Case and Proceedings Below. This is an appeal from a decision of the district court dismissing this suit (02-CV-11709). On August 23, 2002, Carolyn E. O’Connor filed in the district court an application to proceed without prepayment of fees and a complaint alleging that the Commission improperly investigated and wrongfully dismissed a charge she had filed against Choicepoint/CP Commercial Specialists.2 Add. at 1 (doc. no. 1). On December 18, 2002, the district court entered an order conditionally granting O’Connor’s application, but stating that her complaint would be dismissed pursuant to 28 U.S.C. § 1915(e) if she did not show good cause in writing why her case should not be dismissed within 35 days. Add. at 19. On January 8, 2003, O’Connor submitted to the court a document entitled “Reason to Uphold Action,” along with an amended complaint. Add. at 20. On January 24, 2003, the district court dismissed O’Connor’s complaint with prejudice, stating that “[t]he new papers simply repeat or restate allegations of the original complaint and do not provide any reason for forestalling the dismissal of that complaint as conditionally ordered by the Court.” Add. at 21. On January 30, 2003, O’Connor filed a timely notice of appeal. Add. at 2 (doc. no. 8). O’Connor alleges in her amended complaint 3 that there was “negligence, gross negligence, bad faith, discrimination/bias, malicious and intentional acts in connection to [sic] [EEOC’s] handling and investigation of” a charge O’Connor filed against Choice/CP Commercial Specialists. Add. at 3, ¶ 2. O’Connor alleges that, when she expressed concern to an EEOC enforcement supervisor as to how her charge was being handled, he was “abrupt” with her and relied on “slanderous non-substantiated representations” by respondent. Id. at 4-5, ¶¶ 7 & 8. According to O’Connor she discovered irregularities in the Commission’s investigation including the alleged incompetence of the investigators when she reviewed a copy of the “EEOC’s closed file” on her charge. Id. at 6, ¶ 15. O’Connor also alleges that the Commission refused to give her “case notes and inhouse analysis” regarding this case and, therefore, her “rights and liberties” were affected by the “EEOC’s decision making process.” Add. at 9-10, ¶¶ 31 & 32. O’Connor requested that the EEOC “turn over its case notes, inhouse analysis, investigative plans and any other inhouse documents” to her. Id. at 10, ¶ 35. She also sought monetary damages. Id. at 12, ¶ 48. 2. District Court’s Decision. The district court, relying on 28 U.S.C. § 1915(e)(2), ordered that O’Connor’s claim would be dismissed if she did not show “good cause” within 35 days why it should not be dismissed. Add. at 17-18. The court stated that persons who believe that they have suffered employment discrimination, after exhausting the permissible administrative remedies, have the right to “file a civil action against the employing agency,” but that there is no statutory provision “permit[ting] the employee to file a suit against the EEOC based on its resolution of the employee’s complaint.” Id. at 15. According to the court, the right to sue one’s employer de novo “is the sole remedy for the kind of EEOC misfeasance” that O’Connor alleges. Id. at 16, citing Francis-Sobel v. U. of Maine, 597 F.2d 15, 16 (1st Cir. 1979). The court also ruled that, because a finding of reasonable cause by the Commission is “nonbinding and nonfinal, investigative and not adjudicative,” the failure to receive such a determination does not represent any loss that implicates the Constitution’s Due Process Clause. Add. at 16. The court noted that, insofar as O’Connor alleges certain “common law torts including negligence, gross negligence and slander,” they would be governed by the Federal Tort Claims Act (“FTCA”), and the United States would be the only proper defendant inasmuch as federal agencies, such as EEOC, “cannot be named as parties in FTCA suits.” Add. at 17, citing FDIC v. Meyer, 510 U.S. 471, 476 (1994). Moreover, the court concluded, even if O’Connor had named the proper defendant, her action must be dismissed because there “is no jurisdiction for an FTCA claim of slander” (citing § 2680(h)), and because plaintiff “has not alleged that she pursued administrative remedies for the tort claim as required by the FTCA, 28 U.S.C. §§ 2671-2680.” Add. at 17. SUMMARY OF ARGUMENT Dismissal of O’Connor’s complaint against the EEOC for failure to state a claim was appropriate because none of the statutes on which O’Connor relies provides for a cause of action against the EEOC for its handling of her discrimination charge. Title VII provides neither an express nor an implied cause of action for alleged mishandling of charges. Moreover, Title VII authorizes suits only against certain specified entities, including employers labor unions and employment agencies. The Commission plainly is not a union or employment agency, nor was it O’Connor’s employer. Thus, the EEOC cannot be sued under Title VII for its alleged failure to investigate O’Connor’s discrimination charge. Dismissal of O’Connor’s complaint against the EEOC can also be upheld because the district court lacked subject matter jurisdiction. Title VII does not authorize jurisdiction in cases challenging the EEOC’s processing of charges and thus, O’Connor cannot establish jurisdiction under 28 U.S.C. § 1343. Further, jurisdiction is lacking in the district court because Congress has not waived sovereign immunity for the EEOC for actions challenging the Commission’s administrative management of charges. This Court therefore should affirm the district court’s dismissal of O’Connor’s complaint. Dismissal of O’Connor’s claim of slander against the EEOC was correct because, 1) she failed to name the proper defendant, 2) the Federal Tort Claims Act does not permit an action for slander, and 3) O’Connor failed to exhaust her administrative remedies under that Act. Lastly, O’Connor’s claim that she is entitled to access to the entire EEOC investigative file as to her charge is without merit. O’Connor failed to file an administrative appeal when she was denied certain documents and, in any event, the documents that O’Connor claims she was not provided properly were withheld under the Freedom of Information Acts’s exemption for work product. ARGUMENT THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFF’S COMPLAINT AGAINST THE COMMISSION UNDER 28 U.S.C. § 1915(E)(2)(b). This Court reviews de novo a dismissal for failure to state a claim on which relief may be granted under 28 U.S.C. § 1915(e)(2)(B).4 Bradshaw v. Correctional Medical Services, Inc., 2001 WL 391497, **1 (1st Cir., April 12, 2001) (unpublished). O’Connor's claim against the Commission for improper investigation and disposition of her charge was properly dismissed because she cannot prove any set of facts in support of this claim which would entitle her to relief from the Commission. As the district court recognized, this court that has held that charging parties have no express or implied right of action against the Commission for its handling of their charges of employment discrimination against a private employer. Rather, Title VII explicitly provides that charging parties who are dissatisfied with EEOC's processing and/or disposition of their charge may proceed directly against the offending employer in court, 42 U.S.C. § 2000e-5. Francis-Sobel v. University of Maine, 597 F.2d 15, 17-18 (1st Cir.) cert. denied, 444 U.S. 949 (1979). See also, Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983), cert. denied, 466 U.S. 953 (1984); Stewart v. EEOC, 611 F.2d 679, 682 (7th Cir. 1979); Peavey v. Polytechnic Inst. of New York, 749 F. Supp. 58, 59 (E.D.N.Y. 1990) (citations omitted), aff'd, 940 F.2d 628 (2d Cir. 1991). See also 118 Cong. Rec. 7,168 (1972) (disgruntled charging party may "pursue his or her own remedy . . . where there is agency inaction, dalliance, dismissal of the charge or unsatisfactory resolution"). Insofar as O’Connor claims that EEOC’s disposition of her charge deprived her of her rights under Title VII, this Court has held that a complainant suffers no cognizable injury from an agency finding, which is "nonbinding and nonfinal, investigative and not adjudicative," due to the availability of de novo suit against the employer. Francis-Sobel, 597 F.2d at 17-18. See also McCottrell v. EEOC, 726 F.2d 350, 351 & n.1 (7th Cir. 1984); Baba v. Japan Travel Bureau Int’l, Inc., 111 F.3d 2, 4 (2d Cir. 1997); Scheerer v. Rose State College, 950 F.2d 661, 663 (10th Cir. 1991). Cf. Reed v. EEOC, 100 F.3d 957, 1996 WL 636171, at **1 (6th Cir. Oct. 30, 1996) (same under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.); Golyar v. McCausland, 738 F. Supp. 1090, 1095 (W.D. Mich. 1990) (same under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.). Congress intended that charging parties dissatisfied with the administrative resolution of their discrimination complaints be permitted a second opportunity for vindication through a de novo review in a judicial forum. See 42 U.S.C. § 2000e-5(f)(3); Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 365-66 (1977) (“the provisions [of the Act] allow the person aggrieved to elect to pursue his or her own remedy under this title in the [federal] courts where there is agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution”); Francis-Sobel, 597 F.2d at 17; Archie v. Chicago Truck Drivers, Helpers and Warehouse Workers Union, 585 F.2d 210, 222 (7th Cir. 1978) (where EEOC allegedly fails to perform its statutory duties, plaintiff's remedy is to commence suit on his own behalf in district court, wherein he is entitled to review de novo of his claims). See also Ward, 719 F.2d at 314; Golyar, 738 F. Supp. at 1094 (“the legislative history of Title VII provokes the conclusion that Congress did not intend the EEOC to be subject to a lawsuit by a charging party unhappy with the Commission's procedures, administrative determinations, or other actions”); Feldstein v. EEOC, 547 F. Supp. 97, 99 (D. Mass. 1982) (“the right to sue de novo was granted as the complete remedy for EEOC misfeasance”). Therefore, contrary to O’Connor’s assertions, Title VII has not provided her with a private right of action against the EEOC and it was proper for the district court to dismiss her Title VII claims. II. THE DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION OVER PLAINTIFF’S CLAIMS. Dismissal of O’Connor’s claims against the Commission was also appropriate because the district court had no jurisdiction over the subject matter of the claim. No statute vests federal courts with jurisdiction over claims against the Commission for improper processing and/or disposition of a discrimination charge against a private employer, and Congress has not waived the Commission's sovereign immunity with respect to such claims. The United States district courts are courts of limited powers, exercising only such authority as Congress affords them by statute. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986); see Lockerty v. Phillips, 319 U.S. 182, 187 (1943) (courts derive jurisdiction wholly from Congress' Article III authority to "ordain and establish" inferior courts); Selden Apts. v. United States Dep't of HUD, 785 F.2d 152, 165 (6th Cir. 1986) (jurisdiction may not exceed Congressional grant). Thus, for a federal court to hear a particular case, Congress, by statute, must have vested the court with jurisdiction over the controversy. Lockerty, 319 U.S. at 187. Title VII prohibits discrimination, inter alia, on the basis of sex and permits suits against the employer to redress such injuries, but it affords no jurisdiction over a charging party's claim that the Commission mishandled the administrative processing or disposition of any charge she might file against her employer. The statute has only three jurisdictional provisions. See 42 U.S.C. §§ 2000e-5(f) (suits by EEOC or charging party against private sector employer and by Attorney General or charging party against state or local governmental employer); 2000e-6 ("pattern and practice" suits by EEOC); 2000e-16 (suits by federal employees against federal governmental employer). None of these provisions authorizes the federal courts to hear claims against the Commission where, as here, there is no employer-employee relationship between the plaintiff and the Commission, and the Commission is not itself charged with employment discrimination. Evans v. C & P Tel. Co., 30 FEP Cases (BNA) 1814, 1815 (D. Md. 1981) (no subject matter jurisdiction under Title VII against EEOC for charge mishandling). Jurisdiction over this claim is also lacking because Congress has not waived the Commission's sovereign immunity from suits for monetary damages sought in connection with the Commission's processing or disposition of discrimination charges. It is well established that the United States and its agencies are immune from suit except where they have consented by statute to be sued. United States v. Mitchell, 463 U.S. 206, 212 (1983). Waiver of sovereign immunity cannot be implied; it must be "'unequivocally expressed'" in a statute and, where expressed, strictly construed in favor of the government. United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992) (quoting United States v. King, 395 U.S. 1, 4 (1969)); see also United States Dep't of Energy v. Ohio, 503 U.S. 607, 615 (1992). Moreover, the party attempting to sue the United States or a federal agency bears the burden of pointing to the statutory provision containing the waiver. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984); Cole v. United States, 657 F.2d 107, 109 (7th Cir.), cert. denied, 454 U.S. 1083 (1981). Absent an express waiver of sovereign immunity, the federal courts lack subject matter jurisdiction over any attempted suit against an agency of the United States. Mitchell, 463 U.S. at 212. Since there has been no waiver of immunity with respect to claims like O’Connor’s, the Commission remains immune and there is no federal subject matter jurisdiction over such claims. Accordingly, the dismissal of O’Connor’s claim against the Commission was proper and should be affirmed. III. THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFF’S TORT CLAIMS AGAINST THE COMMISSION. The district court was correct in holding that O’Connor cannot proceed against the EEOC under the Federal Tort Claims Act (“FTCA”) for alleged common law torts, such as negligence and slander. Add. at 17. First, the United States is the only proper defendant in such actions, not agencies of the federal government, like the EEOC. FDIC v. Meyer, 510 U.S. 471, 476 (1994). Moreover, as the district court concluded, there is no jurisdiction for a claim of slander under the FTCA. Add. at 17, citing 28 U.S.C. § 2680(h). Lastly, the court was correct in concluding that, even had O’Connor named the proper party in this action, her complaint would be subject to dismissal because she has not alleged that she undertook the administrative remedies for tort claims required by the FTCA. Add. at 17, citing 28 U.S.C. § 2671-2680. IV. O’CONNOR’S CLAIM THAT SHE IS ENTITLED TO THE EEOC’S ENTIRE INVESTIGATIVE FILE REGARDING HER CHARGE OF DISCRIMINATION WAS PROPERLY DISMISSED In her brief on appeal, O’Connor alleges that she “requested the entire EEOC file,” but was “only given a portion of the EEOC’s investigative file.” Br. at 7. O’Connor argues that the Commission must provide “all inhouse documents or information such as investigative case notes, and inhouse analysis/plans, etc.” Br. at 5. O’Connor’s argument fails for two reasons: she failed to utilize the available administrative appeal process and, in any event, the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq. permits a federal agency to exempt work product from disclosure. Although O’Connor’s complaint contains no reference to the FOIA, we understand her to be alleging that she filed a request pursuant to that statute for the EEOC’s file relating to her charge against Choicepoint and that the EEOC did not provide her with the complete file. Add. at 6, ¶ 15. If as O’Connor claims, she was denied some requested information, she had 30 days in which to file an administrative appeal challenging that denial with the EEOC’s Legal Counsel. See 29 C.F.R. § 1610.11(a). O’Connor has neither claimed nor offered evidence that she filed an administrative appeal. The general rule is that a person must exhaust her administrative remedies before judicial review if possible. However, “[t]he FOIA clearly requires a party to exhaust all administrative remedies before seeking redress in the federal courts.” Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). See also Pollack v. Dep’t of Justice, 49 F.3d 115, 118 (4th Cir 1995) (same); Voinche v. F.B.I. 999 F.2d 962 (C.A.5 (La.),1993) (same); In re Steele, 799 F.2d 461, 465 (9th Cir 1986) (same); McDonnell v. United States, 4 F.3d 1227, 1240, 1241 (3rd Cir. 1993) (same); Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 61-62 (D.C. Cir 1990) (same); In re Steele, 799 F.2d 461, 465 (9th Cir.1986) (same); Brumley v. U.S. Dept. of Labor, 767 F.2d 444, 445 (8th Cir.1985) (per curiam) (same). Consequently, O’Connor may not seek redress for the first time in this Court as to her claim that she did not receive all of the documents to which she was entitled under FOIA. In any event, even assuming appellate review would be proper, O’Connor has not established that she would be entitled to any other documents under FOIA than those she was given. O’Connor claims that she was not provided “all inhouse documents,” including “investigative case notes” and “any inhouse analysis/plans.” Br. at 5. However, FOIA permits an agency to exclude from disclosure material that reflects the analyses and recommendations of agency personnel generated for the purpose of advising the agency of possible action. See 5 U.S.C. § 552(b)(5) (allowing nondisclosure of “inter-agency or intra-agency memorandums or letters which would not be available to a party other than an agency in litigation with the agency”). The investigator’s notes and the Commission’s analysis of O’Connor’s charge are the type of intra-agency documents exempt from the FOIA disclosure requirements. See State of Maine v. U.S. Dept. of Interior, 298 F.3d 60 (1st Cir. 2002) (noting that the Supreme Court in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) has interpreted that exemption “to protect from disclosure those documents that normally are privileged from civil discovery,” such as “attorney-client” material and “work-product”). CONCLUSION For the foregoing reasons, the district court’s order dismissing this complaint should be affirmed. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 Certificate of Compliance With Rule 32(a) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 3371 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Wordperfect 9 in size 14 Times New Roman. Attorney for Equal Employment Opportunity Commission, Defendant-Appellee Dated: CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were mailed, first class, postage prepaid, on June 5, 2003, to the following: Carolyn E. O’Connor 24 Norman Street, Unit 210 Salem, MA 01970 John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 1 The docket sheet and other material from the record in this case is contained in an Addendum at the end of this brief. 2 The district court states that she filed her application on August 8, 2002. Add. at 13. However, according to the docket sheet her application was filed on August 23, 2002. Add. at 1 (doc. no. 1). 3 As noted by the district court, the allegations in the amended complaint O’Connor submitted to the court in January 2003, are the same as the allegations in her original complaint. Add. at 21. 4 In her brief on appeal, O’Connor states that the standard of review in this case is “Special Diligence.” Br. at 9. The Commission was unable to discover any such standard of review in this Court or any other.