Free Motion to Dismiss - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00074-MSK-CBS JIMMY L. STROZIER, Plaintiff, v. JOHN E. POTTER, Postmaster General, U.S. Postal Service, Defendant.

DEFENDANT'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b) (1) AND REQUEST FOR BRIEFING SCHEDULE ________________________________________________________________________ Defendant, by and through William J. Leone, United States Attorney for the District of Colorado, and Elizabeth Weishaupl, Assistant United States Attorney, hereby files the following Motion to Dismiss the Plaintiff's claims for termination without just cause, and request for a briefing schedule for Plaintiff's hostile environment claim and in support thereof states as follows: INTRODUCTION The Plaintiff, Jimmy L. Strozier, alleges that the United States Postal Service ("USPS") terminated him without just cause and created a hostile work environment when it discharged him from his position as a Mail Processing Clerk. Regarding the Plaintiff's hostile environment claims, this Court lacks subject matter jurisdiction to

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consider these claims because the Plaintiff failed to exhaust his administrative remedies for this claims. The termination without just cause claim is brought under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq. Jurisdiction to review such a decision is generally lodged in the United States Court of Appeals for the Federal Circuit. 5 U.S.C. § 7703(b)(1)(d). To the extent that this Court retains any jurisdiction over this claim it would have to proceed under the procedures provided in Olenhouse v. Commodity Credit Corporation, 42 F.3d 1560 (10 th Cir. 1994). As a result, the Court must vacate the trial date, permit the filing of an administrative record and set a briefing schedule in this matter.

I.

FACTUAL SUMMARY

The facts leading up to Strozier's filing of the Complaint are described with specificity in the Motion for Summary Judgment, which is incorporated herein by reference pursuant to Fed. R. Civ. P. 10(c). However, a brief summary of the facts pertinent to this Motion to Dismiss is set forth below: Strozier was an employee with the Postal Service covered by a Collective Bargaining Agreement ("CBA"). He was terminated for failure to perform job duties on May 25, 2003. He filed two lawsuits regarding his employment with the USPS. Civil Action No. 02-N-00379 Plaintiff filed Civil Action No. 02-N-00379 on February 26, 2002. (See Title VII Complaint attached herein as Exhibit A). In this complaint, Plaintiff alleged that he had 2

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been discriminated against based on his race and sex and had been retaliated against for filing an "EEO complaint by management and supervisor." (Exhibit A at p.4). In a handwritten statement attached to the Complaint, Strozier explained that he: "talk (sic) to Frank Hinton the AB section supervisor about Pamela Royal's attitude and provoking violence in the workplace. Frank Hinton stated that he couldn't do anything about the incident that happened on 10/19/01. Frank Hinton also stated that the Inspector service called him about 2 days ago and told him they couldn't do anything about a person creating or provoking violence in the work place." (Exhibit B, attached Statement p.1). A third statement attached to the Complaint describes an incident on or about December 17, 2001, between Frank Hinton and Plaintiff in which there was "yelling and screaming." (Exhibit C, attached Statement 3 p. 1). Another attachment to the Complaint dated May 19, 2000, describes an incident in which persons shot rubber bands at Mr. Strozier. (See Exhibit D). Civil Action 02-N-0379 was dismissed by the district court because Strozier admitted that "he filed the lawsuit without exhausting his administrative remedies because he `[f]elt that the postal EEO would have caused more harm than help to me by taking longer with the complaint process.'" (Recommendation of Magistrate Judge attached as Exhibit E at p. 4). The Magistrate's Recommendation was accepted by Judge Nottingham and the matter was dismissed with prejudice. Strozier appealed this decision to the Tenth Circuit Court of Appeals. On appeal, the Court of Appeals determined that the matter was more properly dismissed without prejudice and the district court on remand entered an Amended Final Judgment granting the Motion to Dismiss but 3

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dismissing the matter without prejudice. Strozier took no further steps to exhaust the claims asserted in Civil Action No. 02-N-379. Merit Systems Protection Board Hearing and Civil Action No. 04-cv-00074-MSKCBS When Strozier was terminated based on his failure to perform assigned job he appealed this issue to the Merit Systems Protection Board ("MSPB"). In this appeal, Strozier alleged that the Defendant discriminated against him because of his race, sex, and disability. However, at his MSPB hearing Strozier presented no arguments or evidence regarding alleged general hostile environment.1 The only issue raised and argued before the MSPB was whether or not Strozier was terminated because of his alleged disability. Strozier has consistently argued throughout this litigation that he was terminated because of his disability. After the Administrative Law Judge denied his appeal, Strozier filed the instant civil complaint. In the Complaint forming the basis for Civil Action No. 04-cv-00074MSK-CBS, Strozier alleged that he had been discriminated against based on race, sex, age, disability, and had been retaliated against for filing complaints. (Docket 3, p. 2). In a handwritten statement attached to the Complaint he also stated that "the Defend (sic) has third degree assaulted the Plaintiff." (Docket 3 at p. 3).

Strozier argued before the MSPB that he was terminated and retaliated against because of his disability. 4

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Defendant filed three motions to dismiss and a motion for summary judgment in the instant matter. Strozier's claims for discrimination based on sex, race, age, disability and retaliation have been dismissed by this Court. After dismissal of the Title VII claims, the Court permitted Strozier to file a "Statement of Claims and Defenses," explaining the factual basis of the claims he believes still exist. (Docket 74). In this pleading, Strozier states the factual basis for his "termination without just cause claim," and linking it to his dismissed claim for discrimination based on disability, states that he was discriminated against based on his disability and retaliated against for filing EEO claims. (Docket 74, pgs. 2-6). He also reasserts that he was terminated because of his "medical condition", i.e., his disability. He states that "Defendant knew plaintiff had a disability on his right leg before assigning him the job of Mail Processing Clerk." (Docket 74, p. 4). Strozier also asserts that "he reported three incidents to defendant supervisors Gwendolyn Lafi and Ankie Hinton where other employee (sic) threaten, provoked violence by using profanity, tone of voice, and gestures toward plaintiff." (Docket 74, p. 10 - 11). He describes these incidents as involving him being harassed by rubber bands, and involving an argument with Jim Odel. (Id.).

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II. ARGUMENT HOSTILE ENVIRONMENT 1. Elements of a Hostile Environment Claim

The Supreme Court clarified the elements of a hostile environment Claim in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 - 22 (1993) by stating: Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment ­ an environment that a reasonable person would find hostile or abusive ­ is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation. Harris, 510 U.S. at 21 -22. To survive a motion for summary judgment, the court, after assessing all of the evidence in context, must conclude that: (1) the conduct Strozier complains of must have stemmed from a [protected class] animus; and (2) that the conduct in question was objectively and subjectively abusive and hostile. Gross, 53 F.3d at 1539. Strozier must also establish that he fully exhausted this claim before the MSPB. Jones v. Runyon, 91 F.3d 1398, 1400 (1996). In addition, the claim is barred by virtue of the doctrine of collateral estoppel.

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2.

To the extent a Hostile Environment Claim Exists Strozier failed to Exhaust a. Burden of Proof for Failure to Exhaust

Exhaustion of administrative remedies is a "jurisdictional prerequisite" to suit under Title VII. Jones v. Runyon, 91 F.3d 1398, 1400 (1996); Johnson v. Orr, 747 F.2d 1352, 1356 (10th Cir. 1984). As a failure to exhaust administrative remedies is a "bar to subject matter jurisdiction the burden is on the plaintiff as the party seeking federal jurisdiction to show, by competent evidence, that [he or she] did exhaust." McBride v. CITGO Petroleum Corporation, 281 F.3d 1099, 1106 (10th Cir. 2002) (citing United States v. Hillcrest Health Ctr., Inc., 264 F.3d 1271, 1278 (10th Cir. 2002)). Therefore, Strozier bears the burden of demonstrating that he exhausted his administrative remedies concerning hostile environment. b. Strozier Failed to Exhaust His Administrative Remedies This Court lacks subject matter jurisdiction to consider Strozier's claim of hostile environment because Strozier failed to exhaust his administrative remedies. Specifically, Strozier failed to exhaust his administrative remedies by abandoning his claims before the EEOC in the prior Civil Action 02-N-379. It is undisputed that Strozier withdrew his EEO claim regarding hostile work environment prior to filing Civil Action 02-N-0397. In the instant matter, the allegation of hostile work environment was not an issue raised before the MSPB.

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1. Facts Supporting Failure to Exhaust a. Strozier chose to pursue his remedies regarding his termination before the Merit Systems Protection Board. On the Appeal Form to the Merit Systems Protection Board, Strozier alleged that the Defendant discriminated against him because of his race, sex, and disability. (MSPB Appeal Form, attached as Exhibit E.) b. The MSBP Appeal Form does not mention hostile environment in any way. (Exhibit E). c. At Strozier's MSPB evidentiary hearing held on September 3, 2003, Strozier presented no argument regarding hostile environment or evidence supporting this claim and failed even to mention the claim of hostile environment at the MSPB evidentiary hearing. (Transcript of Strozier's MSPB Hearing, pgs. 115 - 118, attached to Docket 54 as Exhibit B.) d. In Docket 74, Strozier argues that the hostile environment included verbal altercations with his supervisor Ankie Hinton, being shot at with rubber bands by his co-employees and verbal altercations with his co-employees. He also claims that he was assaulted when "Jim Odel provoke (sic) violence by walk (sic) up to me grabbing me by the arm without my permission to touch me asking in an angry tone of voice what do you want buddy then

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followed me around the building saying get out of my area boy . . . ." (Docket 74 at p. 11). These factual basis were raised in Civil Action 02-N-0397 and the EEO claims supporting that law suit. They were not raised before the MSPB in the instant case. (See transcript of MSPB case attached to Docket 54). A hostile environment claim was not specifically raised as a claim in Civil Action No. 04-cv-00074-MSK-CBS. (See Docket 3). Strozier's only claim in the instant Complaint that can be identified as stating a hostile environment claim was that "the Defend (sic) has third degree assaulted the Plaintiff." However, to the extent that this can be construed to state a claim for hostile environment he failed to exhaust this claim. 2. Strozier Fails to Establish Elements of Exhaustion of Hostile Work Environment

Federal employees with Title VII claims must exhaust their administrative remedies before filing a civil action in federal court. Harms v. Internal Revenue Service, 321 F.3d 1001, 1009 (10th Cir. 2003). This exhaustion is a jurisdictional prerequisite to suit alleging federal employment discrimination. Williams v. Rice, 983 F.2d 177, 180 (10th Cir. 1993) (citing Johnson v. Orr, 747 F.2d 1352, 1356 (10th Cir. 1984)). Generally, federal employees asserting Title VII claims must seek relief from the Equal Employment Opportunity (EEO) department of their employing agency. 42 U.S.C. § 2000e-16(c). However, when an employee challenges certain adverse employment actions before the MSPB, including a termination, he or she can also assert related Title VII claims to the MSPB in a "mixed case" appeal. 5 U.S.C. §§ 1201, 7701. If

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an employee elects to appeal to the MSPB, the employee must exhaust his or her administrative remedies in that forum prior to filing a civil action in federal court. Harms, 321 F.3d at 1009. If an employee abandons a claim before the MSPB, the employee has not exhausted his or her administrative remedies in regard to that claim and is foreclosed from asserting that claim in a civil action in federal court. Williams, 983 F.2d at 180 ("by failing to raise the race discrimination claim before the ALJ, the Plaintiff was precluded from raising it on his petition for review or at the district court level" ). An employee abandons a claim when she or he either fails to provide argument or evidence in support of the claim or explicitly elects to not pursue the claim. Jones v. Ruynon, 91 F.3d 1398, 1402 (10th Cir. 1996) (where a federal employee specifically stated to EEOC that she was not claiming sexual harassment discrimination, this claim and the related retaliation claim was not properly exhausted). If an "employee chooses to appeal to the MSPB . . . the employee will have a hearing at which he or she must raise his or her claims of discrimination and present evidence in support of those claims in order to exhaust the administrative remedy." Coffman v. Glickman, 328 F.3d 619, 624 (10th Cir. 2003). The "court will consider whether the employee presented testimony or other evidence in the EEO case and argued his theories of discrimination to the administrative judge." Coffman, 328 F.3d at 625 (10th Cir. 2003). In the case at bar, Strozier challenged the alleged discrimination against him before the MSPB but did not exhaust the claim of hostile work environment. He elected not to offer evidence or even argument in support of his hostile environment claim. As such, the Plaintiff is foreclosed from asserting his hostile environment claim before this Court.

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3.

Collateral Estoppel A. Elements of Collateral Estoppel

The hostile environment claim is also barred by the doctrine of collateral estoppel. Collateral estoppel requires that four elements be met. (1) the issue presented in the prior action is identical to the one now in question; (2) (3) the first case was a final decision on the merits; the party against whom the doctrine is invoked was a party in the first litigation; and (4) the party against whom it is raised had a full and fair opportunity to litigate the issue in the prior action. Under the doctrine of collateral estoppel once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case. Murdock v. Ute Indian Tribe of Uintah and Ouray Reservation, 975 F.2d 683, 686 (10th Cir. 1992). Principles of collateral estoppel apply to questions of jurisdiction as well as to other issues. United States v. Lots 43 through 46, 935 F.2d 1134, 1138 (10th Cir. 1991). B. Facts Supporting the Lack of Jurisdiction Based on Collateral Estoppel1. Strozier's hostile work environment was raised in the prior federal court judgment. It was raised and litigated in Civil Action No. 02-N-0379. 2. Strozier was the Plaintiff in Civil Action No. 02-N-0379.

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3.

Strozier raised the issue of hostile work environment due to the actions of his co-workers in provoking violence in the workplace in Civil Action No. 02-N-0379.

4.

Strozier was granted a full and fair opportunity to litigate whether or not he had exhausted this claim in Civil Action No. 02-N-0379.

5.

Strozier admitted that he did not exhaust these claims in Civil Action No. 02-N-0379.

6..

Judgment entered against Strozier in Civil Action No. 02-N-0379 dismissing the case.

7.

Strozier took no further actions to exhaust this claim prior to filing the instant lawsuit.

As a result, the doctrine of collateral estoppel also bars relitigation of this issue. TERMINATION WITHOUT JUST CAUSE. This cause of action is problematic. Plaintiff has consistently argued before this Court that he was terminated without just cause because the Defendant discriminated against him based upon his disability. See Docket 74 at pgs. 2 - 7. This claim, termination in violation of the Rehabilitation Act, as well as all other claims based on Title VII have been dismissed. It appears in Docket 74, that Strozier continues to argue that he was terminated without just cause because he had a disability and that, therefore, the termination is improper. To the extent that this is Strozier's claim it is simply a restatement of his Title VII claims and he may not reinvigorate these claims by simply calling them by another name. However, in Docket 74, Strozier also states that he was placed on suspension without just cause on September 17, 2002, without "any due process requirement or performance based 12

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disciplinary action from defendants." (Docket 74 at p.7). He similarly argues that he was subject to an "investigative interview due process meeting which did not state if the meeting was for plaintiff's suspension or termination." If this is the claim he raises, it is an administrative challenge to the ALJ's Decision, and the issue if it exists, must be reviewed in the Olenhouse administrative record review process. Therefore, to the extent that an administrative termination without just cause claim is being raised by Strozier no trial to the court or to a jury is available. However, the Court must issue a briefing schedule and an administrative record may be lodged with the Court. In addition, the use of motions for summary judgment was disapproved in Olenhouse v. Commodity Credit Corporation, 42 F.3d 1560, 1579 - 80 (10th Cir. 1994). In a case seeking review under the APA, the district court acts as an appellate court and review of agency action, such as the MSPB review must be processed as an appeal. Olenhouse, 42 F.3d at 1580. The standard of review to be applied is discussed below. 1. Standard of Review for a Termination Without Just Cause Claim in a Mixed Case

Where a petition for review of a MSPB decision involves both discrimination and other claims, it is considered a "mixed case." Williams v. Rice, 983 F.2d 177, 179 (10th Cir. 1993). "On the discrimination claim the petitioner `shall have the right to trial de novo by the reviewing court..'" Id. (citing 5 U.S.C. § 7703). The other non-discriminatory claims "are reviewed on the administrative record." Id. (citing Hayes v. United States, 684 F.2d 137, 141 (D.C. Cir. 1982)). In such a "mixed case" involving an administrative issue, the administrative decision of the MSPB is reviewed under the deferential APA standards. See Williams, 983 F.2d at 179 - 180. The APA, 5 U.S.C. § 701-06, imposes a narrow and highly deferential standard of review limited

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to a determination of whether the action was "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). In deciding an APA case, the court is necessarily limited to the administrative record before the agency decision maker. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985). A MSPB decision must be upheld unless the reviewing court determines that it is: (1) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordence with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.

Williams, 983 F.2d at 180 (citing 5 U.S.C. § 7703(c)). The reviewing court may "not substitute its judgment for that of the MSPB." Williams, 983 F.2d at 180 (citing Wilder v. Prokop, 846 F.2d 613, 619 (10th Cir 1988)). Further, "under the arbitrary and capricious standard the MSPB's decision needs only to have a rational basis in law." Williams, 983 F.2d at 180. Thus, the proper course for the Court is to set a briefing schedule. 2. To the extent the Court retains jurisdiction to review the claim, the transcript of the MSPB Hearing and Initial decisions Do Not Support it.

If the Court determines that this claim exists, as stated above, it must be done in an Olenhouse proceeding. However, such a review would be futile. Strozier argues in Docket 74 that his termination for just cause claim is predicated upon the Postal Service's failure to remove him for "efficiency of service." (Docket 74, p. 2). Again, it is unclear that he seeks administrative review of the MSPB decision. However, the transcript of the MSPB hearing and

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the initial decisions of the ALJ support a finding that the action of putting Strozier on enforced leave and termination were actions taken with just cause. Regarding the termination, the ALJ found that: the agency's adverse action must be for such cause as will promote the efficiency of the service.' 5 U.S.C. § 7513(a). I find that taking some disciplinary action against the appellant based on the sustained charge of failing to perform the requirements of his position (medical inability to perform) clearly promotes the efficiency of the service. See Initial Decision, attached as Exhibit G. The AJL based this conclusion on the evidence submitted before the MSPB regarding Strozier's inability to perform his job duties. Id. at p. 7. In making this finding the ALJ noted: that testimony established that Strozier could only perform 50 percent of his job duties; the medical report of Dr. Campbell describing his serious disabilities; Dr. Hines' determination of his severe physical restrictions; and Strozier's conceded failure to report to work at all and to perform any duties of his position after September 17, 2002. See Id. at pgs. 6-7, and 11. To overturn this determination, the Court would have to find that this decision is arbitrary and capricious based on the record before the MSPB. The transcript of the MSPB hearing provides that the ALJ's decision that Strozier was terminated with just cause for efficiency of the service was substantially supported on the record. The ALJ heard testimony regarding these issue at the following pages of the transcript: Job required standing Strozier's Restrictions Further Restrictions Job Duties Inability to perform 50 % of Job p. 9 p.10 p. 12 p. 17-18 p. 20 lns.1 - 25 lns. 8 -19 lns. 18 - 25 lns. 21 - 17 lns. 10 - 19

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Never bid on jobs Admin. Leave Process LWOP Process No return to work No permanent light duty Physical Functions of Job Efficiency of Service Undue Hardship Less efficient operations Medical Restrictions Dr. Hines Restrictions Unable to Perform See Docket 54, Exhibit B.

p. 25 p. 26 p. 29 p. 32 p. 38 pgs 48 - 50 pg. 68 pg. 72 pg. 80 pg. 94 pg. 95

lns. 16 - 22 lns. 10 - 23 lns. 7- 17 lns. 7 -9 lns. 8 - 16

lns. 15 - 25 lns. 22 - 25 lns. 1 - 13 lns. 9 - 19 lns. 12 - 24

pgs. 106-107 lns. 16 - 13

The transcript of the hearing therefore reflects that the decision of the ALJ that the termination was with just cause is amply and substantially based on the record. To the extent that the Court wishes to consider Strozier's claim that he was placed on enforced leave without just cause, this issue was also considered by the ALJ. Strozier had filed an appeal of his suspension and the hearing regarding the suspension and the termination were consolidated on the merits. In a decision concerning the suspension, the ALJ determined that the "agency's action under review here, placement of the appellant on enforced leave was a deliberate time-limited action taken by the agency to provide it and the appellant time and opportunity to seek out alternatives to removing for medical inability to perform the duties of his position." (See Exhibit H at p. 5). The ALJ noted that the Postal Service gave him the following 16

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alternatives: (1) submit additional medical evidence showing that he qualified for full performance of his Mail Clerking position; (2) submit additional evidence that might lead to reasonable accommodation of his disabilities; (3) bid under the negotiated contract for other positions for which he was medically and otherwise qualified; (4) apply for disability retirement; or (5) voluntarily resign. Exhibit H at p. 5- 6. The ALJ therefore found that the placement of Strozier on enforced leave was a reasonable action and that the Agency had proved by a preponderance of the evidence that the appellant was properly placed on such leave. Id. Review of the transcript of hearing supplies ample evidence to support this decision. Walter Gale, the manager of operations for the tour of duty in which Strozier worked, testified that after Strozier failed to bid on any jobs, he issued a letter placing him on enforced paid leave for a period of 30 days. Docket 54, Exhibit B at p. 26. When asked if he had any other choice, he stated "I had no other choice, ma'am. You can't have an employee out there that's - - your paying. I mean it's not efficient, if they can't perform the functions of the job and your covering everything they are doing with overtime." Id. He then outlined that in the letter explaining enforced leave he had informed Mr. Strozier that he could bring in medical documentation demonstrating that he could perform the essential functions of the job. Id. at 27. It is undisputed he never did comply with that request. Mr. Strozier testified at the hearing that he read the notice of placement on enforced leave and understood that it put him on enforced leave until he brought in his medical information that he could do the job. Docket 54, Exhibit B, p. 121, lns. 1- 3. He stated that he understood that he had an opportunity to present anything he wanted to the Agency. Id. at lns. 10 - 14. He also responded to the letter by indicating that he did not want to discuss it. Id. at lns. 20 - 21. He stated "They said send medical information stating that you could perform the job. I had sent medical information saying that I couldn't perform the physical functions of 17

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the job." Id. p. 122, lns. 16 - 17. He also admitted that he refused to answer any of the questions presented to him at his due process investigative interview. Id. at 132,lns. 10 - 14. He stated "because if you look at the questions that were being asked at the ­ investigative interview, uh, they were the same questions that I had already answered. They were pertaining to my medical restrictions, and all that information had been sent." Id. at 132, lns. 9 - 14. As a result, although review of this administrative claim, if one exists, would require vacating the trial, lodging of an administrative record, and submission of a briefing schedule, the decision is well supported on the record. III. CONCLUSION For the foregoing reasons, Defendant respectfully requests this Court enter judgment in its favor and against the Plaintiff on the hostile work environment claim, dismissal of the termination without just cause claim in so far as it seeks to reinstate the dismissed Title VII claims and in the alternative, vacate the trial date and issue an order setting a time to submit a record and briefing schedule. DATE this 18th day of October, 2005. Respectfully submitted, WILLIAM LEONE Acting United States Attorney s/ Elizabeth A. Weishaupl ELIZABETH A. WEISHAUPL Assistant United States Attorney 1225 Seventh Street, Suite 700 17th Street Plaza Denver, CO 80202 (303) 454-0100 (303) 454 -0404 [email protected]

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses:

N/A

, and I hereby certify that I have mailed or

served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name:

Jimmy L. Strozier (mail) 1467 Illinois Street Leeds, Alabama 35094

s/ Elizabeth A. Weishaupl Elizabeth A. Weishaupl Attorney for Defendant United States Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0404 E-mail: [email protected]

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