        In the United States Court of Federal Claims
                                          Not for Publication
                                             No. 09-681 C
                                       (Filed: January 29, 2013)

************************************
                                    *
EDNA N. ZULUETA,                    *
                                    *                          Breach of Settlement Agreement;
                  Plaintiff,        *                          Subject Matter Jurisdiction; Money-
                                    *                          Mandating Source of Law;
            v.                      *                          Relationship to Future Employment;
                                    *                          Failure to State a Claim; Breach of
THE UNITED STATES,                  *                          Duty; Damages Caused by Breach
                                    *
                  Defendant.        *
                                    *
*************************************

Edna N. Zulueta, Nashville, TN, Plaintiff, pro se.

Lauren S. Moore, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., for Defendant; of counsel, Morgan E. Rehrig,
Office of General Counsel, United States Postal Service.

                                        ___________________

                                             OPINION
                                        ___________________

DAMICH, Judge:

        Plaintiff, acting pro se, seeks money damages for the alleged breach of a
settlement agreement dated October 13, 2006, that she reached with her then-employer,
the United States Postal Service (“Postal Service” or “USPS”), arising from the attempted
resolution of equal employment opportunity complaints Plaintiff made to the USPS in
September of 2006.

        The Government has moved, pursuant to Rule 12(b)(1) of the Rules of the Court
of Federal Claims (“RCFC”) to dismiss the complaint for lack of subject matter
jurisdiction or, in the alternative, pursuant to RCFC 12(b)(6), for failure to state a claim
upon which relief can be granted.1

1
  While Defendant‟s actual motion, Docket # 42, is based on RCFC 12(b)(1) or, in the alternative, RCFC
12(b)(6), oddly, both Plaintiff‟s response brief, see Docket # 43, and Defendant‟s Reply brief, see Docket #
46, refer to the “alternative” to 12(b)(1) as that of a motion for summary judgment. The Court determines

                                                    -1-
      For the reasons stated below, the court finds that it has jurisdiction over Plaintiff‟s
complaint, but grants Defendant‟s motion to dismiss for failure to state a claim.

      I.      Background

         Plaintiff was hired by the USPS in 2005 as a mail processing clerk. Def.‟s Mot.
Dismiss or, in the alt., Mot. Summ. J. 2 (“Def.‟s Mot.”). In August 2006, she was given a
letter of warning for unsatisfactory attendance and undependability in reporting for duty.
Id., App. 1.2 On September 1, 2006, Plaintiff contacted the USPS‟s Equal Employment
Opportunity office disputing the complaint against her and submitting a handwritten
document complaining in response that she was being harassed and threatened with
physical harm by fellow employees. App. 3-15.

       On October 13, 2006, Ms. Zulueta and the USPS executed a settlement
agreement. App. 16-17. The agreement, styled “In the matter of mediation between”
Ms. Zulueta and USPS “Management Officials,” recited that it was a “complete and final
settlement” of Ms. Zulueta‟s equal employment opportunity complaint. The parties
mutually agreed that

                   Management, Ryan Jenkins, will conduct a full
                   investigation regarding threats made toward Edna Zulueta.
                   The investigation will be based upon names in Mrs.
                   Zulueta‟s EEO complaint.

                   In the interim, Mrs. Zulueta will be granted one week leave
                   without pay, beginning 4 pm, Oct. 13, 2006, ending
                   October 30, 2006. Mrs. Zulueta will report back to work
                   October 21, 2006.

Id.

        In late October and early November 2006, Mr. Jenkins, the Supervisor of
Distribution Operations at the USPS facility where Ms. Zulueta worked, interviewed the
individuals named in her complaint, took their statements, and “found there to be no
merit to her claims.” App. 18-27; see also Zulueta v. United States, 2009 WL 1651172
(M.D. Tenn. June 10, 2009) (“Zulueta I”). After stating his findings, Mr. Jenkins
“strongly recommended that Mrs. Edna Zulueta be scheduled for a Fitness for Duty
Examination.” App. 18; Zulueta I at *2.

       On December 8, 2006, subsequent to the investigation conducted by Mr. Jenkins
pursuant to the Settlement Agreement, the Postal Service notified Ms. Zulueta of a seven-

that Defendant has moved in the alternative for dismissal per RCFC 12(b)(6), rather than for summary
judgment.
2
    “App. __” refers to the Appendix to Defendant‟s Motion to Dismiss.

                                                   -2-
day suspension for having taken unscheduled sick leave in November. Def.‟s Mot. 3;
Zulueta I at *1. On December 11, 2006, Ms. Zulueta complained that the Postal Service
had failed to comply with the October 13 Settlement Agreement. On December 12,
2006, the Postal Service issued her a Request for Fitness for Duty Examination
(“FFDE”). App. 28. The purpose of a FFDE is “to determine whether or not an
employee is medically able to perform his or her job responsibilities.” Id. Mr. Jenkins
stated that the reason for requesting the examination was that “Employee made serious
claims against co-workers about wanting to take her life and property.” Id.

        On December 15, 2006, Ms. Zulueta was examined by Dr. W. Lassiter, who
determined that she was “not fit for duty.” Zulueta I at *2. Dr. Lassiter reported that,
“Physically, she is able to perform her work duties, however, pt. exhibits paranoia that
has a potential to deteriorate while at work.” Id. She was placed in a non-duty paid leave
status. Id. On December 20, 2006, Ms. Zulueta also saw Dr. Greg Kyser for an FFDE.
Dr. Kyser found that she was “suffering from a psychotic disorder of chronic duration.
While I did not believe that she is in imminent harm to herself or others, I do not believe
that she is fit for duty as an employee of the United States Postal Service.” Id. On
December 29, 2006, the USPS issued her a Notice of Separation based on inability to
perform the requirements of her position, effective January 31, 2007. App. 29-30.

        In follow-up letters to the EEO Office of the Postal Service, Ms. Zulueta
reiterated her complaint that the Settlement Agreement had not been honored as well
stating complaints against her discharge as discriminatory under the Americans with
Disabilities Act and the Rehabilitation Act and retaliatory discharge for having asserted
EEO violations. App. 31; Zulueta I at *3; Zulueta v. United States (“Zulueta II”), Case
No. 09-681, Court of Federal Claims, Docket # 13, “Defendant‟s Notice of Filing Court
Documents” (Complaint filed in United States District Court, Middle District of
Tennessee, at 1-3).

        In a letter to Ms. Zulueta dated May 2, 2007, the USPS reviewed its handling of
the Settlement Agreement, concluded that the agreement had not been breached because
Mr. Jenkins had in fact conducted the investigation, and accordingly issued a final agency
determination (“FAD”) that it would not reinstate Ms. Zulueta‟s EEO complaint that led
to the Settlement Agreement. App. 31-32. The USPS EEO investigation of the
Settlement Agreement was assigned a case number, or “Agency No.,” of 4H-370-0016-
06 (subsequently corrected to 1H-371-0016-6; see A. Compl. Exh. 36, App. 61).3 Ms.
Zulueta then appealed to the United States Equal Employment Opportunity Commission
(“EEOC” or “the Commission”) on June 4, 2007. App. 33-36.

       In the interim, on March 10, 2008, Ms. Zulueta filed a complaint, Case No. 3-08-
0246, in United States District Court for the Middle District of Tennessee alleging
discrimination and retaliation in connection with her discharge effective in January 2007.
Zulueta II, Docket # 13.

3
  Ms. Zulueta‟s complaints regarding discrimination and retaliation, etc., were apparently the subject of a
separate USPS EEO investigation, assigned a case number of 1H-371-0004-07. See A. Compl. Exh. 36;
App. 61.

                                                    -3-
        On July 8, 2008, the EEOC found that the USPS had failed to supply
documentation of its investigation pursuant to the Settlement Agreement and accordingly
reinstated Ms. Zulueta‟s original EEO complaint. App. 40-45. The Commission held
that the agency had failed to meet its burden of proof in support of its FAD. “Therefore,
we find that the agency breached the agreement.” App. 41. The EEOC decision advised,
however, that “complainant‟s FFDE, termination, and concerns with complaint
processing are matters that should be addressed as part of” Ms. Zulueta‟s separate
complaint, not as part of her “settlement breach claim.” Id. It recommended instead that
Ms. Zulueta reinstate the particular EEO concerns that had led to the Settlement
Agreement.

       In resuming her complaint to the USPS EEO Office on August 29, 2008,
however, Ms. Zulueta alleged “discrimination under a very hostile workplace
environment.” More specifically, she asserted

              The most important of which are the FFDE issues,
              termination issues, and concerns with complaint processing
              are matters that should be addressed as part of my
              complaint not just the instant settlement breach claim as
              noted by the EEOC in its decision and order found in the
              attached folder, page 11, last paragraph.

App. 53.

        Based on this iteration of post- rather than pre-Settlement Agreement EEO
complaints, the USPS EEO Office again dismissed her case. App. 61-63. In its
dismissal, dated September 24, 2008, it observed that Ms. Zulueta had previously
initiated an identical complaint in “Case Number 1H-371-0004-07.” That complaint was
accepted for investigation on March 28, 2007, in which the accepted issues read:

              The Complainant alleges discrimination based on Physical
              Disability (Unspecified), Mental Disability (Unspecified),
              and Retaliation (prior EEO activity) in that since August
              29, 2006, she was subjected to harassment when she was
              bullied and threatened with words and acts, her wages were
              withheld and her pay records were delayed, and physicians
              were conspired with to create a condition of physical and
              mental stability; on December 8, 2006, she was issued a
              Notice of 7-day suspension; on December 14, 2006, she
              was instructed to report for a fitness-for-duty examination;
              on December 15, 2006, she was placed in a non-duty paid
              leave status; and on December 29, 2006, she was issued a
              Notice of Separation charging her with Medical Inability to
              Perform the Requirements of her Position.



                                           -4-
A. Compl. Exh. 36.

         The Postal Service had already issued a final decision in that case, on January 11,
2008, finding no discrimination. Id. In its September 2008 dismissal, the USPS EEO
Office explained that, under EEOC regulations, an agency must dismiss a complaint that
states the same claim as one pending or that has already been decided. Thus, rather than
articulating her breach of Settlement Agreement claim, in the latter case the Postal
Service found that “you are alleging discrimination based on retaliation when you were
threatened, scheduled for fitness for duty examination(s), suspended, and terminated. It
is clear that you are raising the same issues for which AJ [Administrative Judge]
Rodriguez made a finding of no discrimination in Case Number 1H-371-004-07.” Id.

        As a result, on October 10, 2008, Ms. Zulueta then filed a second complaint, Case
No. 3-08-0998, in the United States District Court for the Middle District of Tennessee,
in which she asserted as a cause of action, “Breach of Settlement Agreement.” The
District Court, however, determined on March 3, 2009, that Plaintiff‟s breach of
settlement agreement claim against the Federal Government, seeking damages exceeding
that court‟s jurisdictional limit, belonged more properly in the United States Court of
Federal Claims.

        In June 2009, on Plaintiff‟s separate disability discrimination and retaliation
claim, the United States District Court granted summary judgment in favor of the
Government on all counts. Zulueta I at *10.


   II.     Standards of Review

        It is well-established that subject-matter jurisdiction is “a threshold question that
must be resolved . . . before proceeding to the merits” of a claim. Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 88-89 (1998). When jurisdiction is challenged, the inquiry
thus goes not to whether a plaintiff will ultimately prevail, but whether this court has
jurisdiction to hear the matter in the first instance. See Patton v. United States, 64 Fed.
Cl. 768, 773 (2005) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). “Without
jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare
the law, and when it ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.)
506, 514 (1868).

        In weighing a motion to dismiss for lack of subject-matter jurisdiction, the Court
is “obligated to assume all factual allegations to be true and to draw all reasonable
inferences in [the] plaintiff‟s favor.” Henke v. United States, 60 F.3d 795, 797 (Fed. Cir.
1995). Nevertheless, when this court‟s jurisdiction is challenged, it is the plaintiff‟s
burden to demonstrate jurisdiction by a preponderance of the evidence. McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Reynolds v. Army & Air Force
Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).



                                             -5-
        When a party is acting pro se, courts generally accord the party greater leeway
than if he or she had professional representation. See, e.g., Haines v. Kerner, 404 U.S.
519, 520-21 (1972) (requiring that allegations contained in a pro se complaint be held to
“less stringent standards than formal pleadings drafted by lawyers”); Forshey v. Principi,
284 F.3d 1335, 1337 (Fed. Cir. 2002).

        “While a court should be receptive,” however, “to pro se plaintiffs and assist
them,” it must not cross the line between finder of fact and advocate. Demes v. United
States, 52 Fed. Cl. 365, 369 (2002). Moreover, “the leniency afforded to a pro se litigant
with respect to mere formalities does not relieve the burden to meet jurisdictional
requirements.” Minehan v. United States, 75 Fed. Cl. 249, 253 (2007) (citing Kelley v.
Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987)).

        Even where subject matter jurisdiction over a claim has been established, the
claim may be subject to dismissal for “failure to state a claim upon which relief may be
granted,” pursuant to RCFC 12(b)(6). The allegations of the complaint are construed
favorably to the pleader, Scheuer, 416 U.S. at 236, but the “complaint must contain
sufficient factual matter, accepted as true, to „state a claim to relief that is plausible on its
face.‟” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.

         Dismissal for failure to state a claim is warranted only when it is “„beyond doubt
that the plaintiff can prove no set of facts in support of his claim [that] would entitle him
to relief.‟” Ponder v. United States, 117 F.3d 549, 552-53 (Fed. Cir. 1997) (cert. denied,
522 U.S. 1110 (1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

    III.    Discussion

    A. Motion to Dismiss for Lack of Jurisdiction

       The jurisdiction of the United States Court of Federal Claims is established by the
Tucker Act. 28 U.S.C. § 1491. The Act provides:

                The United States Court of Federal Claims shall have
                jurisdiction to render judgment upon any claim against the
                United States founded either upon the Constitution, or any
                Act of Congress or any regulation of an executive
                department, or upon any express or implied contract with
                the United States, or for liquidated or unliquidated damages
                in cases not sounding in tort.

28 U.S.C. § 1491(a)(1).




                                               -6-
        The Tucker Act itself, however, “does not create substantive rights. Rather, it is a
jurisdictional provision „that operate[s] to waive sovereign immunity for claims premised
on other sources of law (e.g., statutes or contracts).‟” Holmes v. United States, 657 F.3d
1303, 1309 (Fed. Cir. 2011) (quoting United States v. Navajo Nation, 556 U.S. 287, 290
(2009)).

        The Federal Circuit has explained that the substantive right must stem from
another source of law, such as a “money-mandating constitutional provision, statute or
regulation that has been violated, or an express or implied contract with the United
States.” Loveladies Harbour, Inc. v. United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994).
The “other source of law,” however, “need not explicitly provide that the right or duty it
creates is enforceable through a suit for damages, but it triggers liability only if it „can
fairly be interpreted as mandating compensation by the Federal Government.‟” Holmes,
657 F.3d at 1309 (quoting Navajo Nation, 556 U.S. at 290).

       Defendant argues that Ms. Zulueta‟s present claims for reinstatement, money
damages, and back pay should be dismissed for lack of jurisdiction because the
settlement agreement at issue “does not contain a money-mandating source.” Def.‟s
Reply 1. Defendant noted that the agreement itself “makes no mention of money owed to
Ms. Zulueta, or money damages that she would be entitled to in the event of a breach,”
nor does it “„inherently relate to monetary compensation.‟” Id. at 1-2 (quoting Holmes,
657 F.3d at 1315).

        In Holmes, the Federal Circuit addressed whether a claimant‟s two agreements
with the Navy “could support a fair inference that he is entitled to the payment of money
damages for breach, or was required to demonstrate that the two agreements could fairly
be interpreted that way.” Id. at 1312. The plaintiff argued that the agreements were
express contracts and, as such, money damages were the presumptive remedy. The court
determined that the money-mandating inquiry for Tucker Act jurisdiction was different
for contract-based claims than for constitutional, statutory, or regulatory claims because,
generally, damages are the default remedy for breach of contract. The court observed,
“[I]n a contract case, the money-mandating requirement for Tucker Act jurisdiction
normally is satisfied by the presumption that money damages are available for breach of
contract, with no further inquiry being necessary.” Id. at 1314. Nevertheless, the Federal
Circuit recognized that the government‟s “„consent to suit under the Tucker Act does not
extend to every contract,‟” id. (quoting Rick’s Mushroom Service, Inc. v. United States,
521 F.3d 1338, 1343 (Fed. Cir. 2008)), such as contracts expressly disavowing money
damages or agreements in a criminal case. Thus, it found it proper for the trial court “to
require a demonstration that the agreements could fairly be interpreted as contemplating
money damages in the event of breach.” Id. at 1315.

       In that respect, the court in Holmes found that the two agreements in question,
under which the Navy agreed to remove certain adverse performance evaluations and
records of disciplinary action and to expunge reference to a suspension, “clearly was to
prevent Mr. Holmes from being denied future employment based on his record as the
Navy maintained it prior to the agreements.” Id. at 1316. “In short, the agreements

                                             -7-
inherently relate to monetary compensation through relationship to Mr. Holmes‟s future
employment.” Id. Accordingly, the court found jurisdiction in the Court of Federal
Claims over the plaintiff‟s action for breach of the agreements.

        In Cunningham v. United States, 2012 WL 6720428 (Fed. Cl., Dec. 20, 2012), the
Court of Federal Claims faced a similar inquiry. There, the plaintiff alleged breach of a
settlement agreement under which the United States Office of Personnel Management
had agreed to replace his termination record with a record indicating that he had resigned
his position, to remove his termination letter, and to delimit responses to employment
inquiries about his past service. The trial court found that the “clear purpose of those
obligations was to ensure that Mr. Cunningham‟s ability to secure future employment (by
which plaintiff obviously expected to earn money) would not be harmed by his dispute
with OPM.” Id. at *12. In light of the Federal Circuit‟s holding in Holmes, the
Cunningham court found that “Mr. Cunningham‟s settlement agreement with OPM may
be fairly interpreted as mandating the payment of damages by the government in the
event of breach by the government” and therefore denied the Government‟s motion to
dismiss for lack of subject matter jurisdiction. Id. at *13.

        The question before the court here, for purposes of subject matter jurisdiction, is
whether the court may reasonably infer from the Settlement Agreement that the USPS
reached with Ms. Zulueta on October 13, 2006, a contemplation of the payment of money
damages in the event of breach of the agreement. While the agreement specifically
merely required that the Postal Service “investigate” Ms. Zulueta‟s allegations that
threats of physical harm were directed against her by fellow employees, “based on names
in Mrs. Zulueta‟s EEO complaint,” the handwritten notes in which she made her
complaint in two instances clearly state a fear that she was being driven from her job.
“Or another [illegible] closely working w/ my employer – by making all things hard for
me hoping to make me quit my job . . .” App. 10. “One even said „that‟s what you get if
you don‟t quit.‟” App. 15.

        Whether such fears were sound, it can reasonably be inferred that the purpose of
the Agreement – that the Postal Service perform its investigation – was to assuage the
workplace environment such that Ms. Zulueta would not be driven to resign her position
and lose the income from her employment there. The Court therefore finds, under these
particular factual circumstances, that the Settlement Agreement was money-mandating
for purposes of establishing subject matter jurisdiction. Accordingly, Defendant‟s motion
to dismiss pursuant to RCFC 12(b)(1) is denied.

   B. Dismissal for Failure to State a Claim

         The Government argues, in the alternative, that Ms. Zulueta‟s complaint fails to
state a claim because the alleged breach of the Settlement Agreement is not the proximate
cause of the damages sought. It notes that, to recover for breach of contract, a plaintiff
must allege and establish: “(1) a valid contract between the parties, (2) an obligation or
duty arising out of that duty, (3) a breach of that duty, and (4) damages caused by the



                                            -8-
breach.” San Carlos Irrigation and Drainage Dist. v. United States, 877 F.2d 957, 959
(Fed. Cir. 1989); see also Westover v. United States, 71 Fed. Cl. 635, 640 (2006).

        With respect to the fourth element above, “damages caused by the breach,”
Defendant notes that, in her complaint, Ms. Zulueta seeks $300,000 in damages or an
unspecified amount of back pay, reinstatement to her position (with no loss in seniority),
and to be put “back into the situation she would have been in if the discrimination had not
occurred.” A. Compl. 8.

        It appears, however, that the remedies Plaintiff seeks relate not to the breach of
the Settlement Agreement, but rather to the subsequent actions of the Postal Service in
relieving her of her position. As Defendant argues, “Indeed, the alleged failure to
investigate could not be the source of Ms. Zulueta‟s entitlement to reinstatement,
damages related to separation, or back pay, because she was not separated from her
position until after her allegation of breach of the settlement agreement.” Def.‟s Mot. 13.

         In this regard, the Court notes that Ms. Zulueta‟s instant complaint for breach of
the Settlement Agreement reflects the same, albeit understandable, confusion that
stymied her administrative entreaty to the Postal Services‟ EEO office – that of conflating
two potential avenues of complaint, first, the Settlement Agreement, and second, the
subsequent complaint regarding the loss of her job at the Post Office. The focus of her
cause of action in this court, as transferred from the United District Court for the Middle
District of Tennesee, is an allegation of breach of contract, i.e., the Settlement
Agreement. Her other cause of action – for discrimination, etc. – was lodged separately
at that same court and was decided against her. See Zulueta I.

        This Court concurs with Defendant that Plaintiff has failed to allege damages
caused by the breach of contract. On that basis alone, the Court finds it necessary to
grant Defendant‟s motion to dismiss for failure to state a claim. In addition, moreover,
the Court finds that Ms. Zulueta‟s complaint founders as well on the requirement that she
establish a breach of the Settlement Agreement in the first place, the third element
required under the Federal Circuit‟s guidance in San Carlos.

         Ordinarily, matters outside the pleadings are not considered in a motion to dismiss
for failure to state a claim (or for lack of jurisdiction, unless they relate to the
jurisdictional issue; see Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991)),
or else the motion must be converted to one for summary judgment and allowance made
for the parties to obtain discovery. Sebastain v. United States, 185 F.3d 1368, 1374 (Fed.
Cir. 1999).4 “In deciding whether to dismiss a complaint under Rule 12(b)(6),” however,
“the court may consider matters of public record.” Id.; see also Ground Improvement
Techniques, Inc. v. United States, 2012 WL 6061763 at *4 n.5 (Fed. Cl. Dec. 5, 2012)
(court documents may be considered without converting motion to dismiss into motion
for summary judgment); Albino v. United States, 104 Fed. Cl. 801, 807 n.2 (2012); 5B

4
  In Schism v. United States, 239 F.3d 1280, 1289 n.2, the Federal Circuit noted that the lead appellant‟s
name in Sebastain was misspelled. “It should be Sebastian,” but the court determined it would use the case
name as reported in the Federal Reporter (including in prior and subsequent case history).

                                                   -9-
Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed.
2004) (“items subject to judicial notice” may be considered without converting Rule
12(b)(6) motion to motion for summary judgment).

        Thus, this Court notes the findings of fact taken from the decision of the U.S.
District Court in Zulueta I, in which the district court found as follows:

                 Supervisor Jenkins interviewed Plaintiff‟s co-workers
                 regarding Plaintiff‟s allegations that they threatened and
                 harassed her. (Docket Entry No. 12, Attachment 8). The
                 co-workers submitted written statements denying Plaintiff‟s
                 factual allegations. Id. Based upon the „serious claims
                 against co-workers about wanting to take her life and
                 property,‟ Jenkins recommended that Plaintiff participate in
                 a Fitness-For-Duty investigation. (Docket Entry No. 12,
                 Attachment 9).

Zulueta I at *2.

         Taking judicial notice of this finding by the District Court in Tennessee, this
Court finds therefore that Plaintiff can prove no set of facts that would entitle her to relief
on her allegation of breach of contract. Per the Settlement Agreement, the USPS was
obliged to conduct an investigation into the threats against her alleged by Ms. Zulueta. It
did in fact conduct such an investigation. 5 Accordingly, Defendant‟s motion to dismiss
for failure to state a claim is granted.

    IV.      Conclusion

       For the reasons stated above, although the Court denies Defendant‟s motion to
dismiss for lack of jurisdiction, Plaintiff‟s complaint is dismissed for failure to state a
claim on which relief can be granted.

          The Clerk is ordered to enter judgment accordingly.


                                                                      ________________________
                                                                      EDWARD J. DAMICH
                                                                      Judge




5
  In her response to the Government‟s motion to dismiss, Plaintiff does not even directly contest whether
the USPS conducted an investigation per the Settlement Agreement. Rather, she only alludes to the finding
of the EEOC that the Agreement was breached, which the EEOC had concluded on the grounds that the
Postal Service had apparently failed to provide documentation of its investigation.

                                                  -10-
