TABLE OF CONTENTS
I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . .1
II. STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . .3
III. UNDISPUTED AND DISPUTED MATERIAL FACTS. . . . . . . . . . .5
IV. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . .8
A. THE EEOC MAY FIND LIABILITY ON THE PART OF THE AGENCY
WITHOUT A HEARING BUT MAY NOT DISMISS COMPLAINTS
WHERE MATERIAL FACTS ARE IN DISPUTE. . . . . . . . . .8
1. The Regulations Authorize Issuing Findings and
Conclusions re: Liability of the USPS Based on the
Undisputed Facts in the Record. . . . . . . . .8
2. The EEOC Requires the Evidence to be Viewed in the
Light Most Favorable to Complainants. . . . . . 10
3. The U. S. Postal Service Is Required to Assure Non-
Discrimination on Account of Age and Has an Affirmative
Duty to Accommodate Disabilities. . . . . . . . 12
B. DISPARATE IMPACT IS PROVEN WHEN THE U.S. POSTAL
SERVICE IS SHOWN TO HAVE TAKEN AN ACTION WHICH FALLS
MORE HARSHLY ON ONE GROUP ON ACCOUNT OF THEIR
AGE/DISABILITY AND CANNOT BE JUSTIFIED BY BUSINESS
NECESSITY. . . . . . . . . . . . . . . . . . . . . . 12
1. The Policy of Decentralizing the Special Delivery Unit had
a Disproportionate Adverse Impact on Older, Female and
Disabled Workers. . . . . . . . . . . . . . . 14
2. The U. S. Postal Service Did Not Have a Business
Necessity Justifying the Decision to Decentralize the
Special Delivery Unit.. . . . . . . . . . . . . 15
C. THE DECENTRALIZATION DECISION WAS A PRETEXT FOR
UNLAWFUL DISCRIMINATION. . . . . . . . . . . . . . . 18
1. The Decision to Decentralize the Special Delivery Unit Was Based
on an Unlawful Motive: the Combined Effects of Age, Race,
Gender and Disabilities. . . . . . . . . . . . 18
2. Direct Evidence Establishes That the Decision to Decentralize the
Special Delivery Unit Was Discriminatory. . . . 19
3. Direct Evidence Establishes That the Decision to Decentralize the
Special Delivery Unit Was Discriminatory Against Older
Employees. . . . . . . . . . . . . . . . . . . 20
4. Assuming Arguendo, No Direct Evidence Existed, a Prima Facie
Case May Be Established under the McDonnell-Douglas Disparate
Treatment Formula. . . . . . . . . . . . . . . 22
5. The Decision to Decentralize the Special Delivery Unit was a
Pretext for Unlawful Discrimination. . . . . . 22
6. Complainants Were "Aggrieved" as a Result of the Decision to
Decentralize. . . . . . . . . . . . . . . . . . 23
D. MANY OF THE COMPLAINANTS WERE THE VICTIM OF
DISABILITY DISCRIMINATION AND THE POSTAL SERVICE
TOOK AWAY ACCOMMODATION OF THEIR DISABILITIES. . . . 25
V. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . 28
MARY DRYOVAGE
Law Office of Mary Dryovage
1231 Market Street, Penthouse West
San Francisco, CA 94103
Telephone: (415) 487-2644
Attorney for Complainants
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
SAN FRANCISCO REGIONAL OFFICE
) Case Nos. 370-98-X2335 to
ROBERT BLACK, et. al., ) 370-98-X2363 (Consolidated Cases)
)
Complainants, ) COMPLAINANTS' BRIEF
) RE: DETERMINATION THAT
vs. ) U.S.P.S. DISCRIMINATED
) AGAINST COMPLAINTANTS
WILLIAM HENDERSON, ) BASED ON THEIR AGE, RACE
POSTMASTER GENERAL OF THE ) SEX, DISABILITY AND/OR
UNITED STATES POSTAL SERVICE ) RETALIATION FOR FILING
) PRIOR EEO COMPLAINTS
Agency. )
)
I. INTRODUCTION
Pursuant to 29 C.F.R. 1614.109(d)(3) and the Acknowledgment Order, dated February
25, 1998, Complainants move for a finding of liability against the USPS for disparate treatment
and disparate impact based on undisputed facts: the complainants are members of a protected
group based on their age and/or disabilities plus other factors (national origin, race, sex, and
retaliation for filing prior EEO complaints and grievances concerning discrimination); the
decision to decentralize the Special Delivery Unit in January 1991 and continuing harassment
had an adverse impact on them; the agency has no valid basis for claiming a legitimate
justification existed for its decision to implement a decentralization of the Special Delivery Unit,
General Mail facility, San Francisco, California.
In this case, the justification for decentralizing the Special Delivery Unit has been shown
to be pretextual by the following evidence: 1) It is undisputed that the Eaton arbitration award,
dated June 10, 1997, which is now final and binding on the agency is part of the record. This
decision establishes that the USPS decision to decentralize violated the collective bargaining
agreement and was not valid. 2) The USPS has elected not to contest the EEOC Administrative
Judge's Order, dated March 1, 1994, finding that certain facts are taken as established, as a
sanction for failing to comply with discovery orders. These facts establish inter alia that the
USPS decision to decentralize was discriminatory in its impact on older and disabled employees.
3) The Complainants testified to numerous instances of ageist remarks made by USPS managers
and supervisors indicating that the reason for decentralizing the Special Delivery unit was to get
rid of older and disabled Messengers. 4) Documentation provided by the USPS shows that the
Complainants were replaced by younger employees. 5) Dallas Keck, who was responsible for
making the decision to decentralize, admitted in his deposition that he knew there would be an
adverse impact on older and disabled employees at the time he made the decision. 6) Linda
Shumate admitted in her deposition that she had no basis for claiming that the decision was made
in order to save money on the cost of the USPS vehicles. 7) The Complainants' declarations
establish the adverse consequences of this decision and the aftermath of harassment and refusal
to accommodate disabilities that resulted. The complainants request that liability be found and a
hearing be held to determine the amount of pay and damages which are owing to each of them.
At a minimum, the prima facie case has been established and a hearing must be held.
II. STATEMENT OF FACTS
This action stems from the United States Postal Service's decision to implement a
decentralization of the Special Delivery Unit, General Mail Facility, San Francisco, California, in
January 1991. Older and disabled employees were concentrated in the Special Delivery Unit. The
Complainants in this case consist of twenty-nine agency employees and each of the them filed
identical EEO complaints raising various bases of discrimination and alleging that the agency's
decision to decentralize the Special Delivery Unit adversely affected the terms and conditions of
their employment.
The agency issued identical final agency decisions (FAD) on all twenty-nine complaints,
rejecting the complaints on the grounds that the complainants were not aggrieved as required by
29 C.F.R. 1613.212(a).The agency also found that the complaints involved a matter which was
covered under the collective bargaining agreement and was, therefore, more appropriately
pursued through the negotiated grievance process. All twenty-nine complainants filed appeals
with the Commission, requesting their disparate treatment and disparate impact complaints be
reopened. The FAD for all twenty-nine complaints was reversed by the EEOC. See Exhibit A,
Philip Dancel v. Marvin T. Runyon, EEOC Order Granting of Request to Reopen, No
05920466, dated August 13, 1992. The cases were consolidated and sent back to the USPS for
investigation.
After the investigation was completed, the case was sent to the EEOC for hearing. The
Acknowledgment Order, dated August 19, 1993 notified the parties of the right to seek discovery
prior to the hearing, pursuant to 29 C.F.R. 1614.109(b). On September 18, 1993, Robert Black,
the Complainants's representative, sent the agency's representative, Guy Ono, the Complainants
Interrogatories and Document Request, as well as Complainants Notice of Deposition of Agency
Employees. The USPS refused to respond. A motion to compel was brought by complainants'
representative. The USPS was ordered to answer the interrogatories and requests for documents
on December 20, 1993. They refused to comply with the AJ's order. The EEOC Administrative
Judge granted a further motion for sanctions, including, that certain facts are taken as established
and granted an extension of the discovery cut-off date. See Exhibit B, Order Granting Motion
for Sanctions and Extension of Discovery Cut-off Date, March 1, 1994.
The Complainants each settled their cases, with the agreement that their complaints be
held in abeyance pending the issuance of the Arbitrator William Eaton's decision concerning the
violation of the Collective Bargaining Agreement. The settlement agreement contained a proviso
that "if the herein complaint goes forward to hearing by the EEOC, all discovery heretofore
conducted, including, but not limited to requests for admissions, interrogatories, production of
documents, depositions, and all Orders by the Administrative Judge related to Motions to
Compel and Motions for Sanctions and the Agency's Appeal to Order Granting Sanctions and
extension of Discovery Date shall be in full force and effect, shall be included in the hearing
record, and shall be considered by the Administrative Judge assigned to hear the herein
complaint". See Exhibit C, Settlement Agreement, March 17, 1994. The USPS does not
contest the EEOC's Sanction Order.
Arbitrator Eaton found that the Postal Service violated Articles 19, 40 and the Special
Delivery Craft Memorandum of Understanding when it decentralized the Special Delivery Unit.
See Exhibit D, Arbitration Opinion and Award, June 10, 1997. The USPS does not contest
the application of the findings in the Arbitration Opinion to this case. USPS Supplementary
Response, June 11, 1998.
III. UNDISPUTED AND DISPUTED MATERIAL FACTS
A. Pursuant to the Order Granting Motion for Sanctions and Extension of Discovery
Cut-off Date, March 1, 1994, the following facts are deemed uncontroverted:
1. The only document used to develop and implement the plan to
decentralize the Special Delivery Units in the U.S. Postal Service was the Special Delivery Unit
Review, dated June 18, 1990, Plan A.
2. The Budget Formulation Meetings in 1988, 1989, 1990, and 1991,
included discussions concerning the justification for decentralizing the Special Delivery unit in
San Francisco.
3. San Francisco Postmaster Dallas Keck was present at the Budget
Formulation Meetings during the time he served as Postmaster for the San Francisco Postal
Service.
4. Based on decisions in 1989 made by Mr. Keck in the Budget Formulation
Meetings, subordinate employees were ordered to find a way to excess employees in the Special
Delivery unit.
5. The decision to decentralize the Special Delivery unit was made during
Budget Formulation Meetings by Mr. Keck.
6. Mr. Keck had knowledge of and discussed the adverse impact of the
decisions to decentralize the Special Delivery unit on disabled, minority and older workers
during the Budget Formulation Meetings.
7. Orders were given to reduce the number of hours in the Special Delivery
unit before the analysis was done.
8. No valid data was relied on by Mr. Keck to support the reduction of hours
in the Special Delivery unit prior to the effective date of the decision.
9. There was no legitimate budgetary justification for decentralizing the
Special Delivery unit.
10. The flash reports, operations reports and budget plans show the number of
hours of overtime and penalty overtime for the Letter Carriers.
11. As a result of the decision to decentralize the Special Delivery unit, the
overtime and penalty overtime hours for the Letter Carriers in San Francisco increased, while the
number of hours for the Special Delivery craft were decreased.
12. The flash reports for 1989-1991 show that the number of hours were
planned in advance.
13. Unit reviews for the Special Delivery Unit were required to be completed
for each year.
14. The required annual unit reviews were not done for FY 1988, 1990 or
1992.
15. The U.S. Postal Service did not provide the Complainants who have
disabilities with reasonable accommodation at any time relevant to this case.
16. At the time the decision to decentralize the Special Delivery unit went into
effect, the Letter Carriers in the San Francisco Postal Service who replaced Complainants were
younger than Complainants.
The Investigative Files, agency documents, sworn testimony of agency officials and
unrebutted declarations of Complainants establish that the following facts as undisputed:
17. Each of the named complainants filed a timely EEO complaint concerning the
decision to decentralize the Special Delivery unit. See Final Agency Decision, October 25, 1991,
page 1.
18. Each of the named complainants established a prima facie case of discrimination.
Declaration of Complainants.
19. Each of the named complaints is and was a member of a protected group at the
time the decision to decentralize the Special Delivery Unit in San Francisco was made in 1991.
EEO Counselor Elvita White's Report, July 26, 1991.
20. Each of the named complainants worked in the Special Delivery Unit, General
Mail Facility, San Francisco, CA at the time the decision to decentralize the Special Delivery
Unit in San Francisco was made in 1991. Final Agency Decision, page 3.
21. Each of the named complainants was "qualified" for their position as a Special
Delivery Messenger/Distribution Clerk/General Expeditor at the time the decision to decentralize
the Special Delivery Unit in San Francisco was made in 1991.Declaration of Complainants.
22. The Postal Service replaced the Complainants with younger employees by
assigning the work previously done by Special Delivery Craft employees to them. Complainants'
Exhibit E.
23. Disabled Special Delivery Messengers were not given reasonable accommodation
after the decision to decentralize. Declaration of Complainants
24. The intent of the U.S. Postal Service in San Francisco at the time of
decentralization was to reduce or eliminate the Special Delivery unit. See Exhibit D, Arbitration
Opinion and Award, page 46. See Exhibit D, Arbitration Opinion and Award, page 44 referring
to Exhibit AP-KK, Memorandum dated January 4, 1991, "Express Mail Handling Regards to
Eliminating of Special Delivery Messengers" and page 46.
25. Management employees were assigned to "divert special and Express mail to
carriers for delivery" and to conduct Special Delivery Unit Review 30-60 days after
decentralization." That was never done. See Exhibit D, Arbitration Opinion and Award, page 45
referring to Exhibit AP-LL.
B. The material disputed issues of fact include the following:
1. Whether each of the named complainants was adversely affected by the
decision to decentralize the Special Delivery Unit in San Francisco in 1991. Compare Final
Agency Decision, October 25, 1991, page 3 with Declaration of Complainants.
2. What is the appropriate relief for each complainant? Issue bifurcated.
3. Did the USPS comply with arbitration award? Compare Agency
Supplementary Response with Declaration of Complainants re: USPS failed to comply with
arbitration award of back pay for out of schedule hours from January 5, 1991 until April 29,
1992.
IV. ARGUMENT
A. THE EEOC MAY FIND LIABILITY ON THE PART OF THE AGENCY
WITHOUT A HEARING BUT MAY NOT DISMISS COMPLAINTS
WHERE MATERIAL FACTS ARE IN DISPUTE.
1. The Regulations Authorize Issuing Findings and Conclusions re:
Liability of the USPS Based on the Undisputed Facts in the Record.
Section 29 C.F.R. 1614.109(d)(3) authorizes the EEOC administrative judge to issue an
order limiting the scope of the hearing or issue findings and conclusions without holding a
hearing. When an agency fails without good cause to respond to discovery requests and
disregards the AJ's orders to compel discovery, sanctions are authorized by 29 C.F.R.
1614.109(b)(3) Findings and conclusions based on the preclusive order is both reasonable and
appropriate in this case. This is because the USPS has been given many opportunities to present
contrary evidence and has failed to do so. Their efforts to treat the EEOC procedures as a sham
should not be rewarded.
The Settlement Agreement provides that the agency may appeal the Order Granting
Sanctions. See Exhibit B. Having failed to raise that issue, it is estopped from arguing that the
Order is not enforceable. The parties were given notice that the EEOC intended to issue a
decision without hearing on February 25, 1998. The parties were given well over 15 days (nearly
five months, in fact) to present arguments, affidavits, relevant documentary evidence and/or
references to the investigative record. Having failed to bring in any evidence to contradict the
findings, it is estopped from contesting these issues.
The USPS has requested that a decision be made on the record. "The Agency agrees that
no genuine dispute of material facts or questions of credibility exist and concurs with the
Administrative Judge's Order of Intention". See Agency Response, dated March 16, 1998. It
submitted a supplementary response on June 11, 1998, but still presented no additional evidence
whatsoever. On April 29, 1998, a prehearing conference was held, in which it was further
explained to the parties that a finding of liability/non-liability based on the undisputed facts was
under consideration. There was no challenge to the order or additional evidence filed at this
point.
Complainants requested that a hearing be held, in the event that the USPS disputed the
facts in the record which establish liability. It was determined that the compensatory damages
would be bifurcated from the liability portion of the case. In the Report of Pre-hearing
Conference, the agency was authorized to file a supplement to its response by June 1, 1998
(although the USPS representative did not request an opportunity to present further arguments or
facts). See McDuffie v. Navy, Request No. 05880134 (1988) (adverse inference can to drawn
from agency's failure to include relevant statistical information in the file.)
To date, the USPS refused to point to any evidence in the record in support of their
position and neglected to present any meritorious legal argument as to why the discovery
sanctions should not be imposed. Under these circumstances, the EEOC is authorized to make a
finding that liability is established.
2. The EEOC Requires the Evidence to be Viewed in the Light Most
Favorable to Complainants.
The 29 C.F.R. 1614.109(e)(3) procedure is similar to the Federal Rule of Civil Procedure,
Rule 56 Motion for Summary Judgment. Ralph D. Fertig, Administrative Judge, and Dawn
Tilman, Supervisory Administrative Judge Los Angeles District Office United States Equal
Employment Opportunity Commission, "Issuing a Decision Without a Hearing in Employment
Discrimination Cases of Federal Employees", FMSR Perspective, September 24, 1996. In ruling
on motions for decisions without a hearing, the Administrative Judge does not resolve conflicting
evidence of disputed material facts, and does not make credibility determinations. T.W. Electric
Service v. Pacific Electric Contractors, 809 F.2d 626 (9th Cir. 1987). Moreover, all inferences
must be drawn in the light most favorable to the non-moving party. Id. at 631. That normally
requires that the documents (including but not limited to the record of investigation) placed
before the Administrative Judge are sufficient and do not require the further probing and
presentation of evidence and testimony in a live examination. Id.
The Commission has said "The hearing is an adjudicatory proceeding which completes
the investigation of a complaint by ensuring that the parties have a fair and reasonable
opportunity to explain and supplement the record and to examine and cross-examine witnesses."
EEOC Federal Sector Complaint Processing Manual, EEO MD-110, Chapter 6, Section I, at page
6-1 (October 1992). As under Rule 56, in this case, the burden of establishing that there is no
genuine issue of material fact lies initially with the moving party and resolution of all doubt
should be in favor of the party opposing the motion. British Airways Board v. Boeing Company
(9th Cir. 1978) 585 F.2d 936, 951. The moving party must identify the specific issues on which it
claims the plaintiff has no supporting evidence: "It is not enough for the movant to bring up the
fact that the record does not contain such an issue and to identify that part of the record which
bears out his assertion." Mt Pleasant v. Associated Elec. Co-op (8th Cir. 1988) 838 F.2d 268,
273. A genuine issue of material fact is raised when the employee points to facts showing the
employer's explanation is not credible, from which a factfinder could infer a retaliatory or
discriminatory motive despite the employer's denial thereof. Warren v. City of Carlsbad (9th Cir.
1995) 58 F3d 439, 443; Clements v. Airport Authority of Washoe County, (9th Cir. 1995) 69 F3d
321, 334-335.
The complaints may not be dismissed if the factual record establishes material facts are in
dispute, whereas, a finding of liability which is based solely on undisputed evidence is
permissible without a hearing.
3. The U. S. Postal Service Is Required to Assure Non- Discrimination on
Account of Age and Has an Affirmative Duty to Accommodate
Disabilities.
The USPS is covered by the Age Discrimination in Employment Act. 29 U.S.C. 633a,
which defines "Federal agencies affected", provides:
All personnel actions affecting employees or applicants for
employment who are at least 40 years of age [ ] in the United
States Postal Service [ ] shall be free from any discrimination
based on age. [Other federal agencies omitted].
29 U.S.C. 633(e) "Duty of Federal agency or official" further states:
Nothing containing in this section shall relieve any Government
agency or official of the responsibility to assure non-discrimination
on account of age in employment as required under any provision
of Federal law.
The USPS is covered by the Rehabilitation Act of 1973, which was amended by the
Americans with Disabilities Act of 1990, 42 USC 12101 et seq.. Initially , under the
Rehabilitation Act regulations, the USPS was required to "become a model employer of the
[disabled]". 29 C.F.R. 1613.701. The Postal Service has an affirmative obligation to make
reasonable accommodation for disabled employees, unless it would impose an undue hardship.
B. DISPARATE IMPACT IS PROVEN WHEN THE U.S. POSTAL SERVICE
IS SHOWN TO HAVE TAKEN AN ACTION WHICH FALLS MORE
HARSHLY ON ONE GROUP ON ACCOUNT OF THEIR
AGE/DISABILITY AND CANNOT BE JUSTIFIED BY BUSINESS
NECESSITY.
In these consolidated cases, complainants have raised disparate treatment and disparate
impact theories. In Hazen Paper Company v. Biggins, (1993) 507 US 604, 123 L. Ed. 2d 338,
113 S. Ct. 1701, Justice O'Connor explained the distinction between the disparate treatment and
disparate impact theories as follows:
We long have distinguished between "disparate treatment" and
"disparate impact" theories of discrimination.
‘Disparate treatment' . . . is the most easily understood type of
discrimination. The employer simply treats some people less
favorably than others because of their race, color, religion [or other
protected characteristics.] Proof of discriminatory motive is
critical, although it can in some situations be inferred from the
mere fact of differences in treatment. . . .
[C]laims that stress "disparate impact" [by contrast]
involve employment practices that are facially
neutral in their treatment of different groups but that
in fact fall more harshly on one group than another
and cannot be justified by business necessity. Proof
of discriminatory motive . . . is not required
under a disparate impact theory. Teamsters v.
United States, 431 U.S. 324, 335, n.15 (1977).
Id. at 507 U.S. 609. As first articulated by the United States Supreme Court in Griggs v. Duke
Power Co., 401 U.S. 424, 28 L.Ed 158, 91 S. Ct. 849 (1971), the disparate impact theory
specifically applies to "practices, procedures, or tests neutral on their face, and even neutral in
terms of intent" (401 U.S. at 430) and it was further noted that "good intent or absence of
discriminatory intent does not redeem employment procedures or testing mechanisms that
operate as "built-in headwinds" for minority groups and are unrelated to measuring job
capability". Id at 401 U.S. 432.
In Douglas v. Anderson, 656 F.2d 528, 531, note 1 (9th Cir. 1981), the Ninth Circuit has
recognized in a disparate treatment age discrimination case that "discrimination may also be
shown on a disparate impact theory, which focuses on the discriminatory consequences of an
employment policy that is neutral on its face. See Griggs v. Duke Power Co.,401 U.S. 424, 28
L.Ed 158, 91 S. Ct. 849 (1971)".
The Commission has held in its Enforcement Guidance on implementing St. Mary's
Honor Center v. Hicks, June 20, 1994, that "Hicks applies only to disparate treatment cases that
involve circumstantial evidence. The McDonnell Douglas/Hicks framework for drawing an
inference of discrimination is not relevant when discrimination can be proved directly. Thus, the
Hicks decision does not affect Commission processing of charges where the allegations can be
proven solely by direct evidence. Moreover, since Hicks involves a determination of
discriminatory intent (or motive), it is inapplicable to disparate impact cases. . . . In most cases,
before and after Hicks, if the evidence shows that the respondent's articulated reasons are untrue,
it can be assumed that the employer is trying to cover up discrimination, and, hence, that a
finding of "cause" is appropriate." Id. Thus, the USPS decision to decentralize is unlawful both
because it has a disparate impact on older and disabled workers and because the reason for taking
this action was demonstrably pretextual, as discussed below.
1. The Policy of Decentralizing the Special Delivery Unit had a
Disproportionate Adverse Impact on Older, Female and Disabled
Workers.
There is no question that the decentralization decision had a disparate impact on older and
disabled workers. The Special Delivery Unit was composed predominantly of people over age
40. See Deposition of Dan Murray, page 62:16-24, page 64:3-9. The Special Delivery
Messengers were replaced by substantially younger employees from the Letter Carrier Craft. See
Declaration of Complainants. The average age of the San Francisco letter carriers is well below
40 years of age. See Investigative File, Declaration of David P. Welsh, Executive Vice President
of Branch 214, National Association of Letter Carriers, Attachment R. The investigative file
shows that the former seniority date for each of the employees in the Special Delivery Unit
ranged from 1952 until 1985. See Investigative File, Exhibit 4B and 4C. The record shows that
all of the Letter Carriers who given full-time jobs in the Special Delivery unit immediately
following the implementation of decentralization were in their 20's and early 30's; none were
"limited duty" or "disabled" employees. See Declaration of Complainants.
2. The USPS Did Not Have a Business Necessity Justifying the Decision
to Decentralize the Special Delivery Unit.
The Arbitration Award established that there was no "business necessity" which justified
the decision to decentralize the Special Delivery Unit at the time the decision was made in
January 1991. See Exhibit D, Arbitration Opinion and Award, page 50-51. Arbitrator Eaton
found:
The matter of an initial violation is clarified by examining the unit
review issue immediately following decentralization together with,
as the APWU puts it, the "Secret Game Plan" of the Postal Service
in formulating its decentralization program. Having decentralized
without sufficient analytical justification at the time, the Postal
Service itself clearly saw the necessity to perform a unit review
within a reasonable time afterwards. Its failure to do so further
demonstrates that the purpose at the time was to reduce or
eliminate the SDM unit, whether there was justification shown
for it or not. For that violation a remedy is required.
Id. at 50. According to its own documentation, the Postal Service "Management Team" was
required to conduct a Special Delivery Unit Review within 30-60-90 days after decentralization
to justify the reduction or elimination of the Special Delivery Unit, but did not do it. Id. at 45.
The USPS initially claimed that the reason for decentralizing the Special Delivery Unit
was to save wear and tear on the vehicles. (Declaration of Robert Black, paragraph 7) However,
no studies were done prior to the decision to decentralize and no evidence was introduced to
support USPS claim that wear and tear on the vehicles was a legitimate reason. Linda Shumate,
USPS Personnel Specialist, who testified at the arbitration hearing that "wear and tear on the
vehicles" was the reason, admitted at her deposition that she had no factual basis for this claim.
See Linda Shumate deposition, page 66:9-24.
There were no studies done prior to the decision to decentralized to determine whether
there would be any savings in the cost of maintaining the vehicles, whether there would be a
positive or negative impact on the service, whether the amount of overtime would increase or
decrease. See Jack Griffin deposition, page 14:17-20, 19:21-23; See Dan Murray deposition,
page 32:13-25, 43:2-25, 53:3-16. Dan Murray, the manager in charge of the decision to
decentralize, was not given any justification for the elimination of Tour three. See Dan Murray
deposition, page 27:10-13.
The USPS does not point to any evidence in the record to support a finding that at the
time it made the decision to decentralize, the reason was to "improve efficiency". However, it
seeks to bring in "after-acquired evidence", namely after-the-fact studies done for the purpose of
proving the legitimacy of its decision. The U.S. Supreme Court in McKennon v. Nashville
Banner Publishing Co., 115 S. Ct. 879, 66 FEP Cases 1192, 1195 (1995) rejected the use of
"after-acquired evidence" as contrary to the purpose of the ADEA:
The ADEA, enacted in 1967 as part of an ongoing congressional
effort to eradicate discrimination in the workplace, reflects a
societal condemnation of invidious bias in employment decisions.
The ADEA is but part of a wider statutory scheme to protect
employees in the workplace nationwide. . . .
The ADEA and Title VII share common substantive features and
also a common purpose: "the elimination of discrimination in the
workplace." [citation omitted] Congress designed the remedial
measures in these statutes to serve as a "spur or catalyst" to cause
employers "to self-examine and to self-evaluate their employment
practices and to endeavor to eliminate, so far as possible, the last
vestiges" of discrimination. [citations omitted] Deterrence is one
object of these statutes. Compensation for injuries caused by the
prohibited discrimination is another. . . .
It would not accord with this scheme if after-acquired evidence of
wrongdoing that would have resulted in termination operates, in
every instance, to bar all relief for an earlier violation of the Act.
Here, the after-invented evidence is not of "wrongdoing" on the part of the Complainants, but
manufactured evidence that purports to justify the decision made in 1991 to decentralize the
Special Delivery Unit. Undisputably, the USPS controlled the flow of work, the assignment of
duties, the business records which documented the volume of mail, etc.
The USPS failed to disclose the actual statistics concerning the purported "efficiency" of
this decision and then refused to turn over that evidence in discovery. The Postal Service
acknowledged the need to conduct timely unit reviews, but the managers admitted that none
existed at the time. Under these circumstances, it would be impermissible to use the agency's
purported "after-invented evidence" [which is not in the record, except the mention in the
arbitration opinion] to undermine the Complainants' claims. Moreover, the fact that the USPS
chose to justify the 1991 decision using evidence created years later is itself evidence of
"pretext", as discussed below.
C. THE DECENTRALIZATION DECISION WAS A PRETEXT FOR
UNLAWFUL DISCRIMINATION.
1. The Decision to Decentralize the Special Delivery Unit Was Based on
an Unlawful Motive: the Combined Effects of Age, Race, Gender and
Disabilities.
Social categories, such as race, age, and gender, may be relied on so frequently in forming
perceptions that "their use becomes habitual and automatic, occurring without conscious thought
or effort."Charles Stangor, Laurie Lynch, Chamging Duan, and Beth Glass, Categorization of
Individuals on the Basis of Multiple Social Features, 62 Journal of Personality and Social
Psychology 207, 207 (1992). Americans have negative perceptions of aging: older workers are
less productive, more expensive, less adaptable and more rigid than younger workers. E.
Palmore, Ageism: Negative and Positive (1990); V. Brathwaite, Old Age Stereotypes, 41 Journal
of Gerontology 353 (1986); B. Rosen & T. Jerdee, The Influence of Age Stereotypes on
Managerial Decisions, 61 Journal of Applied Psychology 428 (1976). Common stereotypes
about persons with disabilities are that they are "passive", "consumed by tragedy",
"unproductive", and "expensive to employ." Michelle Fine and Adrienne Asch, Disability
Beyond Stigma: Social Interaction Discrimination and Activism, 44 Journal of Social Issues 3, 8
(1988). The facts clearly refute these stereotypes. Interest, motivation and skill do not decline
with age. O. Doering, The Aging Worker 60, 80 (1983); National Alliance of Business, Invest in
Experience: New Directions for an Aging Workforce 10 (1985); P.K. Robinson, Age, Health,
and Job Performance, Age, Health & Employment 70 (1986).
Often older person are perceived as having disabilities simply because of their age.
Society's double prejudice against those who are both older and have disabilities may make it
extremely difficult for older workers to acknowledge their disabilities to their employers. The
context in which this case arises is that the Special Delivery Unit in San Francisco was the de
facto accommodation for employees who had sufficient seniority to get selected and who needed
reasonable accommodation. It was known as the safe harbor for dedicated, loyal, long-time
employees (many who were placed on light duty after on the job injuries) who needed a position
which could utilize their expertise, but was not as physically demanding as their prior position.
The senior employees who bid into the Special Delivery Unit were required to give up all
seniority to have these working conditions which accommodated their disabilities.
The Special Delivery Unit ran smoothly and efficiently for years, delivering Special
Delivery and Express Mail packages on time. They won awards for their productivity and took
pride in their work. It was well known by USPS management that the Special Delivery Unit was
comprised largely of older and disabled employees.
2. Direct Evidence Establishes That the Decision to Decentralize the
Special Delivery Unit Was Discriminatory.
The prima facie case of disparate treatment may be shown by either direct or
circumstantial evidence. U.S. Postal Service v. Aikens, 460 US 711, 716, 103 S. Ct. 1478, 1483
31 FEP 609 (1983). As Justice Rhenquist pointed out in Aikens, "There will seldom be
‘eyewitness' testimony as to the employer's mental processes." Id. at 716. St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 1143 S. Ct. 2742 (1993) rejected the "pretext plus" standard. It is
reversible error to require plaintiffs (or complainants, in this case) to bring in direct evidence of
discrimination at the motion for summary judgment stage. Kline v. TVA, 128 F.3d 337, 98
FEOR 7018 (6th Cir. 1997). Once plaintiffs establish the prima facie case and show that the
defendant's reasons are worthy of disbelief, plaintiffs can submit their case to the ultimate
factfinder and the factfinder may enter judgment for plaintiff. Barbour v. Merrill, 48 F.3d 1270
(D.C. Cir. 1995) cert granted in part, __ U.S., 116 S. Ct. 805 (1996), and cert dismissed, __ U.S.
__, 116 S. Ct. 1037 (1996); Fuentes v. Perskie, 32 F.2d 759, 764 (3rd. 1994); Sheridan v. E.I.
DuPont de Nemours and Company, 100 F.3d 1061 (3rd Cir. 1996) (en banc); Kline v. TVA, 128
F.3d 337, 98 FEOR 7018 (6th Cir. 1997); Wallace v. SMC Pneumatics, 103 F.2d 1394, 1399
(7th Cir. 1997).
Direct evidence usually consists of testimonial admissions by the employer or its agents.
When a remark concerning an employee's age is communicated by a supervisor or manager to an
employee, and the remark is probative of management's intent, and shown to be connected to the
underlying discriminatory action complained of, it is actionable. See, Hodgson v.First Federal
Saving & Loan Assoc., 455 F.2d 818, 4 FEP Cases 269 (5th Cir. 1972), the personnel officer at
the end of the employment interview of a 47 year old female applicant for a teller's position
made a notation on her application that she was "too old for teller"; Wilhem v. Blue Bell, Inc.,
773 F.2d 1429, 38 FEP Cases 1600 (4th Cir. 1985), management officials made statements that
they intended to fire older workers and replace them with younger employees. Moreover, even
when age-based statements are not focused on a particular employee, they may be actionable if
they reflect a pervasive attitude or state of mind of the agency's management which could apply
to decisions affecting individual employees. Buckley v. Hospital Corp. of America, 758 F.2d
1525, 37 FEP Cases 1082 (11th Cir. 1985), hospital administrator expressed surprise at the
longevity of the staff members and indicated the hospital needed "new blood".
3. Direct Evidence Establishes That the Decision to Decentralize the
Special Delivery Unit Was Discriminatory Against Older Employees.
In this case, all of the Complainants (except for Blanson, Borela and Spector) were over
40 years of age when the decision to decentralize was made. It is undisputed that the USPS
managers and supervisors made remarks directly to individual complainants and about the reason
for decentralizing the Special Delivery unit that are direct evidence of age discrimination. See
Declarations of Complainants. There were repeated comments by USPS supervisors and
managers to the effect that the reason to decentralize the San Francisco Special Delivery Unit
was that the Special Delivery Messengers were "dinosaurs", were too old, were going to be
replaced with younger employees, "you guys went out with the Model A's", "the Special
Delivery Unit was the old folks home" etc. See Declaration of Complainants. For example,
Supervisor Dan Penrose was heard making comments that the reason for decentralizing the
Special Delivery Unit was that Special Delivery Messengers were like dinosaurs and were no
longer productive or useful. See Declaration of Robert Black. Supervisor Ennis Johnson said
that Messengers were too old and slow and "new, young" employees would be better to deliver
Express Mail; his job was safe because he was young, the "new Post Office" would be more
efficient once they got rid of the Special Delivery Craft because there were so many "old timers"
in the unit, the Messengers were "being targeted" because they were the "bearers of old attitudes"
and "undesirable habits of work", Messengers were the "dinosaurs of the Post Office", "who
would soon be extinct", "could be replaced by cheaper and younger labor", "old foggies", "were
just marking time". See Declaration of Robert Black, Declaration of Ceasar Borela, Declaration
of Alfred Chircop, Declaration of Richard Foley, Declaration of Georgette Gibbons, Declaration
of Charles P.Goodrich, Declaration of Vincent Marcellini, Jeffrey McNevin, Declaration of
Michael K. Sneathen, Declaration of Sedilia Thomas. Supervisor Jay Hemphill called Thomas
Caserta an "aging hippie" and Manager Nancy Atkinson told him was "too old". See
Declaration of Thomas Casserta. Supervisor Dan Penrose made comments that the Special
Delivery Messengers were not needed, were "too old", "too slow", and "too inefficient to be of
use". See Declaration of Edmund Dunne and Gregory P. James. General Foreman Bill Leon said
the craft is a "dying craft" and derided the performance of "the old timers". Declaration of Byron
L. Smith. Gary Fong said "you guys better get used to it (bad treatment) because you're history".
Declaration of Stephen R. Ferrebouef. Supervisor Antonia DeLeone told them "Upper
management wants to get rid of you because you're too old" and "Special Delivery Messengers
were too old and didn't deserve their paychecks". Declaration of Stephen R. Ferrebouef,
Declaration of Gregory P. James. Others, including Al Masters, Phil Spilatro and Jon
Steenhoven also made age-based comments. Declaration of Richard P. Harrington, Declaration
of Robert Min Huey, Declaration of Vincent Marcellini, Declaration of Jeffrey McNevin,
Declaration of Betty Robinson. Some comments were also hostile to people with disabilities,
such as "it takes by-pass surgery to get them out". Declaration of Wilbur Kong.
4. Assuming Arguendo, No Direct Evidence Existed, a Prima Facie Case
May Be Established under the McDonnell-Douglas Disparate
Treatment Formula.
A prima facie case may be established without direct evidence, by showing that 1)
complainant was a member of the class protected by the ADEA, the Rehabilitation Act, and Title
VII, 2) he or she was adversely affected in terms and conditions of employment, 3) he or she was
satisfactorily performing the job, and 4) other evidence giving rise to a reasonable inference of
discrimination, such as (in case of age discrimination) the employer replaced the complainant
with a younger person, the position was taken over by a younger employee, age was not treated
neutrally. McDonnell Douglas Corp v. Green, 411 US 792, 5 FEP Cases 1965 (1973); St. Mary's
Honor Center v. Hicks, 113 S.Ct. 2742, 62 FEP Cases 96 (1993), 68 FEP Cases 1811 (MD Al,
1995); Myrick v. Runyon, 68 FEP Cases 1809 (DC Mala, 1995); Thompson v. Runyon, 69 FEP
Cases 1619 (DC W Mo 1994). The employer has the burden of articulating a legitimate
nondiscriminatory reason. Id.
5. The Decision to Decentralize the Special Delivery Unit was a Pretext
for Unlawful Discrimination.
The employee may rebut the employer's burden of production by demonstrating that the
proffered reason is pretextual. U.S. Postal Service v. Aikens, 460 US 711, 103 S. Ct. 1478, 31
FEP 609 (1983). Evidence that the employer maintains policies regarding procedures or other
substantive matters that were not followed in terminating the employee is further evidence of
pretext. Village of Arlington Hts v. Metropolitan Housing Corp., 429 US 252, 267, 97 S. Ct. 555
(1977); Hogan v. Pierce, 31 FEP 115 (DDC 1983).
6. Complainants Were "Aggrieved" as a Result of the Decision to
Decentralize.
The USPS claimed in the Final Agency Decision was the Special Delivery Messengers
did not establish a prima facie case because they were not "aggrieved" The U.S. Supreme Court
has defined "aggrieved employee" as an employee who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which there is a remedy. Trafficante
v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972). 29 C.F.R. 1614.103. The proper focus for
dismissals of individual EEO complaints under 29 C.F.R. § 1614.107(a) is on whether the
complainant is allegedly aggrieved due to an unlawful employment practice in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.; the Age
Discrimination in Employment Act as amended, 29 U.S.C. 621 et seq.; the Equal Pay Act, 29
U.S.C. 206(d); or the Rehabilitation Act, as amended, 29 U.S.C. 791 et seq. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997) [97 FEOR 3106], citing Hishon
v. King & Spalding, 467 U.S. 69, 73 (1984) (complaint states a claim because Title VII's
prohibition of discrimination with respect to an employee's "terms, conditions, or privileges of
employment" includes benefits that are part of an employment contract and benefits which an
employer chooses, but is not required, to provide its employees); Benita K. Tassey v. Peters,
Acting Secretary, Department of the Air Force, EEOC No. 01972025 (March 5, 1998)
[momentary appearance of a male in the women's locker room found not sufficient]. "An
employee must allege and show a ‘direct, personal deprivation at the hands of the employer,' that
is, a present and unresolved harm or loss affecting a term, condition, or privilege of his/her
employment". Stup. v. Runyon, EEOC No. 01953928 [96 FEOR 1337] (June 27, 1996) citing
Taylor v. USPS, EEOC No. 05900367 [90 FEOR 3359] (June 2, 1990) and Hammonds. v.
USPS, EEOC No. 05900863 (Oct. 31, 1990). The USPS's dismissal of Mr. Stup's complaint for
failure to state a claim was reversed by the EEOC because the Commission found he was
subjected to discrimination when he was ordered to perform the duties of another employee.
In Michael L. Malone v. Runyon, Postmaster General, U.S. Postal Service, EEOC No.
05971070 (December 5, 1997) [98 FEOR 3102] the Commission ruled that when the supervisor
makes a remark which is accompanied by a concrete action--regardless of whether the action was
permanent--appellant is aggrieved and his complaint stated a claim. This situation is
distinguishable from cases in which the remark or comment was unaccompanied by a concrete
action and therefore, would not be a direct and personal deprivation sufficient to render an
individual aggrieved for purposes of Title VII. Fuller v. United States Postal Service, EEOC
Request No. 05910324 (May 2, 1991); Simon v. United States Postal Service, EEOC Request
No. 05900866 (October 3, 1990). Accord, Maria C. Culp v. Runyon, Postmaster General, U.S.
Postal Service, EEOC No. 01965349 (August 26, 1997) [98 FEOR 1054].
Obviously, the complainants were aggrieved by the decision to decentralize the Special
Delivery Unit. Many were reassigned to the Clerk Craft, where they lost all of their seniority. See
Declaration of Complainants. They lost their job standing and the right to bid on more desirable
jobs; they were not made full time when positions became available. Id. As a result, they lost
hours, retirement credit, holiday and vacation benefits, shift differential pay, etc. Id.
The fact that some of the complainants have retired from the Postal Service does not
affect their standing to challenge the unlawful action of the agency. The Commission has held
that "former employees frequently have standing to challenge agency actions that presently affect
them and for which remedial action would be available if they prevailed on their complaints."
Laborde v. United States Postal Service, EEOC Request No. 05910521 (July 25, 1991).
In Brooks v. Department of the Navy, EEOC No. 05950484 (June 25, 1996) [96 FEOR
3207], the Commission stated that "it is well-established that if sufficiently severe or pervasive,
the use of racial epithets or slurs in the workplace may constitute harassment based on race and
violate Title VII. The Commission has held that, under certain circumstances, a limited number
of highly offensive slurs or comments about a federal employee's race or national origin may in
fact state a claim or support a finding of discrimination under Title VII. See Yakubi v.
Department of the Army, EEOC No. 05920778 (June 4, 1993) [93 FEOR 3297]." In Yakubi
supra, the Commission found in favor of a complainant who had alleged that his supervisor had
informed another employee that the Japanese people would soon own the country, and, pointing
his finger in the complainant's face, blamed the complainant.
D. COMPLAINANTS WERE THE VICTIM OF DISABILITY
DISCRIMINATION AND THE POSTAL SERVICE TOOK AWAY
ACCOMMODATION OF THEIR DISABILITIES.
Complainants can establish a prima facie case of disability discrimination by
establishing that she/he: (1) is an individual with a disability as defined by EEOC Regulation 29
C.F.R. § 1614.203(a); (2) is a qualified individual with a disability as defined by 29 C.F.R. §
1614.203(a)(6); and (3) was subjected to an adverse personnel action under circumstances
giving rise to an inference of disability discrimination. See Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981). EEOC Regulation 29 C.F.R. § 1614.203(a) states that an
individual with a disability is one who has a physical or mental impairment which substantially
limits one or more of such individual's major life activities, has a record of such an impairment,
or is regarded as having such an impairment. Major life activities include caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
Liability is established unless the employer can carry its burden of proving one or more
affirmative defenses, including: (1) that the Complainant could not perform the essential
functions of his/her job even after reasonable accommodation had been made, or 2) that
accommodating his/her disability would impose an "undue hardship". The USPS has not claimed
that the decision to decentralize the Special Delivery Unit in San Francisco was made because
any of the Complainants could not perform the essential functions of their job or that continuing
to accommodate their disabilities would impose an "undue hardship".
The Special Delivery Unit was the place in which employees who had disabilities or
needed light duty assignments could obtain "reasonable accommodation". Many of the negative
comments about older employees refer to the fact that the Special Delivery Unit was known as
the place for employees with physical limitations. See discussion, supra. By assigning the
Special Delivery Messengers to the Clerk Craft, the USPS was in effect, taking away their
"reasonable accommodation".
The USPS adopted the EEOC Administrative Judge's findings that it had discriminated
against a Black, disabled employee who had filed prior EEO complaints by failing to
accommodate her. See Exhibit F, Lisa M. Selby v. Marvin T. Runyon, Case Nos. 370-96-X2225
and 370-97-X2921. It is therefore undisputed that:
Since the agency has no policies or procedures to insure that it
meets its affirmative obligations under the Rehabilitation Act to
employ the disabled, and because it took absolutely no steps to
consider complainant ‘s request for reemployment, I hereby
recommend that a full scale review of its hiring and reassignment
practices be conducted separate and apart from its rehabilitation
program, in order to insure future compliance with its affirmative
action obligations under the Rehabilitation Act, including, but not
limited to, the training of all of the managers who failed to
consider complainant's request for employment and
accommodation in Case No. 370-97-X2921.
Id at 23. The Postal Service has historically opposed given any accommodation to disabled
employees. See, Ignacio v. U.S. Postal Service, EEOC Petition No. 03840005 (Sept. 4, 1984) [84
FEOR 3159], aff'd, Special Panel No. 1 (Feb. 27, 1986) [86 FEOR 5055]; Johnson v. United
States Postal Service, EEOC Request No. 05910506 August 1, 1991) [92 FEOR 3026]; Ferguson
v. United States Postal Service, EEOC Request No. 05880848 (May 8, 1990) [90 FEOR 3276].
This case illustrates the extremes to which the Postal Service is willing to go to push out
employees who were injured on the job or are disabled. The Investigative File in these 29 cases
does not reveal any effort by the USPS to accommodate the disabled Complainants. The position
descriptions show that "reasonable accommodation" was not possible in the Clerk Craft positions
to which many of the Complainants were transferred. See Exhibit G and H.
The USPS did not accommodate Complainants; they transferred disabled and limited duty
Special Delivery Messengers to positions which "took away" previously existing
accommodations or created onerous working conditions which caused disabling conditions to
fester and/or manifest themselves or told them to sit in the lunch room for eight hours a day and
refused to assign them to any position. See Declarations of Thomas Caserta, Richard Foley,
William Fong, Georgette Gibbons, Alfred Chircop, Richard Harrington, Gregory James, Betty
Robinson, Sedalia Thomas, Byron Smith, Yvonne Smith and David Spector. This unlawful
treatment is consistent with Dallas Keck, the San Francisco Postmaster's attitude:
Q. Any you know at the time that you made this decision that the
decision to excess these older and disabled employees would result in them
having less rights than anyone else?
A. . . . I knew that the employees who were affected would be going
to the bottom of the senority list.
Q. Any you realized at the time that you made the decision that the
impact on the individuals would mean that they would be given the least
advantageous assignments?
A. I'm confident that the senority system would be appropriately
administered in all the units, and if that means that they would have same less
rights because of seniority, yes, I understand how senority works.
See Deposition of Dallas Keck, 56:13 - 57:16.
The Postal Service argues that it is insulated from liability for the adverse impact of the
decision to decentralize on the older, disabled, women and minority employees because members
of all protected groups were in the Special Delivery Unit. They fail to cite a single case in support
of this argument. However, it is not necessary for a person to be personally attacked to complain
about a hostile work environment. See Leibovitz v. New York City Transit Authority, No. 95-CV-3860, May 5, 1998. Mistreatment of one protected group can be used to establish a
discriminatory motive against another protected group.
V. CONCLUSION
For the foregoing reasons, Complainants request that the EEOC issue a decision finding
based on the record that they have established a prima facie case of age discrimination, and/or
race/national origin (African-American, Hispanic, Asian/Filipino), sex (female), disability and
reprisal for prior EEO activities, the USPS has no legitimate justification for decentralizing the
Special Delivery Unit, the decision to decentralize the Special Delivery Unit adversely affected
each of the named Complainants, as a result of the decision to decentralize, disabled Special
Delivery Messengers were not given reasonable accommodation, the decision to decentralize had
a disparate impact on older and disabled employees.
It is also requested that a hearing be scheduled to determine the appropriate relief,
including pain and suffering damages.
DATED: July 8, 1998 Respectfully submitted,
_________________________________
MARY DRYOVAGE
)
ROBERT BLACK, et. al., ) Case Nos. 370-98-X2335 to
) 370-98-X2363 Complainants, ) Consolidated Cases
)
vs. ) CERTIFICATE OF SERVICE
)
WILLIAM HENDERSON, )
POSTMASTER GENERAL OF THE )
UNITED STATES POSTAL SERVICE )
)
Agency. )
)
I am a citizen of the United States and have an office in the County of San Francisco; I
am over the age of eighteen years and not a party to the above-entitled action; my business
address is 1231 Market Street, Penthouse West, San Francisco, California, 94103.
On September 5, 1998, I served the within
COMPLAINANTS' BRIEF RE: DETERMINATION THAT U.S.P.S. DISCRIMINATED
AGAINST COMPLAINANTS BASED ON THEIR AGE, SEX, RACE, DISABILITY
AND/OR RETALIATION FOR FILING PRIOR EEO COMPLAINTS, DECLARATION
OF COMPLAINANTS and EXHIBITS
on the parties in said action by placing a true copy in a sealed envelope with postage thereon fully
prepaid, either in a U.S. Mailbox or in the designated area for outgoing U.S. Mail, addressed as
follows:
Administrative Judge Thomas Cosentino
U.S. Equal Employment Opportunity Commission
901 Market Street, Suite 500
San Francisco, CA 94103
John S. Covell, A/ Labor Relations Specialist
U.S. Postal Service
P.O. Box 882290 Room 376
San Francisco, CA 94188-2290
I declare under penalty of perjury that the foregoing is true and correct and was executed
on September 5, 1998, San Francisco, California.
___________________________________
Legal Technician