EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
OFFICE OF EEO COMPLIANCE AND APPEALS
U S POSTAL SERVICE
EASTERN AREA
_____________________________
TIMOTHY LONGLEY,
COMPLAINANT
v.
JOHN E. POTTER Agency Case No.
POSTMASTER GENERAL, 4D-280-0344-03-01
U.S. POSTAL SERVICE
(Eastern Area) AGENCY,
_____________________________
COMPLAINANT’S MOTION FOR REVERSAL OF MAY 20, 2002 DECISION OR REMAND
Complainant, by and through his attorney, Morris E. Fischer, of Snider & Fischer, LLP, hereby moves for reversal of the May 20, 2002, decision which issued a finding of no discrimination based on age and retaliation and full relief or in the alternative, complainant moves that this case be remanded to the Administrative Judge for further proceedings.
Respectfully Submitted,
____________________
Morris E. Fischer, Esq.
Snider & Fischer, LLC
Attorneys for Complainant
Timothy LONGLEY
100 Church Lane
Baltimore, MD 21208
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
OFFICE OF EEO COMPLIANCE AND APPEALS
U S POSTAL SERVICE
EASTERN AREA
_____________________________
TIMOTHY LONGLEY,
COMPLAINANT
v.
JOHN E. POTTER Agency Case No.
POSTMASTER GENERAL, 4D-280-0219-01 01
U.S. POSTAL SERVICE
(Eastern Area) AGENCY,
_____________________________
MEMORANDUM IN SUPPORT
Factual History
On or about October 17, 2001, Mr. Timothy Longley filed his complaint alleging discrimination on age and retaliation. Mr. Longley, a bulk Mail Clerk, PS-05 was not selected for a custodial position in the maintenance department of the U.S. Post Office branch at Asheville, North Carolina, where he has been employed since May of 1995 (see affidavit of Timothy Longley annexed hereto as Exhibit “1”). For quite sometime Mr. Longley had desired to transfer into the maintenance department to a custodial position and has been passed over time and time again.
Prior to filing the subject action, Mr. Longley filed two other EEO complaints: Case No. 1D-281-0130-00, filed in July of 2000 and 4D-280-0044 filed in September of 2001, based upon various forms of discrimination including age and disability. Mr. Longley who suffers from a 20% service connected disability, involving his knees (see Longley’s affidavit regarding case no 1D-281-0130-00, annexed hereto as exhibit “2”) has desired to transfer into maintenance because it will be an easier job for him and the he contends in his affidavit (exhibit “1”) that the history of the individuals hired or transferred into maintenance involved many employees with physical ailments, as custodial positions were originally created for disabled veterans or preference veterans, with a service connected military disability.
In October of 1999, Mr. Longley had also reported his post office branch to the U.S. Department of Labor for an Occupational Safety and Health Administration for safety violations. See letter from the U.S. Department of Labor to Longley dated November 16, 2000, annexed hereto as exhibit “3”. Around the time Mr. Longley filed his first EEO complaint, he also filed a retaliation complaint with the U.S. Department of Labor for discrimination against him for his “whistle blowing.” (See exibit “1”). That matter is under investigation.
Once Mr. Longley brought his EEO complaints, management had soured against him and never permitted him transfer into the maintenance department (see exhibit “1”). Substantiating Mr. Longley’s contentions are Mr. Bill Taylor, a union steward for the past 20 years with the APW union and Recia Lee Jackson, a postal employee and co-worker of Mr. Longley. Mr. Taylor attests that management of the subject post office branch has blackballed other employees for raising their hand against management by filing complaints similar to those filed by the complainant (See affidavit of Bill Taylor annexed hereto as exhibit “3”). Taylor attests that management including Harold Hairston, Timothy Moon, Newton Butler and others have labeled the complainant a “troublemaker” and have not promoted him because of his “trouble making” activities. Taylor attests that another individual, Pat Madden, an individual actually selected over Longley, did not want to make a statement (presumably supporting Longley), as this would jeopardize his chances of obtaining a custodial position (see exhibit “3”).
Recia Lee Jackson, attests that one manager, Pat Olson, describing Longley as an employee who “gives supervisors headaches” and “goes overboard” with his legal actions. On one occasion, she observed Olson walking past Longley, shaking his head in disgust as he passed Longley. Ms. Jackson also points to violations with regard to the employment manual concerning transfers and promotions. Jackson attests that in contradiction to the subject manual, management used sick leave as perhaps the primary factor to assess Longley’s suitability for a custodial position. Jackson attests to other direct evidence of retaliation, including a timekeeper inform her that he heard from several supervisors that “Tim Longley isn’t going anywhere.” (See Jackson’s affidavit annexed hereto as exhibit “4”. Both Taylor and Jackson attest to Mr. Longley’s strong work ethic and job performance (See exhibits “3” and “4”).
Mr. Longley also attests that he heard of at least one other individual, Dan Smith, who had his career ruined for filing several complaints against management and that this was typical of management. They would retaliate against employees who brought claims against them and befriend those employees who did them favors (See exhibit “1”). Longley also attests that he was told that Pat Madden was selected ahead of him because he passed out a petition to stop the post office from firing one of its managers, Newton Shields. (See exhibit “1”).
Other indirect evidence of discrimination concerned an incident that undermined Mr. Longley’s ability to transfer into maintenance. One of the managers in question, Harold Hairston, deliberately sent Longley’s job performance evaluation to one of Longley’s former supervisors, Mary Bowes, while it was well known that Ms. Bowes was out of the office for an operation (see exhibit “1”). As such, it appears that this action was done to keep Mr. Longley from having a successful evaluation in which management would be forced to recognize Longley’s notable work record.
The agency accepted the complaint for investigation on October 17, 2001 and completed its investigation on February 21, 2002. As the summary of the investigative report indicates (annexed hereto as exhibit “5”), only three managers submitted affidavits, Brenda Hall, Harold Hairston and Timothy Moon. Incredibly, all three management witnesses attested to at least one thing in common: “no supervisory relationship with Mr. Longley.” (see exhibit “5”). No individual with a supervisory relationship was contacted by the agency investigator, including three persons identified by Mr. Longley as his supervisors, Gordon Manley, Susan Vermeil and Mary Bowes. (See exhibit “1”).
Furthermore, there is little, if any discussion, in the management affidavits concerning the selection process and the criteria used to determine the most deserving candidate. Hairston states in his affidavit that if “White and Brown” did not have acceptable attendance, safety history, work performance or qualifications, they would not have been selected for transfer.” (See exhibit “6” for investigative report affidavits). According to the investigator’s report Moon stated that it was Pat Madden and Kevin Moore who were selected, not White and Brown.
Most significant is a letter from Raymond Lawn the regional investigator for the U.S. Department of Labor to Harold Hairston, dated May 11, 2001, in which he states that his investigation revealed that the evidence strongly suggests that Mr. Longley’s application to a custodial position was futile, management made comments indicating their animus towards Mr. Longley and that the non-discriminatory reasons provided by management were merely pretextual (See letter as exhibit “7”). Investigator Lawn also notes that while management’s criteria supposedly included safety records, the investigation revealed that Longley’s safety records were not utilized (see exhibit “7”). Mr. Lawn’s investigation also collaborates the testimony of Recia Jackson, as it states that the investigation “disclosed evidence which brings into question whether complainant’s attendance record was a paramount factor and whether selection criteria was fairly and consistently applied.”
Lawn also brought into question the qualifications of at least one of the candidates selected over Mr. Longley. According to Lawn, the custodial positions called for an electronics background or experience and only one of the two candidates selected had that qualification along with Mr. Longley (See exhibit “7”).
Mr. Longley timely filed his Notice to Appeal. He moves for reversal and full relief or at the very least, in the alternative, Mr. Longley requests that this case be remanded to the Administrative Judge for further proceedings.
POINT I
MR. LONGLEY HAS DEMONSTRATED THAT MANAGEMENT RETALIATED AGAINST HIM
It is well established that a plaintiff establishes a prima facie case of retaliation by showing that (1) he engaged in protected activity, (2) his employer took adverse action against him and (3) there was a causal connection between the protected activity and the adverse action. It is well established that a plaintiff establishes a prima facie case of retaliation by showing that (1) he engaged in protected activity, (2) his employer took adverse action against him and (3) there was a causal connection between the protected activity and the adverse action. Dickens v. MCI Telecommunications Corp., 78 F.3d 578, 1996 U.S. App. LEXIS 10636 (4th Cir. Va. 1996); Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir 1985). Once a plaintiff has established a prima facie case of retaliation, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse action. Id. After such a reason is proffered, the plaintiff may prevail by showing that the proffered reason is pretextual.
In addition, the Fourth Circuit, in Kubicko v. Ogden Logistics Servs., 181 F.3d 544, 551 (4th Cir. 1999), has applied the “mixed motive” evidentiary standard as first held in PTaylor Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S.Ct 1775 (1989), to a Title VII discrimination claim based upon retaliation.
In Kubicko, the plaintiff, was a material witness in a sexual harassment claim against one of his superiors. A short time later, he was terminated and the plaintiff claimed that his dismissal was in retaliation for participating in the harassment claim and filed a suit against his employer alleging among other things a Title VII violation. The Fourth Circuit in reversing the lower court’s Manley of defendant’s summary judgment motion, held that the mixed motive theory applied to plaintiff’s Title VII claim. The Court found that although Plaintiff’s supervisor produced a memorandum outlining a number of allegations amounting to insubordination, nonetheless, since plaintiff was a key witness and instrumental to the sexual harassment claim, he was entitled to the mixed motive standard.
Under the mixed motive standard, once a plaintiff establishes that a factor made unlawful under Title VII was a motivating portion of an employer’s negative action toward the employee, the employer can avoid liability only by proving by a preponderance of evidence that it would have made the same decision even without the illegal factor. Kubicko v. Ogden Logistics Servs., at 19, citing PTaylor Waterhouse at 490 U.S. at 228. See also, Butler v. New York State OMRDD, 115 F.3d 116, 121 (2d Cir. 1997), citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993).
In the case at bar, Plaintiff has demonstrated through the aforementioned affidavits, direct evidence that management expressed an intention never to allow Mr. Longley to transfer into a custodial position and that the EEO complaints he filed were a substantial factor in management’s attitude against him. The affidavits reveal that Mr. Longley was labeled a troublemaker and two of the three actions filed by him against management involved EEO complaints. According to Ms. Jackson, she heard a manager, Pat Olson state that Mr. Longley “goes overboard” with his legal actions. Actions, in the plural, referring to the EEO claims as well as the O.S.H.A. violation.
Furthermore, according to Mr. Longley, one of the managers and a decision maker, Harold Hairston, deliberately sent Longley’s job performance evaluation to one of Longley’s former supervisors, Mary Bowes, while it was well known that Ms. Bowes was out of the office for an operation (see exhibit “1”). This demonstrates that Hairston deliberately set out to keep Longley from maintenance.
Most damaging to the respondent’s case is Mr. Lawn’s aforementioned letter. He squarely sets forth that his investigation revealed animosity towards Mr. Longley and that the non-discriminatory reasons provided by management were merely pretextual. It is also noted that management exercised deception in the selection process regarding Mr. Longley’s safety records and attendance records.
While the respondents may argue that the O.S.H.A. violation was the primary reason for the retaliation (and will undoubtedly argue in the O.S.H.A. whistle blowing case that the EEO complaints were the primary factor for the retaliation, thereby leaving Mr. Longley with no remedy) there is no question that Longley’s EEO complaints, necessitating affidavits by Hairston and other managers, was a substantial factor in management’s actions against him.
Several other facts demonstrate the strong nexus between the subject EEO complaint for retaliation and the prior EEO complaints. First, management’s actions against Mr. Longley took place within the same time period of the prior EEO complaints. Second, Bill Taylor’s attests that management including, Timothy Moon and Harold Hairston, individuals involved in the selection process, blackballed Mr. Longley. As such, the plaintiff has demonstrated that (1) he engaged in protected activity, (2) his employer took adverse action against him and (3) there was a causal connection between the protected activity and the adverse action.
Mr. Longley has established a discrimination claim based upon retaliation. Consequently, the final agency decision should be reversed or at the very least, the case should be remanded.
POINT I I
A FULL AND COMPLETE INVESTIGATION WAS NEVER PERFORMED
In accordance with the Commission's regulations. 29 C.F.R. § 1614.108, the agency must conduct a full investigation of each and every element of the complaint. In, Randall D. Oakley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency, Appeal No. 01982923, Agency No. 1-G-761-1051-95, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 2000 EEOPUB LEXIS 6144, September 21, 2000 the appellant stated that his supervisors continuously harassed and otherwise coerced him into job duties he was unable to perform due to occupational disease. It was held that the agency failed to investigate appellant’s primary allegation, that he was not accommodated due to the rehabilitation act. The case was remanded for a full investigation to determine whether the appellant was accommodated for his disability involving his cervical disc syndrome.
In the case at bar, anything but a full investigation was completed. First, not one individual with a supervisory relationship with Mr. Longley was interviewed. All individuals interviewed and who submitted affidavits stated they had no supervisory relationship with Mr. Longley. Second, it is quite clear that Mr. Lawn’s letter was completely ignored or entirely attributed to the O.S.H.A. matter, which demonstrates the short sighted approach for management’s animus towards the complainant. Third, the selection process for the subject transfer into a custodial position is overly simplified with very little inquiry. Moreover, this oversimplification is strongly challenged by Mr. Lawn’s investigation, as he determined that management deliberately utilized criteria slanted against Mr. Longley and did not include work attendance records favorable to him and used attendance as the primary factor when it should have balanced that with other factors.
Management’s supposed nondiscriminatory reason for passing over Mr. Longley was also barely challenged. According to Mr. Hairston’ affidavit, “if White and Brown” did not have acceptable attendance, safety history, work performance or qualifications, they would not have been selected for transfer.” This statement epitomizes the irresponsibility of management to articulate a legitimate reason. It offers absolutely no comparison to Mr. Longley and its completely circular reasoning. It basically confers that management was correct in selecting the two other candidates and the proof to the wisdom of those choices was that management had made them.
This limited analysis, however, is incomplete to support a finding on the merits of appellant's claim, nor does it meet the agency's obligation to conduct a full investigation
Additionally, management’s alleged nondiscriminatory reason for not selecting Longley is suspect and at the very least deserves further investigation. Management contended that due to a union contract Longley was passed over because preference was given to custodians in the geographical location of the opening. However, this contention is strongly challenged by the affidavit of Bill Taylor, who as a union steward for the past 20 years attests that this was not the case. Namely, management had a history of giving these positions to disabled veterans and other preference veterans, with a service connected military disability, no matter what the geographic location. Furthermore, Taylor knew of employees who were clerks just like Longley and were given the preference. (See Exhibit “3”).
There are additional reasons for further investigation. Hairston contends in his affidavit that Brown and White were the only candidates interviewed. Taylor states that Madden told him that he was also interviewed for the position. The affidavit of Timothy Moon leaves out the individual’s names interviewed. However, the investigator’s summary states that Moon attested that Pat Madden and Kevin Moore were selected.
Needless to say, there is ample reason for further investigation into this matter.
Respectfully Submitted:
__________________
Morris E. Fischer, Esq.
Snider & Fischer, LLC
Attorney for
Timothy Longley
100 Church Lane
Baltimore, MD 21208