EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

                                                  WASHINGTON FIELD OFFICE    

 

 

DENA BRISCOE,                                           )

)

Class Agent                  )

)

v.                                             )           EEOC No. 100-A3-7932X

)          

JOHN E. POTTER,                                         )           Agency Case No. CC201-0022-03

POSTMASTER GENERAL,                           )

UNITED STATES POSTAL SERVICE,         )          

)

Agency.                        )           Date: June 24, 2004

                                                                        )

 

CLASS AGENT BRISCOE’S RESPONSE TO THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION’S

MAY 13, 2004 ORDER TO PRODUCE INFORMATION

 

Class Agent, Dena Briscoe, by counsel, hereby respectfully submits this Response to the Equal Employment Opportunity Commission’s (“EEOC”) May 13, 2004 Order to Produce Information.  Class Agent Briscoe states as follows:

INTRODUCTION


Class Agent Briscoe filed her Class Complaint to redress discrimination based on race and national origin by the United States Postal Service (“USPS”) in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000, et. seq.  First, Class Agent Briscoe claims that the underlying disparity in working conditions created by the USPS between its employees at its main postal facility in Boca Raton, Florida (“Boca Raton facility”) and its processing and distribution center located on Brentwood Road (“Brentwood facility”) in Washington, D.C. in October of 2001 was discriminatory.  Specifically, Class Agent Briscoe claims that the USPS affirmatively notified the Boca Raton facility employees, who are predominately Caucasian, of their exposure to anthrax and immediately took remedial measures, including provided all such employees with medical tests and with preventative and curative antibiotics and implemented USPS Management Instruction EL-860-1993-3 that requires, inter alia, mechanical shutdown (including air handling equipment), isolation and evacuation of the facility when anthrax contamination is suspected.  In contrast, the USPS actively concealed from its Brentwood facility employees, who are predominantly not Caucasian, their exposure to anthrax and failed to take immediate remedial measures, such as providing all such employees with medical tests and with preventative and curative antibiotics and implementing USPS Management Instruction EL-860-1993-3 in a timely manner. 

Second, Class Agent Briscoe claims that the USPS’ implementation of USPS Management Instruction EL-860-1993-3 has created a disparate impact.  Specifically, the USPS timely implemented its Management Instruction EL-860-1993-3 in its Boca Raton facility, where the employees are predominately Caucasian, but yet did not timely implement its Management Instruction EL-860-1993-3 in its Brentwood facility, where the employees are not predominately Caucasian.

STATEMENT OF FACTS

A.        USPS Management Instruction EL-860-1993-3 Requires That the USPS Notify its Employees of Suspected or Known Anthrax Contamination, Provide Medical Treatment and Effectuate the Mechanical Shutdown, Isolation and Evacuation of the Facility.

 


In October 1999, the USPS issued USPS Management Instruction EL-860-1999-3, entitled “Emergency Response to Mail Allegedly Containing Anthrax,” which outlined the hazards of exposure to anthrax and mandated emergency procedures regarding mail suspected of containing anthrax.[1]  USPS Manaagement Instruction EL-860-1999-3 expressly states:

The Postal Service is committed to providing a safe and healthful work environment for its employees. Suspected bioterrorism threats or suspicious incidents require prompt action by health, safety, law enforcement, and laboratory personnel.  Coordination and communication are essential to protect first responders and employees.

Id.  The USPS Management Instruction further states, “It is management’s responsibility to minimize potential exposures through quick isolation and evacuation until emergency response and law enforcement can arrive and take control of the incident.”  Id.  Pursuant to USPS Management Instruction EL‑860‑1999‑3, USPS officials must ensure the following:

1.         All employees, through safety talks, hazardous materials, first-responder training, and emergency action plan training, must be instructed on initial actions to take if there has been a suspected exposure to anthrax (or other biologically hazardous material).

 

2.         Emergency action plans, crisis management plans, hazardous materials spills response instructions, medical service standing orders, and other related standard operation procedures must be modified to incorporate appropriate guidance.  Crisis management plans must be revised to do the following: 

 

a.         Include appropriate actions to ensure initial coordination with the FBI and outside responders through the Inspection Service. 

 

b.         Detail other initial actions to isolate and contain potential contamination and deal with potentially exposed employees.

 

c.         Cover subsequent actions, including proper medical treatment (using current Center for Disease Control (CDC) guidelines), employee counseling and media liaison.


The emergency action plan must include the telephone numbers of the initial and secondary contacts.

Id.  When anthrax exposure is suspected, USPS officials are specifically directed by Management Instruction EL‑860‑1999‑3 to do the following:

1.         Alert employees to stay in evacuation areas and not leave postal property so that they can receive necessary information and medical follow-up if appropriate.

 

2.         Invoke the emergency action plan, including the following:

 

a.         Effecting mechanical shutdowns (including air handling equipment), isolation and evacuation.

 

b.         Notifying the Inspection Service.

 

c.         Notify Postal Service Aviation Mail Security Office.

 

d.         Notify postal and local community emergency responders, which may include the health department, fire department, or local law enforcement.

 

Id. (emphasis added).

B.        The USPS Notified the Boca Raton Facility Employees of Their Exposure to Anthrax and Immediately Took Remedial Measures.

 


On or about October 3, 2001, Bob Stevens, a photo editor for a private company called American Media Inc. (“AMI”) located in Boca Raton, Florida, was diagnosed with inhalation anthrax.  He died two days later.  On October 7, 2001, federal officials found anthrax in Steven’s AMI office.  On October 10, 2001, Ernest Blanco, an AMI mail room employee, tested positive for anthrax exposure.  On October 11, 2001, federal officials found anthrax in the AMI mail room.  On the very next day, the USPS implemented its Management Instruction EL-860-1999-3 for its main postal facility in Boca Raton, Florida that processes AMI’s mail.  Specifically, the USPS tested the Boca Raton facility for anthrax, and, despite not receiving positive test results for anthrax until October 15, 2001, diligently tested all Boca Raton Postal employees, who are predominantly Caucasian, for anthrax and immediately provided these employees preventative and curative antibiotics.

C.        The USPS Knew of the Dangers Posed By Anthrax Sent Through The Mail.

 At all relevant times, the USPS was aware that anthrax sent through the mail could penetrate the sides of a sealed envelope.  As early as 1988, the USPS required that bio-hazardous materials, such as anthrax, be contained in “fail-safe packages” if they were to be sent through the U.S. mail.[2]  These USPS regulations mandated that toxins such as anthrax be contained in vials wrapped with waterproof tape, surrounded by absorbent material, and sealed within two separate metal canisters.  The regulations also required packages to be labeled as containing disease-causing agents and clearly marked with a contact telephone number at the Center for Disease Control and Prevention (“CDC”) in case of leakage or damage.

 

D.        Like the Boca Raton Facility, the Brentwood Facility Processed an Anthrax-Laden Letter.

 


On Tuesday, October 9, 2001, anthrax‑laden letters addressed to Senator Tom Daschle and Senator Patrick Leahy at their U.S. Senate offices in Washington, D.C. were deposited in the U.S. Mail at Trenton, New Jersey.  On or about Thursday, October 11, 2001, the Daschle letter was received by and processed at the Brentwood facility using Delivery Bar Code Sorter (“DBCS”) machine #17 and was then moved by mail transport equipment to the Government Mail Section for delivery to the Hart Senate Office Building.  Shortly after this letter was processed, DBCS #17 was opened and a large blower using compressed air was used to blow debris and dust from the conveyor belts and optical reading heads of the machine, spreading anthrax throughout the Brentwood facility.

E.         The Hart Senate Office Building Was Closed and Mail Delivery from the Brentwood Facility Was Suspended Because Capitol Police’s Field Test Confirmed That the Daschle Letter Contained Anthrax.

 

The Daschle letter was delivered to the Hart Senate Office Building on Friday, October 12, 2001.  On Monday, October 15, 2001, the Daschle letter was opened in the Senator’s office in the Hart Senate Office Building and was found to contain a suspicious, fine white powder.  The Capitol Police were called and performed a field test on the letter, which was found to contain anthrax.  The ventilation system in the building was immediately shut down, and the building was closed.  Bundles of letters and packages were quarantined, and all mail delivery was suspended.  Staffers in Senator Daschle’s officer were tested and given antibiotics.  Even tours of the Capitol were cancelled.

F.         Unlike the Prudent and Responsible Safety Precautions Taken at the Boca Raton Facility, the USPS Actively Concealed from its Brentwood Facility Employees Their Exposure to Anthrax And Failed to Immediately Take Remedial Measures.


By contrast with the prudent and responsible safety precautions taken at the Boca Raton facility, the USPS continued to operate the Brentwood facility, twenty‑four hours per day, seven days per week, despite the fact that the facility had processed the anthrax-laden Daschle letter.  By continuing to operate the Brentwood facility, the USPS caused the Brentwood employees  to work in unsafe conditions where they would be exposed to the danger of anthrax contamination from the deadly anthrax that had leaked from the envelope containing the Daschle letter.  In shocking disregard for the incipient danger of anthrax contamination at the Brentwood facility, the USPS actively concealed from its Brentwood facility employees, who are predominantly not Caucasian, their exposure to anthrax and failed to take immediate remedial measures, such as providing all such employees with medical tests and with preventative and curative antibiotics and implementing USPS Management Instruction EL-860-1993-3.

Rather, at all relevant times, USPS officials, including USPS Postmaster General John E. Potter and Brentwood Facility Manager Timothy C. Haney, among other supervisors and managers, repeatedly and falsely assured  Brentwood facility employees that the facility was safe.  USPS officials, including Postmaster General Potter and Brentwood Facility Manager Haney, among other supervisors and managers, also repeatedly gave intentionally false and/or misleading information to Brentwood facility employees, falsely assuring them that they had not been exposed to the deadly bacteria when, in fact, the USPS officials knew that the facility was likely contaminated with anthrax from the Daschle letter.  Worse yet, USPS officials, including Brentwood Facility Manager Haney, also threatened, coerced, and intimidated the Brentwood facility employees into not making inquiries about the Daschle letter, the safety of the facility, or their own safety.


After the discovery of anthrax in the Daschle letter and during a regularly scheduled “floor” meeting on Monday, October 15, 2001, Brentwood facility Electronic Maintenance Technician (“ET”) Larry Littlejohn, whose job responsibilities included maintaining DBCS machines (including DBCS #17 that had processed the Daschle letter), requested that his supervisor provide a briefing on anthrax and proper safety procedures.  The supervisor not only refused to provide the requested safety briefing, but he also threatened Littlejohn with a seven‑day suspension and had him forcibly expelled from the building for publicly voicing his concerns.  Littlejohn subsequently received notice that he was being suspended for seven days.

That same day, Postmaster General Potter delivered a speech in Denver, Colorado during which he falsely declared that the USPS mail system was safe, despite the fact that he knew the Brentwood facility had processed the Daschle letter containing anthrax.  Thomas Day, USPS Vice President of Engineering and anthrax and security expert, attended the conference with Postmaster General Potter and began coordinating the USPS’ response to the Daschle letter from Denver, Colorado.[3]

G.        Tests Confirmed That the Daschle Letter Contained Highly Potent and “Weaponized” Anthrax.

 

Later that same day, Monday, October 15, 2001, the Daschle letter was sent to the U.S. Army Medical Research Institute for Infectious Disease (“USAMRIID”) at Fort Detrick, Maryland for further testing.  USAMRIID scientist Dr. John Ezzell tested the letter and concluded that, in his many years of researching anthrax, he had never seen anthrax spores so potent.  Dr. Ezzell characterized the anthrax in the Daschle letter as being “weaponized.”  Indeed, the anthrax spores were so potent that, when Dr. Ezzell opened the Daschle letter to test it, some of its contents aerosolized instantly.  Dr. Ezzell immediately began taking antibiotics and took the extreme and painful measure of inhaling a bleach solution to kill any anthrax spores that he may have inhaled.


H.        Unlike the Brentwood Facility Employees, Senate Employees Were Tested and Given Antibiotics.

On Tuesday, October 16, 2001, all Senate employees were tested for anthrax exposure and given preventative and curative antibiotics.  The results of these tests showed that at least twenty (20) Senate staffers had been exposed to anthrax, including staffers on a floor below Senator Daschle’s office and at least one staffer who had not been at work when the letter was opened the previous day.

I.          The USPS Was Notified That Anthrax in the Daschle Letter Was Dangerously “Potent.”

Also on Tuesday, October 16, 2001, Major General John Parker, U.S. Army Commanding General at USAMRIID, stated with respect to the anthrax spores contained in the Daschle letter:  “It’s a very potent form of anthrax that was clearly produced by someone who knew what he was doing.”  On the same day, the FBI notified the USPS Inspection Service that laboratory tests revealed the Daschle letter to contain a “potent” strain of anthrax.  The Inspection Service, in turn, notified Postmaster General Potter of the potency of the anthrax spores in the Daschle letter.  Thus, USPS officials, including Postmaster General Potter and, on information and belief, Vice President Day, clearly knew at least as early as Tuesday, October 16, 2001, that a very dangerous condition likely existed at the Brentwood facility.

J.         Despite Knowing That the Brentwood Facility Was Likely Contaminated with Anthrax, the USPS Failed to Implement USPS Management Instruction EL‑860‑1999‑3, Failed to Advise Brentwood Facility Employees of the Serious Risk of Injury or Death and Falsely Represented That the Facility Was Safe.

 


Nonetheless, USPS officials, including Postmaster General Potter, failed to invoke any of the USPS emergency response procedures, including the procedures set forth in Management Instruction EL‑860‑1999‑3 regarding suspected anthrax contamination, and failed to evacuate or otherwise shut down the Brentwood facility.  Nor did any USPS official, including Postmaster General Potter or Vice President Day, advise Brentwood facility employees of the substantial danger to which they were likely being exposed.

To the contrary, on Tuesday, October 16, 2001, USPS officials, acting, on information and belief at the direction of Postmaster General Potter, Vice President Day, and/or other unknown USPS officials, instructed Brentwood facility supervisors, via the USPS e‑mail system, to provide false safety briefings to Brentwood facility employees, falsely representing to the employees that there was no evidence that any anthrax contaminated letter or mail had come through the facility at any time, including the letter that was sent to Senator Daschle’s office.  Ossie L. Alston, a Brentwood facility supervisor, received a copy of this false safety briefing from Manager of Distribution Operations (“MDO”) John Cooke with instructions to give the false briefing to employees under his supervision.  Alston refused to give the false safety briefing, which instead was given by another supervisor.  The briefing was clearly false, as the USPS knew that the Daschle letter contained anthrax and that it, like all mail destined for U.S. Government offices in the District of Columbia, including mail destined for Senator Daschle’s office, was processed at the Brentwood facility.

K.        The House of Representatives Was Shut down Because of Anthrax Contamination from a Letter Processed at the Brentwood Facility.


On Wednesday, October 17, 2001, Congressional leaders arranged for an unprecedented shutdown of the U.S. House of Representatives after thirty‑one (31) staffers tested positive for exposure to anthrax.  By contrast, the Brentwood facility continued to operate, twenty‑four hours per day, seven days per week, despite the USPS’ knowledge of the likely potent anthrax contamination.

L.         Anthrax Contamination Was Found in the Senate Mail Room That the Daschle Letter Passed Through Even Though the Daschle Letter Was Never Opened There.

On Wednesday, October 17, 2001, anthrax was found in a mail room at the Dirksen Senate Office Building, through which the Daschle letter had passed unopened before being sent on to the Hart Senate Office Building.  Based on the Dirksen Building mail room findings, USPS officials, including, on information and belief, Postmaster General Potter and Vice President Day, knew or should have known, at least as early as Wednesday, October 17, 2001, that the “weaponized” anthrax contained in the Daschle letter had likely leaked from the envelope and contaminated the Brentwood facility, creating a serious risk of injury or death to Brentwood facility employees, even though the Daschle letter was never opened there.[4]

M.       The USPS Finally Ordered the Brentwood Facility to Be Tested for Anthrax Contamination but Failed to Invoke Emergency Response Procedures and Failed to Advise Brentwood Facility Employees of the Serious Risk of Injury or Death.

 


Indeed, these USPS officials clearly suspected, at least as early as Wednesday, October 17, 2001, that the Brentwood facility had been contaminated because on that date the USPS ordered that the Brentwood facility be tested for anthrax.  At no time on that day, however, did these USPS officials invoke the procedures set forth in Management Instruction EL‑860‑1999‑3, or otherwise evacuate or shut down the Brentwood facility.  Nor did any USPS officials advise Brentwood facility employees of the serious risk of injury or death to which they were likely being exposed or provide them with preventative and curative antibiotics

N.        Unlike the Brentwood Facility, All Buildings on Capitol Hill Were Closed and Quarantined.

On Thursday, October 18, 2001, all buildings on Capitol Hill were closed and quarantined.  Capitol Hill was treated as a crime scene by the FBI.  By contrast, the Brentwood facility continued to operate, twenty‑four hours per day, seven days per week, despite the USPS’ knowledge of the likely potent anthrax contamination.

O.        The USPS Failed to Invoke Emergency Response Procedures and Failed to Advise Brentwood Facility Employees of the Serious Risk of Injury or Death Despite Confirmation Of Anthrax Contamination At The Facility.

At least as early as the morning of Thursday, October 18, 2001, USPS officials, including Brentwood Facility Manager Haney and USPS Senior Vice President Deborah Willhite, clearly knew the Brentwood facility had been contaminated with anthrax.  According to notes kept by Brentwood Facility Manager Haney, on the morning of Thursday, October 18, 2001: 

I met with Rick Edwards, representative of the Senate, Deborah Wilhite (sic), and Terry Poole.  Mr. Edwards was upset that the senator had received an infected letter and wanted to know why it happened and what we were going to do about it . . . When we left the meeting, I pulled Deborah aside and let her know that the mail was leaking and that we were affected. 

 


(emphasis added).[5]  On information and belief, Brentwood Facility Manager Haney informed Postmaster General Potter, Vice President Day, and other unknown USPS officials that anthrax had leaked out of the envelope containing the Daschle letter processed at the Brentwood facility, causing contamination at the Brentwood facility.  Indeed, Brentwood Facility Manager Haney stated in an interview with a USPS Equal Employment Opportunity Dispute Resolution Specialist in this case that “[d]uring the period before the decision was made to close the plant, he communicated and met frequently with senior Postal Service officials to exchange information, seek guidance, and direction.”

P.         Even Though the Daschle Letter, Which Was Mailed from New Jersey, Was Never Opened by a New Jersey Mail Carrier, He Contracted Anthrax.

 

Also on the morning of Thursday, October 18, 2001, Postmaster General Potter and, on information and belief, Vice President Day and other unknown USPS officials, were notified that the CDC had confirmed a New Jersey state medical examiner’s finding on October 16, 2001 that a letter carrier in New Jersey, where the Daschle letter had been mailed, was suffering from cutaneous anthrax.  Based on these circumstances, these USPS officials knew or should have known that the “weaponized” anthrax contained in the Daschle letter had likely leaked from the envelope and contaminated the Brentwood facility, creating a serious risk of injury or death to Brentwood facility employees, even though the Daschle letter was never opened there.[6]

 Q.       Despite Known Anthrax Contamination at the Brentwood Facility, USPS Officials Falsely Represented That the Facility Was Safe and Discouraged Employees from Seeking out Information or Asking Questions Regarding the Safety of the Facility.


Nonetheless, during a press conference at The White House on the morning of Thursday, October 18, 2001, Postmaster General Potter falsely represented that the mail was safe.  At approximately 12:30 p.m. on Thursday, October 18, 2001, Postmaster General Potter held a press conference in an unused section of the Brentwood facility.  Employees were discouraged from asking questions at, or even attending, the press conference.  Some employees were told that they could not attend the press conference while “on the clock.”  Consequently, a large number of employees “clocked out” in order to attend the press conference.  Other employees were told “not to go anywhere near” the press conference.  During the press conference, and despite knowing from FBI and CDC reports, among other sources, that the Brentwood facility had likely been contaminated with “weaponized” anthrax, Postmaster General Potter falsely represented to the employees and members of the news media in attendance that the Brentwood facility was safe.

R.        Hazardous Materials Testing Further Confirmed Anthrax Contamination at the Brentwood Facility and the USPS’ Knowledge of Anthrax Contamination.

On the same day as the USPS press conference at the Brentwood facility, the USPS contacted the Fairfax County HAZMAT Team to have them perform quick, on‑site field tests for anthrax at the Brentwood facility.  The Fairfax County HAZMAT Team sent over two employees in full protective gear, i.e., “moonsuits,” to take samples while the postal employees continued their normal duties without any  protection.  The Fairfax County HAZMAT Team tested DBCS #16‑20 and the Government mail section at the front end of the workroom floor.  In the afternoon of that same day, inspectors from URS Greiner Woodward Clyde Engineering Consultants (“URS”), also wearing protective “moonsuits,” began testing the facility for anthrax contamination.

Brentwood Facility Manager Haney’s notes about the results of the URS tests further confirm that, at least as early as Thursday, October 18, 2001, he knew the Brentwood facility was contaminated with anthrax:


URS was in the facility at 2:30 p.m.  On my way back from the meeting, I was called by [Postmaster General] Jack Potter and Adam Walsh, (America’s Most Wanted), the Deputy Director of the FBI, and Chief Postal Inspector Kenneth Weaver.  It was stated that they wanted to do a live broadcast from the Brentwood workroom floor.  I contacted Corporate Media and the broadcast was coordinated.  They all left after the broadcast (about Noon).  I then met with [redacted] from URS along with some members of my staff.  We identified the machines that we had reason to feel the mail had been run on.  At 6:15 p.m., that night, I spoke with Inspectors Weaver and Clemans to get additional information from the letter.  They did not have the ID tag information at them time (sic), but we were able to get this information from New Jersey.  By decoding the ID tag information, we were able to identify the actual machine the mail had been processed on.  Since URS only had 30 swabs available, we did this machine and the manual cases for ZIP Code 20510 (The Senate).  Again, they tested hot.  URS continued with the testing, but it was not completed until 02:30 a.m. on the 19th, at which time I went home.

 

(emphasis added).[7]  On information and belief, Brentwood Facility Manager Haney informed Postmaster General Potter, Vice President Day, and other unknown USPS officials about the results of the URS tests.

S.         The USPS Waited Four Days to Identify the Machine That Processed the Daschle Letter.

By Friday, October 19, 2001, USPS officials knew that DSBC #17 was the machine at the Brentwood facility that had processed the Daschle letter.

T.         The USPS Failed to Invoke Emergency Procedures and Kept Brentwood Operational Despite Requesting That All Brentwood Facility Employees Be Given Antibiotics for Anthrax Exposure.


Reflecting their recognition of the danger they created by exposing the Brentwood workers to anthrax contamination at the facility, on Friday, October 19, 2001, USPS officials, including, on information and belief, Postmaster General Potter, Vice President Day, and other unknown USPS officials, requested that the District of Columbia Department of Health place all Brentwood employees on antibiotics for exposure to anthrax.  At no time on that day, however, did any USPS official, including the aforementioned, invoke any of the USPS emergency procedures, including the procedures set forth in Management Instruction EL‑860‑1999‑3, or otherwise take steps to evacuate or shut down the Brentwood facility.  Nor did any USPS official, including the aforementioned, advise Brentwood facility employees of the substantial danger that USPS officials created for the Brentwood employees by requiring them to continue working at the anthrax-contaminated facility.

U.        The USPS Continued to Falsely Represent That Testing Showed No Anthrax Contamination at the Brentwood Facility Even after Taking DBCS Machine #17 Off-line Because of Anthrax Contamination.

Also on that same day, Postmaster General Potter falsely represented on a USPS ‑ TV news program entitled “Keeping Our Focus” and in an accompanying notice posted on all employee bulletin boards at the Brentwood facility that early reports of testing at the Brentwood facility showed no anthrax contamination.  “We are talking with employees and sharing information as quickly as it becomes available,” Postmaster General Potter also falsely claimed.  On the same day, Brentwood Facility Manager Haney, acting, on information and belief, at the direction of Postmaster General Potter, Vice President Day, and/or other unknown USPS officials, held another series of “floor” meetings with Brentwood employees at which Haney again falsely represented that the Brentwood facility was safe and that he was doing everything he could to keep the employees safe.


Despite Haney’s false assurances, rumors began to circulate that USPS officials knew that the Brentwood facility, and DBCS #17 specifically, was contaminated with anthrax.  As a result, at approximately 4:00 p.m. on Friday, October 19, 2001, several Brentwood facility ETs assigned to work on DBCS #17 approached Brentwood facility employee Alston and stated that they had heard a rumor DBCS #17 was contaminated with anthrax.  Alston told the ETs to stay away from the machine until he could determine if what they had heard was true.  Alston asked Supervisors Mitchell and Lewis if they had heard, or been told, that DBCS #17 or any other machine was contaminated with anthrax.  Both answered no.

At approximately 4:15 p.m., however, MDO Cooke told Alston that DBCS #17 was not to be used because it was contaminated with anthrax.  Thus, at some point on Friday, October 19, 2001, the machine that had processed the Daschle letter, DBCS #17, was taken off‑line because it was contaminated with anthrax.  Nonetheless, Brentwood facility employees were not informed that the Daschle letter had been processed on DBCS #17, nor were they informed why DBCS #17 had been shut down.  Even further, no USPS official, including Postmaster General Potter, Vice President Day and Brentwood Facility Manager Haney, invoked any of the USPS emergency procedures, including the procedures set forth in Management Instruction EL‑860‑1999‑3, or otherwise took steps to evacuate or shut down the Brentwood facility or advise Brentwood facility employees of the substantial danger that USPS officials created for the Brentwood employees by requiring them to continue working at the anthrax-contaminated facility.

V.        Despite Knowing That the Brentwood Facility Was Contaminated with Anthrax, the USPS Did Not Provide Brentwood Facility Employees Protective Gear and Threatened to Use Disciplinary Action Against Those Who Were Concerned for Their Own Safety.


MDO Cooke also told Alston that gloves and masks were available for  employees’ use, but that he should not pass them out to employees unless they specifically asked for them, as there were not enough gloves and masks to give to all of the employees on duty.  MDO Cooke also told Alston that, if any employees wished to leave work because they were emotionally upset by the anthrax contamination, he should let them go, but should take written disciplinary action against the employees upon their return to work.  MDO Cooke stated that these instructions came from senior USPS officials, including, on information and belief, Postmaster General Potter, Vice President Day, Brentwood Facility Manager Haney, and/or other unknown USPS officials.

W.       The USPS Ordered That DBCS Machine #17 Be Brought Back On-line Despite Being Contaminated with Anthrax.

At approximately 11:30 p.m., on Friday, October 19, 2001, Supervisor of Maintenance Operations Jimmy Tihoe returned to work from his scheduled two days off and was told by Acting Supervisor Tom Dickey that DBCS #17 was contaminated with anthrax.  Dickey also told Tihoe that employees were refusing to work on the machine.  At that same time, Manager Chapman ordered ETs Edgar and Wright to get DBCS #17 up and running again.  ET’s Edgar and Wright protested because they had heard rumors that DBCS #17 was contaminated with anthrax.  Manager Chapman insisted that the machine was not contaminated and ordered them to clean DBCS #17 by “blowing it out” with compressed air and to get it on‑line immediately.  Other Brentwood employees heard managers state that they needed DBCS #17 on‑line because another DBCS machine had broken down, and DBCS #17 was needed to meet their processing goals.  As a result, DBCS #17 was brought back on‑line notwithstanding that it was contaminated with anthrax.

 


X.        As They Ordered Anthrax-Contaminated DBCS # 17 Be Brought Back On-line, USPS Officials Were Advised That Brentwood Facility Employee Leroy Richmond Was Hospitalized with Inhalation Anthrax.

Also on Friday, October 19, 2001, Brentwood facility employee Leroy Richmond entered the emergency room at Fairfax Inova Hospital and was confirmed to be suffering from inhalation anthrax.  USPS officials, including, on information and belief, Postmaster General Potter, Vice President Day, Brentwood Facility Manager Haney, and other unknown USPS officials, were notified that Richmond had been admitted to the hospital for possible inhalation anthrax.  Indeed, in the evening of the same day, Richmond’s wife called Brentwood Facility Manager Haney and left a message on his voice mail stating that her husband was suffering from inhalation anthrax and that the facility must be shut down immediately.  In addition, throughout the early morning hours of October 20, 2001, Mrs. Richmond called other Brentwood facility supervisors to inform them that her husband was suffering from inhalation anthrax.

Y.         USPS Officials Met With the D.C. Mayor’s Office of Emergency Response Regarding Confirmation That the Brentwood Facility Had Tested Positive For Anthrax Contamination And That  Leroy Richmond Had Been Hospitalized With Inhalation Anthrax.

Brentwood Facility Manager Haney’s notes also show he clearly knew that, at least as early as a 6:00 a.m. meeting with the D.C. Mayor’s Office of Emergency Response (“OER”) on Saturday, October 20, 2001, “the facility tested positive” and that at least one Brentwood employee was suffering from possible inhalation anthrax exposure.[8]

 


Z.         USPS Officials Again Falsely Represented to Brentwood Facility Employees That the Facility Was Safe and That No Anthrax Contamination Had Been Found.

Nonetheless, Brentwood Facility Manager Haney, acting, on information and belief, at the direction of Postmaster General Potter, Vice President Day, and/or other unknown USPS officials, held another series of “floor” meetings with Brentwood facility employees on Saturday, October 20, 2001, during which he again falsely represented to the employees that the facility was safe and no evidence of anthrax spores had been found.  Haney falsely stated, “We have made it this far and we do not have any positive test results for anthrax.”  He mentioned that one Brentwood facility employee had been hospitalized and was being examined for potential inhalation anthrax.  Haney falsely stated, however, that the employee’s tests had been negative so far and that everything was okay.  He then expressed concern that the mail volume being processed in the facility was dropping, as were processing goals.  Haney then told the employees that they needed to focus on processing the mail and meeting their processing goals.  He also falsely promised that all news would be shared with the employees.

AA.      Brentwood Facility Manager Haney Instructed Brentwood Facility Employees to Handle Suspicious Letters and Packages, Contrary to USPS Management Instruction EL‑860‑1999‑3, and Threatened Workers Who Questioned His Instructions.


Brentwood Facility Manager Haney also told Brentwood employees at least three (3) times during this same meeting that if they encountered any suspicious pieces of mail, they should pick it up with their hands and carry it to red bio‑hazard bags that had been placed throughout the building.  When Brentwood facility ET David Norville, who had received training for exposure to biological hazards while serving in the military, questioned Haney about this instruction, Haney threatened to expel him from the building.  Haney became very belligerent toward employees who asked specific questions about the proper procedures for handling suspicious letters and packages.  Haney even told one employee to “shut up.”

BB.      Anthrax-Laden Mail Processed at the Brentwood Facility Also Contaminated Another Capitol Hill Building.

Also on October 20, 2001, anthrax was found in the Ford Office Building where mail was processed for the U.S. House of Representatives.  Mail delivered to the Ford Office Building initially was processed at the Brentwood facility.  Based on these circumstances, the USPS knew or should have known that the “weaponized” anthrax contained in the Daschle letter had likely leaked from the envelope and contaminated the Brentwood facility, creating a serious risk of injury or death to Brentwood facility employees, even though the Daschle letter was never opened there.[9]

CC.      Brentwood Employee Thomas Morris Died from Inhalation Anthrax Contracted at the Brentwood Facility.

 

At 4:39 a.m. on Sunday, October 21, 2001, Brentwood employee Thomas Morris, Jr. called 911 complaining of inhalation anthrax‑like symptoms.  Morris told the 911 dispatcher that he suspected that he had been exposed at work to an envelope containing lethal anthrax.  Morris died of inhalation anthrax several hours later.

 

 


DD.     Brentwood Facility Manager Haney Finally Decides to Close the Brentwood Facility and Advises Facility Employees to Seek Medical Evaluation and Treatment. 

At approximately 11:00 a.m. on Sunday, October 21, 2001, CDC Representative Jim Haslet told Brentwood Facility Manager Haney that the Brentwood facility needed to be closed.  After his conversation with Haslet, Haney told all employees to gather in the cafeteria at 12:00 p.m. for a meeting.  At the meeting, Brentwood Facility Manager Haney told the employees in attendance that a postal worker was in the hospital with a confirmed diagnosis of anthrax and that the facility was being closed as a “precautionary measure.”  The employees in attendance were directed to go to Judiciary Square for medical evaluation and treatment.

EE.      USPS Officials Told Some Brentwood Facility Employees to Stay Behind and Move the Mail out of the Facility Without Protective Gear, While Failing to Advise Those Employees That the Facility Was Contaminated with Anthrax.


Not all employees were allowed to attend the meeting in the cafeteria, however.  Approximately eight (8) to ten (10) employees were paged on the public address system and instructed to report to the MDO office.  When Brentwood employee Jeffrey Butler reported to the MDO office, he was told to take a seat in the conference room, which he did.  After the other employees arrived, SMDO Talley entered the conference room and addressed the group of employees.  Acting, on information and belief, at the direction of Brentwood Facility Manager Haney, SMDO Talley stated that she needed her “best workers” to help her round up all of the mail at the Brentwood facility and move it to the loading dock/platform area so that it could be loaded onto trucks.  The employees, including Butler, asked SMDO Talley what was going on in the cafeteria with the other workers.  SMDO Talley responded by stating that she did not know for sure, but that she thought the facility was going to be closed as a “precautionary measure.”  She repeated that she, personally, did not have any firm information that the building was contaminated, but that she needed the help of her “best workers” to help get every piece of mail in the building ready to be moved out as soon as possible.  Not having any information to the contrary, the employees, including Butler, did as SMDO Talley directed.  At no point during the meeting were any of the employees, including Butler, notified the facility had been contaminated with anthrax.

Butler continued to work until 5:00 p.m., gathering mail throughout the building and organizing it into flat trays, hampers, and other equipment, and moving it to a platform so that it could be loaded on trucks for shipment.  At no point was Butler issued any protective gear.  After finishing his work, Butler went to his car in the parking lot.  As Butler drove towards the exit of the parking lot, he saw a manager handing out flyers to the next tour of workers arriving for their shift.  Butler pulled over his car and asked the manager for a flyer.  It was only upon reading the flyer that Butler learned that the Brentwood facility was being closed due to anthrax contamination and that all postal workers were being instructed to report to Judiciary Square for medical evaluation and treatment.  Like Butler, none of the employees who stayed behind to close down the facility were issued any protective gear.

FF.       The Brentwood Facility Is Finally Closed, Ten (10) Days after the Daschle Letter Had Passed Through the Facility and the USPS Should Have Suspected Anthrax Contamination, and at Least Four (4) Days after the USPS Knew for Certain That the Facility Had Been Contaminated.

 


At approximately 7:00 p.m. on Sunday, October 21, 2001, the Brentwood facility was finally closed, ten (10) days after the Daschle letter had passed through the facility and the USPS Should Have Suspected Anthrax Contamination, and at least four (4) days after the USPS knew for certain that the facility had been contaminated.  Even after the Brentwood facility was closed on Sunday, October 21, 2001, truck drivers employed at the facility were called in to transport potentially contaminated mail to other postal facilities.  The truck drivers worked late into the night and the early morning hours of Monday, October 22, 2001 to remove potentially contaminated mail from the Brentwood facility.  Like the other employees who stayed behind to close down the facility, none of the drivers were issued any protective gear.  Incredibly, mail that had been in the Brentwood facility was not transported to other facilities for decontamination, but, rather, was sent to other facilities to be processed and delivered to homes and businesses all across the world.

 GG.    USPS Officials Told Mid-Level Managers at the Brentwood Facility to Falsely Represent to Brentwood’s Floor Supervisors and Employees That the Facility Was Not Contaminated with Anthrax.

 

On Monday, October 22, 2001, Brentwood facility Supervisor of Maintenance Operations Jimmy Tihoe arrived at the Brentwood facility parking lot and, while walking through the gate to the Brentwood facility, spoke with Mail Processing Manager Greg Hall.  Hall told Tihoe that senior Brentwood managers, acting, on information and belief, at the direction of Postmaster General Potter, Vice President Day, Brentwood Facility Manager Haney, and other unknown USPS officials, had told him and other mid‑level managers to falsely represent to the floor supervisors and employees that the Brentwood facility was not contaminated with anthrax.

HH.     While USPS Officials Falsely Represented That The Brentwood Facility Was Not Contaminated, Brentwood Employee Joseph Curseen Died Of Inhalation Anthrax And Other Brentwood Employees Become Ill From Exposure To Anthrax.

 


On the morning of Monday, October 22, 2001, Brentwood facility employee Joseph Curseen went to the hospital with flu‑like symptoms, and, later that evening, died of inhalation anthrax.  That same day, two (2) more Brentwood facility employees were hospitalized and nine (9) other employees became ill with anthrax‑like symptoms.  Since the anthrax contamination at the Brentwood facility in October 2001, many Brentwood employees have experienced and continue to experience anthrax‑like symptoms, in addition to substantial emotional distress, pain, suffering, and anxiety caused by these events.

REQUESTED INFORMATION

1.         Identify, by protected racial group, the class of individuals the Class Agent seeks to represent.

 

Class Agent Briscoe seeks to represent a class of Brentwood facility employees who were employed at the facility at the time of the events complained of herein and who are black, Asian American/Pacific Islander, Hispanic and American Indian/Alaskan Native.

2.         Specify in what way the Agency’s actions have allegedly discriminated against the proposed class, identifying all of the specific employment actions alleged to be discriminatory against the proposed class and the dates on which these actions occurred.  Specify the date that the alleged discriminatory action was taken against the Class Agent; identify the name and position of the Agency officials who participated in that action; and describe their role in the action.

 


First, Class Agent Briscoe claims that the underlying disparity in working conditions created by the USPS between its employees at the Boca Raton facility, who are predominately Caucasian, and the Brentwood facility, who are predominately not Caucasian, in October of 2001 was discriminatory.  See Harrington v. Vandalia-Butler Board of Education, 418 F. Supp. 603, 606 (S.D. Ohio 1976) (School board discriminated against female physical education teacher by providing working conditions inferior to those of male teachers performing same services), rev’d on other grounds, 585 F2d 192 (6th Cir. 1978), cert. denied, 441 U.S. 932 (1979).  Specifically, Class Agent Briscoe claims that the USPS affirmatively notified the Boca Raton facility employees of their exposure to anthrax and immediately took remedial measures, including provided all such employees with medical tests and with preventative and curative antibiotics, even before receiving the positive test results for anthrax contamination in the facility, and implemented USPS Management Instruction EL-860-1993-3 that requires, inter alia, mechanical shutdown (including air handling equipment), isolation and evacuation of the facility when anthrax contamination is suspected.  The USPS timely initiated these remedial measures the very next day after they discovered anthrax in the AMI mail room because the USPS was aware that anthrax sent through the mail could penetrate the sides of a sealed envelope as is evident by their own regulations that require that bio-hazardous materials, such as anthrax, be contained in “fail-safe packages” if they were to be sent through the U.S. mail.[10]

 


In contrast, the USPS actively concealed from its Brentwood facility employees, who are predominantly not Caucasian, including Class Agent Briscoe, their exposure to anthrax and failed to take immediate remedial measures, such as providing all such employees with medical tests and with preventative and curative antibiotics and implementing USPS Management Instruction EL-860-1993-3.  Like the Boca Raton facility, the USPS had sufficient facts to suspect that anthrax had leaked from the anthrax-laden letter processed in the Brentwood facility based on their own regulations and the findings in the AMI mail room.  Even further, the USPS had the following additional reasons to suspect anthrax contamination at the Brentwood facility, which it did not have for the Boca Raton facility:

1.         On Monday, October 15, 2001, anthrax was found in the Boca Raton facility

where an anthrax-laden letter was processed even though the letter was never opened there;

2.         On October 17, 2001, anthrax was found in the Senate mail room that the Daschle

letter passed through even though the letter was never opened there;

3.         On the morning of October 18, 2001, the USPS was notified that the CDC

confirmed the New Jersey state medical examiner’s finding on October 16, 2001 that a New Jersey Postal carrier was infected with cutaneous anthrax even though the Daschle letter, which was mailed from New Jersey, was never opened by the New Jersey mail carrier;

4.         On October 20, 2001, anthrax was found in the Ford Office Building where mail

that is first processed at the Brentwood facility is processed for the US House of Representatives; and

5.         On October 16, 2001, USPS officials were advised by USAMRIID and CDC

officials that the particular strain of anthrax in the Daschle letter was a very potent and finely milled strain of anthrax, even more deadly than the strain of anthrax found at the Boca Raton facility, and a very dangerous condition likely existed at the Brentwood facility.


Indeed, Brentwood Facility Manager Haney confirmed in his notes that the USPS did in fact suspect anthrax contamination as early as October 18, 2001.[11]  Nevertheless, unlike their actions at the Boca Raton facility, the USPS did not act in a prudent and timely manner to remedy the working conditions at the Brentwood facility by notifying the Brentwood facility employees, including Class Agent Briscoe, of their exposure to anthrax and providing all such employees with medical tests and with preventative and curative antibiotics and implementing USPS Management Instruction EL-860-1993-3.


Even worse yet, by at least as early as October 18, 2001, four (4) days before the Brentwood facility was finally closed, the USPS had actual knowledge that the Brentwood facility was contaminated with anthrax as a result of their testing of the facility.[12]  This finding of anthrax contamination was confirmed when, on October 19, 2001, the USPS was notified that early tests showed that one of its Brentwood Employees was in the hospital suffering from possible inhalation anthrax.  Nonetheless, unlike the Boca Raton facility, the USPS chose to keep the Brentwood facility employees, including Class Agent Briscoe, working at the anthrax contaminated facility by providing false and/or misleading information and/or not providing accurate information about the safety of the Brentwood facility.  Not only did the USPS mislead, lie and/or fail to provide the Brentwood employees, including Class Agent Briscoe, with accurate information regarding whether the Brentwood facility was contaminated with anthrax, but the USPS also intimidated and/or threatened the Brentwood employees with disciplinary action, loss of employment and/or arrest if they asked questions about the Daschle letter, the safety of the facility or their own safety, requested safety instructions regarding the same, or asked to be excused from work, unlike the Boca Raton facility.  The USPS also failed to provide all such Brentwood employees, including Class Agent Briscoe, with medical tests and with preventative and curative antibiotics and to implement USPS Management Instruction EL-860-1993-3 in a timely manner, unlike the Boca Raton facility.


Second, Class Agent Briscoe claims that the USPS’ implementation of USPS Management Instruction EL-860-1993-3 has created a disparate impact.  Simply put, the USPS timely implemented its Management Instruction EL-860-1993-3 in its Boca Raton facility, where the employees are predominately Caucasian, in October 2001 when it affirmatively notified the Boca Raton facility employees of their exposure to anthrax and immediately took remedial measures, including provided all such employees with medical tests and with preventative and curative antibiotics, tested the facility and subsequently effected the mechanical shutdown, isolation and evacuation of the facility.  In contrast, the USPS failed to timely implement USPS Management Instruction EL-860-1993-3 at the Brentwood facility, where the employees are not predominately Caucasian, in October 2001.  Indeed, at the Brentwood facility, the USPS acted wholly contrary to USPS Management Instruction EL-860-1993-3 by providing false and/or misleading information and/or not providing accurate information about the safety of the Brentwood facility and/or how to handle suspicious packages, intimidating and/or threatening the Brentwood employees with disciplinary action, loss of employment and/or arrest if they asked questions about the safety of the facility or their own safety, requested safety instructions regarding the same, or asked to be excused from work, and failing to provide all such Brentwood employees with medical tests and with preventative and curative antibiotics.

The Agency officials who participated in these discriminatory acts were as follows:

1.         USPS Postmaster General John E. Potter.  At a community meeting hosted by the USPS on decontamination of the Brentwood facility, USPS Vice President of Engineering Day stated that decisions about the Brentwood facility were made at the top levels of the organization, including, on information and belief, by Postmaster General Potter.  In addition, Brentwood Facility Manager Haney stated in an interview with a USPS Equal Employment Opportunity Dispute Resolution Specialist in this case that “[d]uring the period before the decision was made to close the plant, he communicated and met frequently with senior Postal Service officials to exchange information, seek guidance, and direction,” including, on information and belief, Postmaster General Potter.  Also, as demonstrated throughout Class Agent Briscoe’s Statement of Facts, supra, Postmaster General Potter repeatedly and falsely assured  Brentwood facility employees that the facility was safe and that they had not been exposed to anthrax, when, in fact, he knew or should have known the that the facility was contaminated with anthrax from the Daschle letter.


2.         USPS Vice President of Engineering Thomas Day.  At a community meeting hosted by the USPS on decontamination of the Brentwood facility, Vice President Day admitted that he was personally involved in meetings about whether to shut down the Brentwood facility in response to the anthrax contamination caused by the Daschle letter.  In fact, Vice President Day stated that he initiated the USPS’ response to the Daschle letter.  In addition, Brentwood Facility Manager Haney stated in an interview with a USPS Equal Employment Opportunity Dispute Resolution Specialist in this case that “[d]uring the period before the decision was made to close the plant, he communicated and met frequently with senior Postal Service officials to exchange information, seek guidance, and direction,” including, on information and belief, Vice President Day.

3.         Brentwood Facility Manager Timothy C. Haney.  Facility Manager Haney

admitted to a USPS Equal Employment Opportunity Dispute Resolution Specialist in this case that he was personally involved in the decisions regarding the Brentwood facility.  Also, as demonstrated throughout Class Agent Briscoe’s Statement of Facts, supra, Brentwood Facility Manager Haney repeatedly and falsely assured  Brentwood facility employees that the facility was safe and that they had not been exposed to anthrax, when, in fact, he knew or should have known the that the facility was contaminated with anthrax from the Daschle letter.  In addition, Brentwood Facility Manager Haney intimidated and/or threatened the Brentwood employees with disciplinary action, loss of employment and/or arrest, and/or instructed supervisors under his direction to do the same, if Brentwood facility employees asked questions about the safety of the facility or their own safety, requested safety instructions regarding the same, or asked to be excused from work.

 

3.         With regard to each of the employment actions that are the subject of the Class Agent’s complaint, specify the questions of law or fact that are common to her individual claims and the claims of the class that she seeks to represent.

 


Class Agent Briscoe was at all relevant times a Brentwood facility employee.  Like the putative class, Class Agent Briscoe was required to work in the disparate working conditions during the month of October 2001.  In addition, like the putative class, Class Agent Briscoe was affected by the disparate impact created when the USPS implemented USPS Management Instruction EL-860-1993-3 at the Boca Raton facility, but not at the Brentwood facility.  As a result, there are several questions of law or fact, the resolution of which will affect all or a significant number of the putative class members, including Class Agent Briscoe.  Among the questions of law or fact common to the class and Class Agent Briscoe are:

1.         Whether the USPS knew or had reason to know that the Boca Raton facility had

been contaminated by anthrax during the October 2001 time period;

2.         Whether the USPS knew or had reason to know that the Brentwood facility had

been contaminated by anthrax during the October 2001 time period;

3.         Whether the USPS invoked USPS Management Instruction EL-860-1993-3 in a timely manner when they knew or had reason to know that the Boca Raton facility had been contaminated with anthrax during the October 2001 time period;

4.         Whether the USPS invoked USPS Management Instruction EL-860-1993-3 in a timely manner when they knew or had reason to know that the Brentwood facility had been contaminated with anthrax during the October 2001 time period;

5.         Whether the USPS notified the Boca Raton facility employees of their exposure to anthrax and immediately took remedial measures, including provided all such employees with medical tests and with preventative and curative antibiotics in a timely manner when they knew or had reason to know that the Boca Raton facility had been contaminated with anthrax during the October 2001 time period;


6.         Whether the USPS notified the Brentwood facility employees of their exposure to anthrax and immediately took remedial measures, including provided all such employees with medical tests and with preventative and curative antibiotics in a timely manner when they knew or had reason to know that the Brentwood facility had been contaminated with anthrax during the October 2001 time period;

7.         Whether the USPS falsely represented to the Brentwood facility employees during the October 2001 time period that the facility had not been contaminated and/or was safe for them to continue working;

8.         Whether the USPS provided false and/or misleading information and/or did not provide accurate information about the safety of the Brentwood facility;

9.         Whether the USPS intimidated and/or threatened Brentwood employees with disciplinary action, loss of employment and/or arrest if they asked questions about the safety of the facility or their own safety, requested safety instructions regarding the same, or asked to be excused from work;

10.       Whether the underlying disparity in working conditions created by the USPS between its Boca Raton facility and Brentwood facility in October of 2001 was discriminatory in violation of Title VII;

11.       Whether the disparate impact created by the USPS’ implementation in a timely manner of USPS Management Instruction EL-860-1993-3 at the Boca Raton facility, but not the Brentwood facility, was discriminatory in violation of Title VII; and

12.       Whether the members of the class have sustained damages, and, if so, what is the proper measure of damages.

The overwhelming commonality of factual and legal questions makes a class complaint the most efficient and expeditious manner in which to proceed.


4.         How many individuals do you contend have been adversely affected by the alleged discriminatory employment actions?  How did you make this determination?  How many of these individuals are members of the protected class?

 

Approximately two thousand three hundred and sixty-four (2,364) individuals were adversely affected by the alleged discriminatory employment actions.  This information was obtained from the EEO Dispute Resolution Specialist’s Inquiry Report as the total number of Brentwood employees who were employed at the Brentwood facility at the relevant times herein.  Approximately two thousand two hundred and thirty-seven (2,237) individuals are members of the protected class.

5.         To the extent possible, identify the individuals you contend have been adversely affected by each of the actions that you allege to be discriminatory.  How have each of these individuals been affected and what type of relief they are seeking as a result of the Agency’s actions?

 

Approximately two thousand two hundred and thirty-seven (2,237) individuals are members of the putative class.  The individuals identified by name thus far and who had joined Class Agent Briscoe’s Class Complaint when filed include:

Clarence Alford                                    Laurance Allgood                                 Ossie A. Alston

David Ball                                            Denise Barry                                        Audrey Bazemore

Joan Bell                                              Barbara Bethea                                    James Bethea

Deborah I. Boston                                Leonard Boggan                                   Coretha E. Bowe

Thea Bradley                                        Dena Briscoe                                        Jacob Carey

Florence Chase                                    John Cepko                                          James Chiles

Kimberly Chin                          Jackie Cooke                                       Tiffany Cooper

Mary Corbin                                        Eldine Curry                                         Calvin Davis

Genieve Dickens                                   Linda Dillard                                         Delores Dixon

Cordell Dudley                         Sara Drummond                                   Kendall Edgar

Sylvester Edwards                                Pansy Epps                                          Medell Ford

Linda Foster                                         Jacqueline Gibson                                 Louis Gillespie

Sharon Greenwood                              Johnnie Hall                                          Tyrone Hall

James Harper                                       Joyce Harris                                         Michael Harris

John Harvey                                         Geralene Hayes                                    Anthony Hudson


Marvin Jeffcoat                         Marvin Jeffcoat                         Shirly Johnson

Milford Jones                                       Stephen King                                        Dorothy Lee

Helen Lewis                                         Vera Mackey                                       Denise Manley

Joseph Marshall                                    Martha Marshall                                   Shellie Mayrant

Joseph Mays                                        Roy Melvin                                           Linda Miller

David Norville                                      Abraham Odom                                   Frederick Ordone

Francis Parker                                      Erica Parry                                           Leonar Phillips

Henry Powell                                        Tywanna Plummer                                Muhhamed Rafik

Mary Ray                                             Robert Richard II                                 Earnest Richardson

Susan Richmond                                   Bertha Rose                                         Teressa Rose

Jo Royal                                               Thomas Samuel                                    Donna Sanders

James Spencer                                     David Staten                                         Charles Stroud, Jr.

William Stueckler                                  Brandon Summers                                Vincent Tompkins

Jetton Thornton                                    Jimmy Tihoe                                         Thu Trinh

Howard Tyson                                     Jacquelyn Walton                                 Jacquelyn Walton

Danny Wiggens                                    Barbara Williams                                  Offried Williams

Sylvia Williams                                     James Wilson                                       Veda Wilson

Yvonne Wilson                                     Terrell Worrell                                      Lawrence Wright

 

Because the USPS’ discriminatory actions affected each individual in the Brentwood facility as a whole, each of the aforementioned individuals, like the putative class, has suffered similar injuries, to include:

1.         Net lost wages and benefits, including fringe benefits such as vacation and sick pay;

2.         Medical bills (present and future);

3.         Emotional pain and suffering and mental anguish;

4.         Inconvenience; and

5.         Loss of enjoyment of life

The aforementioned individuals, like the putative class, seek the following remedies:

1.         Back-pay for any time missed as a result of the USPS’ discriminatory actions mentioned above, including restoration of any conventional and/or sick leave;


2.         Compensation for present and future medical expenses;

3.         Compensation for pain and suffering, mental anguish, inconvenience, and loss of enjoyment of life;

4.         A signed re-commitment by the USPS to follow its own health and safety policies and the Occupational Safety and Health Administration’s regulations;

5.         A signed re-commitment by the USPS to ensure that training is given to all employees on health and safety issues;

6.         A signed re-commitment by the USPS to process all employees’ claims in a timely and efficient manner;

7.         A signed apology by the USPS to its Brentwood facility employees for its discriminatory actions mentioned above;

8.         Attorney fees and costs; and

9.         Any other relief that may be appropriate.

6.         What is the time span covered by the Class Agent’s allegations?

 

The time span covered by Class Agent Briscoe’s allegations is approximately one month, that is, the month of October in 2001.

7.         Insofar as the Class Agent is represented by counsel, specify counsel’s experience in litigating class actions under Title VII, and identify case names, docket numbers, and citations, if any, of cases in which counsel has done so.

 


Class Agent Briscoe’s counsel, Judicial Watch, Inc. (“Judicial Watch”), is a not-for-profit, public interest organization dedicated to fighting government corruption.  Judicial Watch’s attorneys have extensive experience litigating Title VII and civil rights matters and have litigated matters involving class actions, although no class actions involving Title VII.  Such matters include:

Alexander, et al. v. Federal Bureau of Investigation, et al., No. 96-CV-2123 (D.D.C.) (class action-pending)

 

Carlet Auguste v. Department of Defense, No. DC-1221-02-0255-W-1 (MSPB) (civil rights/whistleblower)

 

Dena Briscoe, et al. v. John E. Potter, et al., No. 03-CV-02084 (D.D.C.) (civil rights class action-pending)

 

Dontato Dalrymple, et al. v. Janet Reno, et al., No. 00-01773 (S.D. Fla.) (civil rights) (citation Dontato Dalrymple, et al. v. Janet Reno, et al., 334 F.3d 991 (11th Cir. 2003), cert. denied, 124 S.Ct. 1655 (2004))

 

Lazaro Gonzalez, et al. v. Janet Reno, et al., No. 00-3621 (S.D. Fla.) (civil rights) (citation Lazaro Gonzalez, et al. v. Janet Reno, et al., 325 F.3d 1228 (11th Cir. 2003))

 

John Vincent v. Federal Bureau of Investigation, et al., 03-CV-0226 (D.D.C.) (civil rights)

 

Johnny Chung v. Department of Justice, et al., No. 00-CV-01912 (D.D.C.) (civil rights) (citation Johnny Chung v. Department of Justice, et al., 333 F.3d 273 (D.C. Cir. 2003))

 

Linda Shenwick v. Department of State, No. NY-0752-01-0097-I-2 (MSPB) (civil rights/whistleblower)

 

Linda Shenwick v. Department of State, No. NY-1221-00-0403-B-1 (MSPB) (civil rights/whistleblower)

 

M. Dennis Sculimbrene v. Janet Reno, et al., No. 99-CV-2010 (D.D.C.) (civil rights)

 

Notra Trulock, III v. Louis Freeh, No. 00-1268 (E.D. Va.) (civil rights) (citation Notra Trulock, III v. Louis Freeh, 275 F.3d 391 (4th Cir. 2002), cert denied, 537 U.S. 1045 (2002))

 

Ricardo Ramirez v. John Ashcroft, et al., No. 00-4711 (S.D. Fla.) (Title VII)

 

Ricardo Ramirez v. John Ashcroft, et al., No. 01-2190 (S.D. Fla.) (civil rights)


Ricardo Ramirez v. John Ashcroft, et al., No. 01-4835 (S.D. Fla.) (Title VII)

 

Ricardo Ramirez v. Department of Justice, AT-1221-02-0114-W-1 (MSPB) (civil rights/whistleblower)

 

Robert G. Wright v. Federal Bureau of Investigation, et al., No. 02-CV-0915 (D.D.C.) (civil rights)

 

Sonya Stewart v. Donald L. Evans, et al., 00-CV-1241 (D.D.C.) (Title VII) (citation

Sonya Stewart v. Donald L. Evans, et al., 275 F.3d 1126 (D.C. Cir. 2002))

 

Judicial Watch has agreed to represent Class Agent Briscoe and the putative class in this matter on a pro bono basis.  Judicial Watch has at its disposal, and will use in this matter, a team of dedicated trial and appellate attorneys and support staff, including paralegals and investigators. Several employees of Judicial Watch have already been assigned to develop the prima facie case, damages evidence, communications with class representatives and members,[13] factual investigation, different aspects of discovery, and the hearing. 

In addition, Judicial Watch has already demonstrated its desire and ability to zealously represent the putative class members by filing Freedom of Information Act (“FOIA”) requests with the USPS and subsequently litigating the USPS’ failure to respond.[14]  As a result of the litigation, the USPS was ordered to produce to Judicial Watch the requested records, which importantly contained several pieces of key evidence to be used in this case.[15] 



Judicial Watch has also worked closely with a Brentwood facility employees’ advocacy and support group called “Brentwood Exposed.”[16]  Judicial Watch has assisted Brentwood Exposed in its numerous advocacy efforts and has represented members of Brentwood Exposed in appearing before various governmental entities.  Most recently, Judicial Watch produced an analysis of a Government Accounting Office report concerning the anthrax exposure at the Brentwood facility, Analysis of GAO Testimony: “U.S. Postal Service -- Clear Communication With Employees Needed Before Reopening the Brentwood Facility,” (GAO-04-205T/October 23, 2003).  In response to Judicial Watch’s analysis, Comptroller General of the United States David M. Walker wrote on December 17, 2003: “We view Judicial Watch as an important accountability organization in Washington, D.C. and very much appreciate your offer to meet with us again and discuss our review and provide further assistance to us.”  Judicial Watch, like Class Agent Briscoe, has been and will continue to be a vigorous advocate for the Brentwood employees and members of the putative class.

8.         Provide any other information relevant to a determination of whether this complaint meets the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2).

 

Class Agent Briscoe hereby incorporates by reference her previous submission of January 10, 2003 to the USPS’ EEO Dispute Resolution Specialist on the class certification issue, contained in the Class Action File transmitted by the USPS to the EEOC.

 

Respectfully submitted,

 

JUDICIAL WATCH, INC.

 

 

 

___________________________

Paul J. Orfanedes

Dale L. Wilcox

Suite 500

501 School Street, S.W.

Washington, DC 20024

(202) 646-5172

 

Attorneys for Complainants


CERTIFICATE OF SERVICE

I hereby certify that on June 24, 2004 a true and correct copy of the foregoing Class Agent Briscoe’s Response to the Equal Employment Opportunity Commission’s May 13, 2004 Order to Produce Information was served by first-class mail, postage prepaid, and facsimile on the following:

 

Equal Employment Opportunity Commission:

 

Hon. Andrew Culbertson

Administrative Judge

Equal Employment Opportunity Commission

Washington Field Office

1400 L. Street, N.W., Suite 200

Washington, D.C. 20005-3513

Fax: (202) 275-6834

Agency Representative:

Elisabeth E. Boyan, Esq.

Agency Representative

United States Postal Service Law Department

475 L’Enfant Plaza, S.W., Room 6147

Washington, D.C.  20260-1127

Fax:  (202) 268-4997

 

 

 

__________________________

David Rothstein

 



[1]           See Exhibit 3 (USPS Management Instruction EL-860-1999-3) to Class Complaint.

[2]           See 39 C.F.R. Part 111; USPS Domestic Mail Manual C023; International Mail Manual 135; and USPS Publication 52.

[3]           At a subsequent community meeting hosted by the USPS on decontamination of the Brentwood facility, Vice President Day admitted that he was personally involved in meetings about whether to shut down the Brentwood facility in response to the anthrax contamination caused by the Daschle letter.  Day also admitted that decisions about the Brentwood facility were made at the top levels of the organization, including, on information and belief, by Postmaster General Potter.

[4]           The USPS was also on notice that anthrax could leak from a sealed envelope due to its findings of anthrax in the AMI mail room and/or Boca Raton facility.

[5]           See Exhibit 1 (Brentwood Facility Manager Timothy C. Haney’s notes) to Class Complaint.

[6]           Again, the USPS was also on notice that anthrax could leak from a sealed envelope due to its findings of anthrax in the AMI mail room, Boca Raton facility and the Dirksen Senate Office Building mail room.

[7]           See Exhibit 1 (Brentwood Facility Manager Timothy C. Haney’s notes) to Class Complaint.

[8]           See Exhibit 1 (Brentwood Facility Manager Timothy C. Haney’s notes) to Class Complaint.

[9]           Again, the USPS was also on notice that anthrax could leak from a sealed envelope due to its findings of anthrax in the AMI mail room, Boca Raton facility, the Dirksen Senate Office Building mail room, and the New Jersey Postal carrier’s diagnosis.

[10]          These USPS regulations mandate that toxins such as anthrax be contained in vials wrapped with waterproof tape, surrounded by absorbent material, and sealed within two separate metal canisters.  Regulations also require packages to be labeled as containing disease-causing agents and clearly marked with a contact telephone number at the CDC in case of leakage or damage.  See 39 C.F.R. Part 111; USPS Domestic Mail Manual C023; International Mail Manual 135; and USPS Publication 52.

[11]          See Exhibit 1 (Brentwood Facility Manager Timothy C. Haney’s notes) to Class Complaint (On the morning of October 18, 2001, Haney told USPS Senior Vice President Deborah Willhite that “the mail was leaking and that we were affected.”).

[12]          See Exhibit 1 (Brentwood Facility Manager Timothy C. Haney’s notes) to Class Complaint (Haney recorded in his notes that on October 18, 2001 tests were performed for anthrax on equipment in the Brentwood facility and “Again, they tested hot.”).

[13]          Judicial Watch maintains a website at www.judicialwatch.org through which Judicial Watch will keep the class members informed of the case status and to which class members may e-mail Judicial Watch with questions or comments.

[14]            See Judicial Watch, Inc. v. U.S. Postal Service, Civil Action No. 01-1101 (HHK).

[15]          See Exhibit 1 (Brentwood Facility Manager Timothy C. Haney’s notes) to Class Complaint.

[16]          In late 2001, Class Agent Briscoe and putative class members Terrell Worrell and Ossie A. Alston formed Brentwood Exposed for the approximately 2,200 Brentwood employees who were exposed to anthrax in October 2001.  Brentwood Exposed, by and through the aforementioned individuals, holds regular, monthly meetings and have met with experts on anthrax in order to educate themselves, government officials and others about the dangers of anthrax.  They also have undertaken substantial efforts to generate community support for, and interest in, their fellow postal employees.  They have attended community meetings held by interested local organizations, such as the District of Columbia chapter of the National Association for the Advancement of Colored People, and have appeared in the local and national media.  They also have lobbied local and national political leaders, including District of Columbia Delegate Eleanor Holmes Norton and U.S. Representative Henry Waxman of the House Committee on Government Reform and Senators Joseph Lieberman and Susan Collins of the Senate Governmental Affairs Committee.  In May 2003, they met with and provided voluminous documentation and information to members of the Government Accounting Office’s Physical Infrastructure team investigating the 2001 anthrax attacks.  In December 2003, they provided briefing materials to and testified before the District of Columbia Committee on Government Operations chaired by District of Columbia Councilman Vincent B. Orange regarding the reopening of the Brentwood facility.  In short, Brentwood Exposed and its principles have been vigorous advocates for members of the putative class and will continue to zealously represent the interest of their fellow postal workers.