BY FEDEX

 

December 6, 2002

 

U.S. Equal Employment Opportunity Commission

Washington Field Office

1400 L Street, NW, Suite 200

Washington, DC 20005

 

 

Equal Employment Opportunity Complaint

 

Dear Sir/Madam:

 

I.  INTRODUCTION

 

Judicial Watch, Inc. (“Judicial Watch”) is a non-profit, non-partisan, public interest group that investigates and prosecutes government corruption and abuse.  Judicial Watch represents hundreds of United States Postal Service (“USPS”) workers and a USPS workers’ support group organized as “Brentwood Exposed,” concerning all matters related to the October 2001 anthrax attacks.

 

On behalf of its USPS worker clients, and in the public interest of all Americans, Judicial Watch launched an investigation of the October 2001 anthrax attacks, focusing principally on the Brentwood Road Postal Facility (“Brentwood”), now known as the “Joseph Curseen, Jr. and Thomas Morris Jr., Processing and Distribution Center,” after two Brentwood USPS workers died from inhalation anthrax they contracted working with mail in the contaminated Brentwood facility.  An additional two Brentwood USPS workers contracted inhalation anthrax, but subsequently recovered.

 


As part of the Brentwood anthrax investigation, Judicial Watch filed Freedom of Information Act (“FOIA”) requests under the provisions of 5 U.S.C. § 552 with the USPS and other federal agencies.  When the USPS failed to respond to our FOIA request, we filed suit against the USPS in the U.S. District Court for the District of Columbia on June 6, 2002.  (See: Judicial Watch, Inc. v. U.S. Postal Service, Civil Action No. 01-1101 (HHK)).  On September 11, 2002, United States District Judge Henry H. Kennedy, Jr. ordered Defendant (USPS) to “produce all documents or portions thereof which are responsive to Plaintiff’s request. . .by October 21, 2002.”

 

Judicial Watch received a portion of the documents Judge Kennedy ordered produced via U.S. Mail from the USPS on October 23, 2002.  The USPS document production of October 23, 2002 is woefully incomplete, as well as poorly reproduced, organized and assembled.  Despite these shortcomings, Judicial Watch conducted a careful inspection and analysis of the materials provided by the USPS.  The documents produced contain stunning, new information that clearly merits a full and immediate investigation by your office.  Attached, as Exhibit 1 you will find the diary or log of a senior Brentwood postal official whom we believe by document content and/or context to probably be Brentwood Postal Facility Senior Plant Manager Timothy C. Haney.  The diary/log attached as Exhibit 1 is marked with Bates Stamp numbers 00290, 00291, 00292 and 00293.  Section V – Facts, below details the contents of the diary/log.

 

II.  PETITIONERS/COMPLAINANTS

 

Ms. Dena Briscoe, President of Brentwood Exposed, on behalf of its individual members and all other affiliated Brentwood Postal Facility employees.  All petitioners/complainants are federal sector employees.  The Brentwood Exposed Petitioners include, but are not limited to, the individuals identified in Appendix A, attached.

 

III.  STATUTORY AUTHORITY

 

Title VII of the Civil Rights Act of 1964 (Title VII).

 

IV.  DISCRIMINATION ALLEGED

 

Petitioners/Complainants were discriminated against by their Employer  - The United States Postal Service because of their race and/or national origin.

 

V.  FACTS

 

1.  The Employer, USPS, knew on or about Thursday, October 18, 2001 that  “mail was leaking” anthrax spores into the environment at the United States Brentwood Postal Facility located in Washington, DC.

 

2.  The USPS  knew on or about Thursday, October 18, 2001  that Brentwood and its approximately 2,200 United States Postal Employees were “affected” by anthrax spores.

 


3.  The USPS  knew on or about Thursday, October 18, 2001 of the “exact machine (DBCS 17) that had been used to sort the mail” containing the anthrax spores found in Senator Daschle’s letter.

 

4.  The USPS contacted on or about Thursday, October, 18, 2001 URS (a biological testing company) to arrange on-site testing for anthrax spores at Brentwood.

 

5.  The USPS directed  on or about Thursday, October 18, 2001 URS to take 30 scientific anthrax spore swab tests of DBCS # 17 and the “manual cases for ZIP Code 20510 (The Senate).”

 

6.  The USPS  received on or about Thursday, October 18, 2001 the 30 URS scientific anthrax spore swab tests results of DBCS # 17 and the manual cases for ZIP Code 20510 (The Senate).

 

7.  The USPS  knew on or about Thursday, October 18, 2001 that the 30 URS scientific anthrax spore swab test results indicted that DBCS # 17 and the manual cases for ZIP Code 20510 (The Senate) tested positive for anthrax spores.  Indeed, in the USPS’ own words: “Again, they tested hot.” (Emphasis added.) [Attached, as Exhibit 1, is the Diary or Log of a Senior Brentwood Postal Management Official whom Petitioners/Complainants believe by document  content and/or context to probably be Brentwood Postal Facility Senior Plant Manager Timothy C. Haney.]

 

8. The USPS, to avoid closing Brentwood at an estimated cost (per Plant Manager Haney) of $500,000.00 per day, concealed on or about Thursday October 18, 2001 from its estimated 2,200 Brentwood Postal Employees (97 % Racial Minority Representation)  the fact that the USPS knew that anthrax spores had contaminated Brentwood’s postal machines and  building.

 

9.  The USPS, to avoid closing Brentwood at an estimated cost (per Plant Manager Haney) of $500,000.00 per day, failed on or about Thursday, October 18, 2001 to follow the emergency isolation/evacuation mandates of its own Management Instruction: Emergency Response to Mail Allegedly Containing Anthrax (Effective Date: October 4, 1999/Serial Number EL-860-1993-3).  (See Exhibit 2 - Attached Copy of this Anthrax Management Instruction.)

 

10.  The USPS, by failing to follow the mandates of its own regulation on or about Thursday, October 18, 2001, breached its responsibility to provide “a safe and healthful work environment for its employees.”

 


11.  The USPS, by failing to follow the mandates of its own regulation on or about Thursday, October 18, 2001, abrogated “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.”

 

12.  The USPS, by concealing the anthrax spore contamination at Brentwood from their Postal Employees and by failing to follow their own officially promulgated Anthrax Emergency Isolation/Evacuation Instruction, recklessly and needlessly exposed an estimated 2,2000 Brentwood Postal Employees (24 hours a day, seven days a week) to anthrax spores from on or about Thursday, October 18, 2001 through the eventual closure of Brentwood on late Sunday, October 21, 2001.

 

13. The USPS, by concealing the anthrax spore contamination at Brentwood from their Postal Employees and by failing to follow its own officially promulgated Anthrax Emergency Isolation/Evacuation Instruction recklessly and needlessly prevented an estimated 2,200 Brentwood Postal Employees from timely (1) being medically tested (nasal swab and/or blood tests) for exposure to anthrax spores and (2) receiving preventative/curative antibiotics (i.e., Cipro and/or Doxycycline).

 

14.  The USPS’ above-referenced concealment of anthrax spore contamination at Brentwood and the USPS’ failure to implement its Anthrax Emergency/Isolation Instruction at Brentwood is in stark contrast to its prior diligent and effective actions on or about Tuesday, October 8, 2001 in notifying and medically testing for anthrax spores  the machines/premises and all estimated 25 - 35 Postal Employees at the Boca Raton Post Office in Florida where the anthrax-laden letter addressed to American Media was processed.

 

15.  The USPS’ actions , individually and collectively, deprived the estimated 2,200 Brentwood Postal Employees of (1) Procedural Due Process under the 5th Amendment, (2) Substantive Due Process under the 5th Amendment, (3) Liberty Interest in a Safe Workplace under the 5th Amendment, and (4) Equal Protection of the Law under the 5th Amendment.

 

16.  With respect to the instant EEOC Complaint, the USPS’ actions individually and collectively discriminated against the estimated 2,200 Brentwood Postal Facility Employees based upon  their race and/or national origin.

 


17.  Specifically, whereas the USPS affirmatively notified on or about October 8, 2001, the Boca Raton Postal Workers of their exposure to anthrax spores and immediately took remedial measures, to include providing all the Boca Raton Postal Workers with medical tests and with preventative/curative antibiotics, the USPS (with similarly situated 2,200 Postal Workers at Brentwood) actively concealed the fact of anthrax exposure from its 2,200 Brentwood Postal Workers, actively  failed to notify the 2,200 Brentwood Postal Facility Employees of anthrax exposure, and actively failed to take any significant remedial measures such as providing the 2,200 Brentwood Postal Workers with medical tests and with preventative/curative antibiotics.

 

18.  This blatantly inconsistent and discriminatory treatment of the 2,200 Brentwood Postal Workers (as opposed to the Boca Raton Postal Workers) is premised upon their race and/or national origin - 97% of the Brentwood Postal Workers are members of a Minority Race and/or National Origin. 

 

19.  Similarly, whereas the Federal Government immediately notified Federal Workers on Capitol Hill of anthrax exposure and immediately closed/evacuated the Federal Buildings on Capitol Hill and immediately provided medical tests and antibiotics to all affected Capitol Hill Federal Workers, no such measures were forthcoming from the Federal Government and/or the USPS at the Brentwood Postal Facility where 97% of the Postal Workers are of Minority Race and/or National Origin.

 

20.  The grotesque and disparate discriminatory treatment afforded the 2,200 Brentwood Postal Workers stands in marked contrast to the treatment afforded (only 5- 10 days earlier) the Boca Raton Postal Workers and the Federal Capitol Hill Workers/Staffers.  Minority Race and/or National Origin are the primary/root cause of this blatant discrimination and fraudulent concealment of anthrax exposure.

 

21.  The disparate, discriminatory treatment afforded the 2,200 Brentwood Postal Workers also stands in marked contrast to the fact that members of The White House staff (also federal sector employees) were promptly provided the antibiotic Cipro as early as September 11, 2001, within hours of the World trade Center and Pentagon attacks.

 


22.   Although pragmatic concerns about fiscal savings and maintaining mail production quotas were secondary and tertiary factors in recklessly keeping the Brentwood Postal Facility open and online from October 18, 2001 - October 21, 2001; the primary and dominant factor in the USPS decisional matrix was the fact that the 97% Minority Constituency at the Brentwood Postal Facility had little or no voice in the debate as opposed to the white/affluent voices emanating from Capitol Hill and/or the rich enclave of Boca Raton, Florida.  Race and/or National Origin, not economics or production quotas, motivated the USPS to blatantly discriminate against and recklessly endanger the health of the 2,200 Brentwood Postal Workers - four of whom contracted inhalation anthrax resulting in the deaths of two Postal Workers.  Just as racial discrimination, economics and production quotas characterized antebellum plantations, so too do racial discrimination, economics and production quotas characterize the Brentwood Postal Facility.

 

23. Specific Legal Allegations:  In instant case, the Federal Government and the USPS (by failing to follow its own regulation) subverted/sabotaged Petitioners’ access to the remedies provided under the United States Postal Service Anthrax Emergency Isolation/Evacuation Instruction, thereby:

 

A.            Denying Petitioners procedural/substantive due process under the 5th Amendment (Failure of USPS to follow/implement the mandate of the officially promulgated Postal Service Anthrax Emergency Isolation/Evacuation Instruction resulted in reckless and needless exposure to anthrax spores, with concomitant adverse medical consequences,)

 

B.            Depriving Petitioners of their Liberty Interest in Safe Workplace under the 5th Amendment [See Figueroa v. United States, 7 F.3d 1405 (9th Cir. 1993) and Grubbs, 974 F. 2d at 121.].  (Failure of USPS to follow/implement the mandate of the officially promulgated Postal Service Anthrax Emergency/Evacuation Instruction resulted in reckless and needless exposure to anthrax spores, with concomitant adverse medical consequences.)

 

C.            Depriving Petitioners of Due Process (Equal Protection) under the 5th Amendment.  (Timely Notification and Remedial Medical Procedures provided to all 25 - 35 Boca Raton Postal Employees on or about October 9, 2001 were not provided to 2,200 Brentwood Postal Employees from on or about October 18, 2001 - October 21, 2001 – a period of at least four working days where the Brentwood Plant was running 24 hours a day, seven days a week.)

 


D.            Depriving Petitioners of Procedural/Substantive Due Process (i.e., redress of grievance) through USPS ongoing and  continuing concealment of all the material facts/circumstances surrounding anthrax leakage/exposure at Brentwood from on or about October 18, 2001 through October 23, 2002, thereby frustrating/depriving Petitioners of an opportunity to perfect and file a viable Title VII Federal EEO action (in a timely manner within the statute of limitations) premised upon all the operative facts previously withheld by the USPS and only made finally available on October 23, 2002 as a result of the Freedom Information Act lawsuit entitled, Judicial Watch, Inc. v. U. S. Postal Service, Civil Action No. 01-1101 (HHK). (See Attached Exhibit 3).

 

E.            Depriving Petitioners of Procedural/Substantive Due Process (i.e., redress of grievance) through USPS ongoing and continuing concealment of all the material facts/circumstances surrounding anthrax leakage/exposure at Brentwood from on or about October 18, 2001 through October 23, 2002, thereby frustrating/depriving Petitioners of an opportunity to perfect and file viable Federal Employee Compensation Act (FECA) and/or Federal Tort Claims Act  (FTCA) claims (in a timely manner within the statute of limitations) premised upon all the operative facts previously withheld by USPS and only made finally available on October 23, 2002 as a result of the Freedom Information Act lawsuit entitled, Judicial Watch, Inc. v. U. S. Postal Service, Civil Action No. 01-1101 (HHK). (See Again Exhibit 3).

 

24.  Tolling of the EEOC 180 Day Statute of Limitations Due to USPS’ Affirmative  Concealment of Anthrax Exposure from on or about October 18, 2001 through October 23, 2002.

 

A.            Specifically, Petitioners/Complainants allege that, but for the USPS’ fraudulent concealment of anthrax exposure over a year’s period of time, instant EEOC Petition/Complaint would have been timely filed within the requisite 180 day period.

 

B.            By fraudulently concealing relevant and material facts for over a year from Petitioners/Complainants, the USPS frustrated/deprived Petitioners/Complainants of the right to perfect and file in a timely manner a viable EEOC Complaint.

 

C.            The routine legal/equitable remedy for such concealment and fraud perpetrated on Petitioners/Complainants and the entire legal process by the USPS is to toll the running of the statute of limitations.

 

D.            Consequently, Petitioners/Complainants submit that they have 180 days from October 23, 2002 within which to submit a timely EEOC Complaint.

 

VI.  CONCLUSION

 


Judicial Watch, in the public interest, and on behalf of its USPS worker clients, urges your swift response to the serious matters raised herein.  The Brentwood postal workers have suffered grievously; not just the deadly anthrax pathogen that was unleashed in their confined workplace, but from a hostile/discriminatory workplace environment characterized by dehumanizing and humiliating treatment by senior USPS and U.S. government officials.  Throughout the anthrax crisis and in the following weeks and months, Brentwood workers faced threats, intimidation and harassment.  There seemed to be an orchestrated campaign that perversely aimed at twisting their plight as brave survivors of an act of terrorism into something dishonorable and unworthy, namely psychosomatic malingerers.  Our clients deserve better, seeking only justice and accountability.

 

In light of the information above, we hereby request the EEOC issue a protective order to insure any and all USPS records, documents and/or communications concerning the October 2001 anthrax attacks are preserved and maintained – and not destroyed, removed or “routinely disposed of” by the USPS.

 

We stand ready to assist you in your investigation.

 

Thank you for your prompt attention to this important matter.

 

Sincerely,

 

JUDICIAL WATCH, INC.

 

 

 

 

Larry Klayman

Chairman and General Counsel

 

Encl:

Appendix A – Complainants: Brentwood Postal Workers

 

Exhibit 1 – USPS FOIA Documents (Bates No. 00290 - 00293)

 

Exhibit 2 – USPS Management Instruction: Emergency Response to Mail Allegedly Containing Anthrax (Effective Date: October 4, 1999/Serial Number EL-860-1993-3)

 

Exhibit 3 – USPS FOIA Document Production Cover Letter

 

 

CC:            Postmaster General, United States Postal Service