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GONZALEZ v. BOLGER

March 7, 1980

Nestor Gonzalez, Plaintiff
v.
William F. Bolger, Defendant.



The opinion of the court was delivered by: GESELL

MEMORANDUM OPINION

Plaintiff, a United States citizen of Puerto Rican national origin, was employed as a distribution clerk at the Washington, D.C., Post Office until his termination in May, 1978. He brings this action against his former employer, alleging that he was discharged unlawfully in retaliation for his exercise of rights protected under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (1976) ("the Act"). Following his pursuit of administrative relief, he now seeks from this Court reinstatement, monetary damages, and a broad injunction to prevent similar future reprisals. The Court has jurisdiction under 42 U.S.C. § 2000e-5(f) and -16. *fn1"

 After plaintiff filed his complaint pro se and was served with discovery requests, the Court appointed counsel to represent him. Subsequently the complaint was amended bringing plaintiff's claims into sharper focus, and discovery proceeded in timely fashion. A trial having been held and post-trial briefs submitted by able counsel on both sides, the Court now issues this Memorandum Opinion, constituting its findings of fact and conclusions of law.

  I.

 Plaintiff was employed by the United States Postal Service in January, 1971, as a temporary distribution clerk at the Washington, D.C., Post Office. Following two years at a smaller office in suburban Maryland, he returned to the Main Post Office at North Capitol Street and Massachusetts Avenue, N.E., ("Main Post Office") in January, 1973. Subsequently he was assigned to handle incoming mail on a shift extending from 3:30 p.m. until midnight. He worked under various floor foremen and tour superintendents who in turn reported to an administrative foreman, Mr. Major Campbell.

 Incoming mail is sorted on an assembly line basis by employees working side by side under tight supervision and time constraints. It was the practice to shift employees from their principal assignment to other related duties on an emergency basis in order to meet manpower needs. During the period at issue, plaintiff, like others, was so assigned temporarily from time to time. As a consequence, he came under the supervision of different foremen in different units. Campbell, as plaintiff's administrative supervisor, was responsible for keeping plaintiff's attendance records and informing him of new management policies.

 Although his early work performance at the Main Post Office was for the most part acceptable, plaintiff was at times the subject of disciplinary action related to his poor attendance record. In late 1976, prior to his assignment to a unit supervised by Campbell, plaintiff was given a 28-day suspension as a result of being AWOL for over 1800 hours. According to plaintiff this absence related to an alleged injury that was not confirmed by a timely medical report from his physician.

 The Washington, D.C., Post Office employs some 7000 men and women, of whom 400-500 occupy supervisory positions.

 In mid-1977, plaintiff and five other Postal Service employees at the Main Post Office formed a Committee to Humanize the Postal Service ("CHPS"). Through periodic newsletters, press releases, and occasional meetings, CHPS members voiced a range of grievances based on claims of degrading and discriminatory treatment of employees by Postal Service management. Plaintiff was particularly agitated because he felt that discipline was meted out more harshly to Spanish-surnamed individuals than to Caucasians. Although available data does not establish the alleged gross disparity in disciplinary treatment, there is sufficient evidence in the record from the 1976-77 period to establish as reasonable plaintiff's belief that Hispanics were subject to harsher discipline than whites at the time. Plaintiff actively asserted his own perceived grievances and became a vigorous champion of black as well as Hispanic grievants, frequently acting upon request as their EEO representative.

 During early and mid-1977, the Washington, D.C., Post Office, through its Director of Employee Labor Relations, Mr. Carmen Errico, issued a series of memoranda regarding its policies for according "official time" (i. e., on-duty release time) to employees and their representatives who wished to prepare and present EEO complaints. These memoranda purported to follow standards set forth in the applicable Civil Service regulations, now codified at 29 C.F.R. § 1613.214(b) (1979). *fn2" Under the Errico policy statements, EEO complainants and their designated representatives were allowed a "reasonable amount of official time" to participate in the actual filing of a complaint with an EEO counselor, but were not permitted "on-the-clock time" for preliminary discussions between a prospective complainant and his or her representative or for other aspects of complainant's formulation of his or her formal complaint. CHPS members criticized the latter feature of Errico's policy, insisting that Civil Service regulations and Postal Service instructions required a complainant and his or her representative to be given liberal time off the clock in the initial pre-complaint stages of an EEO matter. Direct correspondence between CHPS and the Civil Service Commission resulted in letters, later discounted at trial by the Commission, which appeared to support the CHPS members' position. *fn3"

 Post Office authorities continued to believe there was no requirement to grant a complainant or a representative time off the clock prior to the filing of a formal EEO complaint. In practice, however, this policy was not always strictly enforced. When the volume of incoming mail was not excessive, employees would often be allowed official time for complaint preparation so long as the requesting employee notified his supervisor as to his precise whereabouts or checked in periodically to see if he was needed on the workroom floor. Much depended on the attitude of a given foreman at the moment.

 Campbell, as plaintiff's administrative supervisor, was not unsympathetic to plaintiff's EEO concerns. He advised various foremen and superintendents for whom plaintiff worked that plaintiff should be released to pursue EEO matters when the workload was not too heavy. Plaintiff benefitted from this more relaxed practice. He filed innumerable requests for official time to prepare to present EEO complaints on behalf of himself and others. On some occasions, he was given extended periods of release time for complaint preparation with the proviso that he check in as described above. On other occasions he was refused. However, he was never refused time off when a complaint was imminently to be filed or an appointment had been scheduled with an EEO counselor or investigator.

 When plaintiff's requests for release time to prepare a complaint were denied he was refused because not authorized by the Errico policy or on grounds of excessive workload. The formal Errico policy was based on Errico's belief that allotting a "reasonable amount" of official time involved balancing employee rights against the necessities of efficient Post Office operation. Plaintiff deeply resented these denials, which he viewed as part of a concerted action by the Postal Service to foster race discrimination and stifle complainants.

 Frustrated over the perceived uncertainty in defendant's application of official time policy, and fueled by a passion to vindicate employee rights, plaintiff initiated a relentless campaign in mid-1977 that ended with his termination in May, 1978. He kept up a steady stream of requests for release time, and virtually whenever a request was denied he would file a charge of reprisal against the foreman, superintendent, or other supervisor responsible. Often plaintiff did not follow up his charges; when he did he sought expedited processing, never requesting formal hearing on his complaints. His reprisal charges were forwarded for investigation. During this period, plaintiff filed between 40 and 80 complaints charging more than 20 different supervising officials with release time reprisals. Other CHPS members also requested release time for EEO ...


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