O'Loughlin v. State Division of Human Rights Brief on Behalf of Petitioner

    To be Argued by : Sylvia Drew

SUPREME COURT OF THE STATE OF NEW YORK 
APPELLATE DIVISION : FIRST DEPARTMENT

WILMOT O 'LOUGHLIN,
Petitioner,

- against -
THE STATE DIVISION OF HUMAN RIGHTS and 
THE STATE HUMAN RIGHTS APPEAL BOARD

and
RCA GLOBAL COMMUNICATIONS, INC.,
TRIS E. GEROVSKE, Technical Instructor, 
A .A. PANISELLO, Manager, Technical 
Training and JOHN P. FEELEY, Manager,

Respondents.

BRIEF ON BEHALF OF PETITIONER

JACK GREENBERG 
SYLVIA DREW

10 Columbus Circle 
New York, N.Y.10019 
(212)586-8397
Attorneys for Petitioner



I N D E X

Pa2e

Questions Presented ...................  1

Statement of the Case .................  3

Statement of the Facts ................  4

ARGUMENT
The State Division's Finding Of
No Probable Cause Was Contrary
To The Evidence Submitted On
Behalf Of Petitioner Before The
Division..........................  6

Certificate of Service ......   12

Opinions from which Appeal is Taken.... 13



SUPREME COURT OF THE STATE OF NEW YORK 
APPELLATE DIVISION : FIRST DEPARTMENT

WILMOT 0'LOUGHLIN,
Petitioner,

- against -
THE STATE DIVISION OF HUMAN RIGHTS AND 
THE STATE HUMAN RIGHTS APPEAL BOARD

and
RCA GLOBAL COMMUNICATIONS, INC.,
TRIS E. GEROVSKE, Technical Instructor, 
A.A. PANISELLO, Manager, Technical 
Training and JOHN P. FEELEY, Manager

Respondents.

BRIEF ON BEHALF OF PETITIONER

Questions Presented

(1) Whether the Determination and Order of 
the State Division of Human Rights that 
there was no probable cause to believe 
that respondents engaged in unlawful 
discriminatory practice in the terms of



employment and the firing of the black 
petitioner herein was arbitrary, un­
reasonable and contrary to the evidence 
submitted on behalf of petitioner Wilmot 
F. O'Loughlin where:

(1) The record shows meritorious 
performance with the Company.

(2) No comparison is made of the
:erms and conditions of employ­
ment for white employees hold­
ing comparable positions and
tenure.

and

(3) Where petitioner was fired for 
failure to prepare and teach a 
course (training for which had 
been made available only to white 
employees), in which he himself 
had received no instruction despite 
repeated requests.

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The State Division of Human Rights Appeal Board 
answered "No."

Statement of the Case
This is an appeal pursuant to Section 298 of the New York 

State Executive Law on behalf of Wilmot O'Loughlin, a black 
New York State resident formerly employed by respondent 
RCA Global Communications, Inc., a New York corporation. 
Petitioner's employment with RCA was terminated June 11, 1971.
On June 16, 1971, petitioner filed a verified complaint with the 
State Division of Human Rights charging RCA and his immediate 
supervisors with unlawful discriminatory practices relating to 
employment by denying him equal terms, conditions and privileges 
of employment and dismissing him because of his race and color 
in violation of the Human Rights Law of the State of New York.
After a brief investigation the Division of Human Rights determined 
that there was no probable cause to believe that the respondent 
RCA or its named employees had engaged in the charge of unlawful 
discriminatory practices. The complaint was therefore dismissed.

On appeal to the State Human Rights Appeal Board the 
determination and order of the Division of Human Rights were in 
all respects affirmed. The Appeal Board's decision dated 
April 24, 1972, was received by Wilmot O'Loughlin April 27, 1972.

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1

£-hat-ament of the Facts

The respondent RCA Global Communications, Inc., is a 
communications commercial carrier corporation engaged in 
the business of furnishing international telecommunication 
services. On August 8, 1969, the corporation hired petitioner 
herein as a technical instructor. As such his responsibility 
was to provide employees' of RCA with technical instruction on 
the theory, maintenance and repair of various equipment in use 
throughout the system (see exhibit '2' or original record). 
Technical instruction to RCA employees is provided in classes 
prepared and presented by technical instructors. Where RCA 
is the purchaser of new communications equipment, the company 
manufacturing the equipment normally conducts classes at RCA or at 
its own facilities to acquaint RCA personnel with the theory, 
maintenance and repair of the equipment. Selected RCA employees 
attend such seminars then return to RCA to teach other employees 
in turn how to operate and maintain the new equipment.

I
Wilmot 0'Lough1in worked for RCA for a period of two (2) 

years prior to his termination of June 11, 1971. During that
time he completed training offered by sub-contractors for six (6) 
new systems. He prepared and taught nine (9) courses (see 
exhibit 'N'). He prepared six (6) courses which were cancelled 
due to alteration of contracts between RCA and the vendors.

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On May 10, 1971, petitioner was notified that the course 
he had been preparing to teach had been cancelled for this reason, 
he was assigned in lieu thereof to prepare a course in a system 
known as the Hot-Line Concentrator.

The Hot-Line Concentrator system is the corporation's 
largest and most complicated system in the digital data and 
voice communication field. It has a capability of serving 
fifty (50)customers in inter-continental party line communications.
A two (2) week course in operation of the Hot-Line Concentrator 
system was given at the RCA facilities by the sub-contractor 
Tele-Signal Corporation from September 29, 1969 until October 
10, 1969. In addition, two (2) nine (9) week courses in Digital 
Logic Circuiting were given by RCA between February 16 and April 
16, 1971 and June 1 and July 30, 1971. Petitioner was not 
assigned to or given the opportunity to attend any one of these 
three (3) courses. On at least three separate occasions he 
requested such classroom training (see letters of November 4,
1970, November 25,1970, May 17, 1971, exhibit 'I', 'H' and 'D' 
respectively). Despite this lack of preparation, petitioner 
was assigned to teach the course although there were employees 
available who had had the requisite training who were not assigned 
to teach the course. Petitioner endeavored nevertheless to 
prepare the course on his own but was unable to complete preparation 
by the scheduled commencement date of the course. In a letter 
of assignment, however, the management supervisor had indicated 
to petitioner that in such an eventuality another party would be

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assigned to teach the course. When petitioner informed
his manager that he was unable to complete preparation his
job was terminated immediately. His letter of termination

and
(exhibit 'A') cited improper presentation of courses ,/repeated 
cautioning about lack of results in his job assignments. The 
instant proceedings were commenced thereafter with the filing 
of a complaint before the State Human Rights Division of June 
16, 1971.

ARGUMENT

The State Division's Finding Of 
No Probable Cause Was Contrary 
To The Evidence Submitted On 
Behalf Of Petitioner Before The 
Division.

Petitioner is a black citizen of the United States, born in 
the British West Indies. After attending junior college,
he joined the U.S. Air Force and received training in the area 
of electronic equipment and systems. At the time of his initial 
employment with RCA he had 13 years of experience in the United 
States and abroad with electronic communications systems, with 
the Air Force and in the private sector. (See exhibit 'I' to 
Respondent's Brief before State Division Appeal Board). At the 
time of his employment with RCA he was slotted by the Corporation 
to train temporarily in New York before proceeding as a technical 
instructor to RCA facilities in Guam. For reasons not adequately 
documented before the Division, petitioner was not sent to Guam as 
scheduled and remained on a permanent basis in the New York office

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as a technical instructor.

On October 13, 1969, approximately two months after the date 
of his employment, petitioner requested a short leave of absence 
in order to secure a permanent residence in the New York area.
Due to what he believed to be his temporary status, he had been 
living until that time in a hotel. In his letter to the corporation 
officials requesting a leave, (see complainant's exhibit 'V') he 
explicitly suggested that he would delay the leave request if the 
corporation so desired for any reason related to his work assign­
ments. The leave was granted without comment. (Complainant's 
exhibit 'W').

During his absence a two week training course was conducted 
by an RCA Sub-contractor, Tele-Signal, on the workings of an 
intricate intercontinental tie-line communications system, serving 
a maximum of 50 customers. The system known as the Hot-Line 
Concentrate System, had recently been purchased by RCA.

The RCA Manager of Technical Training, respondent A.A. Panisello, 
asserted in a letter written May 28, 1971 (Complainant's exhibit'J'), 
paragraph 5, that petitioner had been scheduled to attend the Tele- 
Signal Hot-Line Class. RCA's attorney however asserts in his 
brief before the State Division that petitioner was not scheduled 
to attend the course because he was deemed to be too far advanced 
to profit from it (page 8, Respondents' Brief before Appeal Board).

This important discrepancy should have been resolved after a

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full hearing before the Division, because of its bearing on later
events.

Upon his return from leave of absence in October 29,1969, 
petitioner performed his work assignments in a manner meriting three 
raises in salary over the next 14 month period (See Complainant's 
Exhibit 6). Two letters of commendation from the Company 
accompanied the last two raises on July 31, 1970 and December 1,1970. 
(See Complainant's Exhibit 'E', and Respondents' Exhibits before the 
Division).

In May 1970, respondent A.A. Panisello became Manager of 
Technical Training replacing T.E. Gerovske.

In September 1970, petitioner was assigned to teach a two 
week course on the hot-line terminal, a system similar to but much 
less complicated and intricate than the Hot-Line Concentrator 
system. In October 1970, he taught a course in Data Voice 
Television Service Basics. In February 1971,petitioner taught a 
second two week course on the Hot-Line Terminal. In April 1971, 
he taught his final class prior to his termination in June 1971.

RCA alleged that there were numerous complaints filed by 
students concerning the method of presentation of each of the courses 
presented by petitioner from September 1970 to April 1971. No 
documentation was supplied by the corporation to susbstantiate this 
charge. Petitioner introduced student evaluation reports indicating 
that the converse was true, that is that students were with only

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one (1) exception satisfied with the instructor and with the courses 

(See exhibit 'M').

On or about April 12, 1971, petitioner received a written 
communication from respondent J.P. Feeley, Manager of Leased 
Facilities and Maintenance, who was the superior of respondent 
A.A. Panisello. The memorandum states that Mr. Panisello had 
reported his discussions seeding improved performance with the 
petitioner to Mr.Feeley, and that he would be reviewing future 
reports on petitioner's progress (See complainant's exhibit 'F').

On April 22, 1971, petitioner detailed in a memorandum to
Mr. Panisello, the 9 courses he had prepared and taught since his 
initial employment, and the six courses prepared but not scheduled 
for teaching by the Training Department. (See complainant's exhibit 
■N'). He ashed for suggestions as to ways to improve his per­
formance in the classroom, and to be assigned more courses to 
teach to improve his teaching time record. No response was 
received to this request. On May 5, 1971, petitioner sought by
written memorandum to secure the assistance of the company personnel 
■department in resolving the growing lack of communication between 
petitioner and Mr. Panisello. (See complainant's exhibit 'Z').

On May 28, 1971, presumably after the personnel department had 
contacted him, Mr. Panisello addressed a memorandum to petitioner, 
chastising him for filing complaints "outside regular channels,"

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and detailing an employment record of "quite low output" (See 
complainant's exhibit 'J').

It was in this atmosphere of hostility and lack of communication
that petitioner was assigned on May 10, 1971, (See complainant's

a
exhibit 'C') to teach/llot-Line Concentrator Course in substitution 
for an IVD course previously planned for the Spring quarter of 1971. 
Conversations and correspondence in November 1970 about the require­
ments for teaching the Hot-Line Concentrator course (See complainant's 
exhibits 'H' and 'I') had made it clear that petitioner did not belie\ 
himself qualified to prepare and teach such a course since he had not 
received the sub-contractor's training course taught during his 
absence in the fall of 1969. Even those students taking the course 
complained that it was tooabbreviated. (See complainant's exhibit 'K')

On May 17, 1971, seven days after notice of the assignment, 
petitioner informed Mr. Panisello that it would take him a minimum of 
five weeks to prepare the course. (See complainant's exhibit 'D'). 
This would of course take him beyond the date set in letter of May 10 
for commencement of the course. On June 11, 1971, when petitioner 
orally informed Mr.Panisello that the course would not be ready by 
the scheduled date, he was immediately terminated with two weeks 
salary in lieu of notice (See complainant's Exhibit 'A'). This
precipitous act suggests that no effort was made as alleged by 
respondents' attorney to locate petitioner in other departments in 
the corporation.

This chronology of events by itself raises an inference of

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discriminatory treatment requiring that the Division,upon receipt 
of a complaint,compare petitioner's record with other white employees 
of the same status and tenure. Neither the Division, nor the 
Appeal Board, nor this Court are in a position to determine the 
relative worth of petitioner's performance without a comparison 
with the teaching hours, and preparation received by other technical 
instructors emploued by the corporation. The fact that one white 
instructor was fired in a context in which the total number is un­
known and total records unexamined does not change the inccnclusive an 
arbitrary nature of the Division's determination.

Petitioner, as the only black employee in his divisior, was 
assigned to teach a course known to be beyond his knowledge as a 
convenient method of terminating his employment. Termination was 
the only solution available to a manager who one must infer in the 
absence of proof to the contrary, treated his only black enployee 
in a manner different that other instructors under his division.
When petitioner sought to exhaust all available remedies ir order 
to retain his pcs ition,a work assignment was created the reasonable 
result of which was his failure to perform at an expected isvel .

On these facts and in the absence of the required investigation, 
the order of the Division of Human Rights should be reversed and 
a full hearing held forthwith. Respectfully submitted,

10 Columbus Circle 
Room 2030 
(212)586-8397

Attorneys for Petitioner



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing 
Brief on Behalf of Petitioner were served by United 

♦ States mail on the respondents as follows:

New York State Division of Human Rights 
Board of Appeal 
250 Broadway
New York, New York 10007
Henry Spitz, Esq.
Division of Human Rights
270 Broadway
New York, New Ybrk 10007
Charles M. Lehrhaupt, Esq.
on behalf of RCA Global Communications, Esq.
60 Broad Street
New York, New York 10004

Subscribed and Affirmed to be true 
under penalty of perjury this 29th 
day of May, 1972.

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