Petition — Goss v. Revlon, Inc.

Supreme Court brief1977

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preme Court, U. S,

FILED

JUL 18 1977

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER ThHRM, 1977

Me 87-535

KENIL K. GOSS,

Plaintiff-Appellant-—Petitioner Pro Se

REVLON, INC. and its wholly owned subsidiary,

USV PHARMACEUTICAL CORPORATION,

Defendants-Appellees—Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

K. K. Goss

THE GENTRY, APARTMEN?Y 618

21 FAIRVIEW AVENUE

TUCKAHOE, WESTCHESTER, N. ¥Y. 10707

TELEPHONE (914) 793-4661

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

MME See cesecisdés

KENIL K. GOSS, Plaintiff-Appellant-

Petitioner Pro Se

REVLON, INC. and its wholly owned sub-

sidiary, USV PHARMACEUTICAL CORPORATION,

Defendants-—Appellees-—Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

K. K. Goss

THE GENTRY, APARTMENT 618

21 FAIRVIEW AVENUE

TUCKAHOE, WESTCHESTER, N. Y. 10707

TELEPHONE (914) 793-4661

PARA-

GRAPH

19.

SUBJECT INDEX

HEADING OR SUB-HEADING PAGE

INTRODUCTION 1

OPINIONS BELOW 2

JURISDICTION 3

QUESTIONS PRESENTED FOR REVIEW 5

FEDERAL CONSTITUTION, ACTS,

RULES, REGULATIONS; NEW YORK

STATE LAWS; NON-STATUTORY LAWS 11

STATEMENT OF THE CASE

The Petitioner's Background 12

R's Discrimination Against Others 12

R's Discrimination Against G 12 .

G's Abrupt Dismissal Without Cause 13

R Agreed ToGAs Extended Employee 13

R Requested Time To Settle Amicably 14

G Applied For A Consulting

Position But R Never Replied 14

G's Extenuating Circumstances 15

R's Continuing Tort Against G 15

R's Continuing Breach Of Contract

Proceedings Before EEOC And NYSDHR

Proceedings Before The EEOC

Proceedings Before The NYSDHR

Proceedings Before The SDNY

The Title VII Claim

The ADEA Claim

iii

SUBJECT INDEX

fa.tvgi HEADING OR SUB-HEADING PAGE

20. 1981, 1983 &143th Amendment Claims 24

21. G's Rewritten Complaint 26

22. RNever Submitted Brief In Contempt 28

23. R's Palpable Dilatory Motion

Practice 29

24. J Imposed Arbitrary And

Capricious Fine Upon G 30

25. J Denied G's Class Action Outright 43

26. J Refused To Remand To The EEOC 35

27. J Ignored G's Extenuating .

Circumstances 35

28. R Procured Summary Judgment By

Perjury And Subornation Of Perjury 36

29. J Dismissed The Suit While R's Dis-

covery Motion Was Still Going On 37

30. J Denied G Outright To Reargue

Or A New Trial 48

31. G's Affidavits Under 28 USC §144 39

Renewal Of Proceedings Before EEOC

32. G's Motion To Reopen EEOC Decision 40

Proceedings Before Second Circuit

33. The First Appeal 40

34. The First Petition For Rehearing 41

35. The Second Appeal 42

36. The Second Petition For Rehearing 42

37- Summary 42

SUBJECT INDEX

avai HEADING OR SUB-HEADING PAGE

REASONS FOR GRANTING THE WRIT

38. “Special And Important Reasons" 43

39. Rule 19.1(b) Of The RSC 45

The Title VII Claim

40. “Jurisdictional Prerequisites" 46

41. The Gist Of G's Arguments 46

42. Even Timely Filing Brings No Relief 47

43. Congressional Intent 48

44, ",.. the still-open question .." 49

45. Doctrine Of Equitable Estoppel 50

46. Tolling Of Statutory Periods: 51

(A) Extended Employee Status 51

(B) "Undiscoverable Acts" 53

(D) Allegation Of Class Discrimination 55

(E) Continuing Discrimination Charge 56

(F) R Requested Time To Settle Amicably 57

(G) State Charge Timely Filed 57

(H) G's Extenuating Circumstances 60

(I) R's Continuing Tort Against G 61

(J) R's Continuing Breach Of Contract 61

47. The Statutory Filing Period 62

48. G's Employment Termination Date 62

GRAPE

49.

50.

51.

52.

SUBJECT INDEX

HEADING OR SUB-—HEADING PAGE

Sub Silentio Denial Nunc Pro Tunc

Foman v. Davis, 371 U.S. 178 (1962) 63

"In the absence of any apparent

or declared reason"

"outright refusal to grant the

leave without any justifying

reason appearing for the denial" 64

The Judicial Ethics Of "sub

silentio denial nunc pro tunc" 65

5th Amendment: "due process of law" 65

J's Grave Misconduct From The Bench 66

Rules 1, 18(a) And 42(a) Of FRCP 67

J Flouted Title VII's Mandate

For A Speedy Trial 68

Rules 8(e) And 15(a) Of The FRCP 69

Rule 8(f) Of The FRCP 69

. The Doctrine Of "Notice Pleading" 70

G's Alleged "extended and

undue delay" 71

Consequence Of Failure To

Exercise Discretion 72

"sub silentio" Is A Two-Edged Sword 72

The Quality Of "sub silentio" 73

No Trial Ever Took Place 74

R Unprejudiced By G's Alleged

"extended and undue delay” 74

Rule 15(c) Of The FRCP 76

J Induced A Cart Before The Horse

Or A Dog In The Manger Stalemate 77

SUBJECT INDEX

ravi HEADING OR SUB-HEADING PAGE

68. G's Rewritten Complaint 78

69. EEOC's Deficient Complaint Form 79

70. Rule 61 Of The FRCP 83

‘Law Of The Case'

71. Bryan v. Austin, 354 US 933 (1957) 83

Arbitrary Capricious Excessive Fine

72. Millerv. International Paper Co. 87

73. Sth Amendment: "due process of law" 89

74. 8th Amendment: "excessive fines" 89

J Refused To Remand The Case To EEOC

75. A "de novo" Trial 91

76. The CA2's Weise Ruling 92

77. J's Abuse Of Discretion In Refusing

To Remand G's Case To The EEOC 92

78. EEOC's Hasty, Illegal And

Premature Determination O4

The ADEA Claim

79. Timely Notice Of Intent To Sue 97

80. Shell Oil Co. v. Dartt, 76-678 97

J's Outright Denial Of Class Action

81. J's Abuse Of Judicial Process 98

PARA-

GRAPH

82.

83.

84.

85.

86.

vii

SUBJECT INDEX

HEADING OR SUB-HEADING PAGE

Summary Dismissal

J's Illegal Or Wrongful Dismissal 99

J Dismissed Suit During Discovery 101

R's Post-Discovery Disclosure 101

The ‘slightest doubt' Rule 102

Jaroslawicz v. Seedman, CA2 104

Denial Of Reargument Or New Trial

J's Abuse Of Judicial Process 105

13th Amendment And §198%3 Claims

The 14th Amendment Claim 106

§1983 Claim ' 7 106

Affidavits Of Bias Or Prejudice

J's Prejudicial Remarks From

The Bench 107

T's Profound Pro-employer Bias 109

J's Procrastination In Putting

G's Case To Trial 110

"a barrage of post-trial motions" lll

G's Affidavits Under 28 USC §144 112

J Denied Before "Mandate" Issued

Rule 41(a) And (b) Of The FRAP 113

viii

SUBJECT INDEX

rauvait HEADING OR SUB-HEADING PAGE

The Question Of Equity

96. G Did Not ‘Sleep On His Rights' 115

97. Civil Rights Claims Are Viewed

With Liberal Eyes 115

98. CA2's Double Standard Of entities 116

99. J's 'Double Standard Of Justice' 119

100. CONCLUSION 120

APPENDICES

APPENDIX A: CA2's lst Judgment A=

APPENDIX B: CA2's 2nd Judgment A- 6

APPENDIX C:CA2's lst Rehearing Denial A- 8

APPENDIX D:CA2's 2nd Rehearing Denial A- 9

APPENDIX E: SDNY's Outright Summary

Judgment In R's Favor A-10

APPENDIX F: SDNY's Outright Denial Of

G's Opposition Motion A-11

APPENDIX G: SDNY's Outright Denial

Of Reargument Or New

Trial Based On New USCA

Decisions And New Facts A-13

APPENDIX H: SDNY's Outright Denial

"sub silentio" after

827 days, but "nunc pro

tunc" to 1,071 days

earlier A-15

APPENDIX I: EEOC's Determination

While State Charge Was

Pending A-16

TABLE OF CASES

PAGE

Albemarle Paper Co. v. Moody,

422 U.S. 407 (1975) eeeeeeeeeee 34, 99

Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974) eeeeveeeeeeee A- 4

Battle v. National Bank of Cleveland,

564 F.Supp. 416 (1973) eeeenenee 73% 106

Bon Air Hotel, Inc. v. Time, Inc.,

376 F.2d 118 (CA5, 1967) wee. 88

Braddix v. Charles Todd, Inc.,

74-110-E, ED, I11, 11EPD10611, '75 . 74

Brisbane v. Port Authority NY & NJ,

76 Civ. 1548 (RO) SDNY, 12 EPD11059. 119

Bryan v. Austin, 354 U.S. 933 (1957) . 83

Burnett v. NY Central Railroad Co.,

480 U.S. 424 (1965) eeeeeeveeee 10, 115

Choate v. Caterpillar Tractor Co.,

402 F.2d 357 (CA7, 1968) wccceeee 81

Christensson v. Hogdal,

199 F.2d 402 (CADC, 1952) weceeee 70

Cissna v. McQuaid, 74-482 USSCt. 90, 103

Conley v. Gibson,

355 U.S. 41 (1957) «22005 42, 70, 101

Cooper v. Pate, 378 U.S. 546 (1964). 101

Crouch v. United Press Interntl.,

74. Civ. 296 SDNY, 10 EPD 10,393 .. 60-61

Culpepper v. Reynolds Metals Co.,

421 F.2d 888 (CA5, 1970) eeee 57 115

Downey v. Palmer,

114 F.2d 116 (CA2, 1940) .eee- 85, 86

Egelston v. Ste. Univ. at Geneseo, .. 5, 50,

76-7047 CA2, 12 EPD 11004 ... 51, 53-56,

@eeeeeeveeeneeeee8@ 100-101, 112, 116-120

TABLE OF CASES

PAGE

Foman v. Davis, 371 U.S. 178 (1962) .. 42,

e@eeeeeveeeeeeee 63-64, 67, 70-71, 105

B. F. Goodrich Tire Co. v. Lyster,

328 F.2d 411 (CA5, 1964) ..cccceeee 87

Goss v. Revlon, Inc., .. 2, 5-6, 41-42, 50,

548 F.2d 405 (CA2 1976) ... 52-60, 62, 71,

eevee 73-74, 77-79, 85, 86, 90, 95-97, 99,

eeeeeee 102, 104-106, 111-113, 117-120,

eeeeeveveeveeeeeeeeeeeee@ A-2 to A-5, A-7

Haines v. Kerner,

404 U.S. 519 (1971) eeeeneeneenees2e@ 81

Hall v. Werthan Bag Corp.,

251 F.Supp. 184 21966 eeeoeveveeeee 48

Hammond Packing Co. v. Arkansas,

212 U.S. 322 ( ) @eeeeveeveeee 65, 90

Harkness v. Sweeny, 75-1533 CAS

July 1, 1977; 14 EPD 7669 ....e-.- 77

Head v. Timken Roller Bearing Co.,

486 F.2d 870 (CA6, 1973) eeeeeeee A-5

Heyman v. Commerce & Industry Ins. Co.,

524 F.2d 1317 (CA2, 1975) .eeeeeee 100

Hoven v. Elliott, 167 U.S. 409 .. 65, 90

Jaroslawicz v. Seedman, CA2, The ... 10,

NY Times, Sat., Dec. 20, 1975... 104-105

Jenkins v. United Gas Corp.,

400 F.2d 28 (CA5, 1968) ...ccceeee Gl

Johnson v. Railway Express Agency, Inc.,

421 U.S. 454 (1975) eeeeeee 77, 9, A—4+

Thomas Kaiser v. Cahn,

510 F.2d 282 (CA2, 1974) ..ccceee A+

Lloyd v. United Liquors Corp.,

203 F.2d 789 (CAG, 1953) eeccceeee 75

TABLE OF CASES

PAGE

Lone Star Motor Import, Inc. v. Citro-

en Cars Corp., 288 F.2d 69 (CA5, 1961) 72

Longbottom v. Swaby

309 F.2d 45 (CAS, ”1968) e@eeeneeneee 77

Love Ve Pullman Co., eee 10, 42, 57-58, 75;

404 U.S. 522 (1972) 80, 82, 115, 117, 119

Macklin v. Spector Freight Systems,

478 F. ed 979 (CADC, 1973) eeeeevee A—4+

Miller v. International Paper Co., .. 34,

408 F.2d 283 (CA5, 1969) .. 87-88, 89, 115

Minnesota Mining and Manufacturing

Co. v. New Jersey Wood Co.,

381 U.S. 311 (1964) ccccccccccccee 115

Moore v. Bank of New Orleans,

75-2144, ED, La. 3 ll EPD 10,946 eee 61

Moses v. Falstaff Brewing Corp., «ee 10,

525 F.2d 92 (CAB, 1975) -cccccccee 35,5

@eeeeeveveeae eee 39-40, 51-52, 105, 115

National Screen Service Corp. v.

Poster Exchange, Inc.,

305 F.2d 647 (CA5, 1962) wceeeeee 102

Neeff v. Emery Transportation Co.,

284 F.2d 432 (CA2, 1960) ...eeeee 85

Newman v. Piggie Park Enterprises,

Inc., 490 U. S. 400 (1968) eeeeever 49

New York Telephone Co. v. Communica-

tion Workers of America, SDNY, NY

Times, Wed., May 25, 1977 eeeeneoe? 109

Noble v. University of Rochester, .. 5,

76-7133 CA2; 12 EPD 11,005 eeeeeee 51,

eeeeeeeneeeoeee@ 53-56, 112, 116, 119-120

Northwest Orient Airlines v. Gorter,

254 F.2d 652 (CAS, 1958) 72

xii

TABLE OF CASES

PAGE

Reeb v. Economic Opportunity .... 55

Atlanta, Inc., ecee 50, 53,

516 F. 24 924 (cas, 1975) «eee 108, "115

Sanchez v. Standard Brands, Inc., .. 34,

431 F.2d 455 (CA5, 1970) coos "35, 119’

Scheuer v. Rhodes, 416 U.S. 232 (1974) 101

Shell Oil Co. v. Dartt, 76-678 USSCt ... 97,

(Ap. fr. CA10; 12 EPD11,119) .... 98, 102

Smith v. United Press Intrntl., .... 81,

74 Civ. 555 JMC; 8EPD 9512 ..--- 82,116

Smith v. Universal Services, Inc.,

454 F.2d 154 (CA5, 1972) coccceee 91

Societe Internationale v. Rogers,

357 U.S. 197 (¢ ) ccccccccce 65, 90

South Suburban Safeway Lines, Inc. v.

Carcards, Inc., 256 F.2d 934

(CA2, 1958) eevee eeoeoeeeeeeeeee 22, 85

Suttle v. Exxon + » Ue-Se-A-, MDFla., 61,

Tarvesian v. nile certites of TRW,

Inc., 407 F.Supp. 336 (1975) ..e-- 61

Topping v. Fry, 147 F.2d 715 (CA7,'45) 85-86

Troxel Manufacturing Co. v. Schwinn

Bicycle Co., 489 F.2d 968 (CA6,'73),

cert. denied, 416 U.S. 939 (1974) A-5

Weise v. Syracuse University, ... 7, 50, 92,

522 F.2d 397 (CA2, 1975) .- 116-117, A-3

Woodford v. Kinney Shoe Corp.,

369 F.Supp. 911 (1973) 102

Voutsis v. Union Carbide Corp., . 49, 58, 60,

452 F.2d 887 (CA2,'71) 80-82, 91, 116-117

Zenith Radio Corp. v. Hazeltine Research

Inc., 401 U.S. 321, rehearing denied,

401 U.S. 1015 (1971) eeeeeeeeee 42, A-7

xiii

TABLE OF LAWS

Federal Constitution

Declaration of Independence,

second paragraph .ecccccscccccee Ll, 86

Constitution of the United States .. 75

of America, Article III, .eeeceee Ll,

Section 2, Clause 1 .ecccocccccceee WF

Amendment V cocccee 5, 11, 65, 89-90

Amendment VIII eeeeeneveaeneene 75 ll, 89-90

Amendment XIII .... 4, 5, 8, 11, 24, 43,

eeeeeee 84, 105-106, A-4

PAGE

Federal Acts

18 U.S.C. §1621 eeeeveveeveeee 9 ll, 36-37,

seoe 100, 102, 10%, 112

18 U.S.C. §1622..9, 11, 36-37, 100, 111

28 U.S.C. §144 ....-- 10-11, 39, 44, 66,

eeeeeveee 88, 93, 107-113

26 UcB.C. GRASS ccccccccccsccscce Al, 49

28 UeBeGe GIZSR(1) cccccccccessee % i

28 U.S.C. §1343(4).. 4, 8, 11, 24, 84, 105

29 U.S.C. §621 ("ADEA" Sec.1)..e.2. A-3

29 U.S.C. §626 ("ADEA" Sec. 7(c))..- 4, 8,

eee ll, 21-24, 43,

eee 97 ; 105-106, 118

("ADEA" Sec. 7(d)) .. 11,

eee 22-23, 39, 51,

ee 97-98 4 118-119

29 U.S.C. §633 ("ADEA" Sec.14(a)) .11, 23

("ADEA" Sec. 14(b)) .. “+

42 U.S.C. §1782 106

eT ee eo

xiv

TABLE OF LAWS

PAGE

42 U.S.C. §1981 eeee 4, 6-7, ll, 24, 43,

eee 76, 80 84, 96, 105,

ee 106, A-2 to A=-5, A-7

42 U.S.C. §1983 ..20e 4, 11, 24, 43, 8,

eeeeeeee 105-106, A-4

42 U.S.C. §2000e-5 ("Title VII" Sec.706):

Original Section 706(e) ..eeee- ll, 47

The Equal Employment Opportunity

Act of 1972 cecceeeee 4, 11, 46-47, 68

Amended Section 706 ("Title VII"):

eee 3-8, 10-11, 14-15, 19-21,

eeee 39-40, 43 ] 46-52 ) 55-56,

eee 58, 6l, 68, 79-82, 88-89,

eeee O4-95, 107-109, 117-119,

eeeee A-2 to A=-5, A-10, A-16

Federal Rules

Rules of the Supreme Court ("RSC"):

Rule 19(1) .-. 1, 10-11, 41-42, 44-48,

eevee 50-51, 53-54, 57-61,

eeee 63-65, 76, 132 83, 87,

J o4, ?

eee 104-106, 114-114, 120

Federal Rules of Appellate Procedure

‘C"FRAP"): |

Rule 4(a) eeeeeveeneoeeea eee ll, 42, 105

Rule 40(a) .eeeeee 1, 3, 11, 41-42, 45,

eeeee 51-52, o4, 59, O4, 84,

eeeeeeveaeeev ee eeeee8@ A-8, A-9

Rule 41(a) a deaiilediatebintiie 10, ll, 41, 45,

eeoeeeeeeeeeees 4, 113-114

Rule 41(b) eeeeeeeveaeeeeeaeeeeeer ll, Oo,

cocccccccccceceeoce 114-114

TABLE OF LAWS

PAGE

Federal Rules of Civil Procedure

("FRCP"):

Rule 1 eo e.e © © «© © © © Ll, 67-68

Rule S(e) we cecsveee0es 11, 69

Rule 8(f2) . « «© «0 0 © © © Ake 6970

Rule 15(a) . ...e. 2, 4-6, 11, 24, 27,

« « 63-64, 66, 69, 71-75,

nt eee An? to A-5, A-15

Rule 15(c) « « « « « e ll, 76-77, A-4

Rule 18(a) ll, 67

Rule

"Local

23(a) *“e ¢ @ 9, ll, 29-30, 33-34,

55, 79, 98-99, 106, A-3

Sas oc take es 6 oe

56 2-3, 9, 11, 26-29, 32-33,

36-39, 22 » 66, 72, 75-76,

"95 4 99-104 » ]

133, 116-117, A-2, A-4,

59 + e « ¢ « 3, 10-11, 38-39,

eee @ 52, 105, 112, A-13

61 - e @ @ e ee e@ @ e ®& @ ll, 84

Rules" of the SDNY:

Rule

9(m) .- 3,11, 38-39, 52, 105, A-14

EEOC Procedure

Section 1601.8 oe e ill, 19, 56, 9%

Section 1601.11(b) .. 11, 22, 34, 55-56, &

Section 1601.19 . ...- 7, 11, 19-20, 58,

eee 60, 80, 92-4, 120

Section 1601.25 oeoee#eeee ll; 19, 94

xvi

TABLE OF LAWS

PAGE

New York State Laws

Civil Practice Law and Rules:

Section 214(2) ... 8, 11, 24-25, 66,

° e 68, 71; 74-76, A—4

Human Rights Law ("NYSHRL"):

Section 297.1 ..4, 8, 11, 14-15, 20

Section 297.5.. 8, 11, 15, 20, 22, 62

Section 297.9... 11, 20, 23, 59-60, 95

Non-Statutory Laws

‘Law of the Case' .... 6, 11, 83, 86

Law of Contempt of Court... 9, 11, 28

Law_of Contract:

Law of Agency . « « « « e e ll, 21-22

Breach of Contract... 8, 11, 17-18, 61

Law of Evidence . ...e.«-e«e 11, 98-99

Law of Tort:

"Res Ipsa Loquiter" . . « « e « ll, 55

"Volenti Non Fit Injuria" ...411l, 57

False and Malicious Employmen... 8, ll,

References .« «6 « « © « « « « 15=18, 61

ECISIO

Case No. LA 68-4-538E, June 16, 1969;

§6125, pp. 4222-4224, CCH 1973 .. 53

Case No. 72-1702, April 26, 1972; '

§6361, pp. 4649-4652, CCH 1973 . . 55

Case No. 72-1884, May 31, 1972;

§6378, pp. 4705-4711, CcH 1973 56

xvii

NCES

PAGE

Textbooks

Sir William R. Anson's "Principles

of the English Law of Contract" (a

well known student textbook, abridged

from his famous reference book), 20th

Edition (1952) edited by Professor J.

L. Brierly of Oxford University, cit-

ing an obitur dictum of Lord Blackburn

in the House of Lords decision in

Brogden v. Metropolitan Railway Co.,

ppea ases or 692 eke (a lead-

ing British case in securities fraud),

quoting the famous aphorism of the

hief Justice Brian of England in 1477

uring the reign o war rom

1461 to 1483) at pp. 532-43. eee 65

DF LE CGE ORT 1964 Edi-

on, Chapter at following pages:

a £ © © © ©€ © e« 72

_—_ ae = £ 6€ ¢ © @« ©« o FW

es * @« 6 © « e«§ « FF

= -&- 6 © « « « «

—_—_—_ a - £6 6 © @« e 84-85

_————— -— * £ 6 © 6€ @« @*@ 85

DTA « «6 «6 e's « @&

ass 6 ¢ © «© e 70

Webster's Dictionary . . . .« 72, 89

CCH's Law Books:

"EEOC Decisions" (1973) .... 53, 55, 56

"Employment Practices Guide",Vol.1...47

"EPD" ,Vols.1-2,4,6-14 ... 50-51, 57-58

coeee 61-62,73,77 , 80-82 , 87-88 , 91-92 , 96

eee 98 , 100-102 » 106,108 9 112 »115-117 9 119

xviii

REFERENCES

Newspapers

Congressional Record, Volume 110,

June 17, 1904 at following pages:

1369 (Senator Humphrey's speech) ..4

14191 (Senator Javits' speech) .... 48

The New York Times:

Saturday , December 20, 1975.4... 104

Sunday », January 25, 1976...110-111

Tuesday , June 8, 1976 ..ee

Friday » September 10, 1976 .... 100

Tuesday , October 5, 1976 «eee 102

Wednesday, October 13, 1976 .... 104

Wednesday, May 18, 1977 «eee 43

Monday » May 23, 1977 eeooe 43

Wednesday, May 25, 1977 «eee 109

Saturday , May 28, 1977 «eee 44

VERNMENT AGENCIES CITED

Federal

EEOC...3-5, 7-8, 14, 18-22, 27, 29, 34-35,

wwe, 46-48, 50-51, 53, 55-56, 38-60,

eon hla a ee oe ee

Department of Justice . ..«e««-eee 9

Secretary of Labor .....e«.e- 51, 9

i a a a a a ae a a a ee er ee?

WHD . « «© © « e « Gly 22-23, 97, 118-119

SEC «ec eceece ce ee ee © e LMI

xix

GOVERNMENT AGENCIES CITED

New York State

AGE

NYSDHR ef ¢@ @ 4, 8, 14, 18-20, 22-23,

JURISTS CITED

Chief Justices

Brian of England in 1477 .

Burger of U.S.SCt in 1977 .

Associate Justices

Blackmun. .

Late Tom Clark

Goldberg . .

Stewart . .

Circuit Judges

45H ,

CA2: Kaufman, Chief..40-41, 49-50, 73-74,

JUGZE eeocee lL

Meskill . .« « « «

Feinberg «. « « «

Smith, J. Joseph

Timbers .« « « « «

O4, A-2,

Mansfield . . « « « A-2, A-6 to

CA5: Bell (now Attorney General). .

District Judges

EDNY:Bruchhausen, late Chief. .

NDNY:Burke . « « «© © © © e@ @ @ 2

A-2 5 "Ant

SDNY:Canella oe3eeeee

Owen @ eo e@ @ 2; 20,

A-8

A-9

A-8

104

A-9

104

117

A-5,

eee A-7; A-10, A-12 to A-15

Palmieri oeeeee A-6, A-7,; A-9

Smith, Russell E.

Tenney oeeee

? :Sparks *eeee

JURISTS CITED

PAGE

U. S. Magistrate

SDNY: Raby eee eeee 30-31, 66, 110

LAW PROFESSOR CITED

Victor Kramer, Georgetown Law Center,

Washington, D. Ce eee © e 110-111

ADEA

CFO

CCH

EPD

NYSHRL

OFCC

ABBREVIATIONS USED

Age Discrimination in Employ-

ment Act of 1967.

Chief Financial Officer.

Commerce Clearing House, Inc.

United States Court of Appeals

for the Second Circuit.

Employment Practices Decisions

published by CCH.

Equal Employment Opportunity

Commission.

Federal Rules of Appellate

Procedure.

Federal Rules of Civil

Procedure.

Kenil K. Goss, Petitioner.

The Honorable Judge Richard

Owen of the SDNY.

New York State Division of

Human Rights.

New York State Human Rights

Law.

Office of Federal Contract

Compliance.

xxi

ABBREVIATIONS USED

R = Revlon, Inc. and its wholly

owned subsidiary, USV

Pharmaceutical Corporation,

Respondents.

RSC = Rules of the Supreme Court.

SEC = Securities and Exchange

Commission.

SDNY = United States District Court

for the Southern District

of New York.

Title VII = Civil Rights Act of 1964, as

amended by the Equal Employ-

ment Opportunity Act of 1972

(also amended Section 706,

or 42 U.S.C. §2000e-5).

UPI = United Press International,

Inc.

USDC = United States District Court.

USV = USV Pharmaceutical Corporation,

the second respondent.

WHD = Wage and Hour Division, Employ-

ment Standards Administration,

U. S. Department of Labor.

1981 = 42 U.S.C. §1981.

1983 — 42 U. S. C ° §1983 e

GENERAL NOTES

(1) In many places various cases and laws

have not been specifically mentioned

(in order to avoid needless distrac-

tions), but would be obvious to the:

learned Justices, and hence have been

so indexed for easy references.

(2) "J" appears in almost every page, but

not so indexed to avoid repetitions.

OCT - 6 977

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

KENIL K. GOSS, Plaintiff-Appellant-

Petitioner Pro Se

REVION, INC. and its wholly owned sub-

sidiary, USV PHARMACEUTICAL CORPORATION,

Defendants-Appellees-—Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT — NEW YORK

INTRODUCTION

l. The petitioner, Kenil K. Goss ("G")

prays that a Writ of Certiorari be issued

to review the two judgments of the United

States Court of Appeals for the Second

Circuit ("CA2") rendered on October 29,

1976 and on April 29, 1977, together with

its two denials of rehearings thereof

rendered on Dec. 20, 1976 and on June 7,

1977 respectively. The first judgment:

"Affirmed in part; remanded in part."

(p.A-2), the summary dismissal of the suit

without any trial or hearing on its mer-

its by the Honorable Judge Richard Owen

("J") of the United States District Court

for the Southern District of New York .

("SDNY") on November 7, 1975. ‘The second

judgment affirmed J's "sub silentio deni-

al nunc pro tunc" on November 16, 1976,

which was 827 days after G's timely mo-

tion for a leave to amend G's complaint,

in order to assert additional statutes

in support of G's same claim of unlawful

employment discrimination practices by

the Respondents ("R"), Revlon, Inc. and

its wholly owned subsidiary, USV Pharma-

ceutical Corporation ("USV") as in the

original complaint. Both the judgments

are based on incorrect facts self-assumed

by the CA2.

OPINIONS BELOW

2.1. The CA2's first judgment entered on

October 29, 1976, reported in 548 F.2d

405 (CA2, 1976) is in Appendix A.

2. The CA2's unreported second judgment

entered on April 29, 1977 is in Appendix

3. The CA2's two unreported denials of

rehearings entered on December 20, 1976

and on June 7, 1977 are in Appendix C

and in Appendix D respectively.

4. The SDNY's unreported orders were:

Date Of Entry . ee Set Forth In

Nov. 7, 1975 Note (a) Appendix E

Nov. 11, 1975 Note (b) Appendix F

Dec. 31, 1975 Note (c) Appendix G

Nov. 16, 1976 Note (d) Appendix H

Notes:

(a) Suit dismissed without any trial;

(b) G's motion denied outright;

(4) Outright denial upon remand, sub

silentio nunc pro tunc.

5. The determina”™ion of the Equal En-

ployment Opportunity Commission ("EEOC")

of October 17, 1973 is in Appendix I.

JURISDICTION

3.1. On March 20, 1973 G filed with the EEOC

his charge of R's employment discrimination

egainst G and others under Sec.706(b) of the

Civil Rights Act of 1964, as amended by the

Equal Employment Opportunity Act of 1972

("Title VII"). On the same day the EECC .

mailed a copy of the charge to the New York

State Division of Human Rights ("NYSDHR"),

under Section 706(c) of the Title VII, for

processing under Section 297.1 of the New

York State Human Rights Law ("NYSHRL").

2. The suit was commenced in the SDNY on

October 25, 1973 and refiled on December

12, 1973 (on the EEOC's standard forms),

under Section: (i) .706(f)(1) of the Title

VII; and (ii) 7(c) of the Age Discrimina-

tion in Employment Act of 1967 ("ADEA").

3. On August 8, 1974 G filed a timely

motion: (i) asserting 42 U.S.C. §1981

("1981") and §1983 ("1983"), and the 13th

Amendment, read with 28 U.S.C. §1343(4),

in support of the same facts as in the

original complaint; and (ii) praying for

a leave to submit a rewritten complaint,

in order to meet R's "FIRST AFFIRMATIVE

DEFENSE" :

"The complaint fails to state a cause

of action against defendants upon

which relief can be granted.".

4. The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED FOR REVIEW

4.A. Is the CA2 correct in holding that:

"The failure to file timely charges with

the EEOC was, of course, a jurisdictional

bar to this proceeding as well." (p.A-3),

without any regard to the nature and the

quality of such untimeliness? Or is it

a mere statute of limitation and thus

subject to equitable estoppel, as held by

the CA2 itself in two other cases only 4

months earlier and by the CA5 in several

recent cases?

B. Having regard to the 5th Amendment's

paramount requirement of the "due process

of law", is it Constitutional for any U-

nited States District Court ("USDC") to

deny, “sub silentio nunc pro tunc" after

827 days, without any hearing on the mer-

its of the case, or without even any jus-

tifying reason therefor, a non-lawyer pro

se plaintiff's timely and repeated mo-

tions - praying for a leave to amend his

complaint in order to cite additional

statutes and the 13th Amendment in sup-

port of the same claim of the defendant's

unlawful employment discrimination prac-

tices against him, as stated in the orig-

inal complaint - inspite of a remand by

its higher Court "for a determination"?

©. As a corollary to the preceding ques-

tion, where a higher Court has already

established a ‘law of the case' that:

"the district court improperly failed

to rule on that motion." (p.A-2),

from the dictionary meaning of the above

phrase “improperly failed", does it not

naturally follow that there had indeed

been "an abuse of discretion" by the same

USDC, so as to render it as incumbent

upon the higher Court: (i) to grant the

leave itself automatically to amend the

plaintiff-appellant's complaint, as pray-

ed by him; or (ii) at least to reverse

the USDC's denial "sub silentio nunc pro

tunc" upon the second appeal?

D. Where a higher Court has already es-

tablished a ‘law of the case' that the:

"appellant's failure to meet the jurisdic-

tional requirements of Title VII does not

preclude his cause of action under §1981."

(p.A-4), how can he assert it, where: (i)

the same higher Court in its second judg-

ment (p.A-7) has also held that:

"we find no abuse of discretion in the dis-

trict court's denial of leave to amend.";

and (ii) the same USDC, following its higher

Court's 2nd ruling, could dismiss ade novo

suit in respect of his 1981 claim?

E. Having regard to the 8th Amendment's

paramount prohibition against "excessive

fines", is it Constitutional for any USDC

to impose an arbitrary and capricious

fine of $50 upon an unaffluent and a non-

lawyer pro se plaintiff, who has been

fighting for his just right under the

Civil Rights Acts and who is not. guilty

of any dilatoriness, payable to a billion

dollar corporation, when: (i) it did not

even pray for it; and (ii) the clear lan-

guage or the intent of the Acts is to

assist the claimants financially?

F. Where a Title VII suit is based on

the dismissal of the charge by the EEOC,

is it not axiomatic for the USDC concern-

ed to ascertain, as it is a de novo suit,

whether or not the charge had been ille-

gally or wrongfully dismissed and more

so when the plaintiff so alleges? Hence

is it an abuse of discretion by the USDC

to refuse to remand the suit to the EEOC,

under its inherent power to do so confer-

red by Clause 1, Section 2, Article III.

of the Constitution, and indeed as rec-

ommended by its higher Court recently?

ee —

G. In a civil rights suit, is it a just

or proper judicial procedure for any USDC:

(a) to ignore the plaintiff's timely and

repeated assertions of his claim under:

(i) the ADEA, in respect of which he had

complied with all of the statutory re-

quirements, and which the defendant did

not even oppose until 666 days later?

(ii) the 13th Amendment, read with 28

U.S.C. §1343(4), which the defendant had

never opposed?

(b) to ignore the plaintiff's timely and

repeated pleadings of continuing discrim-

ination due to the defendant's continuing

tort and breach of contract that tolls

the statute of limitation of that state?

for a speedy trial?

(a) to refuse to consider the plaintiff's

extenuating circumstances in being late

in filing of his charge with the EEOC by

only 53 days?

(e) to refuse to recognize the fact that

the plaintiff had filed a valid and time-

ly charge with the state authority in

respect of the same facts, as required

by the Title VII?

(f) to allow palpable and persistent de-

fense dilatoriness?

(g) to excuse many defense laches and

contempt of court?

(h) to deny a class action where the de-

fendant's own documents, signed by its

top corporate officers, conclusively

prove such class discrimination?

(i) to give summary judgment to the de-

fendant, based on its untimely motion,

supported by a perjury of its employee

(who has had no “personal knowledge" in

the subject matter) suborned by its at-

torney, but to refuse to consider, by its

own admission, the plaintiff's timely

opposition motion, supported by the de-

fendant's own documents, including affi-

davits of its top corporate officers?

(j) to dismiss the suit behind the plain-

tiff's back on the very day (possibly at

the same time) it orders him to deliver

the defendant's own documents to the de-

fendant, in response to its discovery mo-

tion, while "reserving decision" to allow

the discovery to continue?

(xk) to deny outright without any hearing

the plaintiff's timely motion for a

0 UTE ermete) cer 2 ET ee

new trial based on new facts and impor-

tant and relevant recent decisions »y

the CA2 and the CA8?

(1) to ignore many judicial pronounce-

ments (including by this Court) holding

the Title VII suits “with liberal eyes",

particularly where a plaintiff. thereof

did not "sleep on his rights" but active-

ly pursued for an amicable settlement of

some of his claims at the defendant's own

request?

H. Is it ultra vires of any USDC judge

to "proceed" any "further" on a case,

after the plaintiff had filed "a timely

and sufficient affidavit" under 28 U.S.C.

§144 on ground of the judge's persistent

"personal bias or prejudice"?

I. Is it ultra vires of any USDC judge

to decide on a case after its remand by

its higher Court, while: (i) the plain-

tiff-appellant's petition for rehearing

was still pending there, and (ii) the

"Mandate" had not been issued by that

higher Court under Rule 41(a) of the Fed-

eral Rules of Appellate Procedure ("FR-

AP"), and thereby depriving him of an op-

portunity to file a timely petition for

a writ of certiorari to this Court?

RPS ee

FEDERAL CONSTITUTION, ACTS, RULES, REGULA-

TIONS; N. Y. STATE LAWS; NON-STATUTORY LAWS

5.1. Federal Constitution: Declaration

of Independence; Article III, Section 2,

Clause 1; Amendments V, VIII and XIII.

2. Federal Acts: 18 U.S.C. §$§1621-1622;

28 U.S.C. §§144, 1254(1) & 1343(4); 29 U. ©

S.C. §§626 & 633 (ADEA Secs. 7(c), 7(d),

14(a) & 14(b)); 42 U.S.C. §§1981, 1983 &

2000e-5 (Title VII Sec. 706, original, E-

qual Emplymnt.Oprtnty.Act of '72 & amended).

3. Federal Rules: Rule 19(1) of the RSC;

Rules 4(a), 40(a), 41(a) &41(b) of the FRAP;

Rules 1, 8(e), 8(f), 15(a), 15(c), 18(a),

23(a), 42(a), 56, 59 and 61 of the FRCP;

Rule 9(m) of the "Local Rules" of the SDNY.

4. EEOC Procedure: Sections 1601.8,

1601.11(b), 1601.19 and 1601.25.

5. New York State Laws: Section 214(2)

of the Civil Practice Law and Rules; Sec-

tions 297.1, 297.5 & 297.9 of the NYSHRL.

6. Non-Statutory Laws: ‘Law of the case';

Law of Contempt of Court; Law of Contract

(Law of‘Agency; Breach of Contract); Law

of Evidence; Law of Tort ("Res Ipsa Lo-

quiter"; "Volenti Non Fit Injuria; False

and Malicious Employment References).

5 ee) Be TE

STATEMENT OF THE CASE

6. The Petitioner's Background: G is

not a lawyer and has had no benefit of

any legal advice during the long fight

over the last four years, including in

preparing this petition. He is nit a

white man and the English language is

uot his mother tongue.

7. #&R's Discrimination Against Others:

R has a long and notorious record of un-

lawful employment discrimination. R's

own documents in G's possession show such

discrimination since 1941, of which some

signed by its top corporate officers ad-

mitting it as far back as 1957 are on

the SDNY's file pertaining to this case.

8. R's Discrimination Against G: Rem-

ployed G on fulltime and on active basis

from April 14, 1967 to March 3], 1972.

R discriminated against G with 42 differ-

ent types of unlawful practices, which

began from the very first day of his en-

ployment (such as, a considerably lower

starting salary than it stipulated for

white men to its employment agent). G.-

tried his best to eradicate such prac-

tices against him amicably, while he was

still actively employed, but his repeated

efforts in good faith were subsequently

proved to be fruitless.

9. G's Abrupt Dismissal Without Cause:

As a part of such practices, on March 7,

1972 at 5.15 p.m. (after R's office clos-

ing hour) R served G with acurt "you are

fired" oral dismissal notice, without any

prior hint or provocation, and whisked G

out of its building by two armedand husky

security guards in less than 5 minutes,

not even allowing G to pick up allof his

personal belongings. R then gave G no

reason whatsoever for his sudden dismiss-

al only a month after his so called pro-

motion from "a staff accountant" to "a

staff assistant".

10. R Agreed To G As Extended Employee:

R, however, agreed taat G would continue

to be on its payroll as a fulltime and ac-

tive employee upto and including March 3l,

1972 but excused from reporting to work

in order to enable him to devote fulltime

in search of another employment. R also

agreed to pay G his last salary for anoth-

er 66 days (severance 28 + vacation 38).

Thus, R agreed to his extended employee

status upto and including June 5, 1972.

ll. R Requested Time To Settle Amicably:

At the time of his dismissal G told R of

his intention of filing his charges of em-

ployment discrimination against R with the

NYSDHR and the EEOC. Realizing its grav-

ity, R immediately requested G for some

time to settle some of the most glaring

instances of discrimination against hin.

Subsequently, R's Personnel Director re-

quested him for more time, as did its

Chief Financial Officer ("CFO") still more

subsequently on July 20, 1972, to settle

the same amicably. The settlement took

place at last on November 7, 1972.

12. G Applied For A Consulting Position

But R Never Replied: G wrote a letterto

R on March 23, 1972 offering his services

as a consultant in his professional capac-

ity as a C.P.A. R never replied it. But

its CFO told G on July 20, 1972 (after or-

dering R's Personnel Director out of his

office. and closing its door) thatG's let-

ter was under consideration and expressed

positive hope, and then gave a glowing ac-

count of R's foreign business expansion.

The CFO then concluded the closed door

meeting with G by assuring G that all of

the outstanding issues would be settled

pita SET Oi SS OE A EG a TT Tw

amicably and thus there would be no need

for G to file his charges against R. Not

being a lawyer, G in good faith believed

in such seemingly genuine representation

and decided to defer the filing of his

charges against R until the outcome of

the representation made known to G by R.

The point here is that one has got to

trust upon the solemn representation of

the CFO of a billion dollar multi-nation-

al corporation. It, however, subsequent-—

ly transpired that the representation was

actually a conspiracy to defeat G'scivil

rights by dissuading G from filing his

charges within the statutory periods.

13. G's Extenuating Circumstances: To

make the matter worse, G suddenly became

critically ill from March 17, 1972 and

was confined to bed or house for the rest

of 1972. Thereafter G was away for two

months recuperating in a warmer climate

in Mexico at the order of his physician.

14. R's Continuing Tort Against G: Af-

ter returning from Mexico, while search-

ing for another employment in February.

and March 1973, G discovered that R mali-

ciously falsified its personnel records

of him, on the basis of which R was giv-

ing out damaging references as to his

former titles (or rather lack of them) to

prospective employers and their employ-

ment agents. R's falsified records still

show that R employed G only in a lowly

and titleless position of "a staff ac-

countant" for the entire period of his

employment for full five years, whereas

R's true records (comprising hundreds of

pages, including some sworn by its top

corporate officers) in G's possession

show G's titles as (i) "The International

Auditor" from April 14, 1967 to December

31, 1968; and (ii) “Assistant Controller

- International" from January 1, 1969 to

(at least) January 20, 1971. Based on

R's true records, G prepared and circu-

lated his résumé among employment adver-

tisers. But due to R's maliciously false

references to the employment advertisers,

G was exposed to them as a ‘liar'. The

unfortunate result was that, inspite ofa

booming job market then prevailing for

"Big 8" trained C.P.As. (as G is one), he

had no luck whatsoever, notwithstanding

to his exceptional qualifications and

experience, and to his best efforts. All

the prospective employers shied away and

their employment agents gave up, since no

employer would hire or retain a C.P.A.

with such a false employment records, as

no other position calls for greater trust-

worthiness than that of a C.P.A. Immedi-

ately upon learning the malicious tort, G

took it up with R, but R refused to rec-

tify it.

15. R's Continuing Breach Of Contract:

Before we can present the adversarial

proceedings, another very important fact

must be mentioned here. R decided to

move its USV unit's headquarter (in which

R posted G) on July 1, 1971 from the New

York City to Tuckahoe, New York. As an

incentive to its exempt employees (of

which G was one) to report to work at the

new location, it offered $30 additional

permanent salai , per month to each who

would do just that. The offer was thus

an executory contract. G by doing just

that transformed it into a binding con-

tract and submitted his claim on its pre-

scribed form, which R promptly denied but

granted to all other exempt employees

(almost all of them white) and threatened

to dismiss him should he bring the matter

up once more. R continued to deny it to

G to the last day of his salary payment

(June 5, 1972). On p.15, para.13 mention

has been made of G's critical illness.

Consequently G has been receiving since

then 2/3rd of his "last salary" from R's

insurer. But because of the denial of

that extra $30 per month, it did not form

a part of his "last salary". Hence he

has since then been receiving from R's

insurer every month $20 (2/3rd of $30)

less than what he should be receiving,

had he not been so discriminated by R.

In addition, R is still refusing to make

good that deficiency in his monthly in-

come, even though the contract is still

subsisting due to R's subrogation of it

to its insurer. This fact constitutes

an act of continuing discrimination.

Proceedings Before EEOC And NYSDHR

16. Proceedings Before The EEOC: R's

false representation regarding an offer

of a consulting position to G (pp.14-15,

para.12), its continuing tort against G

(pp.15-17, para.14) and its continuing

breach of contract (pp.17-18, para.15),

left him with no other avenue for an ami-

cable settlement of the issues but the

adversarial route. R thus compelled him

to file a charge on March 20, 1973 with

the EEOC. But the EEOC negligently sup-

plied him with two obsolete forms and

thereby depriving him from an opportunity

to present many vital details that would

have had a crucial bearing upon its de-

termination. As if the above illegality

were not enough, the EEOC then (without

even waiting to receive G's statutory af-

fidavit and detailed charge, which the

EEOC itself requested, and allowing him

a reasonable time to submit them, and at

the same time without even allowing the

NYSDHR the statutory 60 days) mailed to

him a form letter on April 12, 1973 in-

forming G that his charge was untimely.

G immediately protested and the EEOC a-

greed that the form letter was premature-

ly sent out to him. The EEOC then advis-

ed him to continue writing his affidavit

and his detailed charge and assured him

that upon their filing these would be

carefully reviewed and the determination

would be made accordingly. G filed them

on October 9, 1973. But without even

reading them, once again the EEOC issued

the same illegal determination on its

"NOTICE OF RIGHT TO SUE" on October 17,

1973 (Appendix I).

17. Proceedings Before The NYSDHR: The

EEOC sent a copy of G's charge on March

20, 1973 to the NYSDHR, which recognized

it as valid and timely under Section

297.5 of the NYSHRL. G filed a copy of

his detailed charge on October 10, 1973.

Since, however, by the time the NYSDHR

considered the matter on October 30,

1973, G's suit was already filed (due to

the EEOC's hasty, illegal and premature

determination on October 17, 1973, and

the Title VII allows only 90 days within

which to file the suit), it had to sus-

pend its jurisdiction during its penden-

cy, as required by Section 297.9 of the

NYSHRL. It has, however, assured G that

it would resume its jurisdiction upon the

termination of his suit without a justice.

Proceedings Before The SDNY

18. The Title VII Claim: G filed his

suit on October 25, 1973 on the EEOC's

standard complaint form and refiled on

December 12, 1973 on the same form. The

SDNY assigned it to Judge Tenney, but for

unknown reason(s) reassigned it to Judge

Owen ("J"), then newly appointed. J held

two preliminary hearings on January 31,

1974 and on March 29, 1974 and scheduled

the trial to be held on June 17, 1974,

but cancelled it on June 6, 1974 due to

his sojourn to Washington, D. C. Subse-

quently, thanks to R's dilatory motion

practice and J's apparent acquiescence to

such palpable practice, no trial was held.

19.1.The ADEA Claim: G was not aware of

the existence of the ADEA until few days

before the hearing on March 29, 1974.

But honestly believing that the Title VII

covered also the age discrimination, G

stated it on the EEOC form on March 20,

1973. The EEOC did not object to that.

On the contrary, it gratuitously advised

him to include it in his detailed charge.

It did not mention to him of the exist-

ence of the ADEA and direct him to go to

the Wage and Hour Division ("WHD" of the

U. S. Department of Labor, which adminis-

ters the ADEA) on the same floor to ini-

tiate a separate proceedings thereunder.

The EEOC was thus in the same position as

an apparent agent is on behalf of an un-

disclosed principal in the Law of Con-

tract. Hence a notice to such an osten-

sible agent is deemed to be a sufficient

notice to his undisclosed principal.

2.As advised by the EEOC, G gave de-

tails of age discrimination in his de-

tailed charge filed with the EEOC on Oc-

tober 9, 1973, which then related back to

March 20, 1973, by virtue of Regulation

1601.11(b) of its Procedure. According-

ly, G complied with the notice require-

ment of Section 7(d) of the ADEA, as the

EEOC was deemed to have received both the

charges (containing, inter alia, the age

discrimination) as the agent per pro the

WHD. Moreover, both the charges were

timely filed with the NYSDHR and thus met

with the requirement of Section 14(b),

read with Section 7(d)(2), of the ADEA.

4.The EEOC's standard complaint form

itself provided a space to state the ADEA

claim. Accordingly, G stated a valid and

timely ADEA claim in his original and re-

filed complaints on October 25, 1973 and

on December 12, 1973 respectively. More-

over, G delivered copies of both the com-

plaints on the same dates to the EEOC

personally. In fact, it even allowed G

to make xerox copies thereof on its own

machine at the Government expense to re-

ceive the copies thereof as the aforesaid

agent of the WHD.

4.Furthermore, immediately upon learn-

ing of the existence of the ADEA, G tele-

phoned to the WHD on March 25, 1974, but

it declined to act on the ground that his

age discrimination charge was then (and

still is) pending with (but suspended by)

the NYSDHR. Consequently, it had no pow-

er to act, by virtue of Section 14(a) of

the ADEA. It also said that since the

suit had already been filed, it doubted

if it could act, in any event, and that

there was no time (because of its own

backlog) to assume its jurisdiction in

time for a new suit to be filed within

the statutory period of two years. In

short, it waived its jurisdiction. Ac-

cordingly, G complied with Section 7(d)

of the ADEA.

5.Not being a lawyer, G was not sure

whether or not he stated his ADEA claim

sufficiently for the purpose of his suit.

So he stated it again in his motion of

August 8, 1974 and in his rewritten com-

plaint of July 7, 1975. His doubt was

compounded by the fact that J never ruled

as tc the validity or otherwise of his 7

ADEA claim and that R did not oppose it

until 666 days later on October 14, 1975.

Thus, by J's and R's silence, G was pre-

vented from curing defects, if any, in

his ADEA claim within the statutory time.

20. 1981, 1983 And 13th Amendment Claims:

Like the ADEA, G was not aware of the ex-

istence of the above until few days be-

fore the hearing on March 29, 1974. Not, .

however, knowing how to assert them, G

tried unsuccessfully to learn it from J's

clerk on April 4, 1974. It was only on

June 6, 1974 G was able to learn it from

J's another clerk. Thereupon G filed his

motion on August 8, 1974 asserting the

above, read with 28 U.S.C. §1343(4).

However, due to J's continued silence and

to R's lack of opposition thereto, G was

not sure whether or not his motion had

been placed before J (as the first filing

was returned by the Postal Service un-

opened with a remark "REFUSED" by J's

office and the SDNY admitted that it was

done so in error). Because of J's and

R's continued silence, G was not even

sure whether or not his above assertion

had been defective for any reason. He

was naturally anxious to cure any such

defect, if such had been the fact, with-

in the 3 years allowed under Section

214(2) of the New York State Civil Prac-

tice Law and Rules and if necessary by a

de novo suit in respect of the above cap-

tioned claims within the same statutory

period. With that aim in view, G remind-

ed J about it in his two subsequent mo-

tions of August 28, 1974 and of September

16, 1974. J's clerk convened a pre-trial

"conference" to be held on September 27,

1974 for the sole purpose of hearing all

the three motions - as the clerk put it:

"to iron out various motions and to

set a date for the trial to begin".

But during the hearing J did no such

thing. In fact, at the outset J apolo-

gized for his inability to do so, as he

was on his way out of the City for the

weekend. J did, however, find enough

time to rule on R's discovery motion,

for which there was no statutory time

limit, but not for G's timely motions,

for which there was the aforesaid time

limit and he was well aware of it. But

he said nothing inspite of G's prayer.

At the next hearing on May 2, 1975 J re-

mained similarly silent on the aforesaid

claims. On September 17, 1975 G filed

his rewritten complaint of July 7, 1975

(the timing difference was due to G's

sudden recurrence of illness), in which

G once more reminded J about his long

asserted claims, by referring to his

original motion of August 8, 1974. It

was only then R opposed G's claims 432

days later on October 14, 1975. Once

more J's clerk convened another hearing

to be held on November 7, 1975 for the

sole purpose of hearing G's above motion.

Once more J did no such thing during the

hearing and accordingly confined himself

solely to the question of dismissal of

G's suit and not of saving it by allowing

the aforesaid timely asserted claims.

It is, therefore, not at all surprising

to find that such a judge should be clain-

ing (albeit 375 days later on November 16,

1976 at the prodding of the CA2) that:

"I denied the said motion sub silentio

in granting the cross-motion €0 dis-

miss." and made it "nunc pro tunc."

(Appendix H, p-A-15) 827 days after G as-

serted his aforesaid claims on August 8,

1974 originally.

21. G's Rewritten Complaint: As has

been briefly noted (para.3.3, p.4), G

submitted it only to meet R's objection.

On June 6, 1974 J's clerk told G that the

, 27

objection would be sufficient to dismiss

the suit without any trial, unless a re-

written complaint were submitted before

the trial date. Accordingly, G prayed

for it in his motion of August 8, 1974.

Because of J's and R's silence thereon,

G prayed for it again in his motions of

Aug. 28, 1974 and of September 16, 1974.

During the hearing on September 27, 1974

G prayed for it again, to which J said:

"J can't rule on that, until I see it".

Believing in good faith that J would be

receptive to G's rewritten complaint, he

began writing it. However, on November

1, 1974 R's attorney told G that, having

already received G's detailed charge to

the EEOC filed on October 9, 1973,

"there would be no need"

for any rewritten complaint. Relying

thereon in good faith G did not submit

it. However, after the hearing on May 2,

1975, G became apprehensive that J might

dismiss his suit by merely upholding R's

objection. So G submitted it, which con-

tains no new fact but only the restate-

ment of the same facts as in his original

complaint. As has been noted (p.26,para.

20), during the hearing on November 7,

1975 J did not at all consider it - the

original and the sole reason for conven-

ing the hearing by J's clerk.

22. R Never Submitted Brief In Contempt:

During the hearing on March 29, 1974 J

ordered both the parties to submit their

respective briefs before the trial date

of June 17, 1974. Since, however, the

trial was cancelled on June 6, 1974, the

date of its submission was accordingly

changed to "as soon as possible" but "no

rush". G submitted it on August 350, 1974

but R's attorney in an affidavit on May

6, 1976 stated that:

"Defendants were not given additional

time to submit a brief but rather sub-

mitted a brief in support of their mo-

tion for ay Se eas when such

ed".

motion was

What R submitted on October 14, 1975 was,

therefore, 564 days after J's order. In

the absence of R's brief G was severely

handicapped by being totally unaware of

R's argument, case citations, etc. Pur-

thermore, R deliberately submitted it so

late, so as to overwhelm a non-lawyer .

like G at the last moment and thereby to

catch G totally unprepared in presenting

his opposition motion to the summary

judgment, and it did. Although G pointed

it out in his opposition motion of Novem-

ber 3, 1975, but J, by his own admission

(Appendix F), did not even read it. Even

worse was that during the hearing on No-

vember 7, 1975, J remained silent to G's

fervent plea against R's unconscionable

laches and the lowest grade of courtroom

advocacy practised by its attorneys.

23. R's Palpable Dilatory M Motion Practice:

The entire proceedings in the SDNY for 2

years can be summed up by the above cap-

tion. Inspite of G's depositions of 118

pages taken by R's attorney, Rwent after

the discovery of G's detailed charge to

the EEOC, containing the same but less

detailed facts. Having discovered it and

found nothing to challenge (in fact, R's

attorney described it as "anticlimactic"),

R then went after the discovery of R's

own documents showing class discrimina-

tion, which was not then even an issue,

as G's suit was then an individual one.

Needless to say that R's palpable dila-

tory motion practice has imposed finan-

cial and physical hardships upon G. But

J again lent his deaf ears to G's fervent

plea during the hearing on Nov. 7, 1975.

24.1.7 Imposed Arbitrary And Capricious

Fine Upon G: The genesis of the fine was

R's second discovery motion, seeking dis-

covery of its own documents showing class

discrimination. Because of its volume

(6,882 pages), G prayed for reimbursement

of his expenses in xerox copying and de-

livery thereof, which the magistrate (to

whom J assigned it) readily recommended

and J "so ordered" on December 11, 1974.

But the SDNY negligently never sent to G

a copy of J's order - not even its white

postcard, informing its docketing. More-

over, it does not even give any informa-

tion over the telephone to anyone who is

not an admitted attorney retained on the

case in question, and accordingly told G

to come to the Courthouse personally and

make a photocopy by himself. His contin-

ued illness, however, prevented him from

visiting the Courthouse some 22 miles

away. Hence G had no way of knowing

whether or not J even had acted on the

magistrate's recommendation, let alone

J's order and the details of it. R's

attorney, on the other hand, received a

copy of J's order, but adamantly refused

to mail a copy of it to G, on the ground

that:

"each party is responsible to obtain

his papers and cannot rely on the oth-

er party therefor".

This was contrary to a telephone advice

by J's clerk on June 6, 1974 that:

"it is defense attorney's duty to keep

you informed on his motion".

It would have cost R's attorney (who has

a xerox machine in his firm, of which he

is a partner with his father and others)

no more than 20 cents in all to mail a

copy of the order to G, who even offered

to reimburse it to R's attorney. But the

latter refused to do so, inspite of G's

two requests on January 24, 1975 and on

April 30, 1975. In passing we note that

R's attorney similarly and adamantly re-

fused to give G a copy of his own deposi-

tions and the matter came to such a pass

that G had to bring it to J's attention.

J then referred it to the magistrate, who

sharply denounced R's attorney in failing

to extend:

"a most customary legal courtesy".

2.Instead, in order to enrich himself

R's attorney chose the most expensive

route - yet another motion. In order to

take advantage of G's illness, R filed it

on April 21, 1975, seeking only for the

dismissal of the suit (and hoping to get

it, in case of G's failure to appear at

the hearing on May 2, 1975). G was then

running 102°F temperature and taking mas-

sive doses of several prescription drugs.

During the hearing J found that G did not

in fact receive a copy of J's order and

even admonished R's attorney that:

"Now, I am going to suggest, counsel,

that from now on when you get these

that you serve by mail a copy on your

adversary and this won't happen again".

But J then proceeded to impose an arbi-

trary and capricious fine of $50 upon G.

If it were payable to the SDNY then the

unjustness of such a fine perhaps would

have been far less than if it were pay-

able to the adversary. But lo J ordered

G to pay the fine to a billion dollar

corporation. R's cash hoard alone was

then nearly quarter of a billion dollars

and is now $266 million. R was then a-

washed with so much idle cash that it

hired a Frenchman as its new president

and paid him $1.5 million in cash just.

to report to work on the first day and

now pays him a salary of nearly $700,000.

But worse still was the fact that R did

not even seek any such fine or cost, how-

ever small in amount, either in its mo-

tion or during the hearing. J even re-

fused to hear G's fervent plea of miti-

gating circumstances, by abruptly ending

the hearing by saying that:

"IT have made my ruling."

and then proceeded to hear other cases.

In addition to the above arbitrary, ca-

pricious and unjust fine, J allowed G on-

ly 10 days within which to xerox copy

6,882 pages of documents and then to de-

liver them to R's attorney, on pain of

dismissal of the suit. At the end of the

remaining cases (and J retired into his

chamber, where a merriment was then go-

ing on), G wished to speak to J to seek

an extension of the time limit. But J

even refused to see G. Thereafter G

wrote a letter to J on May 6, 1975 seek-

ing the same, but J again turned it down

outright without any further ado. |

25. J Denied G's Class Action Outright:

After the discovery of R's documents,

showing its class discrimination (which

G delivered to R's attorney on June li,

1975), the only logical thing for G to

do was to pray for a leave to transform

his hitherto individual suit intoaclass

action, which he did in his motion of Ju-

ly 7, 1975. But R did not oppose it on

time - being late by 12 days. During the

hearing on November 7, 1975 J not only

remained silent to G's plea against R's

belatedness, but also denied angrily G's

prayer for a class action outright -

without even hearing R's attorney, in

fact by cutting the latter short in the

middle of a sertence of what he was say-

ing against it. Furthermore, J hy his

own admission (Appendix F) did not even

consider G's motion of November 3, 1975,

containing an extensive plea for a class

action together with R's own documents,

signed by its top corporate officers, un-

equivocally admitting its class discrimi-

nation since (at least) July 17, 1957.

J's outright denial was all the more il-

logical (to say the least), since: (i) J

gave no reason whatsoever; and (ii) G had

stated the class nature of his charge ab

initio to the EEOC on March 20, 1973 and

on October 9, 1973, which related back to

March 20, 1973 by virtue of Regulation

1601.11(b) of its Procedure. Such an ab

initio class claim was held to be enough

for a class action by many court cases.

26. J Refused To Remand To The EEOC: G

prayed on two occasions to remand the

case to the EEOC in order to ascertain

the truth of his allegation that it had

illegally or wrongfully dismissed his

charge on October 17, 1973. On the first

occasion on September 27, 1974 J said

that:

"IT am not sure, if I have the power to

do that".

On the second occasion on November 7,

1975 J said that:

"I am sorry, I have no power to do

that".

27. J Ignored G's Extenuatinge Circum-

stances: During the hearing on November

7, 1975 J did not call for any medical

evidence (from R's own records) of G's

inability to file his charge with the

EEOC before March 20, 1973, so as to give

G the slightest possible benefit of doubt

as held in many civil rights cases. Even

what J then heard was not by his own vo-

lition, but because G was compelled to

draw J's attention thereto, as J appar-

ently never read G's brief of August 28,

1974 and his opposition motion of Noven-

ber 3, 1975, both containing the facts.

_____—_ ———

———————— een een

28. R Procured Summary Judement By Per-

jury And Subornation Of Perjury: R's mo-

tion for summary judgment was supported

by a bogus "AFFIDAVIT" of one of its em-

ployees, who has had no “personal knowl-

edge" in the subject matter. In fact,

during the most crucial period of R's un-

lawful employment discrimination prac- |

tices against G in 1967 and 1968, that

putative "“affiant" was not even an em-

ployee of R. Even after he joined R's

employment from January 1969 (possibly

in his first job after obtaining his B.S.

degree) at no time he was concerned with

employment discrimination matter, even

in the slightest degree. Even more seri-

ous was, however, the fact that the same

reputed “affiant" made several false

statements in it, supposedly under oath.

One such false statement was G's former

titles (para.14, pp.15-17). Both the

supposed "“affiant" and R's attorney knew

that the statement was false in material

particular. In addition, the "AFFIDAVIT"

appears to be a subornation of perjury

and "Swern to before" R's attorney hin-

self (who wrote it and typed it on his

office typewriter, with the same ‘legal-

ese', sentences after sentences and even

paragraphs after paragraphs, and plethora

of errors, as in all of his other papers).

Even the signature of the "“affiant" ap-

pears to be a forgery. But there is no

signature by R's attorney - only his out

of date rubber stamp (with the year hav-

ing been altered in the same handwriting

as the “affiant"). Although G pointed

these out in his opposition motion of No-

vember 3, 1975, but J did not even read

it (Appendix F). G again pointed these

out during the hearing on November 7,

1975, but J remained stony silent.

29. J Dismissed The Suit While R's Dis-

covery Motion Was Still Going On: An-

other serious false statement by the same

"affiant" was that G's:

"employment was terminated due to a re-

organization plan just prior to the

transfer to Paris of the U.S.V. (sic)

International Finance Division".

R's own secret documents in G's posses-

sion show the statement to be absolutely

false. Because of R's perjury, suborna-

tion of perjury and possibly also forgery,

G was compelled to disclose the existence

of the secret documents, while refuting

the above quoted perjury. R's attorney

immediately jumped upon it, as a drown-

ing man would catch a straw, and filed

yet another discovery motion on November

6, 1975 (though untimely, it was docket-

ed nevertheless; in a like situation the

SDNY did not docket G's paper of April

24, 1975), and demanded the same during

the hearing on November 7, 1975. Where-

upon J ordered G that:

"I am directing you within a week to

turn these secret documents over to

attorneys for Revlon, all right".

In order to enable G to do so, J then

said that:

"I am reserving decision on your motion

and on Revion's motion. Thank you

very much".

But J on the same day (possibly right on

the spot) dismissed his suit behind his

back and thereby causing him a needless

additional expense of $68.55 in xerox

copying and delivery of the secret docu-

ments. R has refused to reimburse G's

total out of pocket expenses of $532.99

in contempt of court.

30. J Denied G Outright To Reargue Or A

New Trial: Not knowing the dismissal G

wrote a letter-affidavit to J on December

10, 1975, citing then just published rul-

ee re re rr ere

ing by the CA8, upholding the tolling of

statutory periods for filings under the

Title VII and the ADEA by extended em-

ployment status (para.10, p.13). R imme-

diately disputed both the applicability

of the new ruling and the extent of the

period in question. Thus there was in-

deed "a genuine issue for trial". But J |

never ruled on it. So, upon learning on

Dec. 18, 1975 of the dismissal on Nov. 7,

1975 (the delay in mailing the notifica-

tion of it was due to the relocation of

the Clerk's office and mechanization of

its filing system), G filed on December

26, 1975 a motion for a new trial, which

R never opposed. But J treated it as "a

motion to reargue" and denied it at once

on December 31, 1975 without any hearing

and without any further ado (Appendix G).

31. G's Affidavits Under 28 U.S.C. §144:

G filed "a timely and sufficient affida-

vit" under 28 U.S.C. §144 ("Bias or pre-

judice of judge") on April 30, 1976, fol-

lowed by a supplementary affidavit on

May 20, 1976, in order to bar J from tak-

ing any further action on the suit. R's

attorney filed his "AFFIDAVIT IN OPPOSI-

TION" on May 10, 1976. G replied it on

June 7, 1976.

Renewal Of Proceedings Before The EEUC

32. G's Motion To Reopen EEOC Decision:

Based on the CA8 ruling (para.30, p.38),

G filed on December 22, 1975 a motion to

reopen the original determination on Oc-

tober 17, 1973, followed by a supplemen-

tary motion filed on April 22, 1976. G

mailed copies of these two motions to R

on June 18, 1976. Both the motions are

pending before the plenary EEOC.

Proceedings Before The Second Circuit

33. The First Appeal: Because of G's

motion (para.32 supra), coupled with his

illness, he filed only a very short in-

terim brief in support of his appeal, in

the hope of filing a fuller brief after

the EEOC had decided on his motions. The

CA2's pro se clerk, however, told him to

submit only the reply brief combining with

the points of his intended final brief,

"otherwise it would be confusing to

have too many briefs".

His reply cum final brief, however, became

very long and took several months to write.

G submitted it on October 4, 1976, but was

denied by the Honorable Chief Judge Kaufman

"in the form presented".

There was no more time left to submit a

substitute brief of acceptable length be-

fore the oral argument on October 7, 1976.

During the five minutes allotted to G to

present his argument, it took full 2 min-

nutes just to point out that he had been

handicapped greatly by the unexpected de-

nial of his brief. The Honorable Chief

Judge Kaufman then said that the Court

had already obtained the pertinent facts

of the case without that brief and that

its bulk was a consideration in denying

it. Its judgment (Appendix A), however,

shows that the learned Court had assumed

certain inaccurate facts, on the basis of

which it rendered its opiniom to G's det-

riment.

34. The First Petition For Rehearing:

Because of the inaccurate facts, G filed,

on November 13, 1976 his petition for a

rehearing, and on November 16, 1976 a sup-

plement thereto. While these were pending

G was contemplating to file a petition

for a writ of certiorari to this Court,

as he was apprehensive that J would most

likely to act negatively upon the remand,

which he did at once (Appendix H), even

before the issuance of the "Mandate" by

the CA2. J's hasty, illegal and prema-

ture action upon the remand, thus, fore-

closed any opportunity to file a petition

to this Court then instead of now. The

CA2 denied a rehearing (Appendix C).

45. The Second Appeal: Thus, G was con-

pelled to go through the fruitless ritual.

of the second appeal needlessly at great

physical and financial hardships in his

personal circumstances, and its outcome

was a foregone conclusion. The CA2 once

more assmed inaccurate facts (e.g., G's:

"long delay in seeking to file his

amended complaint,", p.A-7),

on the basis of which it rendered its

second judgment (Appendix B).

36. The Second Petition For Rehearing:

As the CA2 based its opinion not only on

inaccurate facts, but also on erroneous

laws, G filed his petition for a rehear-

ing, seeking an en banc hearing based on

several landmark decisions of this Court.

But the CA2 denied it (Appendix D).

37. Summary: Thus, both the appeals as

well as‘the two petitions for rehearings

were merely a fruitless exercise of the

FRAP, as the CA2's assumption of inaccu-

rate facts vitiated them all.

REASONS FOR GRANTING THE WRIT

"Special And Important Reasons"

38. This case presents questions of ex-

ceptional national importance, not merely

because it raises the question of "juris-

dictional prerequisites" for a Title VII,

ADEA, 13th Amendment, 1981 or 1983 clain,

but also because it raises a much broader

question of the access to the Federal

Courts by the victims of unlawful employ-

ment discrimination by rich and powerful

billion dollar multi-national corpora-

tions. These are the questions in which

all the three branches of the Federal

Government, as well as the public at

large, are vitally interested. The depth

of the public interest can be measured by

the fact that the Honorable Chief Justice

himself found it necessary to address to

the same question, as reported in The New

York Times, Wednesday, May 18, 1977 and

commented editorially on Monday, May 23,

1977. Im addition, there is the question

of the ‘law's delay' deliberately by R's

attorney and, what is even worse, by J'

himself, to R's benefit (whether intended

or not) and, by the same token, to G's

detriment. The point has been succinctly

-_——

put by the Honorable Chief Justice

Burger himself that:

"People with problems, like people with

pains, want relief, and they want it

as quickly and inexpensively as possi-

ble.",

as reported in The New York Times, Satur-

day, May 28, 1977. J's conduct of the

case, however, has produced exactly oppo-

site results - protracted and expensive,

yet without any relief whatsoever. Last-

ly, but by no means the least, there is

the pervasive question of judicial ethics

involved in a situation where a judge

persistently fails (perhaps intentional-

ly) to rule on a timely vital motion (in-

spite of repeated supplication of the mo-

tion writer and inspite of a hearing con-

vened ad hoc by his clerk and held) and

then, at the prodding of his higher Court,

claims 827 days later that he denied it,

but only in his own mind, and then pro-

ceeds hastily, illegally and prematurely

to make it "nunc pro tunc" to 1,071 days

earlier - hastily because it thwarts the

motion writer's right to petition for a.

writ of certiorari to this Court; ille-

gally because of 28 U.S.C. §144; and pre-

maturely because of the motion writer's

pending petition for a rehearing, and of

the lack of "Mandate", by his higher

Court. In short, the petition meets with

the above criterion of Rule 19.1 of the

Rules of the Supreme Court of the United

States ("RSC").

Rule 19.1(b) Of The RSC

39. The petition also meets with each of

the five criteria laid down by the above

Rule. Rather than fitting the facts with

the criteria, this petition will present

the criteria in the context of the facts

presented by each question. For this

purpose, the criteria will be identified

by their respective clause numbers. Thus,

Rule 19.1(b)(1) will mean the first clause:

" Where a court of appeals has rend-

ered a decision in conflict with the

decision of another court of appeals

on the same matter;".

Rule 19.1(b)(5) will mean the last ciause:

"or has so far departed from ...ccees

eeeeee court's power of supervision.".

If a question meets with two or more cri-

teria, it will be so stated. The petition

also presents questions in which the CA-

2's two decisions on this case are in

conflict with its own earlier decisions.

The Title VII Claim

40. The "Jurisdictional Prereouisites":

The question (4.A., p.5) meets with the

criteria not only of Rule 19.1(b)(1) and

(3) of the RSC, but also under the last

sentence of para.39, p.45. G submitted

his arguments in his brief of August 28,

1974, but neither of the lower courts

apparently ever read it. G presented

even more forceful arguments in his brief

of October 4, 1976, but CA2 denied it

(para.33, pp.40-41). Hence its error.

41. The Gist Of G's Arguments: Under

the amended Title VII, the only "juris-

dictional prerequisite" now is the filing

of the charge with the EEOC, timely or

untimely. If the charge is timely then

the EEOC must assume its jurisdiction

thereon. If, on the other hand, the

charge is untimely then the EEOC must

dismiss it and issue its Notice of Right

to Sue to the charging party, and if

within 90 days a civil suit is filed in

the USDC of competent jurisdiction, then

all the "jurisdictional prerequisites"

therefor have been complied with. That's

all there is to it, as Section 706(f)(1)

has been specifically created by the 1972

amending Act to redress the untimely

filed charges. The accent is now on

"yoluntary conciliation", which by defi-

nition does not mean timely filing of a

charge, as opposed to "voluntary compli-

ance" under the original Section 706(e)

of the Title VII, which signified timely

filing of a charge (since the EEOC lack-

ed, and still lacks, power if the charge

were untimely filed). See "Employment

Practices Guide", Volume 1 of Commerce

Clearing House, Inc. ("CCH"), Chicago.

This "important question" meets with the

criterion of Rule 19.1(b)(3) of the RSC:

"or has decided an important question

of federal law which has not been, but

should be, settled by this court;".

42. Even Timely Filing Brings No Relief:

Even assuming (argiiendo, that is) that

the timely filing of a charge with the

EEOC is a "jurisdictional prerequisite"

for a suit, as a practical matter, what

good is it if such a timely filing re-

ceives no redress by the EEOC for years?

It is a matter of public record that the

EEOC is unable to discharge its statutory

duties, having regard to its present as-

tronomical backlog of cases. For example,

in G's own case his motion to reopen has

been pending since December 22, 1975 (p.

40, para.32) and it will take, at least,

that long from now just to decide whether

or not the EEOC would be willing to re-

open its original determination.

434. Congressional Intent: If one argues.

that the Congress, nevertheless, intended

to create "a jurisdictional bar" against

an untimely filea& charge, let he (or she)

be reminded that the Congress also in-

tended to remedy all forms of employment

discrimination from the land by whatever

means - the EEOC or the Federal Courts.

So the question now is which of the two

takes the precedence - the narrow techni-

cality or the broad Congressional intent.

This is yet another "important question"

that meets with the criterion of Rule 19

-1(b)(3) of the RSC. Luckily, the Con-

gress itself has partly answered it:

"In short, the Commission does not hold

the key to the courtroom door. ....

A complainant has an absolute right to

go into court, and this provision does

not affect that right at all."

per Senator Javits (Vol.110 Cong. Rec.

14191, June 17, 1964) quoted in Hall v.

Werthan Bag Corp., 251 F.Supp.184 (1966).

"The individual may proceed in his own

right at any time. He may take his

complaint to the Commission, he may

bypass the Commission, or he may go

directly to court."

per Senator Humphrey (op.cit., p.1369%4).

Thus the Congressional philosophy has

always been the open-courtroom-door (lit-

erally borrowing from 28 U.S.C. §452 -

"Courts always open"). Indeed, this

Court recognized the issue in its land-

mark decision in Newman v. Piggie Park

Enterprises, Inc., 390 U.S. 400 (1968):

"When the Civil Rights Act of 1964 was

passed, it was evident that enforce-

ment would prove difficult and that

the Nation would have to rely in part

upon private litigation as a means of

securing broad compliance with the law."

at p.40l and quoted in Voutsis v. Union

Carbide Corp., 452 F.2d 887 (CA2, 1971).

44. " ... the still-open auestion ...":

Indeed, the CA2 itself (Honorable Chief

Judge Kaufman, the late Mr. Justice Tom

Clark of this Court and Timbers, C.J.)

recognized:

"..- the still-open question of whether

these time requiremeuts ror filing

with the agency are "jurisdictional

prerequisites" to suit in the Federal

Courts."

a ae

in Egelston v. State University College

at Geneseo, 76-7047, June 7, 1976; 12

EPD 11,004, p.4741, footnote 5 (citations

omitted; the words "with the agency" are

in italics). EPD = "Employment Practices

Decisions" published by CCH. It was,

therefore, an error for the same Court

(presided by the same distinguished Chief

Judge ) to treat the present case at bar

as if "the still-open question" were al-

ready well settled, by holding that:

"The failure to file timely charges

with the EEOC was, of course, a juris-

dictional bar to this proceeding as

well. Weise v. a eS)

522 F.2 9 _ Te o*

(Appendix A, p.A-3), only 4 months later.

45. The Doctrine Of Eauitable Estoppel:

The question also meets with the criteri-

on of Rule 19.1(b)(1) of the RSC, since

the CA2 “has rendered a decision in con-

flict with the decision of" the CA5 in

Reeb v. Economic Opportunity Atlanta,

Inec., 516 F.2d 924 (1975), which was also

quoted by the CA2 in the Egelston case,

as a part of its above footnote 5. The

Reeb decision contains a brilliant and

scholarly analysis of the above doctrine.

Although G pointed out the above conflict

(and also that of para.44 supra) in his

petition of November 13, 1976 for a re-

hearing, but was denied (Appendix C). If

the doctrine were applied to the present

case, the filing of G's charge with the

EEOC on March 20, 1973 would have been

found to be timely. See also Noble v.

University of Rochester, 76-7133, CA2,

June 7, 1976; 12 EPD 11,005 - the compan-

ion case of the elston case.

46. The Tolling Of Statvtory Periods:

Again argiiendo that if the timely filing

of a charge with the EEOC is a "jurisdic-

tional prerequisite" for a suit, then,

surely the statutory period for filing it

was tolled by the following events:

(A) Extended Employee Status: The ques-

tion meets with the criterion of Rule 19-

~1(b)(1) of the RSC, since the CA2 "has

rendered a decision in conflict with the

decision of" the CA8 in Moses v. Falstaff

Brewing Corp., 525 F.2d 92 (November 4,

1975), which has held that the statutory

period, within which to serve the notice

to the Secretary of Labor under the ADEA

or to file a charge with the EEOC, is

tolled by the claimant's extended employ-

ee status (because of his or her sever-

ne NER re rer ne ee ee eee

__- —~—_!-——---.

7G. Wer >

Wo wE

PS wa

ance pay, vacation pay and other fringe

benefit of the employer concerned). The

Moses ruling would, therefore, have sus-

tained G's filing of his charge with the

EEOC on March 20, 1973 as timely. Hence,

it was an abuse of discretion to deny G

outright to reargue or a new trial based

on the Moses ruling (para.30, pp.38-39),

particularly where there was "a genuine

issue for trial" within the meaning of

Rule 56(e) of the FRCP. On the same

ground, the summary judgment was illegal,

since the Moses ruling was published

prior to the summary judgment on Noven-

ber 7, 1975. The least J could have done

was to vacate it and to hold a new trial,

or at least te allow the parties to re-

argue. In fact, in the hope of challeng-

ing J's illegal denial of a new trial or

at least of a reargument, G had to pay

the appeal fee of $50 twice. It was,

therefore, an error for the CA2 to over-

look J's illegality. Indeed, lest it

might do just that, G pleaded the above

facts specifically (as his reply brief

was denied - para.33, pp.40-41) during

the remaining 43 minutes of his oral ar-

gument on October 7, 1976 and again in

his petition on November 13, 1976 for a

rehearing.

eee ee ee eee

4 OC Pre Pere or

ower

ee es 7 RT

Pa ee Ps

rere

(B) "Undiscoverable Acts": This question

also meets with the criterion of Rule 19.-

1(b)(1) of the RSC, as the above caption-

ed principle was upheld by the CA5 in the

Reeb case (para.45, p.50) and by several

other jurisdictions in earlier cases, and

by the EEOC itself in several cases (e.¢.,

Case No. LA 68-4-538E, June 16, 1969;

CCH's EEOC Decisions (1973), §6125, pp.

4222-4224). Lest the CA2 might overlook

the facts (para.12, p.14), as his reply

brief was denied (para.33, pp.40-41), G

stated it specifically during the remain-

ing 3 minutes of his oral argument on Oc-

tober 7, 1976. It was, therefore, an er-

ror by the CA2 to overlook those facts.

question which conflicts with the CA2's

own decisions in the Egelston (p.50) and

Noble (p.51) cases, and thus meets with the

criterion of Rule 19.1(b)(5) of the RSC:

"or has so far departed from the accept-

ed and usual course of judicial proceed-

ings, .... , as to call for an exercise

of this court's power of supervision".

In G's own case, he became aware of R's

filling up of his former position (by pro-

moting a white, unqualified, less senior

younger man) from Xmas card from his for-

Re rrr wre ere mee mee

PS Ls SIE A Tat *

mer supervisor on December 24, 1974. In

fact, in the Noble case the CA2 stretched

the tolling period until the replacement

was not merely hired, but also actually

on the job after receiving a lengthy

training. In other words, the CA2 bent

the law, on the principle that ‘where

there is a will, there is a law', so as

to give Miss Noble a ‘noble victory' and

"a day in court" (The New York Times,

Tuesday, June 8, 1976). G, however, did

not expect the CA2 to accommodate him so

‘nobly', but expected only "the accepted

and usual course of judicial proceedings"

of applying the same noble standard, it so

eloquently established in the Egelston

case only four months earlier, to his own

case. Indeed, he prayed precisely that

during the 34 minutes of his oral argument

on October 7, 1976 and again in his peti-

tion on November 13, 1976 for a rehearing.

It was, therefore, an error by the CAe in

failing to apply its own recent ruling to

the present case at bar. Such a failure

was all the more ironic, since the CA2

itself recognized a possibility that Dr.

Egelston might fail to prove her allega-

tion - a possibility that does not exist

in G's case, in which the very act of

hiring of his replacement - without any-

thing more - proves his allegation. It

is like the "res ipsa loquiter" (thing

itself proves) of the Law of Tort.

(D) Allegation Of Class Discrimination:

This question is similar to the preceding

one. The CA2 in the Egelston and Noble

cases has held that the above captioned

allegation in the charge to the EEOC is

like the allegation of continuing dis-

crimination and is accordingly timely

whenever made. The EEOC itself has up-

held the principle in several cases (e.¢.,

72-1702, April 26, 1972; CCH's EEOC Deci-

sions (1973), §6361, pp.4649-4652). In

G's case, he made such an allegation to

the EEOC in his charge on March 20, 1973

and in his detailed charge and his statu-

tory affidavit on October 9, 1973. The

last two related back to March 20, 1973,

by virtue of Regulation 1601.11(b) of its

Procedure. Moreover, G did even better

than what Egelston and Noble did. G sub-

mitted R's own documents (signed by its

top corporate officers) admitting such

class discrimination. It was, therefore,

an error by the CA2 in failing to apply

its own rulings to the present case.

(E) Charge Of Continuing Discrimination:

Again, this question is exactly like the

preceding one - both emanating from the

Egelston and Noble rulings by the CA2.

The principle has been upheld by many

other USDCs and USCAs, and by the EEOC

itself (e.g., 72-1884, May 31, 1972;

CCH's EEOC Decisions (1973), §6378, pp.

4705-4711). In each of these cases, the

filing of the charge with the EEOC was

found to be timely by reason of contin-

uing discrimination alleged therein. In

G's case, he made such allegation to the

EEOC in his detailed charge and statutory

affidavit on October 9, 1973, which then

related back to the date of the original

filing on March 20, 1973, by virtue of

Regulation 1601.11(b) of its Procedure.

In fact, G could have alleged it on March

20, 1973, but for the EEOC's negligence

in supplying him with obsolete forms (p.

19, para.16). He alleged it in all of

his relevant court papers ab initio and

orally on November 7, 1975, October 7,

1976 and April 25, 1977. It was, there-

fore, an error by the CA2 to overlook all

of these crucial facts and to fail to ap-

ply its own recent rulings as above to

G's case as well.

(E) Charge Of Continuing Discrimination:

Again, this question is exactly like the

preceding one - bovl emanating from the

Egelston and Noble rulings by the CA2.

The principle has been upheld by many

other USDCs and USCAs, and by the EEOC

itself (e.g., 72-1884, May 31, 1972;

CCH's EEOC Decisions (1973), §6378, pp.

4705-4711). In each of these cases, the

filing of the charge with the EEOC was

found to be timely by reason of contin-

uing discrimination alleged therein. In

G's case, he made such allegation to the

EEOC in his detailed charge and statutory

affidavit on October 9, 1973, which then

related back to the date of the original

filing on March 20, 1973, by virtue of

Regulation 1601.11(b) of its Procedure.

In fact, G could have alleged it on March

20, 1973, but for the EEOC's negligence

in supplying him with obsolete forms (p.

19, para.16). He alleged it in all of

his relevant court papers ab initio and

orally on November 7, 1975, October 7,

1976 and April 25, 1977. It was, there-

fore, an error by the CA2 to overlook all

of these crucial facts and to fail to ap-

ply its own recent rulings as above to

G's case as well.

(F) R Requested Time To Settle Amicably:

This is yet another question which meets

with the criterion of Rule 19.1(b)(1) of

the RSC, in that the CA2 "has rendered a

decision in conflict with the decision of"

the CA5 in Culpepper v. Reynolds Metals

Co., 42) F.2d 888 (1970), which held that

the statutory filing period is tolled .

once an employee invokes his contractual

grievance remedies in a constructive ef-

fort to seek a private settlement of his

complaint. In G's case (para.ll, p.14),

the statute was tolled at R's express

wish. Thus, it was akin to the "volenti

non fit injuria" (a volunteer cannot com-

plain of injury) of the Law of Tort. G

pleaded the aforesaid facts during the

remaining 3 minutes of his oral argument

on October 7, 1976, as the CA2 denied his

reply brief (para.33, pp.40-41). It was,

therefore, an error by the CA2 to over-

look this fundamental principle of law.

(G) State Charge Timely Filed: The ques-

tion meets with 4 of the five criteria of

Rule 19.1(b) of the RSC. In Love v. Pull-

man Co., 404 U.S. 522 (1972) the Honorable

Mr. Justice Stewart held (4 EPD 7623):

"A person claiming to be aggrieved by

a violation of Title VII of the Civil

Rights Act of 1964 may not maintain a

suit for redress in Federal District

Court until he has first unsuccessful-

ly pursued certain avenues of poten-

tial administrative relief." (p.5436).

Since G similarly "has first unsuccess-

fully pursued certain avenues of poten-

tial administrative relief" (paras.16-17, -

pp.18-20), the CA2's decision is, there-

fore, clearly "in conflict with applica-

ble decisions of this court;", and thus

meets with the criterion of Rule 19.1(b)

(4) of the RSC. The CA2's decision is

also in conflict with its own in the

Voutsis case (p.49 ante; 4 EPD 7592):

"The system of remedies is a complemen-

tary one, with the federal remedy de-

signed to be available after the state

remedy has been tried without produc-

ing speedy results." (p.5351, 4 EPD).

In G's case "the state remedy has been

tried without producing" any result, let

alone "speedy results" because of the EE-

OC's hasty, illegal and premature deter-

mination on October 17, 1973 (para.17, p.

20), without even allowing the NYSDHR the

statutory 60 days required by Section 706

(bd) and (c) of the Title VII. According-

ly, it meets with the criterion of Rule

19.1(b)(5) of the RSC. It also meets

with the criterion of Rule 19.1(b)(1) of

the RSC, inasmuch as the CA2's decision

is in conflict with the decisions of the

CA3 and CA5. In addition, it meets with

the criterion of Rule 19.1(b)(5) of the

RSC for the second time and on both the

counts (viz., the CA2 and the SDNY), in

that both the Courts assumed G's failure:

"to properly pursue his administrative

remedies before the EEOC and the ap-

propriate state agency," (p.A-4+),

which is no where in the records. G al-

leged in all of his relevant papers (from

his original complaint of October 25,

1973 to his petition on November 13, 1976

for a rehearing) and during the two oral

arguments on October 7, 1976 and on April

25, 1977 that he filed a valid and timely

charge with the NYSDHR. Thus the CA2:

"has so far departed from the accepted

and usual course of judicial proceed-

ings," and has

"so far sanctioned such a departure by"

the SDNY,

"as to call for ....... supervision.".

The decision is also in conflict with Sec-

tion 297.9 of the NYSHRL (para.17, p.20).

Because of the suspension of jurisdiction

of the NYSDHF and of the State courts,

no court in the New York State can enter-

tain G's complaint based on the same

facts filed with the NYSDHR. The Section

allows either a court relief or the NYS-

DHR proceedings at the outset, but sus-

pends both in case of "any action in a

court of competent jurisdiction" (Federal

or another State) to avoid "duplicate re-

lief" (recognized in the Voutsis case).

Hence the justice requires that G should

have been, but was not, afforded a relief

by the SDNY. Such a denial by the SDNY

and the CA2 was all the more unjust, as

G was deprived from obtaining any relief

from the NYSDHR only because of the hast-

y, illegal and premature determination by

the EEOC on Oct. 17, 1973. ‘Thus, the CAe:

"has decided an important state .. ques-

tion in a way in conflict with applica-

ble state .. law;" Rule 19.1(b)(2) of RSC.

(H) G's Extenuating Circumstances: This

question meets with the criterion of Rule

19.1(b)(43) of the RSC (p.47). There is

not a single case (reported so far in CC-

H's EPDs - G's only source of reference)

that fits with the facts of G's case (p.

15, para.13). The nearest to it is, how-

ever, Crouch v. UPI, 74 Civ. 296, SDNY,

August 20, 1975; 10 EPD 10,393, which up-

held the tolling (where a murderer com-

mitted to a mental hospital, but never

adjudged insane, for over 3 years was al-

lowed to claim under the Title VII, on

the principle that ‘where there is a

will, there is a law’ - p.54).

(I) R's Continuing Tort Against G: This

is yet another unsettled question, which

meets with the criterion of Rule 19.1(b)

(3) of the RSC. Two cases decided so far

and the nearest to G's case are (i) Tar-

vesian v. Carr Division of TRW, Inc., US-

DC, Mass., 407 F.Supp.336 (1975); 11 EPD

10,928; and (ii) Moore v. Bank of New Or-

leans, USDC, ED, La., 75-2144, December

24, 1975; 11 EPD 10,946, and both upheld

the tolling in situations lot weaker than

G's case (para.14, pp.15-17).

(J) R's Continuing Breach Of Contract:

This is also an unsettled question as the

preceding one and thus meets with the

same criterion of Rule 19.1(b)(3) of the

RSC. The only case decided so far and

the nearest to G's case (para.15, pp.17-

18) is Suttle v. Exxon Co., U.S.A., USDC,

MD, Fla., 75-674 Civ. T-K, November 30,

1976; 13 EPD 11,528. The subtle question

in the Suttle case was simply this:

"The critical issue here is whether

plaintiff could have suffered any of

the effects of his alleged pre-April1l

continuing discrimination after his

disability removed him from defend

ant's active workforce." (pp.6894-5).

In G's case, the above test has been met,

since he has suffered, and is still suf-

fering, from the effect of R's discrimi-

nation against him prior to his dismissal,

after his disability removed him from R's

active workforce.

47. The Statutory Filing Period: AsG

filed his charge with the NYSDHR “within

one year after the alleged unlawful dis-

criminatory practice.", as required by

Section 297.5 of the NYSHRL, the statuto-

ry period within which to file the charge

with the EEOC was accordingly 300 days.

Even R never disputed it. It was, there-

fore an error by the CA2 to assume that

the applicable period was limited to 180

days (p.A-3). The error was probably due

to its assumption that G did not file his

charge with the NYSDHR timely (p.59).

48. G's Employment Termination Date: It

was similarly an error by the CA2 thereon

(p.A-3). See paras.9-10, p.13.

"Sub Silentio Denial Nunc Pro Tunc"

49. Foman v. Davis, 371 U.S. 178 (1962):

The question 4.B. (pp.5-6) meets with the

criteria of Rule 19.1(b)(1), (4) and (5)

of the RSC, which are discussed below in

order of their relative importance. The

first is (4), on which we have the above

ruling. The Honorable Mr. Justice Gold-

berg, giving the unanimous opinion, said:

" eee, the amendment wou..d have done

no more than state an alternative the-

ory for recovery.

eeee If the underlying facts or cir-

cumstances relied upon by a plaintiff

may be a proper subject of relief, he

ought to be afforded an opportunity to

to test his claim on the merits. In

the absence of any apparent or declared

reason—such as undue delay, bad faith

or dilatory motive on the part of the

movant, repeated failure to cure defi-

ciencies by amendments previously al-

lowed, undue prejudice to the opposing

party by virtue of allowance of the

amendment, futility of amendment, etc.

—the leave sought should, as the rules

require, be "freely given". Ofcourse,

the grant or denial of an opportunity

to amend is within the discretion of

the District Court, but outright re-

fusal to grant the leave without any

justifying reason appearing for the .

denial is not an exercise of discre-

tion; it is merely abuse of that dis-

eretion and inconsistent with the spir-

it of the Federal Rules." (p.182).

G relied on the above ruling for his pe-

tition on May 13, 1977 for a rehearing en

banc, but the CA2 denied it without giving

any reason whatsoever therefor (p.A-9).

50. "In the absence of any apparent or

declared reason": In G's case there was

such "absence", for not just few days or

months but nearly 3 years (827 days).

51. “outright refusal to grant the leave

without any justifying reason appearing

for the denial": In G's case this was

also so - (i) "outright" because J denied

it literally so, without any hearing at

any time during the 827 days, without even

waiting to receive the "Mandate" under

Rule 41(a) of the FRAP (para.34, p.41),

and without even allowing G any time to

file his petition for a writ of certiorari

to this Court under Rule 41(b) of the FR-

AP, while G's timely petition for a re-

hearing was then pending before the CA2;

and (ii) "without any justifying reason"

because the very act (more correctly 'non-

act') of "sub silentio" is, by definition,

the very antithesis of "any justifying

reason appearing". Indeed, J acted ille-

gally. Thus, J's conduct of the case was

no less lawless than Mr. Nixon's conduct.

52. The Judicial Ethics Of "sub silentio

denial nunc pro tunc": The "sub silentio"

conduct as an expression of assent or dis-

sent, whether from the Bench or in conm-

merce, had never been a part of our law,

even during its formative period:

"for the devil himself knows not the

the thought of man",

as the Chief Justice Brian of England

aptly observed in 1477. Thus, the ques-

tion meets with the criterion of Rule 19-

e1(b)(5) of the RSC.

53. Sth Amendment: "due process of law":

In Societe Internationale v. Rogers, 457

U.S. 197 (citing Hoven v. Elliott, 167 U.

S. 409 and Hammond Packing Co. v. The

State of Arkansas, 212 U.S. 322) this

Court held:

"These decisions established that there

are constitutional limitations upon

the power of courts, even in aid of

their own valid processes, to dismiss

an action without affording a party

the opportunity of a Ss on the

merits of his cause." (p.209).

The words “hearing on the merits" are in

italics. In G's case there was such a

dismissal. Thus, the question meets with

the criteria of Rule 19.1(b)(4) and (5)

of the RSC.

54. J's Grave Misconduct From The Bench:

J was fully aware that G was a non-lawyer

and had no benefit of any legal counsel

(hence not knowing what to do next) and

that the statute of limitation was run-

ning against his claims asserted on August

8, 1974. Thus, J had a positive duty to

speak up loud and clear the simple two-

letter word "no" during the hearing on

September 27, 1974 (which was convened

by his clerk for the sole purpose of

hearing G's aforesaid claims), even while

he was hurriedly on his way out. That

would have given G a notice to file a sep-

arate suit in respect of the same claims,

based on the same facts as in the origi-

nal complaint. It would, of course, have

been expensive to do so, and more so by

an unaffluent plaintiff like G, but at

least it would have been a way tc meet

J's denial. During the hearing J even

found time to give gratuitous legal ad-

vice to R's attorney about procuring a

summary judgment. J similarly gave legal

advice to R's attorney on March 29, 1974

about the discovery motion procedure be-

fore a U. S. magistrate. Both of them

were in a low voice and esoteric, lawyer

-to-lawyer communications.

55. Rules 1, 18(a) And 42(a) Of FRCP:

But J obviously did not find enough time

merely to utter the one syllable word

"no" (the easiest and the earliest sound

the homo sapiens learnt). Hence not at

all knowing that J had an animus to deny

G's motion of August 8, 1974 "sub silent-

io nunc pro tunc", G did not file a sep-

arate suit, against which G was further

discouraged by Rules 18(a) and 42(a) of

the FRCP. G's challenge against J's "sub

silentio denial nunc pro tunc" is, how-

ever, grounded on more fundamental prin-

ciple of justice than the aforesaid fact.

G in good faith trusted upon J's fair-

mindedness. Because of that implicit

good faith and trust, G hoped that J

would follow the imperative command of

Rule 1 of the FRCP:

"They shall be construed to secure the

just, speedy and inexpensive determi-

nation of every action".

This fundamental principle of justice was

applied by this Court in its Foman ruling

(para.49, p.63). The same principle was

the theme of the Honorable Chief Justice

Burger's recent address (p.44). J, how-

ever, lamentably violated all the 3 re-

quirements of this cardinal rule inten-

tionally. J denied G not only any jus-

tice and a speedy trial, but also an "in-

expensive determination" of his case. In

fact, J's conduct (or, more correctly,

‘non-conduct') of the case has already

cost G over $3,000 (even without any law-

yer's fee and even before any trial held),

which G could least afford.

56. J Flouted Title VII's Mandate For A

Speedy Trial: Section 706(f)(5) of the

Title VII (introduced by the 1972 amend-

ing Act) commands that:

"It shall be the duty of the judge de-

signated pursuant to this subsection

to assign the case for hearing at the

earliest practicable date and to cause

the case to be in every way expedited".

J, however, openly flouted it. Indeed,

there was absolutely no reason why J

could not have decided on September 27,

1974 what he decided on November 7, 1975.

Had he done so, then G could have filed

immediately a separate suit in respect of

his claims asserted on August 8, 1974

long before the expiry of the statutory

period therefor and his motion to reopen

(para.32, p.40). But J did not do so,

with intent to prevent G from doing just

that and thereby to defeat his rights.

57. Rules 8(e) And 15(a) Of The FRCP:

It is important to bear in mind that Rule

15(a) of (or indeed anywhere in) the FRCP

offers no guidance as to the form, if any,

@ prayer for a leave to amend a complaint

should take. Certainly, nowhere in the

FRCP there is even a hint that such a

prayer should be accompanied with a com-

pletely rewritten complaint, however long.

Our only guidance is Rule 8(e) of the

FRCP, which provides, inter alia, that:

"(1) .... No technical forms of plead-

ing or motions are required.

(2) «ee. When two or more statements

are made in the alternative and one of

them if made independently would be

sufficient, the pleading is not made

insufficient by the insufficiency of

one or more of the alternative state-

ments. <A party may also state as many

separate claims or defenses as he has

regardless of consistency and whether

based on legal, equitable or maritime

grounds".

Accordingly, G complied with all there

was to it, in seeking a leave to amend

his complaint in his motion of August 8,

1974.

58. Rule 8(f) Of The FRCP: It expressly

commands that:

"CONSTRUCTION OF PLEADINGS. All plead-

ings shall be so construed as to do

substantial justice".

This Court invoked the above fundamental

principle of justice in its landmark de-

cision in Conley v. Gibson, 355 U.S. 41

(1957), which in turn was invoked in the

Foman decision (para.49, p.63). J, how-

ever, failed to do any justice, let alone

a "substantial justice", inspite of the

fact that G cited the Conley decision in

his brief of August 28, 1974, which nei-

ther of the lower courts apparently ever

read (para.40, p.46).

59. The Doctrine Of "Notice Pleading":

The doctrine was also invoked in the

Conley decision by this Court. In G's

case, assuming (again argiiendo) that even

if his prayer for a leave on August 8,

1974 were defective in any way, neverthe-

less, it served as the "notice pleading",

which R did not even oppose (not even at

the hearing on September 27, 1974) until

432 days later on October 14, 1975 (p.26).

According to Moore's "Federal Practice":

" gees & Yequest made in open court

puts the adverse party on notice of

the nature and purpose of hy - request.

Christensson v. Ho al (CA 1952)

» 47 Serv 15a.-

24, Case 3, "eitias Treatise." (p.972).

60. G's Alleged "extended and undue

delay": A reference has been made (p.41,

para.33) that the CA2 assumed certain in-

correct facts (on the basis of which it

rendered its opinion to G's detriment),

one of which was G's supposed "extended

and undue delay" (p.A-5), which the CA2

repeated in its second judgment (p.A-7),

inspite of his many submissions (Novem-

ber 13, 1976, February 1, 1977, April 13,

1977 and May 13, 1977, and orally on A-

pril 25, 1977). Thus, the aforesaid was

not based on "any apparent or declared

reason" (following the Foman ruling —- p.

63, para.49) by the SDNY and accordingly

it was an error by the CA2 to assume as

if it were a finding of the SDNY. Even

if it were true (again argiiendo), never-

theless, G prayed for the leave to amend

his complaint long before the expiry of

the statutory period, since the law does

not command its filing by a certain day

(or even as soon as possible), but merely

commands the filing at any time within

the etatutory period. Moore comments:

"if jurisdiction did in fact exist at

the commencement of the action, then

leave should be freely granted to cure

the failure to allege jurisdiction

properly." (p.945).

61. Consequence Of Failure To Exercise

Discretion: Even a failure to exercise

discretion amounts to an "abuse" (= “ab"

+ "“use"). The dictionary meaning of "ab"

is "from", "away", "off", etc. = Webster.

Hence “abuse” means "misuse" or "nonuse”.

Professor Moore comments (p.896):

"Northwest Orient Airlines v. Gorter

9 tS F. (reversal

due to trial court's failure to exer-

cise its discretion freely). .......

Lone Star Motor Import, Inc. v. Citro-

en Cars Corp. coh Eth, 1961) 288 Fea

69, 4 FR Served I15a.24, Case 2 (Where

no grounds whatsoever existed to deny

leave to amend, this satisfied the

test for abuse of discretion and dis-

missal of the action was therefore re-

versed. eevee eeee eeee eeee

Reversal for abuse of ‘discretion

where leave to amend denied: ......-.

South Suburban Safeway Lines, Inc., v.

S, inc. ( .

" rved 15a.24, Case 2 (out-

right dismissal for reasons not going

to the merits is viewed with disfavor

in federal courts); eee eeee cooene

62. “sub silentio" Is A Two-Edged Sword:

The doctrine of "sub silentio" cuts both

ways, like a two-edged sword - the "deni-

al" (as J claims), as well as the "con-

sent", for the simple reason that when

the silence is construed as being the e-

quivalent to a speech, it can be for the

"yes" as well as for the "no". This is

the measure of risk which the party re-

maining silent takes. See Battle v. The

National Bank of Cleveland, USDC, ND, 0O,

364 F.Supp. 416 September 25, 1973; 6 EPD

8893, p.5812, footnote 2. In accordance

with the Battle ruling, the fact that G

timely prayed for the leave to amend his

complaint on August 8, 1974, which R nev-

er opposed, was sufficient to dispense

with the leave requirement of Rule 15(a)

of the FRCP. See p.106 post for fnt. 2.

63. The Quality Of "sub silentio": The

quality (or rather lack of it) of J's

"sub silentio denial nunc pro tunc" must

also be considered. Such a denial was so

inaudible (like the infra-sound inaudible

to the human ears) that even a highly

perceptive jurist with over 3 decades on

the Bench like the Honorable Chief Judge

Kaufman of the CA2 had difficulty in

hearing it, when he questioned R's attor-

ney during the oral argument on October

7, 1976 by saying that:

"we don't know what was in the judge's

mind".

If this had been the case with one of the

country's most distinguished jurists, how

much more difficult it must have been for

@ layman (unassisted by any lawyer) to

know whether or not J's "sub silentio"

posture meant an allowance or denial of

G's prayer for a leave to amend his com-

plaint, so as to file a separate suit in

order to by-pass J's obstructionist jus-

tice within the statutory period.

64. No Trial Ever Took Place: Even the

hearing for the summary dismissal took

place 456 days after G sent his prayer on

August 8, 1974 by Certified Mail Special

Delivery. See Braddix v. Charles Todd,

Inc., USDC, ED, Ill., 74-110-E, December

10, 1975; 11 EPD 10,611, p.6554.

65. R Urprejudiced By G's Alleged "ex-

tended and undue delay": There is an ad-

ditional question of lack of prejudice to

R by G's supposed "extended and undue de-

lay" (para.60, p.71), or "long delay" (p.

A-7), even if it were true, argiiendo. In

fact, R never showed any prejudice by G's

delay, nor the SDNY or the CA2 ever so

alleged. On the contrary, R's attorney

readily agreed with G on January 24, 1975

over the telephone that it was G who was

being prejudiced by such delay. Inspite

of G's supplic.tions of prejudice to his

interest by such delay, J never took any

notice of it. The question of prejudice

to a party by delay is one of the most

important one and applied by this Court

in the Love case (p.57). The Court held:

"The respondent makes no showing of

prejudice to its interest." (p.522).

Professor Moore says (p.901) that:

" ee While laches and unexcused delay

may bar a proposed amendment, the mere

fact that an amendment is offered late

in the case is not enough to bar it if

the other party is not prejudiced."

In the footnote 10 to the above quotation

Professor Moore (p.901) continues that:

" Where announced reason for refusing

to permit a plaintiff to amend his

complaint during the hearing on a mo-

tion to dismiss and for summary judg-

ment was that the motion came too

late, such refusal was an abuse of

discretion, and the cause would be re-

manded for trial. Lloyd v. United

Liquors Corp. (CA6th, 559) 205 Fed

785, IS FR Sérv 15a.24, Case 3".

In the above quoted case, there was, at

least, an expressed denial. But in G's

case, there was none for 827 days and he

prayed for a leave to amend his complaint

within the statutory period and long be-

fore the: (i) expiry of the statutory pe-

riod under Section 214(2) of the New York

State Civil Practice Law and Rules; (ii)

trial, which was never held; and (iii)

summary dismissal hearing on November 7,

1975. Professor Moore also says (p.902):

"In evaluating claims of prejudice,

whether claimed by reason of delay or

otherwise, the possible prejudice to

the moving party if the motion is de-

nied may also be weighed".

In G's case, J did no such thing at any

time during the 1,071 days the case was

before hin.

66. Rule 15(c) Of The FRCP: In all the

questions presented above (paras.52-65,

pp.65-76) the common web running through

them is the fact that the CA2:

"has so far departed from the accepted

and usual course of judicial proceed-

s," and has "so far sanctioned such

a departure by" the SDNY, “as to call

for an exercise of this court's power

of supervision.", Rule 19.1(b)(5) of RSC.

So, the questions meet with the criterion of

the RSC. We will now present a question

that meets with the criterion of Rule 19-

e1(b)(1) of the RSC. The question is the

Rule 15(c) of the FRCP in relation to a

1981 claim, which has been resolved in

Harkness v. Sweeny, CA5, 75-1533, July l,

1977; 14 EPD 7669. The CAS held:

"Johnson v. Railway Express Sees Inc.,

eee , eee eee ei , con=

trary to defendants' position, is not

applicable to this case. Federal Rule

of Civil Procedure 15(c) is. «ceeeces

"The purpose of [Rule 15(c)] is accom-

plished if the initial complaint gives.

the defendant fair notice that litica-

tion is arising out of a specific fac-

tual situation". Longbottom v. Swaby,

397 F.2d 45, 48 (2th Gir 1968). Such

is precisely the situation here. ...

This cause is now remanded to the

trial court with directions to grant

the Motion for Leave to Amend Second

Amended Complaint in a manner consist-

ent with this opinion, to enter judg-

ment for plaintiffs in a manner con-

sistent with this opinion, and for

further proceedings not inconsistent

with this opinion, including proceed-

ings concerning the amount of back pay

owed to plaintiffs and reasonable

attorneys' fees." (p.5301, 14 EPD).

There are several other older decisions.

In G's case the facts are identical to

the above case. Thus, it was an error by

the CA2 in not applying the same standard

as above, mere so on the second appeal.

67. J Induced A Cart Before The Horse Or

A Dog In The Manger Stalemate: The CA2

implied that G should have waited (having

already done so for 456 days) ad infinitum

like a tantalus for the granting of J's

leave before submitting his rewritten

complaint, when it said that:

" eee, Without receiving permission

from the court, he proceeded to file

an amended complaint." (p.A-3).

It is a reductio ad absurdum proposition.

At best it is like putting a cart before

the horse. At worst it is like a dog in

manger story of the Aesop's fables. Both

lead to long stalemate. How was it pos-

sible for G to receive the "permission",

when J manifested his animus "sub silent-

io" to deny it? By submitting the rewrit-

ten complaint at least the long stalemate

was at last broken to R's discomfiture.

Once again it is a question that meets

with the criterion of Rule 19.1(b)(5) of

the RSC.

68. G's Rewritten Complaint: The CA2

incorrectly assumed (footnote 1, p.A-3):

"Since appellant sought to plead new

facts as well as new theories of law,

the complaint was properly "supplemen-

tal" as well as "amended"".

As has been noted (para.2l1, pp.26-27) the

rewritten complaint contains neither "new

facts" nor "new theories of law". Hence

it is a misnomer to describe it as above.

Even the supposed "new theories of law"

in the rewritten complaint was merely a

recapitulation of G's motion of August 8,

1974. It was, of course, simply there,

because J hitherto persistently did not

care. Similarly, G's class assertion in

the rewritten complaint was merely a re-

capitulation of his original charge to

the EEOC on March 20, 1973, detailed

charge and the statutory affidavit on Oc-

tober 9, 1973 and the original and refiled

complaints of October 25 and December 12,

1973 respectively. See para.25, pp.33-34

and p.55. Thus, there was nothing "new"

in G's rewritten complaint and whatever

there were must have been in the imagina-

tion of the CA2, because R falsely so

claimed. It was this misapprehension by

the CA2 that led it to assume G's "ex-

tended and undue delay" (para.60, p.71)

in its first judgment (p.A-5) and "long

delay" in its second judgment (p.A-7).

69. The EEOC's Deficient Complaint Form:

Even assuming (again argiiendo) that the

allegations discussed in the preceding

paragraph were true, nevertheless, G could

well have asserted ab initio, what he did

on August 8, 1974 or even on July 7, 1975,

if the EEOC's standard complaint form

(which the EEOC supplied to G to file his

suit - para.18, p.20) provided for it, or

if the EEOC informed G of his rights

under §1981. Accordingly, a layman claim-

ant lixe G ought not to be penalized, if

an independent Commission, specifically ;

created by an Act of Congress to eradicate

unlawful employment discrimination prac-

tices, fails in its statutory or moral

duties. The culpability of the EEOC was

all the more severe where it also hasti-

ly; illegally and prematurely dismissed

G's charge (para.16, pp.18-19), which

could well have been mitigated by inform-

ing G that although his charge had been

"untimely", he could still file a separate

suit under §1981. This is a question in

which this Court's Love doctrine (p.57) is

clearly applicable (p.5438, 4 EPD 7623):

"Such technicalities are particularly

inappropriate in a statutory scheme in

which laymen, unassisted by trained

lawyers, initiate the process".

Even the CA2 itself in the Voutsis case

(p.49) held:

" .eee, that the intent of Title VII is

remedial and that plaintiffs under it

should not be held accountable for a

a tale ciaeamaiaataams mince neem i ania eine nae

procedural prescience that would have

made a Baron Parke happy or a Joseph

Chitty proud." (p.5349, 4 EPD 7592).

"To place unnecessary stumbling block

in the private litigant's path, ....,

would be hypertechnical and overly

legalistic, and would improperly shield

a discriminatory organization from the

reach of civil litigation." (p.5349).

" The Congressional policy here sought

to be enforced is one of eliminating

employment discrimination, and the

statutory enforcement scheme conten-

plates a resort to the federal remedy

if the state machinery has proved in-

adequate. The federal remedy is inde-

pendent and cumulative, ...., and it

facilitates comprehensive relief."

(p.5350, ibid; the citations and the

two footnotes 7 and 8 omitted).

Similarly the SDNY itself in Smith v. UPI,

74 Civ. 555 JMC, June 18, 1974 held that:

" «eee the Court must look upon the

present pro se complaint with a liberal

eye. Haines v. Kerner, 404 U.S. 519,

the words pro se are in italics).

""% deny relief under these circun-

- stances would be a mooninglose triumph

of form over substance.'" Choate v

Caterpillar Tractor Co., (1 EPD 9916)

F. 57, 500 ee. (7th Cir. 1968)."

(p.5284, ibid).

""Courts have been adamant in refusing

to penalize Title VII plaintiffs for

wrongs or mistakes committed by the

EEOC. eeee ates (p.5284, ibid).

"" After an aggrieved person, such as

plaintiff in this case, has filed a

charge and obtained his suit letter

from the EEOC, he has done all that

is expected of him prior to bringing

suit. He has carried every burden

which Title VII requires him to carry

prior to suing in the district court.""

(p.5284, ibid).

"To dismiss the instant action against

this pro se plaintiff because of the

Commission's failure ...., would be to

visit upon him prejvdice, which is not

his due. Plaintiff has complied with

all of the many vagaries of Title VII

in order to reach the courthouse door.

To now cast him down this building's

steps without first affording him an

opportunity to be heard, would so ex-

alt form over substance as to weaken

the foundations of our legal systen."

(p.5285, ibid; the words pro se are

in italics).

"Court is mindful of the fact that the

present complaint, as well as that

made to the EEOC, is the product of

an "“unlettered" layman and is, there-

fore, entitled to broad construction

in order that the remedial purposes

of the Act be effectuated." (p.5286).

Although G submitted xerox copies of all

the above 3 cases (viz., Love, Voutsis

and Smith) with his brief of August 28,

1974, both the SDNY and the CA2 apparent-

ly completely disregarded it, but consid-

ered only R's brief (filed on Uctober 14,

1975 -— 564 days after J's order on March

29, 1974) in arriving at their respective

decisions. The CA2's decisions were thus

erroneous and meet with the criterion of

Rule 19.1(b)(5) of the RSC once more.

70. Rule 61 Of The FRCP: Finally, an-

other imperative command of the FRCP must

be taken into account. Rule 61 commands

that:

"Harmless Error. .e++ eee+e, unless

refusal to take such action appears

to the court inconsistent with sub-

stantial justice. The court at every

stage of the proceeding must disregard

any error or defect in the proceeding

which does not affect the substantial

rights of the parties".

But in G's case, J did exactly opposite.

It was, therefore, an error for the CA2

to affirm J's hasty, illegal and prema-

ture "sub silentio denial nunc pro tunc".

Accordingly, the question once again

meets with the criterion of Rule 19.1(b)

(5) of the RSC.

‘Law Of The Case'

71. Bryan v. Austin, 354 U.S. 933 (1957):

The questions C. and D. (p.6) are taken

together. Following the Bryan ruling,

the CA2 itself should have granted G's

prayer to amend his complaint [so as to

allow him to incluae §1981, §1984 and the

13th Amendment, read with 28 U.S.C. 1343-

(4), asserted by him on August 8, 1974 and

repeated in his rewritten complaint of

July 7, 1975, in support of the same

facts and claims as in his original and

refiled complaints of October 25 and De-

cember 12, 1973 respectively], as prayed

in his petition of May 13, 1977 for a re-

hearing. Moore observes (p.969) that:

" If, however, ths appellate court

finds a failure of jurisdiction be-

cause of defective jurisdictional al-

legations, where it appears that ju-

risdiction may actually exist, then

it may itself grant the parties an op-

portunity to amend pleadings on appeal

as a prerequisite to an appellate re-

view of the merits of the case."

(footnote 8 containing a long list of

cases omitted).

Moore further observes (p.957) that:

" In dismissing a complaint for fail-

ure to state a claim or for failure to

show jurisdiction, the court should

heed the admonition of Rule 15 and al-

low amendment "freel if it appears

at all possible that th aintiff can

correct the defect." (footnote 2 omit-

ted, except the portion quoted below).

" Abuse of discretion for trial court

to deny leave to amend on granting mo-

tion to dismiss:".

The above quoted footnote heading is sig-

nificant. Under it Moore cites a long

list of cases, including that of the CA2,

of which the South Suburban Safeway Lines

has already been noted (para.6l, p.72).

It also contains two elucidating rulings

by the CA2 itself in (Moore, p.957):

"Neeff v. Emery Transp. Co. (CA2d, 1960)

ae: . erv 5a.c4+, Case

g*,

"Downey v. Palmer (CCA2d, 1940) 114 F2d

; erv 56c. , Case 1 (court

erred in dismissing complaint without

leave to amend, while recognizing that

cause of action might exist);".

In the same footnote Moore (p.958) says:

"In Topping v. Fry (CCA7th, 1945) 147

Fed os dpe sparks stated: "We think

plaintiff should have been given an op-

portunity to clarify his complaint.

The very deficiencies of the pleading

seem to furnish all the more reason

why it should not have been dismissed

on defendants' motions without leave

to amend. .. . Under the liberalized

procedure provided for by the new

rules, we think it is error to dismiss

a complaint with prejudice if it ap-

pears that any relief could be granted

on the facts stated. ... As stated

in Moore's Federal Practice, ...eee-,

‘Litigation is not an art in writing

nice pleadings. It can and should

seldom be settled on its merits at the

pleading stage. ...'".

G's case is stronger than that of the

Downey or the Topping case, in that the

CA2 itself (unlike the USDC in these two

cases) established the ‘law of the case'.

It was, therefore, incumbent upon it to

grant the leave by itself (particularly

upon the second appeal), based on the

simple proposition that ‘where there is

a right, there is (or must be found) a

remedy'. Otherwise it would simply mean

that the CA2 has established that G has

a right, but has no remedy whatsoever

therefor. Our system of jurisprudence

never gave any countenance to this kind

of proposition. Isn't it what the De-

claration of Independence was all about?

The colonial settlers found:

" eee, that they are endowed by their

Creator with certain unalienable

Rights, ...." (the second paragraph),

but without remedies. So they created

the remedies by founding this Republic.

In this view, it was an error by the CA2

" eee, we find no abuse of discretion

in the district court's denial of |

leave to amend." (p.A-7),

as the very nature of the denial amounted

to such abuse of discretion. See also

paras.49-53, pp.63-65. Accordingly, the

question meets with the criteria of Rule

19.1(b)(1), (4) and (5) of the RSC.

Arbitrary, Capricious And Excessive Fine

72. Miller v. International Paper Co.,

408 F.2d 283 (CA5, February 26, 1969):

In that landmark decision (in which one

of the judges was the present Attorney

General Griffin B. Bell) the CA5 held:

" .- we stated in B. F. Goodrich Tire

Co. v. Lyster, "(a)lthough a tria

judge's latitude in .. penalizing

failures to comply is broad, his dis-

cretion is not limitless."40 This

court will not uphold the imposition

of an unjustified penalty. The rules

of civil procedure are designed to inm-

pose order upon complex and often cha-

otic judicial proceedings. The power

which makes the rules work emanates

from the district judge who, like a

ringmaster, must occasionally use the

prod. Excessive or fruitless use of

the prod, however, is impermissible.

In the circumstances of this case,

we think the district court abused its

discretion when it imposed cost and

fee penalties upon the appellants. ..

eeee The whim of counsel and the

strategy of obstruction have no recog-

nized place in federal procedure.

Being without justification, the in-

position of a penalty upon the unafflu-

ent appellants not only would cause un-

due hardship but it would also under-

mine the policy of financially assist-

ing complainants in Title VII suits.

ecoe eeeoe The penalty assessment,

therefore, cannot stand.

40 328 F. 2a 411, 415 (5th Cir. 1964).

See Bon Air Hotel, Inc. v. me, Inc.,

376 F. 2d 118, 1el-ce (oth Cir. 1967)."

(pp.1495-1496, 1 EPD 9968).

The xerox copies of the Miller case was

submitted with G's brief of August 28,

1974, which both the courts below totally

disregarded, as also all of his papers

filed with the CA2. In the Miller case,

where the appellants were advised by a

long list of the nation's most distin-

guished pro bono piblico lawyers, the

situation appears to have been far more

compelling for the trial judge to impose

the impugned fine than had been in G's

case. Yet, the CA5 denounced the mere

act of imposition as an abuse of discre-

tion. In contrast, there was no compel-

ling reason whatsoever in G's case (para.

24, pp.30-33) to impose the arbitrary and

capricious fine, and the SDNY's transcript

will prove that. Nevertheless, J imposed

it, merely from the love of exercising

his newly-found tremendous judicial power

and from his personal bias or prejudice.

J had the added comfort that G had no

lawyer (let alone Jack Greenberg, Julia

P. Cooper, et al. in the Miller case) to

oppose the fine on the spot or later.

74. Sth Amendment: "due process of law":

The facts (pp.32-33) clearly show that J

denied G his 5th Amendment right of "due

process of law" not only during the hear-

ing but also subsequently. The point of

law has already been presented (para.53,

p.65). Hence J's imposition of the fine

was unconstitutional.

74. 8th Amendment: "excessive fines":

The facts (pp.32-33) also clearly show

that the fine was "excessive" within the

meaning of the 8th Amendment, inasmuch as:

(i) according to Webster "EXCESSIVE im-

plies an amount or degree too great to be

reasonable or acceptable;"; (ii) the

Miller ruling (para.72, p.87) implied

that in a Title VII suit the imposition

of any amount of fine is "excessive";

(iii) R never prayed for any amount of

fine or cost, however small; (iv) the

fine was payable not to the SDNY, but to

a billion dollar corporation, which then

had nearly $250 million idle cash; and

(v) the fine embarrassed even R, as it

instructed its outside attorney retained

on this case not to press G for the pay-

ment of the fine on or before its due

date of May 12, 1975, until G was ready

to deliver xerox copies of the first

batch of 2,479 pages of R's documents on

June 11, 1975. The imposition of the

fine was, therefore, unconstitutional.

Indeed, on this ground alone this Court

allowed a petition for a writ of certio-

rari to the CA9 in Cissna v. McQuaid, 74-

*82. The Clerk of this Court has kindly

sent a copy of this petition to G as a

sample. It is from this petition G has

learnt of the unconstitutionality of J's

refusal of the "due process of law" and

imposition of the fine, and of the cases

cited therein (para.53, p.65) relevant

to his own case. It was, therefore, a

grave error by the CA2 in not overturning

J's imposition of the fine and summary

dismissal of G's suit, inspite of G's re-

peated supplications therefor to the CA2.

But worse still was the fact that at no

time the CA2 had considered the question.

Accordingly, the question E. on page 7 >

meets with the criteria of Rule 19.1(b)-

(1), (4) and (5) of the RSC.

J Refused To Remand The Case To The EEOC

75. A "de novo" Trial: In Smith v. Uni-

versal Services, Inc., 454 F.2d 154, Jan-

uary 10, 1972, the CAS held that:

" .eee, the action of the EEOC is not

agency action of a quasi-judicial na-

ture which determines the rights of

the parties subject only to the possi-

bility that the reviewing courts might

conclude that the EEOC's actions are

arbitrary, capricious or an abuse of

discretion. Instead, the civil liti-

gation at the district court level

clearly takes on the character of a

trial de novo, completely separate

from the actions of the EEOC." (p.5420,

4 EPD 7617; citations omitted and the

words de novo are in italics).

See also Jenkins v. United Gas Corp., 400

F.2d 28, August 29, 1968, in which the

CA5 again held that a suit in a USDC is:

" .ee to launch a full scale inquiry

into the charged unlawful motivation

in em ~ ) ae practices." (p.1208, 1

EPD 9 9

and cited by the CA2 in the Voutsis case

(p.5350, 4 EPD 7592). Thus, in the Smith

case the CA5 implied that it is a duty of

the USDC concerned to review the EEOC's

determination so as to ascertain whether

or not the latter had been "arbitrary,

capricious or an abuse of discretion".

76. The CA2's Weise Ruling: But how can

such a "de novo" trial take place, where

a plaintiff him(her)self alleges illegal-

ity of the EEOC's determination? In oth-

er words, where the plaintiff has done

the trial court's work, by pointing out

that the EEOC's determination had been

"arbitrary, capricious or an abuse of

discretion", what is then the court 'sadu-

ty? The common sense would dictate that

in such a situation only logical thing

for the court to do is to remand the case

to the EEOC to verify the truth or other-

wise of the plaintiff's allegation. This

is precisely what the CA2 itself sensibly

recommended in its wise Weise decision

(para.44, p.50) in the footnote 27:

" An appropriate r medy in a case

where the EEOC erroneously dismisses

on jurisdictional grounds might ordi-

narily be a remand to the Commission.

cece (p.5208, 10 EPD 10,2%).

77. +%$Jd's Abuse Of Discretion In Refusing

To Remand G's Case To The EEOC: The

facts (para.26, p.35) clearly show that

it was an "abuse" (para.6l, p.72) of dis-

cretion by J in refusing to remand, par-

ticularly on November 7, 1975, as the

Weise decision was out on July 14, 1975.

SORBATE: ST i DN ee. ELE oe ae

Moreover, J was (as he should be) fully

aware of his newly-found tremendous judi-

cial power conferred by Clause 1, Section

2, Article III of the Constitution:

" The judicial Power shall extend to

all Cases, in Law and Equity, arising

under this Constitution, the Laws of

the United States, .... sess covers

Hence J's excuse of lack of "The judicial

Power", particularly on November 7, 1975,

was not based on the Constitution and the

Laws thereunder. If, on the other hand,

J was not sure of his "Power" to remand

G's case to the EEOC, the logic would

dictate that J should have consulted with

the Justice Department, before penalizing

G. G had compelling reasons for wishing

his case to be remanded to the EEOC. It

was as early as on March 29, 1974 J pre-

judged the issues, before even receiving

the briefs (para.22, pp.28-29). Hence G

was genuinely apprehensive that J might

dismiss his suit because of h's "untimely

charge", as alleged by the EEOC. In the

hope that the EEOC would reverse its de-

termination of October 17, 1973, if the

case were remanded by the SDNY, G was

irterested in the remand procedure. Of

course, G could have requested the EEOC

Soe et 2

8 te 8 REE 8 ee 2 ees Ree. ee Sore «>

were oO ee

ST a SYR 8 Tee

directly to the same end (i.e., without

the remand), which, in fact, he has (par-

a.32, p.40), but it lacks the 'teeth' of

a@ remand by a USDC. Thus, the question

F. (p.7) meets with the criteria of Rule

19.1(b)(1) and (5) of the RSC.

78. EEOC's Hasty, Tllegal And - Premature

Determination: The following acts by the

EEOC have vitiated G's Title VII. rights:

(a) supplied obsolete forms to G (p.19),

in violation of its own Regulation 1601l.-

8; (b) denied the statutory 60 days to

the NYSDHR (pp.19, 20 and 60), in viola-

tion of Section 706(c) of the Title VII;

even allowing G to suvomit his statutory

affidavit (p.19), in violation of Section

706(b) of the Title VII; (d) arrived at

its determination without even allowing

G to file his detailed charge, which the

EEOC itself required (p.19), in violation

of its own Regulations 1601.11(b) (rela-

tion back) and 1601.19 (dismissal); and

(e) issued its "NOTICE OF RIGHT TO SUE"

prematurely while the matter was then

still pending before the NYSDHR (pp.20 &

60), in violation of Section 706(c) of

the Title VII and its own Regulation

1601.25.

Pa ee

ng SRS

RR FOE 8 art oe Lr er are Pe ee wr wee

The last illegality (viz., (e)) produced

the following ‘chain reaction':

(i) it compelled G to file his suit pre-

maturely, while the matter was then still

pending before the NYSDHR, to meet the

deadline of 90 days under Section 706(f)-

(1) of the Title VII; (ii) the filing of

the suit automatically suspended the ju-

risdiction of the NYSDHR by virtue of

Section 297.9 of the NYSHRL; (iii) the

latter deprived the NYSDHR to arrive at

its "final findings and orders" within

the meaning of Section 706(b) of the Ti-

tle VII; (iv) the latter in turn deprived

the EEOC to "accord substantial weight to

final findings and orders made by" the

NYSDHR, as required by Section 706(b) of

the Title VII; (v) the latter in turn in-

fluenced the EEOC to arrive at its deter-

mination; (vi) still later the latter in-

fluenced J to arrive at his decision; and

(vii) -finally, J's decision made the CA2

to arrive at its judgment.

The remand of the case to the EEOC, or

even to the NYSDHR by a stay of proceed-

ings, could well have cured the "juris-

dictional bar" (p.50) that the CA2 men-

tioned in its first judgment (p.A-3).

TERS ALT TT LE Ey. ae TT ETRE. et. 8 eek Sore ever nme eres ee nee om ee

G even prayed to the CA2 for a stay of

proceedings following this Court's ruling

in the Johnson case (pp.77; A-4):

" .ee. the plaintiff in his §1981 suit

may ask the court to stay proceedings

until the administrative efforts at

conciliation and voluntary compliance

have been completed." —- the Honorable

- Justice Blackmun (p.7674, 9 EPD

4 o

But the CA2 apparently denied it without

any hearing or reason. Indeed, the said

learned Justice further held that:

"Conciliation and persuasion through

the administrative process, to be sure,

often constitute a desirable approach

to settlement of disputes based on sen-

sitive and emotional charges of invid-

ious employment discrimination." (p.

7673, 9 EPD 10,149).

The CA2's denial, therefore, nipped in the

bud, so to speak, whatever fragile chance

G had for an administrative settlement,

and defeated the very spirit of this land-

mark decision, on which it relied in G's

case. Accordingly, the question meets

with the criterion of Rule 19.1(b)(4) of

the RSC once more. It is interesting to

note that at the SDNY, R objected to the

incompleteness of the process by the NY-

SDHR, but at the CA2, R objected to any

resumption of it, and both were upheld.

en ee ae en

The ADEA Claim

79» Timely Notice Of Intent To Sue: The

facts (para.19, pp.21-24) clearly show

that G filed with the EEOC and the WHD a

valid and timely notice of intent to sue.

Even R conceded that a "statutory notice

to EEOC" was good enough. Hence the ques—

tion was not to whom G should have served

his notice - a question of law. It was

simply a question of fact - "No statutory

notice to EEOC or the Secretary of Labor

was ever given.", as alleged by R. Such

a factual question should have been, but

was not, resolved by J, in dereliction of

his judicial duties, inspite of G's two

reminders of August 8, 1974 and of July 7,

1975. Thus it was a grave error by the

CA2 to dismiss it simply by holding that:

" .e. we find Goss' other claims in the

amended complaint to be without merit."

(Appendix A, p.A-4).

G's ADEA claim in his rewritten complaint

was simply there, because J hitherto did

not care.

80. Shell Oil Co. v. Dartt, 76-678: G's

case is quite similar to the above, which

is now before this Court. In fact, G re-

lied upon it, but the CA2 never considered

md “ re

RUS Vi BD

it (para.33, pp.40-41). Even assuming

(argiiendo, that is) that G's notice of

intent to sue was untimely, but what good

would it have been if the notice were

timely, as R steadfastly: (i) failed to

honor the solemn promise of its own CFO

for an amicable settlement (paras.11-12,

pp.14-15) - the very purpose of the no-

tice, as the CA1O pointed out in Mrs.

Dartt's case (p.5179, 12 EPD 11,119); and

(ii) opposed stay of proceedings by the

CA2 so as to enable the NYSDHR (which is

empowered to conciliate age claim) to re-

sume its jurisdiction (p.96)? Thus, the

question G.(a)(i) on page 8 meets with

the criteria of Rule 19.1(b)(1), (3) and

(5) of the RSC.

J's Outright Denial Of A Class Action

81. J's Abuse Of Judicial Process: The

facts (pp.33-34 and p.55) clearly show

that J grossly abused the judicial proc-

ess, as well as the Law of Evidence, by

his denial. Just because G is not a law-

yer (if it was J's reason for the denial)

is really no ground for it, as R's own

top corporate officers have done G's work

by admitting class discrimination. What

—@

Tor ws wee

Co Re ae OT ERE DH HR re ey” =n

more evidence does the Law of Evidence

require? In addition, G has many thou-

sands of pages of R's own documents, plus

witnesses, proving it. Who then needs a

lawyer to prove what R itself has done?

Innumerable court decisions (including

that of the SDNY) have upheld class ac-

tions in situations less favorable than in

G's case. Thus it was an error by the CA2

to dismiss the issue "to be without merit."

(para.79, p.97). See also Albemarle Paper

Co. v. Moody, 422 U.S. 407, June 25, 1975.

Hence the question G.(h) on page 9 meets

with the criteria of Rule 19.1(b)(1), (4)

and (5) of the RSC.

Summary Dismissal

82. J's Illegal Or Wrongful Dismissal:

The questions G.(i) and (j) will be con-

sidered together, as these are closely

related. First we consider the question

(i). The facts thereto (para.28, pp.36-

37) clearly show that the summary dismiss-

al was illegal or wrongful under Rule 56

of the FRCP for the following reasons:

(a) there was a "genuine issue" as to all

material facts (e.g., paras.6-23, pp.12-

29); (b) R was not "entitled to a judg-

PO MEN a AE, A ON NE eh ON ere tet me .

100

ment as a matter of law", since R did not

dispute any of the facts stated in its

own documents (which were the basis of:

G's allegation of class discrimination,

and R's discovery motions); (c) indeed,

it was G and his class who were "entitled

to a judgment as a matter of law" on the

same ground as (b) above; and (c) R made

affidavit in "bad faith" (viz., the lack

of "personal knowledge" of the putative

“affiant"; his perjury; the subornation

of perjury; a possible forgery; a sham

notarization; etc.). The last mentioned

white collar crime alone was sufficient

for the former Lieutenant Governor and:

"the first sitting judge in Connecticut

- history to be convicted" (the Ney Tork

Times, Friday, September 10, 1976).

J simply ignored all these serious white

collar crimes. Above all, the dismissal

conflicts with the CA2‘'s own decision in

the Egelston case (p.50):

"In our recent opinion in Heyman v.

Commerce & Industry Ins. To., 524 F.2d

. ir. we empha-

sized that summary judgment must be

used sparingly "since its prophylactic

function, when erercised, cuts off a

party's right to present his case to

the jury."" (p.4740, 12 EPD 11,004).

aes

EN ne Oe ne ee ee ee ee ae

101

83. J Dismissed Suit During Discovery:

The facts (para.29, pp.37-38) once more

clearly show that J's dismissal of the

suit, while R's discovery motion was still

in motion, was a gross abuse of the judi-

cial process. Indeed, the CA2 itself has

condemned it in no uncertain manner in the

Egelston case (in continuation of the quo-

tation on page 100 ante):

"Dismissal of a complaint—before any

discovery has taken place or an answer

filed—is even more drastic. It isa

device that must not be employed un-

less, taking as true the allegations

pleaded, Cooper v. Pate, 478 U.S. 546

(1964) it

appears beyond doubt that the

plaintiff can prove no set of facts

in support of his claim which would

entitle him to relief.

ELBE v. Rhodes, 416 U.S. 232, 236

» auoting Conley v. Gibson, 133

LC 171,077] 355 1957)."

(p.4740, 12 EPD 11,004).

84. R's Post-Discovery Disclosure: It

was R's -discovery of its own secret docu-

ments (para.29, pp.37-38) that compelled

its "voluntary disclosure" reluctantly at

last to the Securities and Exchange Com-

mission (one of the last of the multi-na-

tional corporate titans to do so), which

was widely reported in the press (e.g.,

Sh cme

i§

102

‘The New York Times, Tuesday, October 5,

1976). It proves G's allegation of R's:

"(.. corporate lawlessness on a multi-

national scale)." (p.9, Nov. 3, 1975).

It also refutes the impugned sworn state-

ment (p.37) by the putative "affiant" in

his bogus "AFFIDAVIT IN SUPPORT OF CROSS-

MOTION" (para.28, pp.36-37). Although G

pointed out the above facts during the l

minute reply argument on October 7, 1976,

the CA2 apparently gave no weight to it.

85. The ‘slightest doubt' Rule: It was

applied in Woodford v. Kinney Shoe Corp.,

ND, Ga., 369 F.Supp. 911, Feb. 22, 1973:

"Defendant has the burden of positive-

A and clearly demonstrating that

there is no genuine issue of fact and

that it is entitled to judgement as a

matter of law. "A long line of cases

have held that summary judgment should

not be granted if there is the ‘'slight-

est doubt' as to the facts." National

Screen Service core v. Poster Exch. ,

Ce _

(p.7151, 7 EPD 9239),

and cited by the CA1O in the Dartt case

(p.5178, 12 EPD 11,119), which is now be-

ing reviewed by this Court (para.80, pp.

97-98). The fact that J said that:

"I am going to reserve decision on

these motions." (transcript page 5),

RTA TOTO TAL GI a EE

103

clearly proved that J had more than "the

‘slightest doubt' as to the facts.". In

fact, the wording suggests that J had a

good dealofit. Indeed, if J had less than

"the ‘slightest doubt' as to the facts.",

then he would: (i) have dismissed the

suit during (and not after) the hearing,

and (ii) not have granted R's discovery

motion on its secret documents, as after

the dismissal the latter woulda have been

of no evidentiary value to R against G.

Moreover, "the ‘slightest doubt'" must be

"as to the facts" - all "facts" and not

merely one "fact" - and not ‘as to the

laws'. Furthermore, how could J not have

had "the ‘slightest doubt' as to the

facts." when he did not even care, by his

own admission, to consider G's vital op-

position motion of November 3, 1975 (pp.

34, 37), to which several affidavits by

R's top corporate officers conclusively

proving G's allegations were attached.

As if to exclude "the ‘slightest doubt'

as to the facts." that J might have read

G's motion before his summary dismissal,

J signed it on November 10, 1975 (p.A-12).

Thus the latter was a "decree pro confes-

so" (mentioned on p.13 of Cissna's peti-

tion - p.90 ante).

> au 2 1 eo

LE ASIA aT aT

eet Ot hema / ete

rep ss Pua oro eae

asta thie be it ata capa nat ated anda Asda bel

104

86. Jaroslawicz v. Seedman, CA2, The New

York Times, Saturday, December 20, 1975:

In that widely reported case, the Honor-

able Chief Judge Kaufman with the concur-

rence of the Honorable Circuit Judges

Wilfred Feinberg and J. Joseph Smith re-

versed the summary dismissal by the late

(obituary in The New York Times, Wednes- —

day, October 143, 1976) Chief Judge of the

EDNY Walter Bruchhausen, holding:

"that the dismissal had been unwarrant-

ed, because a summary judgment requir-

ed establishing that there were "no

genuine issues of material facts" for

trial, but that "Seedman's own words

have created an issue of fact concern-

ing his good faith."" (as reported b

The Times reporter Arnold H. Lubasch).

The above quotation could be paraphrased

to meet G's situation, by simply substi-

tuting the word "Seedman's" by "R's". As

has been pointed out (para.84, p.102), it

was R's false allegation under oath (p.

37) that created an issue of material

fact and of its good faith. But the CA2

obviously did not apply its own ruling to

G's case, inspite of his supplications.

Hence its decisions were clearly errone-

ous. Accordingly, the questions G.(i)

and (j) on page 9 meet with the criteria

of Rule 19.1(b)(1), (4) and (5) of the RSC.

)

105

Denial Of Reargument Or New Trial

87. J's Abuse Of Judicial Process: The

facts (para.30, pp. 38-39) clearly show

that it was an abuse of judicial process

to deny either a reargument or a new tri-

al, since: (i) G's motion for a new tri-

al was based on the new principle of law

established by the CAS in the Moses case

(para.46.(A), pp.51-52) and by the CA2

itself in the Jaroslawicz case (para.86,

p.104); (ii) R's letter (p.39) created

"a genuine issue for trial"; (iii) J dis-

missed G's motion "outright" in violation

of the Foman ruling (para.49, pp.63-64);

and (iv) G's motion also contained yet

another reminder to the SDNY of his time-

ly claims under the ADEA, 1981, 1983 and

the 13th Amendment read with 28 U.S.C. §

1343(4). It was, therefore, an error by

the CA2 to disregard all these overwheln-

ing facts, particularly when G had to pay

the appeal fee twice (p.52) - because of

the SDNY's incorrect advice to G on the

filing of notice of appeal under Rule 4(a)

of the FRAP - just to challenge J's de-

nial. Accordingly, the question G.(k)

on pp.9-10 meets with the criteria of

Rule 19.1(b)(4) and (5) of the RSC.

106

The 13th Amendment And §1983 Claims

88. The 13th Amendment Claim: As has

been stated in the question G.(a)(ii) on

page 8, R never opposed the assertion of

G's above claim on August 8, 1974 and re-

iterated on July 7, 1975 (para.20, pp.24-

26). Thus, following the Battle ruling:

" In filing its motion to dismiss

plaintiff's complaint, defendant made

no objection to plaintiff's allega-

tions setting forth a cause of action

under 42 USC § 1782. The Court has

difficulty perceiving the applicabili-

ty of this statute to the subject mat-

ter of this case. Being unchallenged,

however, it remains an asserted cause

of action in this suit." (footnote 2,

p.5812, 6 EPD 8893), on p.73 ante,

G asserted a valid cause of action. It

was an abuse of judicial process for the

SDNY to ignore it completely. It was,

therefore, an error by the CA2 to dismiss

it "to be without merit", similar to his

ADEA claim (p.97) or class claim (p.99).

89. §1983 Claim: Like G's 1981 clain,

R opposed his 1983 claim 432 days later

(para.20, pp.24-26). Hence the Battle

ruling is equally applicable here. Thus,

these two questions meet with the criter-

ion of Rule 19.1(b)(5) of the RSC.

107

Affidavits Of Bias Or Prejudice Of Judge

90. J's Prejudicial Remarks From The

Bench: The question H. on page 10 is the

hardest of all, since it gives no pleas-

ure to allege personal bias or prejudice

against any judge, let alone one of J's

fine caliber, as he is a scholar and a

gentleman, and a man of unfailing courte-

sies. We are, however, considering only

the facts, and not J's personal qualities

which are in no way in question here. J

made such prejudicial remarks from the

Bench on March 29, 1974 and on November

7, 1975, which clearly revealed the inner

working of his mind. His remark on the

second occasion was particularly objec-

tionable to G's interest. Even before

the start of the recorded portion of the

hearing on November 7, 1975, J chuckled

and addressed to R's attorney:

“What about jurisdictional prerequi-

sites?".

R's attorney then replied that the suit

lacked jurisdictional prerequisites. J

then chuckled again and still addressing

R's attorney:

"Only the other day I dismissed a suit

te - CLL Die eae TRS IAA eT

ot hae

2 ae eee rr 2

108

for failure to file a timely charge

with the EEOC".

The fact that J made the above remark,

without even reading G's vital papers

(G's brief of August 28, 1974 and opposi-

tion motion of November 3, 1975), clearly

shows that J approached both the suits

with a foregone conclusion as to the so

called "jurisdictional prerequisites" -

a tendency of the USDC judges that was

commented upon by the CA5 in the Reeb de-

cision (p.50 ante: see p.5488, 10 EPD

10,358). <A further proof of J's above

approach was provided by J himself during

the hearing on March 29, 1974. Thereat,

without being asked by J to do so, R's

attorney told J that the suit lacked the

jurisdictional prerequisites, as a timely

charge had not been filed by G with the

EEOC. Realizing that J was not asking G

any question thereon, G was obliged to

speak out uninvitedly, probably by inter-

rupting either J or R's attorney, that

the timely filing of the charge with the

EEOC was no longer a jurisdictional pre-

requisite for the suit. J then remarked:

"I don't know, if you can say that.",

emphasizing upon the words "say that",

I IP Ca FET ES ere

- ern

109

with some sign of annoyance in his other-

wise restrained tone. The incident once

more clearly suggests that J harbored an

‘obsession' as to the so called "juris-

dictional prerequisites" for the suit.

Hence J was apparently annoyed to hear a

"heresy' and did not ask G as to the

basis of his contrary contention.

91. J's Profound Pro-employer Bias: The

SDNY records clearly demonstrate J's per-

sistent and protracted pro-employer bias.

In fact, J has been vehemently denounced

by the labor movement in a front page

news in The New York Times, Wednesday,

May 25, 1977 for his patently pro-employ-

er pronouncement in the New York Telephone

Company v. Communication Workers of Ameri-

ca. Such a profound personal bias should

disqualify a judge from hearing a case in

question, but, perturbingly enough, J did

not do so. On the contrary, J's actions

and inactions unmistakably demonstrate

his obsession with R's interest only, as

if it were an ex parte suit filed by R.

No one, of course, denies that a judge

has no duty to protect the legitimate in-

terest of the defendant(s). But the ob-

session therefor is a different kettle of

fish.

C8 eres eco eer

CE BESTS WER ao Oe Pe. Tae

110

92. J's Procrastination In Putting G's

Case To Trial: Ever since J cancelled on

June 6, 1974 the trial scheduled to have

been held on June 17, 1974, J manifested

his persistent procrastination in putting

the case on his calendar. His reluctance

can be evinced from the following tele-

phone conversation with his clerk on July

19, 1974 (his clerk speaking to G):

"It is upto the discretion of the judge

to set the hearing date for trial of

the case. So far as I know, I think

that the question of trial of your

case would automatically come up after

the U. S. Magistrate's ruling on the

defense motion".

Although the U. S. Magistrate issued his

ruling on July 31, 1974, J never set an-

other trial date. On the contrary, J

continued to show his alacrity to grant

all of R's discovery motions, however

palpably dilatory or spurious, possibly

in the hope that the case would "go away".

J's predilection has been accurately

characterized in an article, entitled

"Lawyers Proiiferate and Prosper", in The

New York Times, Sunday, January 25, 1976,

on page 7 of Section 3 (Business and Fi-

nance), in which the author, Ernest Dick-

inson, quoting Professor Victor Kramer of

a ae TS

111

the Georgetown Law Center in Washinrton,

D. Ce, wrote that:

" The law's costly delay. It's not

just the volume of litigation that is

responsible for this, says Professor

Kramer, but also "the tendency of

judges to let cases drag on hoping

they'll go away. As the size of the

judiciary increases, the quality low-

ers. Some of the finest people in the

world who end up on the benches today

shouldn't be there because they don't

decide anything".

93. “a barrage of post-trial motions":

It was J's patently personal bias or pre-

judice (paras.90-92, pp.107-111) that im-

pelled G to file his affidavit under 28

U.S.C. §144 on April 30, 1976, which was

further elaborated (as the statute re-

quires) by his supplementary affidavit on

May 20, 1976. G's reply affidavit of

June 7, 1976 was necessitated by R's "AF-

FIDAVIT IN OPPOSITION" filed on May 10,

1976. G's citation-affidavit of June 10,

1976 was similarly necessitated by R's

contempt of court (para.22, pp.28-29 and

para.29, p.38), dilatory motion practice

(para.23, p.29) and other serious white-

collar crimes (paras.28-29, pp.36-37 and

para.84, pp.101-102), as a result of which

the Federal law enforcement agencies have

lle

began their respective criminal investi-

gations. Thus, it is these 4 affidavits

that the CA2 has characterized as "a bar-

rage". Surely, such a description must

be a flight of literary fancy, rather

than a reality. Moréover, the word "post-

trial" must be read as 'post-dismissal',

since the trial was never held. Further-

more, the plural "motions" must be read

in singular, as G filed just that - his

motion for a new trial on December 26,

1975 (para.30, pp.38-39 and para.87, p.

105).

O%. G's Affidavits Under 28 U.S.C. §144:

G filed the two affidavits under 28 U.S.

C. §144 (para.3l1, p.39) not because of

the above facts (paras.90-92, pp.107-111)

but because of his genuine apprehension

that upon the remand of the case by the

CA2 J might dismiss his suit again. Sub-

sequent event proved that J did just that.

It was, therefore, an error by the CA2 to

remand the case to J, instead of another

judge, as it did in the Egelston (p.50)

and the Noble (p.51) cases (footnotes 6

and 4 respectively - pp.4741 and 4743 of

12 EPD). But much more important than

that is the fact that the statute is quite

113

specific in disqualifying a judge once

"a timely and sufficient affidavit" has

been filed, by commanding that:

" eeeey SUCH judge shall proceed no fur-

ther therein, but another judge shall

be assigned to hear such proceeding".

Consequently, the CA2's remand to J was

no less illegal than J's action thereon.

The illegality was all the more reprehen-

sible, since G wrote a letter to the sD-

NY's Pro Se Clerk on June 7, 1976 (a copy

of which was sent to R's attorneys) with

a view to prevent any further vindictive

action by J upon the remand of the case.

Thus, it was a grave miscarriage of jus-

tice by the CA2 not only to ignore G's

written and oral pleas of his affidavits,

but also to affirm J's illegal "MEMORAN-

DUM AND ORDER" of November 16, 1976, as

if nothing were amiss. The question H.

on page 10, therefore, meets with the cri-

terion of Rule 19.1(b)(5) of the RSC.

J Denied Before The "Mandate" Was Issued

95. Rule 41(a) And (b) Of The FRAP: The

facts (paras.34 and 51, pp.41-42 and 64)

clearly demonstrates the illegality of J's

hasty, premature and vindictive denial of

114

November 16, 1976, since Rule 41l(a) is

quite specific:

"The mandate of the court shall issue

21 days after the entry of judgement

unless the time is shortened or en-

larged by order. .... «sese ecvee

The timely filing of a petition for

rehearing will stay the mandate until

disposition of the petition unless

otherwise ordered by the court. If

the petition is denied, the mandate

shall issue 7 days after entry of the

order denying the petition unless the

time is shortened or enlarged by

order".

Hence the earliest date on or after which

the SDNY could have assigned the case to

another judge upon the remand was Decen-

ber 28, 1976, which would then have given

G enovvh time to file his petition for a

writ of certiorari to this Court, and a

far less complicated one (of no more than

30 pages) at that. J's hasty, illegal,

premature and vindictive denial precluded

G from availing himself of any opportunity

to present his contemplated earlier peti-

tion to this Court, and thereby deprived

him of his invaluable right under Rule

41(b). In consequence, G was compelled

to go through his fruitless second appeal

(para.35, p.42). So, the question I (p.

10) meets with the criterion of Rule 19.-

1(b)(5) of the RSC.

115

The Question Of Equity

96. G Did Not ‘Sleep On His Rights’:

Finally, we come to the question G.(1) on

page 10. The facts clearly establish

that G did not ‘sleep on his rights' but

asserted them at the earliest possible

opportunity to do so. In Burnett v. New

York Central Railroad Co., 380 U.S. 424

(1965) this Court held that:

" Statutes of limitations are primarily

designed to assure fairness to defend-

ants. Such statutes promote justice

by preventing surprises and revival of

claims that have been allowed to slumn-

ber until evidence has been lost, men-

ories faded..." (p.428).

" . « « the policy behind statutes of

limitations is outweighed when the in-

terests of justice require vindication

of the plaintiff rights." (p.427).

See also Minnesota Mining and Manufactur-

ing Co. v. New Jersey Wood Cc., 381 U.S.

311 (1964). Both the cases were cited by

the CA5 in the Culpepper case (p.57 ante

- p.530 of 2 EPD 10,138).

97. Civil Rights Claims Are Viewed With

Liberal Eyes: The cases are legion - see

Burnett (supra), Love (p.57), Culpepper

(supra), Miller (p.87), Reeb (p.50), Moses

(p.51), to name only few already cited.

116

The SDNY too has its fair share of such

cases - e.g., the Smith case (p.81), to

name only one already cited. Similarly,

the CA2 has its even larger share of such

cases - e.g., the Voutsis (pp.80-81), the

Weise (p.50), the Egelston (ibid) and the

Noble (p.51) cases, to name only those

already cited. Its wise Weise decision,

on which it relied in G's case (p.50), is

particularly worth quoting here:

"The procedures ... exist not for their

own sake, but rather in furtherance of

substantive purposes: the promotion of

dispute resolution through accommoda-

tion rather than litigation, ...eeece

Therefore 9 eeee ee | the rigid in-

sistence on meticulous observance of

technicalities unrelated to substantive

purpose is inappropriate." (p.5205, 10

EPD 10,2%4).

98. CA2's 'Double Standard Of. Justice’:

In the Egelston case the CA2 espoused:

" Occasionally, there is a tendency on

the part of a judge to attempt to avoid

a trial where it appears to him ab ini-

tio that the trial might be a waste of

time or of no avail to the plaintiff.

With the crowded dockets and delay oc-

casioned by oppressive judicial work-

loads, a judge may well overlook the

fact that a complaint states a valid

cause of action or, out of a desire to

eliminate an action which he considers

frivolous, dismiss it before the cur-

tain has risen on the case. Such con-

117

ditions may have impelled Judge Burke

to dismiss Dr. Judy Egelston's Title

VII complaint upon its face and with-

out more. But it is important that we

emphasize the principle that our con-

cern for efficiency must never be per-

mitted to outweigh our concern for in-

dividual rights—particularly when the

bare allegations of a complaint, read

in a light most favorable to the plain-

tiff, (as we must at this posture of —

the case) state a valid claim. Accord-

ingly, we reverse the dismissal and re-

mand for further proceedings." (p.4739

of 12 EPD 11,004).

There is an additional factor equally

vital to the resolution of this case.

Title VII is rife with procedural re-

quirements which are sufficiently lab-

yrinthine to baffle the most experi-

enced lawyer, yet its enforcement mech-

anisms are usually triggered by laymen.

Were we to interpret the statute's pro-

cedural prereauisites stringently, the

ultimate result would be to shield il-

legal discrimination from the reach of

the Act. Frage decisions, both of_the

Supreme Court@ and of this Circuit?

have, for this reason, taken a flexible

stance in interpreting Title VII's pro-

cedural provisions. We follow this

realistic approach today." (p.4740).

"2 .., Love ... We note that Congress

has subsequently approved of the ap-

proach taken in Love v. Pullman. ...

4 a | Weise oe 3 Voutsis coo” (pp.4740-

4741,0f lo EPD 11,004).

Although J's dismissal of G's suit was

strikingly alike, the CA2 did not apply

the above lofty principle to his case.

118

Unfortunately for G, the CA2's seemingly

‘double standard of justice’ did not just

stop there. Please sample this: the CA2

found that Egelston (p.4739, 12 EPD 11,004):

"states a valid cause of action", as she

"filed a charge with the Office of Fed-

eral Contract Compliance (OFCC).",

even though the OFCC has no statutory ex-

istence, save an Executive Order, and the

OFCC had nothing whatsoever to do with

her charge. In contrast, the CA2 offhand

dismissed G's ADEA claim "to be without

merit." (p.97) merely because G initially

gave the statutory notice to the EEOC in-

stead of the WHD due to his honest belief

(p.21), when R itself acknowledged that

a notice to the either was enough (p.9

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