# Petition — Goss v. Revlon, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2663%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 968 ## Text 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 Ve 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 Ve 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 l. 2. 19. ii 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 17 18 20 20 21 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 iv 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 (C) Hiring Of Replacement 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. Vv 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 vi 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= 2 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 ee ix 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 xi 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 XV 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, © «© © © © © © 678=—79, 84-86, nt eee An? to A-5, A-15 Rule 15(c) « « « « « e ll, 76-77, A-4 Rule 18(a) ll, 67 Rule Rule Rule Rule 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, © © «© «© © « «58-60, 62, H-96, 98, A-4+ 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 49 87 104 117 81 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 xx 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. 1 OCT - 6 977 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1977 No. KENIL K. GOSS, Plaintiff-Appellant- Petitioner Pro Se Ve 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 2 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 3 entered on April 29, 1977 is in Appendix B. 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; (c) New trial or to reargue denied; and (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 4 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). y 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"? ee 6 ©. 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 7 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 — 8 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? (c) to ignore the Title VII's mandate 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? 9 (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 10 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 11 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 12 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 13 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. 14 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 15 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- 16 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 17 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 18 (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 19 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). 20 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, 21 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. 22 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. 23 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. 24 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 25 214(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 26 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, 28 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 29 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. 30 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: 31 "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 32 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 53 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 34 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. 35 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 36 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 37 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- 38 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 39 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. 40 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". 41 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 42 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. 43 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 -_—— ay 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 45 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. 46 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 47 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, 48 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). 49 "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." er a ae 50 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 51 (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 52 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 93 (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. (C) Hiring Of Replacement: This is a 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 * 54 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 | | | | | | f | ' | C ' 29 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. 56 (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. 56 (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. 97 (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 58 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 59 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, 60 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, 61 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 62 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. 63 "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). 64 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. 65 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. 66 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. 67 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- 68 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. 69 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. meets with the criteria of Rule 19.1(b)- (1), (4) and (5) of the RSC. 91 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". 92 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 93 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 [7 ST a SYR 8 Tee a 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; (c) arrived at its determination without 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 95 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 96 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. ee en ee ae en ee 97 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 98 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 —@ C Tor ws wee Co Re ae OT ERE DH HR re ey” =n 99 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§ 4 4 uy 3 102 ‘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. r i ) | a 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 oC 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). 329 ee) Kenm K. Goss, Westchester, New York, for Appellant Pro Se. Davip Greene, New York, New York (Martin C. Greene, Aberman & Greene, New York, New York, of counsel), for Appellees. . ee Per Curiam: This is a pro se action seeking reinstatement and dam- ages for alleged employment discrimination. Appellant Kenil Goss was employed by USV Pharmaceutical Cor- poration, a wholly owned subsidiary of Revlon, until March 7, 1972, when he was dismissed. He filed charges with the Equal Employment Opportunity Commission (“KEOC”) on March 20, 1973, more than six months after the expira- tion of the 180 day period of limitations provided for by statute. 42 U.S.C. §2000e-5(e). The claim was thus dis- missed as untimely. Disappointed with the administrative process, appellant began an action in the United States District Court for the Southern District of New York in December, 1973, seeking relief under Title VII of The Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. The failure to file timely charges with the EEOC was, of course, a jurisdictional bar to this proceeding as well. Weise v. Syracuse Universit [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2663%3A1. Public record. Not legal advice.