Petition — TINAWY v. TRAVELERS AID SOCIETY OF NEW YORK (No. 79-165)

Supreme Court, U.&

FILED ly

AUG 42 1979 |

MICHARL RODAK JR., CLERK

IN THE Pa ed ia

, Supreme Court of the United States

October Term, 1979

No.

)

CHRISTIAN A. TINAWY,

Petitioner,

-_ V —

TRAVELERS AID SOCIETY

° OF NEW YORK, INC.,

ELIZABETH P. ANDERSON,

GENERAL DIRECTOR,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE NEW YORK STATE COURT OF

APPEALS

CHRISTIAN A. TINAWY, LL.D.

35-06 88th Street

. Jackson Heights, New York, N.Y. 11372

(212) 478-5799

Petitioner

(8098)

‘COUNSEL PRESS, INC., 55 West 42nd Street, New York, N.Y. 10036 @ (212) 391-6622

TABLE OF CONTENTS

Opinion Below .ccccccccccsccccccecsece 2

JUPISGICTION ... weccccccccccccscvscene 2

Questions Presented......cesccccscece 3

Statutory Provisions Involved.......... 5

Statement: of the Case ...ccccccccccces 8

Reason for Granting the Writ......... 18

Conclusion...... ere peer ge

Appendix A - Order of Supreme Court,

New York State, County

of New York, Special

Term, Part I, Granting

Respondent's Motion to

Dismiss by Summary

JSUAGSMOMNE . cccccccecccece la

Appendix B - Court Memorandum -

Decision Basis of Order. 4a

Appendix C - Order of Affirmance by

Appellate Division Supreme

Court, New York State,

County of New York, First

Judicial Department...... 10a

ii

Appendix D - Order by Appellate

Division Denying

Reargument or Leave

to Appeal to the Court

of Appeais State of

re

Appendix E - Order by New York

State Court of Appeals

Denying Motion to

NEED bab 6 P28 40's0.0-0 & 0%

Order of New York

State Court of Appeals

Denying Reargument ....

Appendix F

Copy of "Rinaldi v.

Yeager", 384 U.S. 305..

Appendix G

CITATIONS

Cases:

"Canadian Northern R.C. v. Eggen,

252 U.S. RR re ee

"Cohen v. Hurley", 366 U.S. 117.....

"Glus v. Brooklyn Eastern District

Terminal", 359 U. Ss, $53. e*eeeeseterseeneeee

"Griffin v. People of the State of

Illinois", 351 U.S, 12 eoeeeveeveveeee ever

12a

l4a

l6a

18a

21

21

19

20

iii

Page

"Rinaldi v. Yeager", 384 U.S. 305... 20

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1979

| a

CHRISTIAN A. TINAWY,

Petitioner,

-~against-

TRAVELERS AID SOCIETY OF NEW YORK,

INC., ELIZABETH P. ANDERSON, GENERAL

DIRECTOR,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF NEW YORK

The petitioner, Christian A. Tinawy,

respectfully prays that a writ of certiorari

issue to review the Order of the State of

New York Court of Appeals entered in this

proceeding on May 3, 1979, and the opinion

dated December 20, 1977 of the Supreme

Court, New York County, Special Term,

Part I, filed January 24, 1978.

XN

OPINION BELOW

The Order of New York State Court of

Appeals and the Memorandum of the lower

Court basis of that Order appear in the

Appendix and are not reported.

JURISDICTION

The Order of New York State Court

of Appeals denying reargument was entered

on May 3, 1979. This petition for a writ

of certiorari was filed within 90 days of

that date. The Court's jurisdiction is

invoked under 28 USC 81254 (1).

QUESTIONS PRESENTED

Whether denial on procedural ground

by a state law of an action in damage delayed

by defendant's deliberate concealment of its

supportive documents, is not incompatible with

the equal protection of the laws of the

Constitution's XIV Amendment; or, in terms

and circumstances of this case:

Whether New York State Human Rights

Law (Executive Law, $297. 9), providing that

anyone aggrieved by discrimination shall have

(within a one-year statute of limitation), a

choice of administrative or judicial remedies,

should be construed as barring judicial relief

for intentional damage by a former employee

who was denied merits and seniority promotion,

and, soon after he had to retire pursuant to

the bylaws, uncovered in the possession of

his former employer, statutory documents

justifying the promotion, ignored and

reneged by the employer in a past admin-

istrative procedure.

OE

STATUTORY PROVISIONS INVOLVED

A. The following sections of New York State

Human Rights Law (Executive Law, Article 15):

quoted from "Human Rights Law, as Amended

through August 29, 1976", State Division of Human

Rights, 2 World Trade Center, New York City

10047.

- section 292.4: ''The term ‘unlawful dis-

criminatory practice’ includes only those pract-

ices specified in sections two-hundred-ninety-six

and two-hundred-ninety-six (a) of this article:

- section 296. 3a(a): "It shall be unlawful dis-

criminatory practice, because an individual is

between the ages of eighteen and sixty-five, to...

discriminate against such individual in promotion,

compensation, or in terms, conditions or prividleges

of employment. "

- section 297.5: "Any complaint filed pursuant

to this section must be filed within one year after

the alleged unlawful discriminatory practice;

- section 297.9: "Any person claiming

to be aggrieved by unlawful discriminatory

practice shall have a cause of action for

damage... No person who has initiated any

action in a court of competent jurisdiction,

or who has any action pending before an

administrative agency based upon an act

which would be an unlawful discriminatory

practice under this article, may file a

complaint for the same grievance under this

section".

- section 300: "Construction. The

disposition of this article shall be construed

liberally for the accomplishment of the

purposes thereof relating to discrimination

because of race, creed, color or national

origin..."

- section 301: ''Separability. If any

clause, sentence, paragraph, section or part

of this article or the application thereof to

any person or circumstances, shall, for any

reason, be adjudged invalid - or unconstit-

utional - such judgment shall not affect the

remainder thereof to other persons or

circumstances but shall be confined to the

person or circumstances directly involved

in the controversy" (section 3 of Chapter 662

of the Laws of 1975).

B. New York C.,P.L.R. 3212: Motion for

summary judgment...'' (c) shall be denied

if any party shall show facts sufficient to

require a trial of any issue of facts."

C. Constitution of the United States, XIV

Amendment: "No State shall make or en-

force any law which shall abridge the priv-

ileges or immunities of citizens of the United

States; nor shall any State deprive any person

of life, liberty, or property, without due

process of law; nor deny within its juris-

diction the equal protection of the laws."'

STATEMENT OF THE CASE

On October 22, 1958 petitioner entered

the employ of the Travelers Aid Society of

New York, Inc., a non-profit society founded

in 1905 for the service of travelers (°).

His credentials consisted of the knowledge of

five foreign languages, graduate studies (M.A.)

(°)supported by contributions from the

general public, gifts and bequests - a one

million bequest in 1972 - and fees of $15.

to $25. it charges for meeting a traveler.

in sociology and psychology, law degrees

from the Sorbonne (doctorate). To better

assist foreign clients (immigrants, refugees)

he undertook at considerable sacrifices - he

had a wife and three young children-graduate

studies on subjects related to his work:

"Immigration and Nationality", "Consular

law", etc. at New York University, and in

June 1965 was awarded a Master' degree in

International Law (Record on Appeal, Exhibits

15, 16 (2). His performance, dedication,

character were consistently highly praised

(Record, Exhibits 17 to 25 (3). In the

thirteenth year of his employment an opening

for advancement occurred at the Society'

airport unit where he worked since he joined

the organization and was frequently "in charge".

He applied in writing to be considered (R..:

Exhibit 22-(3), but the Acting General Director

10

to whom the petition had to be addressed,

without submitting it to the ‘Personnel

Committee of the Board of Directors" of

Section V of the employment's bylaws

(Record on Appeal, 5-(28), appointed to the

position an employee from another unit, with

eight years less seniority. Conferences in

which the petitioner protested were to no

avail. Being now aged 62, with three

children to put through college, bound to

train the new airport chief who had never

set foot at the airport, petitioner ‘hung on

the hope that, before he reaches 65, he

would somewhat be upgraded (to "acting",

or "assistant", or "deputy" supervisor) as

a pre-retirement measure enhancing his

benefits, a common practice; but this never

materialized, and, by application of section

IV of the Bylaws setting 65 as the age to

11

retire (Record 5-(24), he ended his 16-year

career at the worst financial conditions: a

Salary frozen at the lowest bracket ($9, 000),

no savings, and a derisory pension of $98.59,

while the new airport boss was being paid

$17,000. He was fourteen years younger.

After ascertaining this fact, and before the

one-year statute of limitation of section

297.5 of the state law on human rights

elapsed, he filed, in December 1975, an

administrative complaint for ‘unlawful age

discrimination', demanding a determination

of "probable cause", not a money judgment.

In a hurried hearing at which appeared the

Society's attorney and a new General

Director unacquainted with the petitioner's

years of service (the Acting director involved

had resigned in the interval), respondent

denied being age-biased showing that the

12

society did promote aged workers in the

past, but it also unleashed a flow of verbal

charges, uttered without a single supportive

ccieeiilate culminating with the devastating

peli ty one

accusation that'R€ refused service to clients-

a behavior which, if true, would have produc-

ed his dismissal at the first occurence.,,

Uncritically espousing every negative word

proferred, the Division concluded that "there

is nd reason to believe complainant was

denied equal terms, conditions and privileges

or refused promotion because of his age”.

(Record 3-5). The decision was upheld by

the administrative appeals Board without

conducting an investigation of its own, by

Order of August 19, 1977, with, character-

istically, one of its three statutory members,

"the Hon. R. Wong, not participating”

(Recerd 3-6). Complainant had until

13

September 18, 1977 to seek review by the

Supreme Court.

It was at this point that, sifting through

the papers deposed by. the respondent to see

what, in the record, might have motivated

the charges against him, he came across his

personal file hitherto out of his reach and

the disclosure was glaring: not only was

there absolutely nothing documenting any of

those charges, but the entire record con-

sisted of a succession of laudatory "EVAL-

UATIONS" drafted year after year by his

superiors pursuant to a provisién of the

employment's bylaws disposing: 'AN ANNUAL

WRITTEN EVALUATION OF EACH EMPLOYEE

IS REQUIRED. MEMBERS OF THE PRO-

FESSIONAL STAFF ARE EVALUATED

BY THEIR IMMEDIATE SUPERVISOR"

(Record 5-23),

14

Systematically ignored and concealed, to

be replaced by the slanders uttered at the hear-

ing, the single and only one held in the case,

their emergence cast a totally new light on the

controversy, placing it beyond the boundaries

of section 297.9 of the state law, in the broader

area of bad faith.

Cutting short his procedure under the slip-

pery "age bias grievance" now transcended, for-

feiting its "judicial review" procedure, which

should have been entered by September 19, 1977

pursuant to section 298 of that law, the petitioner

filed three days sala on September 22, 1977, a

civil action for intentional damage for breach of

the employment's rules, misrepresentation, wil-

ful dissimulation. (Record 1-(4).

Respondent moved to dismiss it for alleged

"lack of a cause of action", by summary judgment,

under New York CPLR 3211 and 3212 (Record 2 (2).

15

The Court below granted the motion on the

basis of its Memorandum of December 20, 1977,

decided in a way not in accord with applicable de-

cisions of this Court - Its reasoning went as fol-

lows (quoting):

"The Human Rights Law (Executive

Law, §297 (9) provides that anyone

aggrieved by an unlawful discriminatory

practice shall have a cause of action

in any court of appropriate jurisdiction

for damages and any such other remedies

as may be appropriate, unless such

person has filed a complaint hereunder.

Thus the statute makes it plain that a

person aggrieved was to have only one

bite at the apple. He is free to chose

the administrative route or the judicial

route. He cannot run on both courses.

This is in line with the policy of the

law in civil matters. An issue once

finally decided is foreclosed forever"

(Appendix B)

Note: the term "discrimination" is used

loosely throughout the Memorandum

in disregard of section 292.4 of

the law invoked.

16

The federal question arising from the

lower Court's sweeping interpretation of

8297.9 affects the whole class of aged

workers and was raised four times during

the pleadingsy (I) at p. 5, second paragr. of

plaintiff's Memorandum accompanying Notice

of Appeal (Record on Appeal, p. 125); "where

a disposition abridges the constitutional (equal)

right to (Court) action, it cannot be extended

by analogy or interpretation"; (2) at p. 22,

par. 3 of petitioner's Brief on Appeal: "A

disposition abridging the constitutional right

to seek judicial relief for damage...cannot be

extended by interpretation or analogy”;

(3) in petitioner's 'Memorandum of Law"

to the Court of Appeals, p. 4, second paragr.:

"...the disposition thusly construed would be

unconstitutional whatever its wording"; (4) in

p. 26, par. 4 of brief in support of Motion

te Se

17

for Leave to appeal to the Court of

Appeals.

18

REASON FOR GRANTING THE WRIT

The Court below overlooked sections

300 and 301, the former, on ''Construct-

ion", disposing that the statute shall be

interpreted "liberally" for the accomplish-

ment of its purpose, which ultimately,

is the protection of the worker; the

latter, on "Separability", excluding rigid

application of its clauses, and allowing

consideration of: ''the persons and the

circumstances involved in the controversy".

The paramount circumstance here involved

which the lower Court failed to weigh

was that, because the statutory documents

upholding his candidacy were deliberately

absconded, the petitioner was deprived

of evidentiary elements to support a court

action, hence, in December 1975, his

administrative complaint of age bias:

19

he had not, at that date, a free choice

of remedies, but was hurried by the

one-year statute of limitation to take

action.

In "Michael Glus v. Brooklyn Eastern

District Terminal", 359 U.S. 232, 233,

citing ten cases in support, this Court,

affirmed the long-standing jurisprudence

barring procedural objections where it is

defendant's concealment of papers detri-

mental to his stand which produced the

delay between the accrual of the cause of

action and the institution of legal proceeding.

It said:

"Deeply rooted in our jurisprudence

this principle has been applied in

many diverse classes of cases by

both law and equity courts and has

frequently been employed to bar

inequitable reliance on statutes of

limitation. "

20

3. The dateline for judicial review of the

administrative denial of age discrimina-

tion was September 19, 1977. In the

interval came to light the documents lead-

ing to petitioner's civil action, filed on

their basis on September 22, 1977, a

three-day difference.

In "Rinaldi v. Yeager'', 384 U.S. 305 86

S. Ct. 1497-16 L. Ed, 2d. 577, this Court

ruled:

"The equal protection clause re-

quires that once a state establishes

avenues of appellate review, those

avenues be kept free of unreasonable

distinctions that can only impede

open and equal access to the courts”.

(Appendix G)

And in "Judson Griffith and James

Crenshaw v. People of the State of Illinois",

351 U.S, 12-100 L. Ed. 2d 891, 611, 76 S.

Ct. 585, this Court said:

"The equal protection of the laws

———EEEEE —_

21

does not deny a state the

right to make classifications

in law when such classifications

are rooted in reason; the

equality at which the equal

protection clause aims is not

a disembodied equality since

laws are not abstract propositions",

"A law nondiscriminatory on

its face may be grossly dis-

criminatory in its operation, "'

See also "Canadian Northern R.C° v.

Eggen", 252 U.S. 553, 40 S. Ct. 402 - 64

lL, Ba. 20. Fis, $63,

"A man cannot be said to be

denied, in a constitutional or in

any rational sense, the privilege

of resorting to courts to enforce

his rights when he is given free

access to them for a length of

time reasonably sufficient to

‘enable an ordinarily diligent man

to institute proceedings for their

protection",

4, This Court's dedication to weighing the

circumstances in the flesh instead of

relying on abstract distinction, has been

unequivocally affirmed in ''Cohen v.

22

Hurley", 366 U.S, 117 81S. Ct. 954 -

6 L. Ed. 2d. 156:

"What state procedures are

fair, what state process in

constitutionally due, what

distinctions are consistent

with the right to equal pro-

tection, all depend upon the

particular situation presented,

and history is relevant to the

inquiries’ (underscore supplied).

The petitioner, respectfully, prays that

he be allowed to close his defense by quoting

the following bits from his sixteen-year

"history" at the Society's service:

1961: ".,..has genuine interest and

feeling for people-selected to

attend the Regional Conference

in Montreal" (Exhibit 24);

1966: "...you are doing a very fine

piece of work" - Greek boy case

(Exhibit 17);

1967: "...everyone (at the Board of

Directors meeting) was interested

in your case" (Exhibit 18)

",..your sensitive and thoughtful

handling of clients" (Exhibit 19);

23

1969: ",..Should the airport supervisor

decide to seek another job, I would

have no hesitation in recommending

that Mr. Tinawy be appointed

"Worker-in-Charge, with an

appropriate increment in salary

since he was designated worker

in charge in the absence of the

supervisor";

1974: "There will be a retirement

luncheon for Christian Tinawy

on Friday November 8, at 1:00

PM at the International Hotel

JFK Airport."

CONCLUSION

For these reasons a writ of certiorari

to review the Order of New York State Court

of Appeals should issue.

Respectfully submitted,

CHRISTIAN A, TINAWY, LL.D.

35-06 88th Street

Jackson Heights, N.Y. 11372

(217) 478-5799

- Petitioner.

August lst, 1979

¥

Appendices

ET i NOI, gi GOI

° .

APPENDIX A

ORDER OF JAN. 23, 1978 DISMISSING

COMPLAINT, BY SPECIAL TERM PART

I ON BASIS OF COURT MEMORANDUM

DATED DECEMBER 20, 1977

la

At a Special Term, Part 1, of

the Supreme Court of the State of

New York, held in and for the

County of New York, at the Court-

house thereof, 60 Centre Street,

New York, N.Y., on the 19 day

of January, 1978.

PRESENT:

. Hon. MAX BLOOM,

Justice.

CHRISTIAN A. TINAWY,

Plaintiff,

: Index No.

-against- :

: 15981/77

TRAVELERS AID SOCIETY ;

OF NEW YORK, INC. -- : ORDER

ELIZABETH C. ANDERSON,

GENERAL DIRECTOR,

Defendant.

Defendant Travelers Aid Society of

New York having moved for summary judgment

dismissing the complaint,

Now, upon the Notice of Motion dated

2a

September 22, 1977, and the Affidavit of

March Coleman, sworn to September 22,

1977, and exhibits attached thereto, both

with proof of service thereon and submitted

in support of defendant's motion for summary

judgment, upon the complaint in the form of

an Affidavit of plaintiff Christian A. Tinawy,

sworn to August 30, 1977, plaintiff's Septem-

ber 28, 1977, Submission of Exhibits, and

after due deliberation and upon the Court's

Memorandum Decision dated December 20,

1977, “1 is

ORDERED that the motion of defendant

Travelers Aid Society of New York for

summary judgment is granted in all respects

and the complaint and all the causes of

action therein asserted are dismissed with

prejudice.

3a

ENTER

S/Max Bloom

TsO Ge

Filed: Jan. 24, 1978

New York Co. Clerk's

Office

APPENDIX B

COURT MEMORANDUM DATED

DEC, 20, 1977

4a

CAL. NO. 16-12/19/77

SUPREME COURT: NEW YORK COUNTY

SPECIAL TERM: PART I

CHRISTIAN A. TINAWY,

Plaintiff,

Index No.

-against-

15981/77

TRAVELERS AID SOCIETY

OF NEW YORK, INC,, -

ELIZABETH P, ANDERSON,

GENERAL DIRECTOR,

Defendant,

MAX BLOOM, J.:

Plaintiff brings action against his former

employer to recover for an alleged breach of

agreement. Originally, defendant moved to

dismiss, pursuant to CPLR 3211, upon the

ground that the complaint failed to state a

cause of action. The motion has, by stipu-

lation, been converted into a motion for

summary judgment.

5a

So far as can be ascertained from the

papers, plaintiff entered the employ of defend-

ant in 1958 or 1959. In 1971, a vacancy

occurred in a higher position for which

plaintiff deemed himself qualified. Accordingly,

he applied therefor. As happens not infre-

quently, particularly in institutions layered

over with bureaucracy, the employer disagreed.

When plaintiff remonstrated with his immediate

superior, he was told that while he was not

fired, he could, if he wished, resign.

Plaintiff continued to work for defendant

until December 31, 1974, at which time he

retired. The last month of his employment

represented an accumulated vacation. While

on this terminal vacation, he filed a verified

complaint with the State Commission on Human

Rights, charging discrimination in employment

asserting a denial of promotion because of age.

6a

After investigation, the Regional Director

refused to issue a complaint against defendant,

asserting that there was no probable cause

‘ to believe that it had engaged in discrimina-

tory practices. Appeal was taken from this

determination, and, in August, 1977, the

Commission affirmed the determination of

the Regional Director. Immediately there-

after, this action was brought.

° The plaintiff now contends that a brochure

referred to as ''Employees Handbook" issued

by defendant constituted an agreement between

defendant and its employees and that the

statement contained therein that ‘i]t is the

policy of the Society to promote employees

from within, where qualified employees are

available and desire such promotions" and

that the criteria employed in making such

promotions -- '"(1) performance, (2) leadership,

7a

(3) length of service, and (4) special

contribution to the total job", conferred

upon him a contractual right to the promotion

in question.

The Human Rights Law provides

(Executive Law, §297/9}), that anyone aggriev-

ed by an unlawful discriminatory practice,

"shall have a cause of action in any court

of appropriate jurisdiction for damages and

such other remedies as may be appropriate,

unless such person has filed a complaint

hereunder***", Thus, the statute makes it

plain that a person aggrieved was to have only

one bite at the apple. He is free to chose the

administrative route or the judicial route. He

cannot run on both courses. This is in line

with the policy of the law on civil matters.

An issue once finally decided is forever fore-

closed,

8a

Although the ingenuity of plaintiff has

devised a different form, the substance re-

mains the same. The issue here sought to

be litigated is whether the employer, in

selecting another for the position sought by

plaintiff, discriminated against plaintiff. The

pouring of old wine into a different vessel

does not make it new wine.

Moreover, under no construction of the

law can the brochure issued by defendant to

assist its employees be deemed a contract.

Thus, whether viewed in a "contractual"

context or as a claim of discrimination, no

justiciable issue is presented.

icoueituate, defendant's motion for

summary judgment is granted,

Settle order,

Dated:

9a

New York, New York

December 20, 1977.

Hon, MAX BLOOM

JUSTICE OF THE

SUPREME COURT

Filed: Jan, 24, 1978

New York Co,

Clerk's Office

APPENDIX C

ORDER OF AFFIRMANCE BY

APPELLATE DIVISION

10a

At a term of the Appellate

Division of the Supreme Court held

in and for the First Judicial

Department in the County of New

York, on October 24, 1978

PRESENT:

Hon. Theodore R. Kupferman,

Justice Presiding

Herbert B. Evans

Myles J. Lane

Leonard H. Sandler

Joseph P, Sullivan © Justices

CHRISTIAN A, TINAWY,

Plaintiff-Appellant,

-against- 3623

TRAVELERS AID SOCIETY

OF NEW YORK, INC, --

ELIZABETH P, ANDERSON,

GENERAL DIRECTOR,

Defendant-Respondent.

meme ee eee eee See

An appeal having been taken to this

Court by the plaintiff-appellant from an order

of the Supreme Court, New York County

(Bloom, J.) entered on January 24, 1978,

lla

granting defendant's motion for summary

judgment and said appeal having been argued

by Mr. Jerome M. Field of counsel for the

appellant, and by Mr. March Coleman of

counsel for the respondent; and due delibera-

tion having been had thereon,

It is unanimously ordered that the order

so appealed from be and the same is hereby

affirmed, without costs and without disburse-

ments.

ENTER:

Joseph J. Lucchi, Clerk.

APPENDIX D

ORDER DENYING REARGUMENT

12a

At a term of the Appellate

Division of the Supreme Court held

in and for the First Judicial Depart-

ment in the County of New York,

on January 23, 1979

PRESENT:

Hon. Theodore R. Kupferman,

Justice Presiding

Herbert B. Evans

Myles J. Lane

Leonard H. Sandler

Joseph P. Sullivan Justices

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a.

CHRISTIAN A. TINAWY,

Plaintiff-A ppellant,

-against- M-4196

TRAVELERS AID SOCIETY

OF NEW YORK, INC, -

ELIZABETH P, ANDERSON,

GENERAL DIRECTOR,

Defendant -Respondent.

eee eee eee eee Oe ee”

The above named plaintiff-appellant

having moved for leave to reargue his appeal

from the order of the Supreme Court, New

York County, entered on January 24, 1978,

13a

which order was unanimously affirmed by

order of this Court entered on October 24,

1978 or, in the alternative for leave to a

appeal to the Court of Appeals,

Now, upon reading and filing the notice

of motion, with proof of due service thereof,

and the statements of Christian A. Tinawy,

in support of said motion, and the memo-

randum of Messrs. Cravath, Swaine & Moore

in opposition thereto, and after hearing Mr.

Christian A. Tinawy, appearing pro se, for

the motion, and Messrs. Cravath, Swaine

& Moore sieaiha.

It is ordered that said motion be and

the same is hereby denied in all respects

with $20. costs.

ENTER:

| Joseph J. Lucchi, Clerk.

APPENDIX E

ORDER BY NEW YORK STATE

COURT OF APPEALS DENYING

LEAVE TO APPEAL TO THE

COURT OF APPEALS.

l4a

STATE OF NEW YORK,

COURT OF APPEALS

At a session of the Court, held

at Court of Appeals Hall in the City

of Albany on the twenty-ninth day of

March A,D, 1979

PRESENT, Hon. Lawrence H. Cooke,

Chief Judge, presiding.

Mo. No. 212

Christian A. Tinawy,

Appellant,

vs.

Travelers Aid Society of New

York, Inc., Elizabeth PB,

Anderson, General Director,

Respondent.

A motion for leave to appeal to the

Court of Appeals in the above cause having

been heretofore made upon the part of the

appellant herein and papers having been sub-

mitted thereon and due deliberation thereupon

had, it is

ORDERED, that the said motion be and

15a

the same hereby is denied with twenty dollars

costs and necessary reproduction disbursements.

Joseph W. Bellacosa

Clerk of the Court

APPENDIX F

ORDER OF NEW YORK STATE

COURT OF APPEALS DENYING

REARGUMENT

l6a

STATE OF NEW YORK,

COURT OF APPEALS

At a session of the Court, held

at Court of Appeals Hall in the

City of Albany on the third day of

May A.D. 1979

PRESENT, Hon. Lawrence H. Cooke,

Chief Judge, presiding.

Mo. No. 438

Christian A. Tinawy,

Appellant,

vs.

Travelers Aid Society of

New York, Inc., Elizabeth

P. Anderson, General

Director,

Respondent,

A motion for reargument of a motion

for leave to appeal to the Court of Appeals

in the above cause having been heretofore

made upon the part of the appellant herein

and papers having been submitted thereon

and due deliberation thereupon had, it is

.

17a

ORDERED, that the said motion be

and the same hereby is denied with twenty

dollars costs and necessary reproduction

disbursements.

Joseph W. Bellacosa

Clerk of the Court

APPENDIX G

ay 577

: "(384 US 305)

*JOSEPH A. RINALDI, Appellant,

v

HOWARD YEAGER, Wiglin, et al.

- 384 US 305, 16 L ed 2d 577, 86 S Ct 1497

- [No. 940]

“Argued ‘April 21, 1966. Decided May 31, 1966.

SUMMARY

A New Jersey state prisoner unsuccessfully anpeatea in forma pauperis

from his conviction, having been furnished by the county, on his applica-

tion, with a transcript of the trial court proceedings. Pursuant to a state

statute, each day’s pay for his prison work was withheld from him to

reimburse the county for the cost of the transcript. Under New Jersey

law, only those confined in state institutions were required to make such

reimbursement. He sued in the United States District Court for the

District of New Jersey to enjoin enforcement of the statute on the ground

that it was unconstitutional. A three-judge court entered summary judg-

ment against him. (238 F Supp 960.)

On direct appeal, the Supreme Court of the United ‘ieee reversed. In

an opinion by STEWART, J.,.expressing the view of eight members of the

Court, it was held that the statute violated the equal protection clause

by invidiously discriminating. between prisoners, on the one hand, and

those fined, given suspended sentences, or placed on probation, on the

other.

HARLAN, ‘. dissented on the ground that the statute made a rational

classification. ae minder) aye

cy MEM ino) pa inercs tir ; Feiele rr

: Classified to U. 8: Supreme Court Digest, Annotated aie

Constitutional Law. § 509 — equal pro- a convict’s institutional earnings: for

tection —, transcripts — reim- the expense paid by the county treas-

bursement of county urer for the transcript of trial-court

1. A state statute requiring that a proceedings necessary for the con-

county treasurer be reimbursed from vict’s in forma pauperis application to

ANNOTATION REFERENCE

Right under Federal Constitution of indigent defendant in ertiainel case to aid of

state as regards appeal or powiconviction remedy. 6 L ed aa 1295. See also 100 ALR

321 and 55 ALR2d 1072.

[16 Led 2d] —37

ae 1

ms

Lhe a

19a

578 U. S. SUPREME COURT REPORTS

the trial court or aes, - to an inter-

mediate appellate court violates the

equal protection of the laws, as a

discriminatory classification, where

state law requires no such repayment

from one fined, given a suspended sen-

tence, or placed on probation.

Constitutional Law $ 319 — equal pro-

tection clause — rationality

2. The equal protection clause re-

quires more of a state law than non-

discriminatory application within the

class it establishes; it also imposes a

requirement of some rationality in the

nature of the class singled out.

Constitutional Law § 318 — equal pro-

tection clause — legislative clas-

sifications

3. The equal protection clause is not

a demand that a statute necessarily

apply equally to all persons, and does

not require things which are different

16 Led 2d

in fact to be treated in law as though

they were the same; hence, legislation

may impose special burdens upon

defined classes in order to achieve

permissible ends.

Constitutional Law § 318 — equal pro-

tection — classification

4. The equal protection clause re-

quires that in defining a class subject

to legislation, the distinctions that are

drawn have some relevance to the pur-

pose for which. the classification is

made.

Constitutional Law §§ 493, 509 — ap-

-peals — equal protection of the

‘laws

5. The equal protection clause re-

quires that once a state establishes

avenues of appellate review, those ave-

nues be kept free of unreasoned dis-

tinctions that can only impede open

and 7 access to the courts.

’ APPEARANCES OF COUNSEL

Frederick B. Lacey argued the cause for appellant.

Alan B. Handler argued the cause for appellees.

Briefs of Counsel, P 1271, infra.

Soe “OPINION OF THE COURT .

Mr. Juste aeicarasd delivered the

opinion of the Court. -.-

*(384 US 306]

fora term of five to 10 *years. ‘The

Superior Court of ew Jersey, Ap-

*pellate Division, allowed him leave

The appellant, Joseph A. Rinaldi,

was convicted of a criminal offense:

in. a trial court. of Essex County, —

New J ersey, and sentenced to prison:

to appeal in forma: pauperis and

granted his petition for a transcript

of the trial court proceedings, find-

ing that the-transcript was needed

for the appeal and that Rinaldi was

unable to pay for it.’ . Rinaldi’s an-

1. The followins New Jersey statute au-

thorizes initial imposition of the expense

of the transcript upon the county:

“Any person convicted of any crime may

make application under oath to any judge

of the County Court or Law Division of

the Superior Court of the county where

the venue was laid showing that a copy of

the transcript of the record, testimony

and proceedings at the trial is necessary

for the filing of any application with the

trial court, and that he is unable, by rea-

son of poverty, to.defray the expense of

procuring the same, and any such judge

may, being. satisfied of the facts stated

and.of the sufficiency thereof, certify the

expense thereof to the county treasurer,

who shall thereupon pay such expense, the

amount thereof having been upproved by

the judge to whom such application was

made. Where such person appeals to the

_Appellate Division of the Superior Court

and copies of the transcript of the pro-

ceedings in the trial court are needed

therefor he-may make a similar applica-

tion to such court which, being satisfied of

the facts stated and the sufficiency there-

of, may certify the expense and amount

thereof to the county treasurer who shall

thereupon pay such expense.” NJ Siat.

Ann. § 2A4:152-17 (1964 Cum Supp.).

[16 L ed 2d]

20a

RINALDI® YEAGER

579

384 US 305, 16 L ed 2d 577, 86 S Ct 1497

peal was unsuccessful, and he is now

an inmate in the New Jersey State

Prison.

As compensation for his work in

prison, Rinaldi earns 20 cents a day,

five days a week. Since late 1963,

however, every day’s pay has: been

withheld from him by prison officials

and sent: to the Treasurer of Essex

County, in ‘order to-reimburse the

county for the $215 cost of the tran-

script it. provided for his appeal.

This has..been done.in accordance

with. a statute enacted by New

Jersey in. 1956, shortly after this

Court’s decision in Griffin v Illinois,

351 US 12,:100 L ed 891, 76 S Ct

585, 55--ALR2d 1055. Rinaldi

brought this suit to enjoin enforce-

ment of the statute on the ground

*(384 US 307]

that it is unconstitutional’ *A

three-judge Federal District Court

denied relief, 238 F Supp 960, and

we noted probable jurisdiction, 382

US 1007, 15 L ed 2d 524, 86 S Ct 627.

The statute in question is: NJ

Stat Ann § 2A:152-18 (1964 Cum

Supp), and it provides as follows:

“The county treasurer shall file

a. notice. of. [the payment by the

county]. and. the. amount. thereof

with the institution in which said

person, upon whose application the

transcript of the record . was- pre-

pared, is confined, and, to the extent

of the expense incurred, the county

treasurer shall be rcimbursed from.

any institutional earnings of such

person, in the event that the appli-

cation for relief is denied by

an appellate court.”

Rinaldi attacked the constitution-

ality of this statute on the basis of

our decisions defining the duty of a

State, under the Equal Protection

Clause and the Due Process Clause,

not to limit the opportunity of an

appeal in a criminal case because of

the appellant’s poverty. Griffin v

Illinois, supra; Burns-v Ohio, 360

US 252, 3 L ed 2d.1209, 79 S Ct

1164; Draper v Washington, 372 US

487, 9 L ed 2d.899,-83 S Ct 774;

cf. Smith v Bennett, 365 US 708,

6 L ed 2d 39, 81-S Ct 895; Lane v

Brown, 372 US 477,.9 L'ed 2d 892;

83 S Ct. 768. A logical extension

of these decisions, the appellant con-

tends, would prohibit a State from

discouraging an indigent’s freedom

to appeal by saddling him with the

obligation of paying for the cost of

a transcript in the event his appeal

is unsuccessful. We do not reach

*(384 US 308]

this contention, however, *because

we find the statute constitutionally

deficient upon a different ground.

{1] The New Jersey law does not

impose this financial burden upon all

who have been. convicted. in its

courts and whose appeals have been

unsuccessful. It requires no repay-

ment at all from a man who has

received a suspended sentence or

been piaced vii probation, regardless

of how high his subsequent earnings

may be. It requires no repayment at

all from an unsuccessful appeilunt

who has-been sentenced only to pay

a fine? Instead, the law fastens the

duty of repayment only upon a single

2. The suit was brought roroaecer to

R.S. § 1979, 42 USC § 1983:

“Every person who, under color of any

statute, ordinance, regulation, custom, or

us2ge, of any State or Territory, subjects,

or causes to be subjected, any citizen of

the United States or other person within

the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities

secured by the Constitution and laws, shall

be liable to the party injured in an action

at law, suit in equity, or other proper

proceeding for redress.”

3. It is true that some indigents who

are fined may not he able to pay the fine.

New Jersey provides that they may be

placed at labor in an institution until the

fine is paid. NJ Stat. Ann. § 2A:166—-14;

~

e@ 4 «&

ss

aa? -

21a

580

class of unsuccessful appellants—

those who are confined in institu-

tions. We find that the discrimina-

tery classification imposed by this

law violates the requirements of the

eee Protection Clause.

{2-4} The Equal Protection Clause

requires more of a state law than

nondiscriminatory application with-

in the class: it -establishes.. Mc-

Laughlin v Florida, 379. US 184, 189-

190, 13 L ed 2d 222, 226, 227, 85

S Ct 283. -It also imposes a require-

: * => *(384 US-.309) —

ment of some rationality *in. the

nature of the class singled out. To

be sure, the constitutional demand

is not a demand that a statute neces-

sarily apply equally to all persons.

“The Constitution does not require

things which are different in fact

_.+ . to be treated in’ law .as

though they were the same.” Tigner

v Texas, 310 US 141, 147, 84 L.ed

1124, 1128, 60 S Ct 879, 180 ALR

1321." Hence, legislation may im-

pose special burdens upon defined

classes in order to achieve permis-

sible ends. But the Equal Protec-

tion Clause does require that, in de-

fining a class subject to legislation,

the distinctions that are drawn have

“some relevance to the purpose for

which the classification. is made.”

Baxstrom v Herold, 383 US 107, 111,

15 L ed 2d 620, 624, 86 S Ct 760:

Carrington v Rash, 380 US 89, 93, 13

L ed 2d 675; 678; 85S Ct 775; Louis-

U. S. SUPREME COURT REPORTS

16 Led 2d

ville Gas Co. v Coleman, 277 US 32,

37, 72 L ed 770, 773, 48 S Ct 423;

Royster Guano Co. v Virginia, 253

US 412, 415, 64 L ed 989, 990, 40

S Ct 560.

{1] We have been referred to no

record of legislative history that

might disclose with precision what

this law was designed to achieve, but

the statute itself bears the heading

“Reimbursement.”. We may assume

that a legislature could validly pro-

vide for replenishing a county treas-

ury from the pockets of those who

have directly benefited from county

expenditures.

burden only upon those unsuccessful

appellants who are confined in state

institutions, however, is to make an

invidious discrimination. Those ap-

pellants who-have been sentenced

only to pay fines have been accorded

the same benefit by ‘the county—a

transcript used in an unsuccessful

appeal, and all that distinguishes

them from their’ institutionalized

counterparts is the nature of the

penalty attached to the offense com-

mitted. There is no defensible in-

terest served by focusing on that

distinction as a-classifying feature

in a reimbursement statute, since

it bears no relationship what-

ever to the purpose of the repay-

ment provision. Likewise, an ap-

pellant subject only to a suspended

sentence or to probation is likely to .

differ from an inmate only: in the

NJ Stat.-Ann. § 2A:166-16.. Those - who

' are-convicted of misdemeanors, however,

may be permitted to go at.large until the

fine is paid. NJ ‘Stat. Ann. § 2A:166-15.

Moreover, felony: defendants indigent for

isauscripi.purposes may be able to obtain

money to pay a fine and thus avoid °

confinement in an institution and the reim-

pr ig obligation that such confinoment

entai § e ‘ se. “* .

4. Moreover,.in- view of another New -

Jersey statute, it appears that Wages may

not be withheld from every inimate who

would otherwise be indebted to a-county.

NJ Stat. Ann. § 30:4-92 provides: in rel-

evant part: “Compensation for inmates of

correctional institutions may be in the form

of cash or remission of time from sentence

or both.” Hence. some inmates may nat re. -

ceive cash in exchange for their labor.

Other inmates, or course, may not be as-

signed to work. The reimbursement stat-

ute appears tv allow for these variations

insofar as it provides that “. . . the

county treasurer shall be reimbursed from

any institutional earnings of such per-

son.” (Emphasis supplied.)

To fasten a financial .

»

22a

RINALDI v y#AGER

581

384 US 305, 16 L ed 2d 577, 86 § Ct 1497

extent of his criminal record. That,

too, is a trait unrelated to the fiscal

r *(384 US. 310]

_ objective *of the statute. Finally,

the classification established by the

statute cannot be justified on the

ground of -administrative conven. -

ience. . Any supposed administrative

inconvenience would. be. minimal,

since’. repayment could easily be

made a condition of probation or

parole,’ and those punished only by

fines could be reached through the

ordinary processes of garnishment

in the event of default.

. Apart from its fiscal objective, the

only other purpose of this law ad-

vanced by the appellees is the deter-

rence of frivolous appeals. Assum-

ing a law enacted to perform that

function to be otherwise valid, the

present statutory classification is no

less vulnerable under the Equal Pro-

tection Clause when viewed in rela-

tion to that function. By imposing

a financial obligation only upon in-

mates of institutions, the statute in-

evitably burdens many whose ap-

peals, though unsuccessful, were not

frivolous, and leaves untouched

many whose appeals may have been

frivolous indeed. - ..

(5] This: Court has never held

that the States are required to es-

tablish avenues of appellate review,

but it is now fundamental that, once

established,.these. avenues must be

kept free of unreasoned distinctions

that can only impede open and equal

access to the courts. Griffin v IIli-

nois, 351 US 12,.100 L ed 891, 76

S Ct 585, 55 ALR2d 1055; Douglas

*(384 US 311] .

Vv California, 372 US *353, 9 L ed 2d

"811, 88 S Ct 814; Lane v Brown,

372 US 477, 9 L ed 2d 892, 83 S Ct

768; Draper v Washington, 872 US

487, 9 L ed 2d 899, 88 S Ct 774,

We may assume that a State can

validly provide for recoupment of

the cost of appeals from those who

later become financially able to pay.

But any such provision must, under

the Equal Protection Clause, be ap-

plied with an even hand.

The judgment is reversed, and the

case is remanded to the District

Court for proceedings consistent

with this opinion.

_ It is so ordered.

_ \ “= ° SEPARATE OPINION -

Mr. Justice Harlan, dissenting. -

- New. Jersey recoups the cosi. of -

trial transcripts furnished to. in-

digents out of prison allowances

made to incarcerated prisoners, but

does not seek reimbursement from

parolees or convicted defendants not

imprisoned: . The Court holds this

differentiation to violate the Equal

Protection Clause. I am unable to

_agree.- Under conventional equal.

protection standards which disap-. .

prove only irrational and arbitrary’.

classifications, the statute is Plainly .

valid. See McLaughlin yv Florida,

379 US 184, 190-191, 13 L ed 2d

222, 227, 228, 85 S Ct 283; Me-

Gowan v Maryland, 366 US 420, 426,

6 L ed 2d 393, 399, 81 S Ct 1101;

Lindsley v Natural Carbonic Gas Co.

220 US 61, 78-79,-55 L ed 369, 377,

5. See NJ Stat. Ann. § 2A:168-2; NJ

Stat.. Ann. § 2A:167-8. See, Kamisar &

Choper, The Right to Counsel in Minne-

sota: Some Field Findings and Legal-

Policy Observations, 48 Minn L Rev 1,

23-24: er i

“The practice of certain judges in some

of [the counties studied] and of all judges

in others is to require, as a condition of

probation, that the convicted indigent re-

pay the county’s expenditure for his law-

yer. The probation officer usually informs

the judge of the amount the dofendent

should be expected to repay each week.

The survey indicates that this condition of

probation is rarely, if ever, violated.”

6. See NJ Stat. Ann. § 2A:17-50.

@ ti,

avy? #

& 23a

582 U. S. SUPREME COURT REPORTS

378 31S Ct 337. Surely the State

might reasonably choose to reim-

burse itself for such transcript costs

out of prison allowances, but deem

it not. worth the added time and

trouble, or even .advisable, to at-

16 Led 2d

tempt to extract such charges from

a convict not in prison who must

support himself on his own re-

sources. Adhering to the traditional

test of rationality, I would affirm the

decision of the District Court.}

+I find no substance to appellant’s main

argument, which the Court lays aside, that

to permit any such recoupment from -an

indigent .is an unconstitutional deterrent

to appeal. Nor do I think there is any

force to the argument-in n. 4 (ante, p.

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uolisoddo

IN THE

Supreme Court of the United States

October Term 1979

No. 79-165

CHRISTIAN A. TINAWY,

Petitioner,

-against-

TRAVELERS AID SOCIETY OF NEW YorK, INC.,

ELIZABETH P. ANDERSON, General Director,

Respondents.

On Petition For Writ Of Certiorari To The New York State

Court of Appeals

RESPONDENTS’ BRIEF IN OPPOSITION

JOHN R. HUPPER,

One Chase Manhattan Plaza,

New York, N. Y. 10005

Counsel for Respondents

CRAVATH, SWAINE & Moore,

MICHAEL E. NORTON

Of Counsel

August 30, 1979

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1979

No. 79-165

CHRISTIAN A. TINAWY,

Petitioner,

-against-

TRAVELERS AID SOCIETY OF NEW YORK,

INC., ELIZABETH P. ANDERSON,

General Director,

Respondents.

On Petition For Writ of Certiorari

To The New York State Court of Appeals

RESPONDENTS' BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Petitioner was employed as a

caseworker by respondent, Travelers Aid

Society of New York, Inc. ("Travelers

Aid") (a nonprofit charitable organiza-

tion providing assistance to travelers

in distress) between 1958 and 1974. In

1971, a vacancy occurred in one of the

four supervisory positions at Travelers

Aid; petitioner requested appointment

to the position but another employee,

whom Travelers Aid deemed better quali-

fied, was appointed. Petitioner remained

with Travelers Aid thereafter until his

retirement in 1974, at the age of 65.

In December 1975, petitioner insti-

tuted an administrative proceeding with

the New York State Human Rights Division,

alleging employment discrimination based

on age in violation of the New York Human

Rights Law. Following conferences with

the parties and production of relevant

documents by Travelers Aid, the Division

dismissed the complaint in April 1976. In

August 1977, on petitioner's administra-

tive appeal, the Appeal Board affirmed

the dismissal.

Petitioner then instituted this

state court action in September 1977,

alleging that Travelers Aid had breached a

contract by failing to promote him to

the supervisory position. Travelers Aid

moved for summary judgment, since there

was no such contract of employment. The

Supreme Court, New York County, granted

Summary judgment in favor of Travelers

Aid on December 20, 1977 (Pet. A. 4a-9a) ,*

and an order, dated January 24, 1978,

was entered thereon in that court (Pet.

A. la-3a). By orders entered on October

24, 1978 (Pet. A. 10a-lla), and January

23, 1979 (Pet. A. l2a-1l3a), respectively,

* "Pet. A" citations refer to pages

of petitioner's appendix.

the Appellate Division of the Supreme Court,

First Department, affirmed the entry of

summary judgment and denied petitioner's

motion to reargue the appeal or for leave

to appeal to the New York Court of Appeals.

A motion for leave to appeal to the Court

of Appeals was denied by that court on

March 29, 1979 (Pet. A. 14a-15a), and on

May 3, 1979, the Court of Appeals denied

petitioner's motion for reargument (Pet.

A. 16a-17a).

ARGUMENT

- THE PETITION FAILS TO RAISE A

SUBSTANTIAL FEDERAL QUESTION AND THE

DECISION OF THE NEW YORK SUPREME COURT IS

BASED ON AN ADEQUATE, INDEPENDENT

NONFEDERAL GROUND

Petitioner appears to argue that

the section of the New York State Human

Rights Law, N. Y. Executive Law § 297(9)

(McKinney Supp. 1976), which provides, in

essence, that no person who has brought

an action before a state administrative

agency based upon a claim of unlawful

discrimination under the Human Rights Law

may later seek to relitigate the same

claim thereunder in the New York State

courts, is, at least as pertains to his

case, somehow incompatible with the

Fourteenth Amendment.

The December 20, 1977, opinion of

the Supreme Court (Pet. A. 4a-9a) makes

it clear, however, that in the context

of this case the petition raises an

entirely academic question since the

court did, in fact, rule on the merits of

petitioner's claim for breach of contract

(the only claim set forth in petitioner's

state court complaint) (Pet. A. at 8a).

The decision was affirmed unanimously with-

out opinion by the Appellate Division of

the Supreme Court. This petition thus

fails to raise any federal question for

review, and, in any event, the New York

Supreme Court's judgment denying peti-

tioner's state law contract claim represents

an adequate, independent nonfederal ground

of decision. This Court therefore lacks

jurisdiction under 28 U.S.C. § 1257 to

grant the petition.

CONCLUSION

For the foregoing reasons, the

petition for a writ of certiorari should

be denied.

August 30, 1979

Respectfully submitted,

JOHN R. HUPPER,

One Chase Manhattan Plaza,

New York, N. Y. 10005

(212) 422-3000

Counsel for Respondents

CRAVATH, SWAINE & MOORE,

MICHAEL E. NORTON,

One Chase Manhattan Plaza,

New York, N. Y. 10005

Of Counsel.

ened ee