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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979

## Text

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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580), not even. suggested by appellant,

_ which at best goes to the validity of the

statutes governing compensation and not
to. the ersieenanrensee statute being: re-
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0656%3A1. Public record. Not legal advice.