Supplemental Brief — Sumitomo Shoji America, Inc. v. Avagliano

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FILED

JAN 18 1962

Nos. 80-2070 and 81-24 ALEXANDER L. STEVAS.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 80-2070

SUMITOMO SHOJI AMERICA, INC.,

Petitioner,

—_—Vi—

LISA M. AVIGLIANO, DIANNE CHENICEK, ROSEMARY T. CRIS-

TOFARI, CATHERINE CUMMINS, RAELLEN MANDELBAUM,

MARIA MANNINA, SHARON MEISELS, FRANCES PA-

CHECO, JOANNE SCHNEIDER, JANICE SILBERSTEIN, REIKO

TURNER and ELIZABETH WONG,

Respondents.

No. 81-24

LISA M. AVIGLIANO, DIANNE CHENICEK, ROSEMARY T. CRIS-

TOFARI, CATHERINE CUMMINS, RAELLEN MANDELBAUM,

MARIA MANNINA, SHARON MEISELS, FRANCES PA-

CHECO, JOANNE SCHNEIDER, JANICE SILBERSTEIN, REIKO

TURNER and ELIZABETH WONG,

Cross-Petitioners,

SUMITOMO SHOJI AMERICA, INC.,

Cross-Respondent.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

JOINT APPENDIX

(Attorneys listed inside front cover)

PETITION FOR CERTIORARI FILED JUNE 6, 1981.

CROSS-PETITION FOR CERTIORARI FILED JULY 1, 1981.

CERTIORARI GRANTED ON PETITION AND

_ CROSS-PETITION ON NOVEMBER 2, 1981.

TABLE OF CONTENTS

PAGE

CONTENTS DESIGNATED BY PETITIONER/

CROSS-RESPONDENT:

Relevant Docket Entries (District Court) .......... la

Relevant Docket Entries (Court of Appeals)....... 3a

Summons and Complaint Dated November 21, 1977,

and Exhibits A-1 to A-I11 Thereto .............. Sa

Defendant’s Answers to Plaintiffs’ Interrogatories

Sworn to February 3, 1978...........0eeeeeeee 34a

Defendant’s Notice of Motion for an Order Dismiss-

ing the Complaint Pursuant to Rule 12(b)(1) and

12(b)(6) Dated May 18, 1978 .............0005- 70a

Affidavit of J. Portis Hicks in Support of Motion

Swern 06 Mia 18, 1G7Bs succes cccccctnboteceues 72a

Plaintiffs’ Notice of Motion to Dismiss Counter-

claim Pursuant to Rule 12(b) Dated May 18, 1978 77a

First Amended Answer and Counterclaims of Defen-

dant Filed June 19, 1978... cc ccccccccccccces 80a

Copy of Incoming Telegram, U.S. Embassy, Mon-

tevideo, Uruguay, to U.S. Department of State

Dated November 8, 1949............00ceeeeeee 89a

Copy of Outgoing Telegram, U.S. Department of

State to U.S. Embassy, Montevideo, Uruguay

Dated November 10, 1949.............cceeeeee 92a

Letter of Lee R. Marks, Deputy Legal Adviser, U.S.

Department of State to Abner W. Sibal, General

Counsel, Equal Employment Opportunity Com-

mission Dated October 17, 1978 ............45. 94a

PAGE

Cover Letter from Lutz Alexander Prager, Assistant

General Counsel, Equal Employment Opportunity

Commission to Lewis Steel, Esq., Dated Decem-

ber 14, 1978 with Enclosure from Department of

State (March 15, 1978 Letter of Diane Wood,

Attorney Adviser, U.S. Department of State).... 98a

Affidavit of Lance Gotthoffer Submitted in Support

of D fendant’s Motion for Reconsideration,

Sworn to September 10, 1979...........0eeeees 102a

Index to Exhibits Annexed to Foregoing Lance

Gotthoffer ASTIGOVE 6.06 ccccicesvecencavenss 104a

Exhibit 1 (Communication of Department of State

to United States Political Adviser for Japan,

Tokyo, marked “RESTRICTED No. 63”,

stamped Nov. 1, 1951, and Annex thereto).... 107a

Exhibit 2 (Foreign Service Despatch No. 915,

from USPOLAD, Tokyo, to Department of

State, re FCN Treaty with Japan, dated Decem-

ber 17, 19BE) i cccccccccsccscnscvensvuunnesn 120a

Exhibit 3 (Outgoing Airgram No. A-453, from

Department of State to USPOLAD, Tokyo, re

FCN Treaty with Japan and Despatch No. 915,

Gated January 7, I9Sa) occccssoncssessunasve 130a

Exhibit 4 (Despatch No. 13, by Office of United

States Political Adviser for Japan, Tokyo, re

Japanese FCN Treaty, dated April 8, 1952).... 136a

Exhibit 5 (Outgoing Airgram No. A-49, from

Department of State, to American Embassy,

Tokyo, re Japanese FCN Treaty, dated July 23,

SOSE) 1s cctscudedadecvissiunnt bus eeneneeee 145a

Exhibit 6 (Telegram No. 3989 from American

Embassy, Tokyo, to Secretary of State, dated

MISTER BBs COT e Rsv ccvccescnecsseseuunuseeee 152a

Exhibit 7 (Telegram No. 11177 from American

Embassy, Tokyo, to Secretary of State, dated

PEE iy COTEE Beda vcccdreccvrscesevccees

Exhibit 8 (Department of State Airgram No. A-

105 to American Embassy, Tokyo, dated Janu-

SF, STR N bed eh ca cat bb tntdes evieneuss

Exhibit 9 [Includes Two Copies] (Department of

State Instruction, No. A-852, to HICOG, Bonn,

re FCN Treaty with Germany, dated January 21,

PNG SG VER a bbe Oe KANS) bccn eeths were

Exhibit 10 (Foreign Service Despatch No. 2413,

from HICOG, Bonn, to Department of State, re

FCN Treaty with Germany, dated March 8,

DN bok b idee Sees céGhedss bdeencreees Tes

Exhibit 11 [Includes Two Copies of Page 1] (For-

eign Service Despatch No. 2529, from HICOG,

Bonn, to Department of State, re FCN Treaty

with Germany, dated March 18, 1954)........

Exhibit 12 (Letter of April 29, 1954, from Office

of United States High Commissioner for Ger-

many, to Secretary of State, and enclosures,

consisting of 16 Notes from the Office of the

United States High Commissioner for Germany

to the German Ministry of Foreign Affairs re

the FCN Treaty with Germany)..............

Note Dated November 2, 1953 ............

First Note Dated November 4, 1953........

Second Note Dated November 4, 1953 .....

Note Dated November 5, 1953 ............

Note Dated November 12, 1953 ...........

Note Dated November 23, 1953 ...........

PAGE

154a

157a

160a

169a

18la

Note Dated December 9, 1953...........+.

Note Dated December 10, 1953............

Note Dated December 12, 1953............

Note Dated December 14, 1953............

Note Dated December 15, 1953............

First Note Dated December 16, 1953.......

Second Note Dated December 16, 1953.....

Note Dated February 5, 1954 .............

Note Dated February 8, 1954 .............

Note Dated February 9, 1954 .............

Exhibit 13 (Letter of the Trade Agreements and

Treaties Division to the Counselor of Embassy

for Economic Affairs, American Embassy, The

Hague, Netherlands, dated September 16, 1955)

Exhibit 14 (Letter of the Counselor of Embassy

for Economic Affairs, American Embassy, The

Hague, Netherlands, to the Commercial Policy

Staff, Department of State, dated September

De PPCtCerdi cede biceesneneshseake way ae

Exhibit 15 (Letter of the Trade Agreements and

Treaty Division, Department of State, to the

Counselor of Embassy for Economic Affairs,

American Embassy, The Hague, Netherlands,

Gated October ZB, 1955) ..cccccccccccscceccs

Exhibit 16 (Letter of the Netherlands negotiator to

the Counselor for the U.S. Embassy for

Economic Affairs, The Hague, dated October

Br EE Co 450bee0kbsceuscaevarsebatseuns

278a

285a

287a

PAGE

Exhibit 17 (Letter of the Netherlands negotiator to

the Economic Counselor of the U.S. Embassy,

The Hague, dated October 6, 1955) .......... 295a

Exhibit 18 (Letter of the Trade Agreements and

Treaty Division, Department of State, to the

Counselor for Economic Affairs, American

Embassy, The Hague, Netherlands, dated No-

ge Pre ee as 297a

Exhibit 19 (Letter of the Counselor of Embassy

for Economic Affairs, American Embassy, The

Hague, Netherlands, to the Commercial Policy

Staff, Department of State, dated November 4,

SU aaNunaddac cov cndbcéucd boe0ndekwastburs 300a

Exhibit 20 (Letter of the Netherlands negotiator to

the Economic Counselor, U.S. Embassy, The

Hague, dated November 8, 1955) ............ 303a

Exhibit 21 (Letter of the Counselor of Embassy

for Economic Affairs, American Embassy, The

Hague, Netherlands, to the Trade Agreements

Division, Department of State, dated November

Sy SOON nag k 6 6h0bs5000 ss cneenendeoneeeen 305a

Copy of Letter from James R. Atwood, Deputy

Lega! Adviser, U.S. Department of State to Lutz

Alexander Prager, Esq., Assistant General Coun-

sel, Equal Employment Opportunity Commission

Ete weeeenes 11, ISTP wc ccccccvccnsetbuces 307a

Letter of Danish Ministry of Foreign Affairs Dated

October 17, 1979 and Translation Thereof Into

SE vo cccbcccvccdesseetesesesvenasenaanen 309a

Plaintiffs’ Reply to Counterclaims Dated March 6,

FOE on véwde dees bia skoucesnnedcenvetesdeenee 317a

PAGE

Order of the Supreme Court Granting Petition for

Writ of Certiorari (No. 80-2070) ............05. 320a

Order of the Supreme Court Granting Petition for

Writ of Certiorari (No. 81-24) ..........0 6c e ee 32la

CONTENTS DESIGNATED BY RESPONDENTS/

CROSS-PETITIONERS:

Department of State Document Dated September 9,

DEPT ECECUSEbEO Os Pes ecdbecesedeubovesseess 322a

vii

NOTE

The following opinions, decisions and judgments of the

courts below have been omitted in printing this joint appendix

because they appear on the following pages in the appendix to

the printed Petition for Certiorari:

Opinion of the United States District Court for the

Southern District of New York, dated June 5,

ARG ES a see ee Ae 19a-37a

Opinion of the United States District Court for the

Southern District of New York, dated August 9,

SKS 6 a0db ouaGe Ce Esae ore aes hub besesadoanees 39a-44a

Opinion of the United States District Court for the

Southern District of New York, dated November 29,

AT iy a er ere eee yee 45a-6la

Opinion of the United States Court of Appeals for the

Second Circuit, dated January 9, 1981............. la-15a

Judgment of the United States Court of Appeals for the

Second Circuit, entered on February 10, 1981 ..... 17a-18a

DATE

11-21-77

2-21-78

5-18-78

6-19-78

6-06-79

Relevant Docket Entries

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

77 Civ. 5641 (CHT)

LISA M. AVIGLIANO, et al.,

Plaintiffs,

—against—

SUMITOMO SHOJI AMERICA, INC.,

Defendant.

FILINGS—PROCEEDINGS

Filed complaint. Issued summons.

Filed deft’s objections to pltffs’ interrogatories.

Filed deft’s answers to pltffs’ interrogatories.

Filed deft’s Notice of Motion for an order pur. to

Rule 12(b)(6) dismissing the class action claims for

failure to state a claim and for an order pur. to

12(b)(1), 12(b)(6) dismissing the complaint etc. ret

- 6/23/78 at 10:00 in room 906.

Filed deft’s First amended ANSWER and counter-

claims.

Fld OPINION #48679 pltffs 1981 claims are de-

nied & dfts section 796k counterclaim for atty’s

fees are dsmd. All other motion [sic] are denied

TENNEY, J m/n

DATE

8-10-79

11-30-79

3-10-80

FILINGS—PROCEEDINGS

Filed Opinion #48964—defts question concerning

the relationship of Title VII to the Treaty is hereby

certified; all other applications are Denied. TEN-

NEY, J. m/n

Filed OPINION # 49381 . . . Finally, the Court

directs that its August 9, 1979 opinion and order

be amended in the manner indicated herein. Ten-

ney, J. m/n

Fid pltff’s REPLY TO COUNTERCLAIMS of

deft’s.

Relevant Docket Entries

UNITED STATES COURT OF APPEALS

° FOR THE SECOND CIRCUIT

Case No. 80-7418

SUMITOMO SHOJI AMERICA, INC.,

Defendant-Appellant,

—against—

LISA M. AVIGLIANO, ef al.,

Plaintiffs-Appellees.

DATE FILINGS—PROCEEDINGS

8-16-79 Movant Sumitomo Shoji America, Inc. motion for

leave to appeal filed pfs. 3379

8-17-79 Order denying motion for leave to appeal pursuant

to 28 USC § 1292(b) without reling the merits

without prejudice to the motion’s being renewed

after Judge Tenney has had an opportunity to

consider the Hicks affidavit (Exhibit 1) filed.

12-10-79 Movant Sumitomo Shoji America, Inc. petition for

leave to appeal filed, pfs. 1148.

1-24-80 Order denying movant Sumitomo Shoji America

motion for leave to appeal filed.

2-20-80 Movant Sumitomo Shoji America, Inc. motion for

rehearing with suggestion for en banc reconsid-

eration filed 1865 [illegible]

5-19-80 Order granting motion for rehearing; further or-

dered granting leave to appeal filed (JLO, JON,

EVG)

DATE

10-01-80

10-03-80

10-06-80

1-09-81

FILINGS—PROCEEDINGS

Appellant Sumitomo motion for reopening record

on appeal, pfs. filed. Appellant Sumitomo mo-

tion for striking material submitted by EEOC

pfs. filed.

Appellees Avigliano, et al. affidavit in opposition to

motion for reopening record on appeal and for

order striking material, pfs. filed.

Order that motion to reopen the record on appeal

and to strike material submitted by the EEOC is

set down for argument with the appeal on Octo-

ber 17, 1980 filed (JEL, WRM, TJM)

Case affirmed and remanded, published opinion,

WRM

Judgment filed

Summons and Complaint Dated November 21, 1977

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

77 Civ. 5641

LISA M. AVIGLIANO, DIANNE CHENICEK, ROSEMARY T. CRIS-

TOFARI, CATHERINE CUMMINS, RAELLEN MANDELBAUM,

MARIA MANNINA, SHARON MEISELS, FRANCES PA-

CHECO, JOANNE SCHNEIDER, JANICE SILBERSTEIN, REIKO

TURNER, ELIZABETH WONG,

Plaintiffs,

_—Vi—

SUMITOMO SHOJI AMERICA, INC.,

Defendant.

SUMMONS

To the above named Defendant:

You are hereby summoned and required to serve upon

LEWIS M. STEEL, ESQ., EISNER, LEVY, STEEL & BELL-

MAN, PCC., plaintiff’s attorney, whose address 351 Broadway,

New York, New York 10013 an answer to the complaint which

is herewith served upon you, within 20 days after service of this

summons upon you, exclusive of the day of service. If you fail

to do so, judgment by default will be taken against you for the

relief demanded in the complaint.

[Illegible]

Clerk of Court.

[Illegible]

Dated: November 21, 1977 Deputy Clerk.

[Seal of Court]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

77 Civ. 5641

LISA M. AVIGLIANO, DIANNE CHENICEK, ROSEMARY T. CRIS-

TOFARI, CATHERINE CUMMINS, RAELLEN MANDELBAUM,

MARIA MANNINA, SHARON MEISELS, FRANCES PA-

CHECO, JOANNE SCHNEIDER, JANICE SILBERSTEIN, REIKO

TURNER, ELIZABETH WONG, on Behalf of Themselves and

All Others Similarly Situated,

Plaintiffs,

—against—

SUMITOMO SHOJI AMERICA, INC.,

Defendant.

COMPLAINT

CLASS ACTION

JURISDICTION

1. This case involves sex and national origin discrimination

in employment. Jurisdiction of this Court is invoked pursuant

to 28 U.S.C., §§ 1131, 1343, 2201, and 2202. This case arises

under the Equal Employment Opportunity Act of 1964, 42

U.S.C., § 2000e, et. seqg., 42 U.S.C., § 1981, and the Thir-

teenth Amendment to the United States Constitution.

THE PARTIES

2. Plaintiffs, Avigliano, Chenicek, Cristofari, Cummins,

Mandelbaum, Mannina, Meisels, Pacheco, Schneider, Silber-

stein, and Wong, are female citizens of the United States. They

reside in the State of New York, with the exception of Mandel-

baum, who resides in the State of New Jersey.

3. Plaintiff Turner is a citizen of Japan, who resides in the

State of New York.

4. Plaintiffs Avigliano, Cristofari, Pacheco, and Wong are

presently employed by defendant at its 345 Park Avenue, New

York, New York office.

5. Plaintiffs Mannina, Schneider and Turner are employees

of the defendant presently on maternity leave.

6. Plaintiffs Chenicek, Cummins, Mandelbaum, Meisels,

and Silberstein, are former employees of defendant, who left

their employment with the defendant because of its discrimina-

tory practices.

7. Defendant Sumitomo Shoji America, Inc. is a corporate

entity doing business in the State of New York, and upon

information and belief, incorporated under the laws of the

State of New York. The defendant maintains a principal office

at 345 Park Avenue, New York, New York 10022.

CLASS ACTION ALLEGATIONS

8. Plaintiffs bring this as a class action pursuant to 23(a)

and (b) (2), of the Federal Rules of Civil Procedure, on their

own behalf and on behalf of all women who have worked for

the defendant, are working for the defendant, have left the

employ of the defendant because of its discriminatory policies,

or may seek employment with the defendant. The members of

this class, or classes, are discriminated against in ways which

deprive them or have deprived them of equal employment

opportunities by reason of their sex, and/or nationality.

9. As to the class or classes described in paragraph 5 of the

Complaint:

(1) The number of members in said class or classes is in

the thousands and is, therefore, so numerous that joinder

of all members is impracticable;

(2) There are questions of law and fact common to the

class or classes, said common questions being whether the

customs, practices and policies of defendant violate their

Federal civil rights;

(3) The claims of the plaintiffs are typical of the class

or classes;

(4) The plaintiffs will fairly and adequately protect the

interest of the class or classes as they are women, and with

the exception of plaintiff Turner, citizens of the United

States desirous of obtaining equality for women and

equality for United States citizens;

(5) The defendant has acted or failed to act on grounds

applicable generally to the class or classes, thus making

final relief appropriate with respect to the class or classes

as a whole.

JURISDICTIONAL PREREQUISITES

10. Plaintiffs Avigliano, Cristofari, Cummins, Mandel-

baum, Mannina, Meisels, Pacheco, Schneider, Silberstein,

Turner, and Wong have filed timely and proper complaints

before the Equal Employment Opportunity Commission, alleg-

ing denial by defendant of their rights under Title VII of the

Civil Rights Act of 1964, 42 U.S.C., § 2000e, ef. seq.

11. On or about October 21, 1977, plaintiffs were advised

that they were entitled to institute a civil action in the appropri-

ate United States District Court within ninety (90) days of

receipt of their notices of right to sue. A copy of said notices of

right to sue is attached hereto and made a part hereof, and

marked Exhibits A-1 to A-11.

FIRST CAUSE OF ACTION

12. Defendant has engaged in unlawful employment prac-

tices against plaintiffs and the class and/or classes they repre-

sent by:

(a) Discriminating against women by restricting them

to clerical jobs;

(b) Discriminating against » omen by refusing to train

them or promote them to executive, managerial, and/or

sales positions.

SECOND CAUSE OF ACTION

13. Defendant has engaged in unlawful employment prac-

tices against plaintiffs Avigliano, Chenicek, Cristofari, Cum-

mins, Mandelbaum, Mannina, Meisels, Pacheco, Schneider,

Silberstein, Wong, and the class or classes they represent, by:

(a) Discriminating against plaintiffs on the basis of national-

ity by restricting them to clerical jobs;

(b) Discriminating against these plaintiffs on the basis of

nationality by refusing to train them or promote them to

executive, managerial, and/or sales positions.

THIRD CAUSE OF ACTION ON BEHALF OF

ELIZABETH WONG

14. On or about December 7, 1977, the defendant increased

the work load and responsibilities of plaintiff Wong and

refused to give her additional pay or to promote her.

15. Plaintiff Wong alleges upon information and belief that

defendant took this action in reprisal for the filing of her

charge with the Equal Employment Opportunity Commission.

16. On or about September 28, 1977, plaintiff Wong filed an

additional charge with the Equal Employment Opportunity

Commission alleging that she was retaliated against for the

filing of her initial charge.

10a

17. Plaintiff Wong alleges upon information and belief, that

the Equal Employment Opportunity Commission will no

longer process her retaliation charge, after issuing her a right

to sue letter with regard to her initial charge. Therefore,

plainiiff Wong has exhausted all procedural requirements, and

may properly allege retaliation in this complaint.

EQUITY

18. The plaintiffs and those they represent have no adequate

or complete remedy at law to redress the wrongs alleged, and

this suit for a permanent injunction is the only means of

securing adequate relief. Plaintiffs and those they represent are

now suffering and will continue to suffer irreparable injury

from defendant’s policies, practices and customs of discrimina-

tion in its employment practices unless this Court enjoins such

policies, practices and customs.

WHEREFORE, plaintiffs respectfully request this Court:

(a) To assign this case for a hearing at the earliest possible

date and cause the case to be expedited in every possible way;

(b) Issue a permanent injunction:

(1) Enjoining defendant from engaging in the aforesaid

unlawful employment practices;

(2) Directing defendant to promote plaintiffs and the

class or classes they represent to executive, managerial,

and/or sales positions;

(3) Directing defendant to institute a training program to

upgrade plaintiffs and the class or classes they represent

and to take such affirmative steps as may be necessary to

remedy the effects of defendant’s discriminatory prac-

tices;

(4) Enjoining defendant from discriminating on the basis

of sex and nationality in hiring new employees.

lla

(1) Compensatory and punitive damages fo: injuries

suffered by plaintiffs and the class or classes they repre-

sent by reason of defendant’s unlawful employment prac-

tices;

(2) The costs of this action together with reasonable

attorneys fees.

(d) Grant plaintiffs and the class or classes they represent

such other and further relief as may be necessary and proper.

Dated: New York, New York

November 21, 1977

EISNER, LEVY, STEEL & BELLMAN, PC.

Attorneys for Plaintiffs

351 Broadway

New York, New York 10013

(212) 966-9620

By: /s/ LEwWis M. STEEL

Lewis M. Steel

12a

Exhibit A-1

[SEAL]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE

(Issued on Request)

TO:

Ms. Lisa M. Avagliano

c/o Lewis M. Steel, Esq.

351 Broadway

New York, New York 10013

FROM:

Equal Employment Opportunity Comm.

New York District Office

90 Church Street, Room 1301

New York, New York 10007

CHARGE NUMBER:

021-77-1366

EEOC REPRESENTATIVE

Ralph Munoz, District Counsel

TELEPHONE NUMBER

264-7167

(See Section 706(f) (1) and (f) (3) of the Civil Rights Act of

1964 on reverse of this form.)

This is your NOTICE OF RIGHT TO SUE. It is issued at your

request. If you intend to sue the respondent(s) named in your

charge YOU MUST DO SO WITHIN NINETY (90) DAYS

FROM THE RECEIPT OF THIS NOTICE; OTHERWISE

YOUR RIGHT TO SUE IS LOST.

[) More than 180 days have expired since the filing of this

charge.

13a

[) Less than 180 days have expired since the filing of this

charge, but I have determined that the Commission will be

unable to complete its administrative process within 180

days from the filing of the charge.

(x) With the issuance of this Notice of Right to Sue the

Commission is terminating any further processing of this

charge.

{J It has been determined that the Commission will continue

t™ process your charge.

If you cannot afford or have been unable to obtain a lawyer to

represent you, you should be aware that the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e—5(f) (1) permits the U.S.

District Court having jurisdiction in your case to appoint a

lawyer to represent you. If you plan to request appointment of

a lawyer to represent you, you must make this request of the

U.S. District Court in the form and manner it requires. Your

request to the U.S. District Court should be made weil in

advance of the 90-day period mentioned above.

You may contact the EEOC representative named above if you

have any questions about your legal rights including advice on

which U.S. District Court has jurisdiction to hear your case or

if you need to inspect and copy information contained in the

Commission’s case file.

An information copy of the Notice of Right to Sue has been

sent to the respondent(s) shown below.

On Behalf of the Commission

/s/ ARTHUR W. STERN

Arthur W. Stern, District Director

(Typed Name and Title of EEOC Official)

Date: October 27, 1977

cc: Sumitomo Shoji America, Inc.

345 Park Avenue

New York, New York 10022

l4a

Exhibit A-2

[SEAL]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE

(Issued on Request)

TO:

Ms. Rosemary T. Cristofari

c/o Lewis M. Steel, Esq.

351 Broadway

New York, New York 10013

FROM:

Equal Employment Opportunity Comm.

New York District Office

90 Church Street, Room 1301

New York, New York 10007

CHARGE NUMBER:

021-77-1361

EEOC REPRESENTATIVE

Ralph Munoz, District Counsel

TELEPHONE NUMBER

264-7167

(See Section 706(f) (1) and (f) (3) of the Civil Rights Act of

1964 on reverse of this form.)

This is your NOTICE OF RIGHT TO SUE. It is issued at your

request. If you intend to sue the respondent(s) named in your

charge YOU MUST DO SO WITHIN NINETY (90) DAYS

FROM THE RECEIPT OF THIS NOTICE; OTHERWISE

YOUR RIGHT TO SUE IS LOST.

[) More than 180 days have expired since the filing of this

charge.

15a

([) Less than 180 days have expired since the filing of this

charge, but I have determined that the Commission will be

unable to complete its administrative process within 180

days from the filing of the charge.

x) With the issuance of this Notice of Right to Sue the

Commission is terminating any further processing of this

charge.

C) It has been determined that the Commission will continue

to process your charge.

If you cannot afford or have been unable to obtain a lawyer to

represent you, you should be aware that the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e—5(f) (1) permits the U.S.

District Court having jurisdiction in your case to appoint a

lawyer to represent you. If you plan to request appointment of

a lawyer to represent you, you must make this request of the

U.S. District Court in the form and manner it requires. Your

request to the U.S. District Court should be made well in

advance of the 90-day period mentioned above.

You may contact the EEOC representative named above if you

have any questions about your legal rights including advice on

which U.S. District Court has jurisdiction to hear your case or

if you need to inspect and copy information contained in the

Commission’s case file.

An information copy of the Notice of Right to Sue has been

sent to the respondent(s) shown below.

On Behalf of the Commission

/s/ ARTHUR W. STERN

Arthur W. Stern, District Director

(Typed Name and Title of EEOC Official)

Date: October 27, 1977

cc: Sumitomo Shoji America, Inc.

345 Park Avenue

New York, New York 10022

l6a

Exhibit A-3

[SEAL]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE

(Issued on Request)

TO:

Ms. Catherine Cummins

c/o Lewis M. Steel, Esq.

351 Broadway

New York, New York 10013

FROM:

Equal Employment Opportunity Comm.

New York District Office

90 Church Street, Room 1301

New York, New York 10007

CHARGE NUMBER:

021-77-1367

EEOC REPRESENTATIVE

Ralph Munoz, District Counsel

TELEPHONE NUMBER

264-7167

(See Section 706(f) (1) and (f) (3) of the Civil Rights Act of

1964 on reverse of this form.)

This is your NOTICE OF RIGHT TO SUE. It is issued at your

request. If you intend to sue the respondent(s) named in your

charge YOU MUST DO SO WITHIN NINETY (90) DAYS

FROM THE RECEIPT OF THIS NOTICE; OTHERWISE

YOUR RIGHT TO SUE IS LOST.

[) More than 180 days have expired since the filing of this

charge.

17a

C) Less than 180 days have expired since the filing of this

charge, but I have determined that the Commission wiil be

unable to complete its administrative process within 180

days from the filing of the charge.

With the issuance of this Notice of Right to Sue the

Commission is terminating any further processing of this

charge.

[J It has been determined that the Commission will continue

to process your charge.

If you cannot afford or have been unable to obtain a lawyer to

represent you, you should be aware that the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e—5(f) (1) permits the U.S.

District Court having jurisdiction in your case to appoint a

lawyer to represent you. If you plan to request appointment of

a lawyer to represent you, you must make this request of the

U.S. District Court in the form and manner it requires. Your

request to the U.S. District Court should be made well in

advance of the 90-day period mentioned above.

You may contact the EEOC representative named above if you

have any questions about your legal rights including advice on

which U.S. District Court has jurisdiction to hear your case or

if you need to inspect and copy information contained in the

Commission’s case file.

An information copy of the Notice of Right to Sue has been

sent to the respondent(s) shown below.

On Behalf of the Commission

/s/ ARTHUR W. STERN

Arthur W. Stern, District Director

(Typed Name and Title of EEOC Official)

Date: October 27, 1977

cg; Sumitomo Shoji America, Inc.

345 Park Avenue

New York, New York 10022

Exhibit A-4

[SEAL]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE

(Issued on Request)

TO:

Ms. Raellen Mandelbaum

c/o Lewis M. Steel, Esq.

351 Broadway

New York, New York 10013

FROM:

Equal Employment Opportunity Comm.

New York District Office

90 Church Street, Room 1301

New York, New York 10007

CHARGE NUMBER:

021-77-1362

EEOC REPRESENTATIVE

Ralph Munoz, District Counsel

TELEPHONE NUMBER

264-7167

(See Section 706(f) (1) and (f) (3) of the Civil Rights Act of

1964 on reverse of this form.)

This is your NOTICE OF RIGHT TO SUE. It is issued at your

request. If you intend to sue the respondent(s) named in your

charge YOU MUST DO SO WITHIN NINETY (90) DAYS

FROM THE RECEIPT OF THIS NOTICE; OTHERWISE

YOUR RIGHT TO SUE IS LOST.

[) More than 180 days have expired since the filing of this

charge.

19a

() Less than 180 days have expired since the filing of this

charge, but I have determined that the Commission will be

unable to complete its administrative process within 180

days from the filing of the charge.

x) With the issuance of this Notice of Right to Sue the

Commission is terminating any further processing of this

charge.

{J It has been determined that the Commission will continue

to process your charge.

If you cannot afford or have been unable to obtain a lawyer to

represent you, you should be aware that the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e—5(f) (1) permits the U.S.

District Court having jurisdiction in your case to appoint a

lawyer to represent you. If you plan to request appointment of

a lawyer to represent you, you must make this request of the

U.S. District Court in the form and manner it requires. Your

request to the U.S. District Court should be made well in

advance of the 90-day period mentioned above.

You may contact the EEOC representative named above if you

have any questions about your legal rights including advice on

which U.S. District Court has jurisdiction to hear your case or

if you need to inspect and copy information contained in the

Commission’s case file.

An information copy of the Notice of Right to Sue has been

sent to the respondent(s) shown below.

On Behalf of the Commission

/s/ ARTHUR W. STERN

Arthur W. Stern, District Director

(Typed Name and Title of EEOC Official)

Date: October 27, 1977

cc: Sumitomo Shoji America, Inc.

345 Park Avenue

New York, New York 10022

20a

Exhibit A-5S

[SEAL]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE

(Issued on Request)

TO:

Ms. Maria Mannina

c/o Lewis M. Steel, Esq.

351 Broadway

New York, New York 10013

FROM:

Equal Employment Opportunity Comm.

New York District Office

90 Church Street, Room 1301

New York, New York 10007

CHARGE NUMBER:

021-77-1363

EEOC REPRESENTATIVE

Ralph Munoz, District Counsel

TELEPHONE NUMBER

264-7167

(See Section 706(f) (1) and (f) (3) of the Civil Rights Act of

1964 on reverse of this form.)

This is your NOTICE OF RIGHT TO SUE. It is issued at your

request. If you intend to sue the respondent(s) named in your

charge YOU MUST DO SO WITHIN NINETY (90) DAYS

FROM THE RECEIPT OF THIS NOTICE; OTHERWISE

YOUR RIGHT TO SUE IS LOST.

{() More than 180 days have expired since the filing of this

charge.

2la

C) Less than 180 days have expired since the filing of this

charge, but I have determined that the Commission will be

unable to complete its administrative process within 180

days from the filing of the charge.

{) With the issuance of this Notice of Right to Sue the

Commission is terminating any further processing of this

charge.

(It has been determined that the Commission will continue

to process your charge.

If you cannot afford or have been unable to obtain a lawyer to

represent you, you should be aware that the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e—5(f) (1) permits the U.S.

District Court having jurisdiction in your case to appoint a

lawyer to represent you. If you plan to request appointment of

a lawyer to represent you, you must make this request of the

U.S. District Court in the form and manner it requires. Your

request to the U.S. District Court should be made well in

advance of the 90-day period mentioned above.

You may contact the EEOC representative named above if you

have any questions about your legal rights including advice on

which U.S. District Court has jurisdiction to hear your case or

if you need to inspect and copy information contained in the

Commission’s case file.

An information copy of the Notice of Right to Sue has been

sent to the respondent(s) shown below.

On Behalf of the Commission

/s/ ARTHUR W. STERN

Arthur W. Stern, District Director

(Typed Name and Title of EEOC Official)

Date: October 27, 1977

cc: Sumitomo Shoji America, Inc.

345 Park Avenue

New York, New York 10022

22a

Exhibit A-6

[SEAL]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE

(Issued on Request)

TO:

Ms. Sharon Meisels

c/o Lewis M. Steel, Esq.

351 Broadway

New York, New York 10013

FROM:

Equal Employment Opportunity Commi.

New York District Office

90 Church Street, Room 1301

New York, New York 10007

CHARGE NUMBER:

021-77-1364

EEOC REPRESENTATIVE

Ralph Munoz, District Counsel

TELEPHONE NUMBER

264-7167

(See Section 706(f) (1) and (f) (3) of the Civil Rights Act of

1964 on reverse of this form.)

This is your NOTICE OF RIGHT TO SUE. It is issued at your

request. If you intend to sue the respondent(s) named in your

charge YOU MUST DO SO WITHIN NINETY (90) DAYS

FROM THE RECEIPT OF THIS NOTICE; OTHERWISE

YOUR RIGHT TO SUE IS LOST.

[) More than 180 days have expired since the filing of this

charge.

23a

{) Less than 180 days have expired since the filing of this

charge, but I have determined that the Commission will be

unable to complete its administrative process within 180

days from the filing of the charge.

{J With the issuance of this Notice of Right to Sue the

Commission is terminating any further processing of this

charge.

[) It has been determined that the Commission will continue

to process your charge.

If you cannot afford or have been unable to obtain a lawyer to

represent you, you should be aware that the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e—5(f) (1) permits the U.S.

District Court having jurisdiction in your case to appoint a

lawyer to represent you. If you plan to request appointment of

a lawyer to represent you, you must make this request of the

U.S. District Court in the form and manner it requires. Your

request to the U.S. District Court should be made well in

advance of the 90-day period mentioned above.

You may contact the EEOC representative named above if you

have any questions about your legal rights including advice on

which U.S. District Court has jurisdiction to hear your case or

if you need to inspect and copy information contained in the

Commission’s case file.

An information copy of the Notice of Right to Sue has been

sent to the respondent(s) shown below.

On Behalf of the Commission

/s/ ARTHUR W. STERN

Arthur W. Stern, District Director

(Typed Name and Title of EEOC Official)

Date: October 27, 1977

cc: Sumitomo Shoji America, Inc.

345 Park Avenue

New York, New York 10022

24a

Exhibit A-7

[SEAL]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE

(Issued on Request)

TO:

Ms. Frances Pacheco

c/o Lewis M. Steel, Esq.

351 Broadway

New York, New York 10013

FROM:

Equal Employment Opportunity Comm.

New York District Office

90 Church Street, Room 1301

New York, New York 10007

CHARGE NUMBER:

021-77-1744

EEOC REPRESENTATIVE

Ralph Munoz, District Counsel

TELEPHONE NUMBER

264-7167

(See Section 706(f) (1) and (f) (3) of the Civil Rights Act of

1964 on reverse of this form.)

This is your NOTICE OF RIGHT TO SUE. It is issued at your

request. If you intend to sue the respondent(s) named in your

charge YOU MUST DO SO WITHIN NINETY (90) DAYS

FROM THE RECEIPT OF THIS NOTICE; OTHERWISE

YOUR RIGHT TO SUE IS LOST.

[) More than 180 days have expired since the filing of this

charge.

25a

() Less than 180 days have expired since the filing of this

charge, but I have determined that the Commission will be

unable to complete its administrative process within 180

days from the filing of the charge.

{) With the issuance of this Notice of Right to Sue the

Commission is terminating any further processing of this

charge.

[) It has been determined that the Commission will continue

to process your charge.

If you cannot afford or have been unable to obtain a lawyer to

represent you, you should be aware that the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e—5(f) (1) permits the U.S.

District Court having jurisdiction in your case to appoint a

lawyer to represent you. If you plan to request appointment of

a lawyer to represent you, you must make this request of the

U.S. District Court in the form and manner it requires. Your

request to the U.S. District Court should be made well in

advance of the 90-day period mentioned above.

You may contact the EEOC representative named above if you

have any questions about your legal rights including advice on

which U.S. District Court has jurisdiction to hear your case or

if you need to inspect and copy information contained in the

Commission’s case file.

An information copy of the Notice of Right to Sue has been

sent to the respondent(s) shown below.

On Behalf of the Commission

/s/ ARTHUR W. STERN

Arthur W. Stern, District Director

(Typed Name and Title of EEOC Official)

Date: October 27, 1977

cc: Sumitomo Shoji America, Inc.

345 Park Avenue

New York, New York 10022

26a

Exhibit A-8

[SEAL]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE

(Issued on Request)

TO:

Ms. Joanne Schneider

c/o Lewis M. Steel, Esq.

351 Broadway

New York, New York 10013

FROM:

Equal Employment Opportunity Comm.

New York District Office

90 Church Street, Room 1301

New York, New York 10007

CHARGE NUMBER:

021-77-0049

EEOC REPRESENTATIVE

Ralph Munoz, District Counsel

TELEPHONE NUMBER

264-7167

(See Section 706(f) (1) and (f) (3) of the Civil Rights Act of

1964 on reverse of this form.)

This is your NOTICE OF RIGHT TO SUE. It is issued at your

request. If you intend to sue the respondent(s) named in your

charge YOU MUST DO SO WITHIN NINETY (90) DAYS

FROM THE RECEIPT OF THIS NOTICE; OTHERWISE

YOUR RIGHT TO SUE IS LOST.

[) More than 180 days have expired since the filing of this

charge.

27a

[) Less than 180 days have expired since the filing of this

charge, but I have determined that the Commission will be

unable to complete its administrative process within 180

days from the filing of the charge.

{) With the issuance of this Notice of Right to Sue the

Commission is terminating any further processing of this

charge.

C) It has been determined that the Commission will continue

to process your charge.

If you cannot afford or have been unable to obtain a lawyer to

represent you, you should be aware that the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e—5(f) (1) permits the U.S.

District Court having jurisdiction in your case to appoint a

lawyer to represent you. If you plan to request appointment of

a lawyer to represent you, you must make this request of the

U.S. District Court in the form and manner it requires. Your

request to the U.S. District Court should be made well in

advance of the 90-day period mentioned above.

You may contact the EEOC representative named above if you

have any questions about your legal rights including advice on

which U.S. District Court has jurisdiction to hear your case or

if you need to inspect and copy information contained in the

Commission’s case file.

An information copy of the Nu.ice of Right to Sue has been

sent to the respondent(s) shown below.

On Behalf of the Commission

/s/ ARTHUR W, STERN

Arthur W. Stern, District Director

(Typed Name and Title of EEOC Official)

Date: October 27, 1977

cc: Sumitomo Shoji America, Inc.

345 Park Avenue

New York, New York 10022

28a

Exhibit A-9

[SEAL]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE

(Issued on Request)

TO:

Ms. Janice Silberstein

c/o Lewis M. Steel, Esq.

351 Broadway

New York, New York 10013

FROM:

Equal Employment Opportunity Comm.

New York District Office

90 Church Street, Room 1301

New York, New York 10007

CHARGE NUMBER:

021-77-1360

EEOC REPRESENTATIVE

Ralph Munoz, District Counsel

TELEPHONE NUMBER

264-7167

(See Section 706(f) (1) and (f) (3) of the Civil Rights Act of

1964 on reverse of this form.)

This is your NOTICE OF RIGHT TO SUE. It is issued at your

request. If you intend to sue the respondent(s) named in your

charge YOU MUST DO SO WITHIN NINETY (90) DAYS

FROM THE RECEIPT OF THIS NOTICE; OTHERWISE

YOUR RIGHT TO SUE IS LOST.

{J More than 180 days have expired since the filing of this

charge.

29a

[) Less than 180 days have expired since the filing of this

charge, but I have determined that the Commission will be

unable to complete its administrative process within 180

days from the filing of the charge.

(x) With the issuance of this Notice of Right to Sue the

Commission is terminating any further processing of this

charge.

to process your charge.

If you cannot afford or have been unable to obtain a lawyer to

represent you, you should be aware that the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e—5(f) (i) permits the U.S.

District Court having jurisdiction in your case to appoint a

lawyer to represent you. If you plan to request appointment of

a lawyer to represent you, you must make this request of the

U.S. District Court in the form and manner it requires. Your

request to the U.S. District Court should be made well in

advance of the 90-day period mentioned above.

You may contact the EEOC representative named above if you

have any questions about your legal rights including advice on

which U.S. District Court has jurisdiction to hear your case or

if you need to inspect and copy information contained in the

Commission’s case file.

An information copy of the Notice of Right to Sue has been

sent to the respondent(s) shown below.

On Behalf of the Commission

/s/ ARTHUR W. STERN

Arthur W. Stern, District Director

(Typed Name and Title of EEOC Official)

Date: October 27, 1977

cc: Sumitomo Shoji America, Inc.

345 Park Avenue

New York, New York 10022

30a

Exhibit A-10

[SEAL]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE

(Issued on Request)

TO:

Ms. Reiko Turner

c/o Lewis M. Steel, Esq.

351 Broadway

New York, New York 10013

FROM:

Equal Employment Opportunity Comm.

New York District Office

90 Church Street, Room 1301

New York, New York 10007

CHARGE NUMBER:

021-77-1670

EEOC REPRESENTATIVE

Ralph Munoz, District Counsel

TELEPHONE NUMBER

264-7167

(See Section 706(f) (1) and (f) (3) of the Civil Rights Act of

1964 on reverse of this form.)

This is your NOTICE OF RIGHT TO SUE. It is issued at your

request. If you intend to sue the respondent(s) named in your

charge YOU MUST DO SO WITHIN NINETY (90) DAYS

FROM THE RECEIPT OF THIS NOTICE; OTHERWISE

YOUR RIGHT TO SUE IS LOST.

() More than 180 days have expired since the filing of this

charge.

3la

[) Less than 180 days have expired since the filing of this

charge, but I have determined that the Commission will be

unable to complete its administrative process within 180

days from the filing of the charge.

With the issuance of this Notice of Right to Sue the

Commission is terminating any further processing of this

charge.

[) It has been determined that the Commission will continue

to process your charge.

If you cannot afford or have been unable to obtain a lawyer to

represent you, you should be aware that the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e—-5(f) (1) permits the U.S.

District Court having jurisdiction in your case to appoint a

lawyer to represent you. If you plan to request appointment of

a lawyer to represent you, you must make this request of the

U.S. District Court in the form and manner it requires. Your

request to the U.S. District Court should be made well in

advance of the 90-day period mentioned above.

You may contact the EEOC representative named above if you

have any questions about your legal rights including advice on

which U.S. District Court has jurisdiction to hear your case or

if you need to inspect and copy information contained in the

Commission’s case file.

An information copy of the Notice of Right to Sue has been

sent to the respondent(s) shown below.

On Behalf of the Commission

/s/ ARTHUR W. STERN

Arthur W. Stern, District Director

(Typed Name and Title of EEOC Official)

Date: October 27, 1977

cc: Sumitomo Shoji America, Inc.

345 Park Avenue

New York, New York 10022

32a

Exhibit A-11

[SEAL]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE

(Issued on Request)

TO:

Ms. Elizabeth Wong

c/o Lewis M. Steel, Esq.

351 Broadway

New York, New York 10013

FROM:

Equal Employment Opportunity Comm.

New York District Office

90 Church Street, Room 1301

New York, New York 10007

CHARGE NUMBER:

021-77-1365

EEOC REPRESENTATIVE

Ralph Munoz, District Counsel

TELEPHONE NUMBER

264-7167

(See Section 706(f) (1) and (f) (3) of the Civil Rights Act of

1964 on reverse of this form.)

This is your NOTICE OF RIGHT TO SUE. It is issued at your

request. If you intend to sue the respondent(s) named in your

charge YOU MUST DO SO WITHIN NINETY (90) DAYS

FROM THE RECEIPT OF THIS NOTICE; OTHERWISE

YOUR RIGHT TO SUE IS LOST.

([) More than 180 days have expired since the filing of this

charge.

33a

[) Less than 180 days have expired since the filing of this

charge, but I have determined that the Commission will be

unable to complete its administrative process within 180

days from the filing of the charge.

With the issuance of this Notice of Right to Sue the

Commission is terminating any further processing of this

charge.

to process your charge.

If you cannot afford or have been unable to obtain a lawyer to

represent you, you should be aware that the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e—5(f) (1) permits the U.S.

District Court having jurisdiction in your case to appoint a

lawyer to represent you. If you plan to request appointment of

a lawyer to represent you, you must make this request of the

U.S. District Court in the form and manner it requires. Your

request to the U.S. District Court should be made well in

advance of the 90-day period mentioned above.

You may contact the EEOC representative named above if you

have any questions about your legal rights iticludinug advice on

which U.S. District Court has jurisdiction to hear your case or

if you need to inspect and copy information contained in the

Commission’s case file.

An information copy of the Notice of Right to Sue has been

sent to the respondent(s) shown below.

On Behalf of the Commission

/s/ ARTHUR W. STERN

Arthur W. Stern, District Director

(Typed Name and Title of EEOC Official)

Date: October 27, 1977

cc: Sumitomo Shoji America, Inc.

345 Park Avenue

New York, New York 10022

34a

Defendant's Answers to Plaintiffs’ Interrogatories Sworn to

February 3, 1978

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

76 Civ. 5641 (CHT) [sic]

LISA M. AVIGLIANO, ef al.,

Plaintiffs,

—against—

SUMITOMO SHOJI AMERICA, INC.,

Defendant.

>_>

DEFENDANT’S ANSWERS TO

PLAINTIFFS’ INTERROGATORIES

Defendant Sumitomo Shoji America, Inc. (hereinafter

“Sumitomo”) hereby answers “Plaintiffs’ First Interrogatories

and Request for Production of Documents” as follows:

INTERROGATORY

1. In what state of the United States is the Corporation

incorporated?

ANSWER

1. New York.

35a

INTERROGATORY

2. State whether the Corporation is a subsidiary of any

other corporation. If so, state the name of the parent and state

the location of the parent’s principal offices.

ANSWER

2. Sumitomo is a wholly-owned subsidiary of Sumitomo

Shoji Kaisha, Ltd., a Japanese corporation which maintains its

principal place of business at 15, Kitahama 5-Chome, Higashi-

Ku, Osaka, Japan, and 2-2 Hitosubashi 1-Chome, Chiyoda

Ku, Tokyo, Japan.

INTERROGATORY

3. State where the Corporation maintains its principal of-

fice, giving the full address.

ANSWER

3. 345 Park Avenue, New York, New York 10022.

INTERROGATORY

4. (As amended by December 29, 1977 letter of counsel for

plaintiffs to counsel for defendant): State where the corpora-

tion maintains other offices, listing the full address of each

office.

(a) As to each office, state whether the personnel prac-

tices in effect are substantially the same as the personnel

practices in effect in the Corporation’s principal office.

(b) As to each office where the personnel policies are

not substantially the same as the policies in effect at the

principal office, please state in detail how the policies differ

from the principal office in respect to methods of hiring,

promotion, testing, transfer, requirements for any job title, or

other distinctions relating to the question of qualifications to

fill similar job titles or perform similar work as may exist at

the principal offices.

36a

general authority over personnel practices in all of the offices

of the Corporation. If the answer to the question is in the

affirmative, please state the name, title, and address of said

employee, and set forth the scope of his authority over the

personnel practices in all offices. If the answer is in the

negative, state who has the general supervisory authority over

the personnel offices in each of the Corporation’s offices, and

state whether said employee or employees report to anyone at

the principal office, or any other office and, if so, to whom,

listing addresses for all employees and titles mentioned in this

answer.

ANSWER

4, 350 Fifth Avenue, Room 7100

New York, New York 10001

John Hancock Center, 26500 Northwestern Highway

Suite 3818 Suite 406

875 North Michigan Avenue Southfield, Michigan 48076

Chicago, Illinois 60611

1100 Milam Building, Room 315, Cotton Exchange

Suite 3434 Building

Houston, Texas 77022 Dallas, Texas 75201

One California St., Suite 630 900 Fourth Ave., Suite 3101

San Francisco, California Seattle, Washington 98164

94111

3108 First National 1014 City National

Bank Tower Bank Bldg.

1300 S.W. Fifth Avenue 606 South Olive Street

Portland, Oregon 97201 Los Angeles, Calif. 90014

Room 3929, United States

Steel Building

600 Grant Street

Pittsburgh, Pennsylvania

15219

37a

(a) No.

(b) Each branch office, except the office at 350 Fifth

Avenue, New York, New York has autonomous control over

salary, hiring, promotion, testing, transfer and requirements

for job titles of certain employees including secretaries, clerks,

office business machine operators, maintenance personnel,

guards, chauffeurs, messengers, receptionists, telex machine

operators, etc. Such policies differ according to standards set

by the branches, labor conditions and standards in the areas

where the branches are located, customs and policies in the

areas where the branches are located, and the requirements of

each of the branches.

graph (b) hereof are concerned, personnel practices of the

branches, except the office at 350 Fifth Avenue, New York,

New York, are under general supervisory authority of the

general managers of each such branch, who do not report on

such matters except on an informational basis to Sumitomo’s

principal office (addresses for each of such general managers

are furnished above). In New York, insofar as the employees

described in subparagraph (b) hereof are concerned, personnel

practices of both the offices at 345 Park Avenue and at 350

Fifth Avenue are under the general supervisory authority of

Mr. H. Tsuwano, Personnel Manager, 345 Park Avenue, New

York, New York 10022.

INTERROGATORY

5. State the total number of employees employed by the

Corporation.

ANSWER

5. 464 (approximately, as at December 1, 1977).

INTERROGATORY

6. State the total number of employees employed by the

Corporation at each of its offices.

38a

ANSWER

6. New York, New York (345 Park Avenue) 209

New York, New York (350 Fifth Avenue) 21

Pittsburgh, Pennsylvania 2

Chicago, Illinois 73

Detroit, Michigan 2

Houston, Texas 36

Dallas, Texas 6

San Francisco, California 44

Seattle, Washington 11

Portland, Oregon 12

Los Angeles, California _48

464

INTERROGATORY

7. Does the Corporation use job titles? If the answer is yes,

list all job titles which have been utilized by the Corporation

since April 1, 1969, and state as to each job title when it came

into being, and until what date the job title was utilized.

ANSWER

Counsel for plaintiffs and Sumitomo have agreed that Sumi-

tomo may answer this Interrogatory with information as of

December 1, 1977 without prejudice to Sumitomo’s right to

object to furnishing an answer to this Interrogatory for any

period of time prior to December 1, 1977. Sumitomo does not

object to answering this Interrogatory for the period December

1, 1974 through December 1, 1977 but objects to furnishing

information for any period prior thereto (see Sumitomo’s

Objections to Plaintiffs’ Interrogatories, hereinafter “Sumi-

tomo’s Objections”, served and filed herewith). With respect

to the period December 1, 1974 through December 1, 1977,

Sumitomo’s answer is as follows:

7. Yes. General Manager, assistant general manager, depart-

ment manager, sub-branch manager, manager, assistant man-

ager, assistant to general manager, administrator, supervisor,

39a

senior clerk, senior secretary, clerk, secretary, business machine

operator, maintenance, salesperson, guard, chauffeur, mes-

senger, receptionist, telex machine operator. Not all such titles

are formally assigned and other designations may be used from

time to time. All such titles were used prior to December 1,

1974 and all are still utilized except supervisor, use of which

was discontinued September 1, 1977.

INTERROGATORY

8. Does the Corporation use job descriptions? If the answer

is yes, identify all job descriptions which have been in use since

April 1, 1969, and annex copies of all documents containing

job descriptions which have been utilized at any time by the

Corporation since April 1, 1969 to date, specifying the periods

when said descriptions have been utilized.

ANSWER

INTERROGATORY

9. If the Corporation has utilized job descriptions which

have not been reduced to writing, please list each job by title,

stating next to each job what the description of the job is, and

state when the Corporation has employed persons to fill such

job from April 1, 1969 until the present.

ANSWER

9. Not applicable.

1, sTERROGATORY

10. Does the Corporation classify employees into categories

such as executive, managerial, professional, technical, clerical,

etc.? If the answer is in the affirmative, identify all documents

which describe how the classification is accomplished, and

attach copies to these answers. Also list all job titles which fall

within each category.

40a

ANSWER

10. Yes. Sumitomo maintains no documents which describe

how such classification is accomplished. Job titles are not

formally tied to employee classification nor do job titles in all

cases fall exclusively within one employee classification. The

following list relates job titles, informal or otherwise, to

employee classification only to the extent that such job titles

usually do fall within employee classification:

Job Title Usually Within

Employee Classification Classification

Executive General Manager, Assistant

General Manager and Depart-

ment Manager (if made execu-

tives)

Managerial General Manager, Assistant

and Supervisory General Manager, Department

Manager, Sub-branch Manager,

Manager, Assistant Manager,

Assistant to General Manager,

Administrator, Senior Clerk,

Senior Secretary

Others Clerk, Secretary, Business

Machine Operator, Mainte-

nance, Salesperson, Guard,

Chauffeur, Messenger, Re-

ceptionist, Telex Machine

Operator.

INTERROGATORY

11. If the Corporation orally classifies employees, and/or

refers to employees as executive, managerial, professional,

technical, clerical, etc., please list all such categories utilized

and list all job titles which fall within each category.

ANSWER

11. See answer to Interrogatory 10, above.

4la

INTERROGATORY

12. As of the last day of the pay period closest to December

1, 1977, give:

(a) the number of female employees at each of the

Corporation’s offices, further broken down to give:

1. the number of female employees at each office by

category, such as executive, managerial, profes-

sional, clerical, etc.;

2. the number of female employees at each office,

by job title.

(b) the number of employees whose country of national

origin is not Japan at each of the Corporation’s offices,

further broken down to give:

1. the number of employees whose country of na-

tional origin is not Japan at each office by

category, such as executive, managerial, profes-

sional, clerical, etc.;

2. the number of employees whose country of na-

tional origin is not Japan at each office by job

title.

ANSWER

12.

(a) Sumitomo has no objection to furnishing plaintiffs

with the number of female employees at each of Sumitomo’s

offices. As to the balance of the information requested by

Interrogatory 12(a), see Sumitomo’s Objections served and

filed herewith.

Number of Female

Office Employees at Office

New York (345 Park Avenue) 80

New York (350 Fifth Avenue) 16

Pittsburgh l

42a

Chicago 28

Detroit l

Houston 14

Dallas 2

San Francisco 23

Seattle 4

Portland 6

Los Angeles 24

(b) Sumitomo does not maintain information as to

“national origin” of its employees.

INTERROGATORY

13. Does the Corporation utilize any selection criteria by

which it determines, or which aids in the determination of

whom it will hire for jobs, or promote? If the answer to this

question is in the affirmative, please answer the following

additional questions.

(a) Has the criteria which is or has been utilized in

writing? If so, identify all documents containing such criteria

from April 1, 1969 to date, and attach copies of all such

documents to the responses to these interrogatories.

(b) If the criteria utilized has not been reduced to

writing, list what the criteria is for each job title and/or

classification utilized by the Corporation since April 1, 1969 to

date in descending order of importance, specifying for what

period the criteria has been in effect and state whether the

criteria has changed from time to time, and, if so, list the

appropriate changes for the relevant time periods.

ANSWER

13. Counsel sor plaintiffs and Sumitomo have agreed that

Sumitomo may answer or object to this Interrogatory at a later

date to be mutually agreed upon by counsel.

43a

INTERROGATORY

14. Does the Corporation utilize career paths and/or pro-

gression ladders as methods of determining eligibility for

promotion? If the answer to this interrogatory is yes, please

answer the following questions:

(a) Does the Corporation have any documents which

identify career paths or progression ladders? If so, identify all

such documents from April 1, 1969 to date, and attach copies

to the answers to these interrogatories.

(b) If the Corporation utilizes career paths and/or pro-

gression ladders which are oral, please set forth any such career

path or progression ladders which have been utilized from

April 1, 1969 to date, specifying the period in which each

career path and/or progression ladder was utilized.

ANSWER

14. Counsel for plaintiffs and Sumitomo have agreed that

Sumitomo may answer or object to this Interrogatory at a later

date to be mutually agreed upon by counsel.

INTERROGATORY

15. Does the Corporation have a table of organization, or

other chart or document(s) which sets forth the Corporation’s

supervisory chain of command? If such a document or docu-

ments exist, identify all such documents from April 1, 1969 to

date, and attach copies to the answers to these interrogatories.

If a table of organization exists which has not been reduced to

writing, please set it forth in this answer.

ANSWER

15. Yes. Counsel for plaintiffs and Sumitomo have agreed

that Sumitomo may answer this Interrogatory with informa-

tion as of December 1, 1977 without prejudice to Sumitomo’s

right to object to furnishing an answer to this Interrogatory for

any period of time prior to December 1, 1977. Sumitomo does

44a

not object to answering this Interrogatory for the period

December 1, 1974 through December 1, 1977 but objects to

furnishing such information for any period prior thereto (see

Sumitomo’s Objections served and filed herewith). With re-

spect to Sumitomo’s documents reflecting its supervisory chain

of command as of December 1, 1977, see Exhibit “1” hereto.*

INTERROGATORY

16. Has the Corporation since April 1, 1969 to date, utilized

an employee’s country of national origin, for example, Jap-

anese citizenship, as a criterion for eligibility to hold certain

jobs with the Corporation? If the answer to this interrogatory

is yes, please answer the following questions:

(a) For which jobs has this criterion been utilized, and

state the time period of utilization from April 1, 1969 to date.

(b) For any of the jobs listed in answer to subsection (a)

above, is the criterion mandatory? If so, state for which jobs

the criterion is mandatory, and over what time periods from

April 1, 1969 to date.

ANSWER

16. No.

INTERROGATORY

17. Has the Corporation utilized sex as a criterion for

eligibility for any job with the Corporation from April 1, 1969

to date? If the answer to this question is yes, please answer the

following questions:

(a) For which jobs has this criterion been utilized, and

state the time period of utilization from April 1, 1969 to date.

(b) For any of the jobs listed in answer to subsection (a)

above, is the criterion mandatory? If so, state for which jobs

* Information for the period commencing, December 1, 1974 will be

furnished at a later date to be mutually agreed upon by counsel.

45a

the criterion is mandatory, and over what time periods from

April 1, 1969 to date.

ANSWER

17. No.

INTERROGATORY

18. Has the Corporation filed with the Equal Employment

Opportunity Commission Standard Form 100, known as the

Employer Information Report EEO-1? If the answer is yes,

please state for what years since 1969 this form has been filed,

and attach a copy of the form filed for each year through the

present year.

ANSWER

18. Yes. Sumitomo does not object to furnishing the infor-

mation requested by this Interrogatory for its New York City

offices for the years 1975, 1976 (and 1977 when available) but

objects to furnishing such information for any period prior

thereto, and for any of its offices other than New York (see

Sumitomo’s Objections served and filed herewith). For Em-

ployer Information Report EEO-1 for Sumitomo’s New York

City offices for the years 1975 and 1976, see Exhibit “2”

hereto.

INTERROGATORY

19. Does the Corporation maintain any documents reflect-

ing the composition of its employees, containing break downs

of number of employees by sex, race, and/or country of

national origin? If the answer to this question is yes, specify

for what years since April 1, 1969 such documents have been

kept, identify each document, and annex a copy of each

document to the answers to these interrogatories.

ANSWER

19. No.

46a

INTERROGATORY

20. List the name, age, address, sex, country of national

origin, and school years completed by each employee who is

presently employed by the Corporation, and with respect to

each such employee state:

(a) the office in which each employee is employed;

(b) all job titles held since date of initial employment,

including present job title;

(d) salary received during the 12 month period from

December 1, 1976 through November 30, 1977;

(e) the date of initial employment.

ANSWER

20. See Sumitomo’s Objections served and filed herewith.

INTERROGATORY

21. List the name, age, address, school years completed of

each woman hired by the Corporation who has left the employ

of the Corporation since October 8, 1973, and with respect to

each such former employee state:

(a) the date of initial employment;

(b) all job titles held since date of initial employment;

ANSWER

21. See Sumitomo’s Objections served and filed herewith.

INTERROGATORY

22. List the name, ages, address, school years completed of

each person whose country of national origin is not Japan

hired by the Corporation who has left the employ of the

47a

Corporation since October 8, 1973, and with respect to each

such former employee, state:

(a) the date of initial employment;

(b) all job titles held since date of initial employment;

ANSWER

22. See Sumitomo’s Objections served and filed herewith.

INTERROGATORY

23. State whether the Corporation has maintained a person-

nel manual or any document containing personnel policies

since April 1, 1969 to date. If the answer is yes, identify the

manual or manuals, and/or documents stating dates in which

each has been in use by the Corporation and attach copies to

the answers to these interrogatories.

ANSWER

23. Counsel for plaintiffs and Sumitomo have agreed that

Sumitomo may answer or object to this Interrogatory at a later

date to be mutually agreed upon by counsel.

INTERROGATORY

24. State whether the Corporation has any documents set-

ting forth employee pay rates and/or benefits, or which set

forth opportunities for employee advancement, or materials

which in any way explain career opportunities with the Corpo-

ration. If the answer is yes, identify all such documents from

April 1, 1969 to date, and attach copies to the answers to these

interrogatories.

ANSWER

24. Counsel for plaintiffs and Sumitomo have agreed that

Sumitomo may answer or object to this Interrogatory at a later

date to be mutually agreed upon by counsel.

48a

INTERROGATORY

25. List the name, address, sex, country of national origin,

title, and office where employed of all employees from April 1,

1969 to date who have held, or continue to hold, supervisory

positions. With respect to each such employee, state:

(a) Date of initial employment;

(b) All job titles held since date of initial employment,

including present job title.

date the employee left the Corporation.

(d) Date of each hob [sic] title changed.

(e) Describe the unit, department, section, or other

component of the Corporation which the employee supervises,

or supervised prior to leaving the Corporation.

(f) The number of employees under the supervision of

the supervisor at present, or when the supervisor left the

employment of the Corporation.

ANSWER

25. See Sumitomo’s Objections served and filed herewith.

INTERROGATORY

26. List the name, age, address, sex, country of national

origin, and school years completed by each present employee

of the Corporation, or former employee of the Corporation

who worked with the Corporation during the period April 1,

1969 to date, who functions or functioned in a sales or selling

capacity. With respect to each such employee, state:

(a) date of intitial employment;

(b) all job titles held since date of initial employment, in-

cluding present job title;

(d) salary, including all commission payments, etc.

49a

ANSWER

26. See Sumitomo’s Objections served and filed herewith.

INTERROGATORY

27. Does the Corporation have any written criteria it utilizes

to determine eligibility for hire, transfer or promotion to sales

or selling jobs? If the answer is yes, identify each document

which contains such criteria and attach copies to the answers to

these interrogatories.

ANSWER

27. Counsel for plaintiffs and Sumitomo have agreed that

Sumitomo may answer or object to this Interrogatory at a later

date to be mutually agreed upon by counsel.

INTERROGATORY

28. If the Corporation does not have written criteria with

regard to eligibility for sales or selling jobs, does the Corpora-

tion have oral criteria? If the answer is yes, list all criteria

utilized in order of importance, stating which, if any, of the

criteria utilized are mandatory.

ANSWER

28. Counsel for plaintiffs and Sumitomo have agreed that

Sumitomo may answer or object to this Interrogatory at a later

date to be mutually agreed upon by counsel.

INTERROGATORY

29, State whether the Corporation has any standard proce-

dure by which an employee may seek a promotion, or by which

the Corporation grants promotions on its own initiative. If the

answer to this interrogatory is in the affirmative, please answer

the following questions:

(a) Is the procedure in writing? If the answer to this

question is in the affirmative, please answer the following:

50a

(i) identify the document or documents and attach

copies to the answers to these interrogatories;

(ii) by whom were the procedures promulgated?

(iii) how were they communicated to the employees?

(iv) to employees in which job titles were the proce-

dures communicated, and when were they com-

municated?

ANSWER

29. Counsel for plaintiffs and Sumitomo have agreed that

Sumitomo may answer or object to this Interrogatory at a later

date to be mutually agreed upon by counsel.

INTERROGATORY

30. Does the Corporation have oral, rather than written

standard procedures for promotion? If the answer is yes,

answer the following additional questions:

(a) By whom are the oral procedures promulgated?

(b) How are they communicated?

(d) State in detail what the procedures are.

ANSWER

30. Counsel for plaintiffs and Sumitomo have agreed that

Sumitomo may answer or object to this Interrogatory at a later

date to be mutually agreed upon by counsel.

INTERROGATORY

31. Does the Corporation have oral, rather than written

procedures by which employees may becomes salespersons? If

the answer is yes, answer the following questions:

(a) By whom are the oral procedures promulgated?

S5la

(b) How are they communicated?

(d) State in detail what the procedures are.

ANSWER

31. Counsel for plaintiffs and Sumitomo have agreed that

Sumitomo may answer or object to this Interrogatory at a later

date to be mutually agreed upon by counsel.

INTERROGATORY

32. Has the Corporation utilized any tests from April 1,

1969 to date for the purpose of selecting applicanis for employ-

ment in, or promotion or transfer to, any job. If the answer to

this question is yes, answer the following questions.

(a) Identify all such tests and attach copies to the

answers to these interrogatories, and state when each test was

used.

(b) As to each test, unless the test is attached to the

answers, describe in detail the nature of the test and the

questions asked.

Corporation applied, including the passing grade, etc.

(d) As to each test, state who judged or judges the test

results, and/or made or makes determinations as a result

thereof.

ANSWER

32. Counsel for plaintiffs and Sumitomo have agreed that

Sumitomo may answer or object to this Interrogatory at a later

date to be mutually agreed upon by counsel.

INTERROGATORY

33. State whether the Corporation has had, or presently has

a training or education program which employees may utilize

52a

to seek promotions or transfers. If so, describe in detail,

including the dates of initiation and termination; what employ-

ees are eligible for inclusion; how the existence of the program

was communicated to employees; and, the numbers of employ-

ees who enrolled, year by year, from April 1, 1969 to date,

indicating sex and country of national origin during each

program. Also state as to each such program whether the

Corporation actually ran the program, and if not, who did.

Also list the address where each program was conducted.

ANSWER

33. Counsel for plaintiffs and Sumitomo have agreed that

Sumitomo may answer or object to this Interrogatory at a later

date to be mutually agreed upon by counsel.

INTERROGATORY

34. State whether the Corporation utilizes any system of

written evaluations or efficiency reports regarding the quality

and quantity of work performed by employees. If so, answer

the following:

(a) Identify all such documents, stating during what

period of time from April 1, 1969 to date each report was

utilized, and attach blank copies of each form utilized.

(b) For each evaluation utilized, state which categories

of employees by job title were, or are, evaluated.

ated, state how often they are evaluated, listing the date of the

last evaluation.

ANSWER

34. Counsel for plaintiffs and Sumitomo have agreed that

Sumitomo may answer or object to this Interrogatory at a later

date to be mutually agreed upon by counsel.

53a

INTERROGATORY

35. Does the Corporation maintain personnel files for indi-

vidual employees? If the answer is in the affirmative, answer

the following:

(a) Are the files maintained on all employees. If not, list

the job titles for which such files are maintained.

(b) Identify all standard documents contained in such

employee personnel file, stating during what period of time

from April 1, 1969 to date, each document was utilized, and

attach blank copies of each form utilized. If different types of

files are maintained for different categories of employees, or

for employees with different job titles, answer this question

category by category, and/or job title by job title.

ANSWER

35. Yes.

(a) Yes.

(b) See Sumitomo’s Objections served and filed here-

with.

INTERROGATORY

36. Has the Corporation ever been charged with discrimina-

tion on the basis of sex and/or national origin in any other

court, or before any public agency, federal, state or local, in

any jurisdiction of the United States? If the answer is in the

affirmative, list each case name individually, setting forth the

forum, the case identification number, and the status of each

case.

ANSWER

36. See Sumitomo’s Objections served and filed herewith.

54a

INTERROGATORY

37. With regard to each question above which requires the

Corporation to set forth information which is not based on

documents, please give the source of information, stating the

name and address of the informant(s).

ANSWER

37. Mr. M. Tsuge, Manager

Bunker Section

Petroleum Products Department

Sumitomo Shoji Kaisha, Ltd.

24-1, Kandanishikicho

3-chome, Chiyoda-ku

Tokyo, Japan

Mr. H. Nakagawa, Manager, Legal

Department

Sumitomo Shoji America, Inc.

345 Park Avenue

New York, New York 10022

INTERROGATORY

38. Identify separately and with particularity sufficient for

use as a description in a subpoena each document (not already

identified in the answers to the foregoing interrogatories or

produced in response to the requests contained herein) which

contains any of the information given in answer to each of the

foregoing interrogatories.

ANSWER

38. See Sumitomo’s Objections served and filed herewith.

INTERROGATORY

39. State whether the Corporation asserts that either sex

and/or country of national origin is a bona fide occupational

qualification (hereinafter “b.f.o.q.”) for holding of any job

55a

with the Corporation. If the answer is in the affirmative, list all

job titles and/or categories in which the Corporation asserts a

b.f.0.q. defense; listing for each job title or job category what

defense is asserted, and stating in detail the basis for the

assertion of the defense.

ANSWER

39. No.

Dated: New York, New York

February 3, 1978

/s/ H. NAKAGAWA

H. Nakagawa

56a

STATE OF NEW YORK _)

: SS.:

COUNTY OF NEW YORK )

H. Nakagawa, being duly sworn, deposes and says that

deponent is Manager, Legal Department of Sumitomo Shoji

America, Inc., defendant in the within action, that he has read

the foregoing answers to plaintiffs’ first interrogatories and

request for production of documents and knows the contents

thereof, and that the same is true to deponent’s own knowl-

edge except as to matters therein stated to be alleged on

information and belief, and as to those matters deponent

believes it to be true.

/s/ H. NAKAGAWA

H. Nakagawa

Sworn to before me this

3rd day of February, 1978

/s/ PAMELA ROTH

Notary Public

PAMELA ROTH

Notary Public, State of New York

No. 41-4622400

Qualified in Queens County

Certificate filed in New York County

Commission Expires March 30, 1979

57a

Exhibit 1

AOMINISTRU.. ICN DIV.

30aRD “TREASURY & ACCOUNTING DIV. ° :

; ACCOUNTING CONTROLLING DE?T.

or :

RESEARCH & DEVELOPMENT DIV.

N.Y; BUSINESS DIV. W. 1 FERROUS 2AW aa

ROLLID STEEL DEPT.

NON-FERROUS METALS DEPT.

GENERAL PRONUCTS DEPT.

SHOE DEPT.

¥RESTDEST :

M.Y. BUSTXESS OLIV. WO. 2 MACHINERY & ELZCTRICAL

DEVELOPMENT DEPT.

MACHINERY DEPT.

ELECTRICAL & ELECTRONICS DEPT

M.¥. BUSINESS DIV. WO. 3

Exhibit 2

EQUAL EMPLOYMENT OPPORTUNITY en

[stamp bearing year 1975] EMPLOYER INFORMATION REPORT EEO-1 e Sees —"

Commission

® Office of Federal

Contract Compliance

{Comment: 3 columns of two sets of numbers illegible]

SUMITOMO SHOJI AMERICA, INC. P 9-0024400 MC 07471P

345 PARK AVENUE

NEW YORK, N.Y. 10022 2 of 3 COMPANY UNITS

PLEASE USE THIS FORM FOR HEADQUARTERS REPORT.

Section A—TYPE OF REPORT

Refer to instructions for number and types of reports to be filed.

1. Indicate by marking in the appropriate box the type of reporting unit for which this copy of the form is

submitted(MARK ONLY ONE BOX).

Multi-establishment Employer:

(1) CJ Single-establishment Employer Report (2) CT) Consolidated Report

(3) [Xx] Headquarters Unit Report

(4) Individual Establishment Report (submit one for each

establishment with 25 or more employees)

(5) 0 Special Report

2. Total number of reports being filed by this Company (Answer on Consolidated Report only)

Begs

OFFICE

Section B—COMPANY IDENTIFICATION (To be answered by all employers) USE

ONLY

1. Name of Company which owns or controls the establishment for which this report is filed

(if same as label, skip to item 2, this section)

Address (Number and street) City or town County State ZIP code

b. Employer

identification No.

2. Establishment for which this report is filed.

a. Name of establishment SUMITOMO SHOJI AMERICA, INC. c.

Address (Number and street) City or town County State ZIP code

345 Park Avenue New York N.Y. 10022 i.

b. Employer

identification No. (if same as label, skip.)

Multi-establishment Employers:

3. Parent of affiliated company Answer on Consolidated Report only

a. Name of parent or affiliated company b. Employer Identification No.

Address (Number and street) City or town County State ZIP code

b6S

Section C—EMPLOYERS WHO ARE REQUIRED TO FILE (To be answered by all employers)

[x] Yes CJ No 1. Does the entire company have at least 100 employees in the payroll period for which you are reporting?

(x) Yes CO No 2. Is your company affiliated through common ownership and/or centralized management with other entities

in an enterprise with a total employment of 100 or more?

NOTE: If the answer is NO to BOTH questions, skip to Section G; otherwise complete ENTIRE form.

‘-) Yes [x] No 3. Does the company or any of its establishments (a) have a prime contract with any agency of the Federal

Government, a Federally-assisted construction contract, or a subcontract at any tier under any prime

Government contract, amounting to more than $10,000; or (b) serve as a depository of Federal Government

funds; or (c) serve as an issuing and paying agent of U.S. Savings Bonds and Notes; or (d) hold a Federal

Government bill of lading in any amount?

[page 2]

TOTAL EMPLOYEES

IN ESTABLISHMENT MINORITY GROUP EMPLOYEES (See Appendix (5) for definitions)

Job Categories Total Total Total MALE FEMALE

Employees; Male Female Spanish Spanish

Including | Including | Including American | Surnamed American | Surnamed

for definitions) (1) (2) (3) (4) (5) (6) (8) (9) (10) (11)

Officials and managers 30 30 27

Professionals............... 29 29 24

Technicians ................ l l L

Sales workers.............. 44 44 40

Office and clerical........ 100 25 75 5 2 1] 8

Craftsmen (Skilled).......

Operatives 1 1

(Semi-skilled)............

Laborers (Unskilled)......

Service workers............

TOTAL — 205 130 75 97 2 11 8

phos gum seen re-

rted in previous

EEO-1 report 173 104 69 79 1 | 10 7

(The trainees below should also be included in the figures for the appropriate occupational categories above)

Formal (1) (2) (3) (4) 6) 6) (7) cy (10) (11)

gg White collar...

trainees] Production ......

*In Alaska include Eskimos and Aleuts with American Indians

{Comment: directions on top of second page of form illegible]

e19

ny —

4/1—4/30/75

. NOTE: On consolidated report, skip questions 2-5 and Section E. 4. Pay period of last report submitted for this establishment

. How was information as to race or ethnic group in Section D 3/1—3/31/74

obtained? 5. Does this establishment employ apprentices?

1 Lx) Visual Survey 3 L) other—specity tris yeer?1 L] ves 2 Lal No

2 [x] NCEE FUNG | AH” sesenstatsdvatbcbucotsnenen Last year? 1 CT Yes 2 [x] No

. Dates of payroll period used—

Section E—ESTABLISHMENT INFORMATION

. Is the location of the establishment the same as that 2. Is the major business activity at this establishment the

reported last year? same as that reported last year?

Reported

Did not Reported on on com-

report combined No report bined

1 [x] ves 2 CO) No 3 CX) last year 4 C1) basis 1 [x] ves 2 C) No 3 @ last year 4 CJ basis

OFFICE

USE

ONLY

. What is the major activity of this establishment? (Be specific, i.e., manufacturing steel castings, retail grocer, wholesale

plumbing supplies, title insurance, etc. Include the specific type of product or type of service provided, as well as the

principal business or industrial activity.

Import & Export

Section F—REMARKS

Use this item to give any identification data appearing on last report which differs from that given above, explain major

changes in composition or reporting units, and other pertinent information.

e279

Section G—CERTIFICATION (See instructions G)

Check | C) All reports are accurate and were prepared in accordance with the instructions (check on consolidated only).

one

A [x] This report is accurate and was prepared in accordance with the instructions.

Name of Authorized Official Title Signature Date

Executive

Shigehiro Kumamoto Vice President 5/29/75

Name of person to contact regarding | Address

this report (Type or print) (Number and street)

Allan Roberts

Title City and State ZIP code Telephone Number Extension

Area Code

Ass’t Mgr—Personnel New York, N.Y. 10022 212 935-7000

All reports and information obtained from individual reports will be kept confidential as required by Section 709 (e) of Title VII

WILLFULLY FALSE STATEMENTS ON THIS REPORT ARE PUNISHABLE BY LAW, U.S. CODE TITLE 18, SECTION 1001

ee9

Exhibit 2

EQUAL EMPLOYMENT OPPORTUNITY wei se

e@ | Employment

EMPLOYER INFORMATION REPORT EEO-1 ee is

1976 USE THIS FORM FOR YOUR HEADQUARTERS REPORT © Office of Federal

Contract Compliance

$1302700 3 S=3 SIC = 509

CO = 6102315 U = 6102315 EI = 135612163 6

SUMITOMO SHOJI AMERICA, INC. P 9-0024400 MC 07471P

345 PARK AVENUE

NEW YORK, N.Y. 10022 1 91236440

Section A—TYPE OF REPORT

Refer to instructions for number and types of reports to be filed.

1. Indicate by marking in the appropriate box the type of reporting unit for which this copy of the form is submitted(MARK ONLY ONE BOX).

Multi-establishment Employer:

(1) CJ Single-establishment Employer Report (2) CJ Consolidated Report

(3) [x] Headquarters Unit Report

(4) LC) individual Establishment Report (submit one for each

establishment with 25 or more employees)

(5) C) Special Report

2. Total number of reports being filed by this Company (Answer on Consolidated Report only)

ey9

Section B—COMPANY IDENTIFICATION (To be answered by all employers)

OFFICE

USE

ONLY

1, Name of Company which owns or controls the establishment for which this report is filed

(if same as label, skip to item 2, this section)

Address (Number and street) City or town County State ZIP code

b. Employer

Identification No.

2. Establishment for which this report is filed.

a. Name of establishment SUMITOMO SHOJI AMERICA, INC.

Address (Number and street) City or town County State ZIP code

345 Park Avenue New York N.Y. 10022

b. Employer

Identification No. (if same as label, skip.)

Multi-establishment Employers:

3. Parent of affiliated company Answer on Consolidated Report only

a. Name of parent or affiliated company b. Employer identification No. |

‘ |

Address (Number and street) City or town County State ZIP code

eso

Section C—EMPLOYERS WHO ARE REQUIRED TO FILE (7o be answered by all employers)

[x] Yes C) No 1. Does the entire company have at least 100 employees in the payroll period for which you are reporting?

[x] Yes C) No 2. Is your company affiliated through common ownership and/or centralized management with other entities in

an enterprise with a total employment of 100 or more?

OC Yes [x] No 3. Does the company or any of its establishments (a) have 50 or more employees AND (b) is not exempt as FS

provided by 41 CFR 60-1.5, AND either (1) is a prime government contractor or first-tier subcontractor, and has a

contract, subcontract, or purchase order amounting to $50,000 or more, or (2) serves as a depository of Government funds

in any amount or is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Savings Notes?

NOTE: If the answer is yes to ANY of these questions, complete the entire form; otherwise skip to Section G.

[page 2]

TOTAL EMPLOYEES

IN ESTABLISHMENT MINORITY GROUP EMPLOYEES (See Appendix (4) for definitions)

Job Categories Total Total Total MALE FEMALE

Employees Male Female Spanish Spanish

including | Including | Including American | Surnamed American | Surnamed

(See Appendix (5) Minorities | Minorities | Minorities | Negro |Oriental} Indian* | American | Negro |Oriental} Indian* | American

for definitions) (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11)

Officials and managers . 31 31 28

Professionals............... 35 35 25

TROIWUCIONG...000000c80c00000. 5 3 2 l

Sales workers............... 43 43 37

Office and clerical ........ 103 16 87 4 I 2 12 9

Craftsmen (Skilled) .......

Operatives 2 2

(Semi-skilled)............

Laborers (Unskilled)......

Service workers............

TOTAL — 219 130 89 94 l 2 12 10

pops ge awe re-

rt n previous

EO-1 report 205 130 75 97 2 11 8

(The trainees below should also be included in the figures for the appropriate occupational categories above)

Formal (7) (2) (3) (4) 6) 6) (7) (8) ()} (70) (17)

oo. White collar....

trainees! Production .....

*in Alaska include Eskimos and Aleuts with American Indians

{Comment: directions on top of second page of form illegible}

eL9

. NOTE: On consolidated report, skip questions 2-5 and Section E. 4. Pay period of last report submitted for this establishment

2. How was information as to race or ethnic group in Section D 4/1—30/75

obtained? 5. Does this establishment employ apprentices?

1 Lx) visual Survey 3 LJ other—specity This year? 1 [] ves 2 [4] No

2 [x] Employment Record ssasessseenseensneenveen Lastyear?1 L] Yes 2 [4] No

. Dates of payroll period used—

3/1—31/76

Section E—ESTABLISHMENT INFORMATION

. Is the location of the establishment the same as that re- 2. Is the major business activity at this establishment the

ported last year? same as that reported last year?

Reported

Did not Reported on on com-

report combined No report bined

Elves 2 LC) no 3 CI tastyear 4 CL) basis 1 Glves 20) no 30) astyear 4 LJ basis

OFFICE

USE

ONLY

. What is the major activity of this establishment? (Be specific, i.e., manufacturing steel castings, retail grocer, wholesale

plumbing supplies, title insurance, etc. Include the specific type of product or type of service provided, as well as the princi-

pal business or industrial activity.

Import & Export

Section F—REMARKS

Use this item to give any identification data appearing on last report which differs from that given above, explain major

changes in composition or reporting units, and other pertinent information.

eg9

Section G—CERTIFICATION (See instructions G)

1 CJ oan reports are accurate and were prepared in accordance with the instructions (check on consolidated only).

Check

one 2. [x] This report is accurate and was prepared in accordance with the instructions.

Name of Certifying Official Title Signature Date

Executive

S. Kumamoto Vice President 6/30/76

Name of person to contact regarding Address

this report (Type or print) (Number and street) ’

Allan Roberts 45 Park Avenue

Title City and State ZIP code Telephone Number Extension

Area Code

Ass’t Personnel Mgr. New York, N.Y. 10022 212 935-7000

All reports and information obtained from individual reports will be kept confidential as required by Section 709 (e) of Title Vil

WILLFULLY FALSE STATEMENTS ON THIS REPORT ARE PUNISHABLE BY LAW, U.S. CODE TITLE 18, SECTION 1001

269

70a

Defendant’s Notice of Motion for an Order Dismissing the

Complaint Pursuant to Rule 12(b)(1) and 12(b)(6)

Dated May 18, 1978

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

77 Civ. 5641 (CHT)

LISA M. AVIGLIANO, et al.,

Plaintiffs,

—against—

SUMITOMO SHOJI AMERICA, INC.,

Defendant.

NOTICE OF MOTION

SIRS:

PLEASE TAKE NOTICE that upon the annexed affidavit of J.

Portis Hicks, sworn to May 18, 1978, the Memorandum of

Law submitted herewith, and all prior proceedings heretofore

had herein, defendant Sumitomo Shoji America, Inc. will

move this Court before the Hon. Charles H. Tenney in Room

906, United States Courthouse, Foley Square, New York, New

York, at 10:00 A.M. on June 23, 1978 or as soon thereafter as

counsel can be heard, for an order pursuant to Rule 12(b) (6)

of the Federal Rules of Civil Procedure dismissing the class

action claims of the complaint on the ground that plaintiffs fail

to state a claim upon which relief can be granted, and for an

order pursuant to Rules 12(b) (1) and 12(b) (6) of the Federal

Rules of Civil Procedure dismissing so much of the complaint

as purports to assert a claim pursuant to 28 U.S.C. §§ 2201

and 2202 or the Thirteenth Amendment to the United States

Tila

Constitution on the ground that such claims fail to invoke the

subject matter jurisdiction of this Court and also fail to state a

claim upon which relief can be granted.

Dated: New York, New York

May 18, 1978

Yours, etc.

WENDER, MURASE & WHITE

by /s/ J. PORTIS HICKS

(A Member of the Firm)

Attorneys for Defendant Sumitomo

Shoji America, Inc.

400 Park Avenue

New York, New York 10022

(212) 832-3333

To: EISNER, LEVY, STEEL & BELLMAN, P.C.

Attorneys for Plaintiffs

351 Broadway

New York, New York 10013

72a

Affidavit of J. Portis Hicks in Support of Motion

Sworn to May 18, 1978

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

77 Civ. 5641 (CHT)

LISA M. AVIGLIANO, et al.,

Plaintiffs,

—against—

SUMITOMO SHOJI AMERICA, INC.,

Defendant.

>_>

AFFIDAVIT

State of New York,

County of New York, ss.:

J. PORTIS HICKS, being duly sworn, deposes and says:

1. | am a member of the firm of Wender, Murase & White,

attorneys herein for Sumitomo Shoji America, Inc. (“Sumi-

tomo”), defendant in this action. I am fully familiar with the

facts of this matter, and make this affidavit in support of

defendant’s motion for an order dismissing the class action

claims of the complaint herein on the ground that plaintiffs fail

to state claims upon which relief can be granted pursuant to

Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000¢e er

seq.), OF pursuant to 42 U.S.C. § 1981. Defendant also moves

pursuant to Rule 12(b) (1) and 12(b) (6) of the Federal Rules of

Civil Procedure for an order dismissing so much of the

complaint as purports to assert a claim for declaratory relief

pursuant to 28 U.S.C. §§ 2201 and 2202 (the Federal Declara-

73a

tory Judgment Act), or pursuant to the Thirteenth Amendment

to the United States Constitution, on the ground that such

claims fail to invoke the subject matter jurisdiction of this

Court, and also fail to state claims upon which relief can be

granted.

2. In the main, this motion speaks to the fundamental issue

of whether Title VII of the Civil Rights Act of 1964 (42 U.S.C.

§ 2000e et seq.), and 42 U.S.C. § 1981, must yield to treaty

rights of freedom of choice of employment assured by the

Treaty of Friendship, Commerce and Navigation of 1953

between the United States and Japan (4 U.S.T. 2063, T.1.A.S.

2863, hereinafter the “Treaty”).

3. Plaintiffs in this action claim that defendant Sumitomo

has discriminated against them by reason of their sex (all are

females) and by reason of their national origin (all claim to be

U.S. citizens, except plaintiff Turner, who claims she is a

“citizen” of Japan), and thus violated Title VII of the Civil

Rights Act of 1964 as well as 42 U.S.C. § 1981. Plaintiffs claim

they have been restricted to clerical jobs and not trained for, or

promoted to, “executive, managerial and/or sales positions”

(complaint, paras. 12 and 13). In addition, plaintiff Wong

asserts an individual claim to the effect that Sumitomo refused

to give her additional pay, or promote her, in retaliation for her

having filed charges against Sumitomo with the United States

Equal Employment Opportunity Commission (“E.E.O.C.”).

4. Plaintiffs also purport to assert claims in this litigation

pursuant to 28 U.S.C. §§ 2201 and 2202 (the Federal Declara-

tory Judgment Act), and the Thirteenth Amendment to the

United States Constitution. Insofar as their purported claim

under the Thirteenth Amendment is concerned, plaintiffs have

agreed to “withdraw” such claim, but refuse to agree that such

claim will be discontinued with prejudice. According to coun-

sel for plaintiffs, this is because at a later date, the law might

change and plaintiffs would then want to reassert their pur-

74a

ported claim of enslavement. Such argument is sheer nonsense.

It amounts to nothing more than an assertion of a “right” by

plaintiffs to subject Sumitomo to any inappropriate, insuffi-

cent or wholly frivolous charge on the theory that should the

law change, such claim might later have some basis. Plaintiffs’

cavalier attitude, which has caused Sumitomo cost and expense

in preparation of its motion relating to the purported Thir-

teenth Amendment claim, should not be countenanced by this

Court. Defendant Sumitomo should be awarded its attorneys’

fees for that part of its present motion.

5. Sumitomo is incorporated in New York and operates its

business as a wholly-owned subsidiary of Sumitomo Shoji

Kaisha, Ltd. (“SSK”), a Japanese corporation.

6. For purposes of Sumitomo’s operations in the United

States, pursuant to applicable law including the Immigration

and Nationality Act and rules and regulations promulgated

thereunder, many qualified Japanese nationals have been, and

still are, assigned to Sumitomo by its parent company as

“treaty trader” personnel to serve in executive and other

supervisory, specialist and professional positions.

7. | am informed by Sumitomo and believe that each and

every one of the plaintiffs herein originally applied to Sumi-

tomo for employment in secretarial positions (not for employ-

ment in the “executive, managerial and/or sales positions”

they now purport to seek), and that each and every one of the

plaintiffs herein was in fact originally hired by Sumitomo as a

secretary.

8. It is well known fact that Japan has few national re-

sources upon which it can rely for production or consumption.

Reference to any number of standard works on the subject

verifies that since that is the case, Japan depends on foreign

trade for survival, and has particularly seen the growth of the

institution known as the “trading company” more than any

75a

other nation. See e.g., Ballon, Japan’s Market and Foreign

Business, 217-27 (1971); 3 The Japan Interpreter, Vol. 8, 353-73

(Autumn, 1973). Trading companies engage primarily in the

purchase and resale of goods, and carry on their activities for

the most part in import and export markets.

9. Sumitomo is an integrated trading company or “sogo-

shosha”, a uniquely Japanese institution. While there are

thousands of trading companies in Japan, there are fewer than

a dozen integrated trading companies or sogo shoshas. The

latter group accounts for more than 50% of Japanese imports

and exports. See Ballon and The Japan Interpreter, both cited

above:

10. About 90% of the business of the major sogo shosha

involves import and export trade concluded with Japan, i.e.,

imports from or exports to that country. Thus, it is imperative

that the managers, executives and “traders” (a more appropri-

ate term than “salesperson” for the functions performed by

those who buy and sell goods for a sogo shosha) comprehend

sophisticated questions of international finance, international

investment, international trade, shipping and related business

matters, as well as local and foreign potential market condi-

tions for a wide variety of products—chemicals, fertilizers,

steel products, machinery, industrial plants, textiles, airplane

parts, rubber, raw materials, energy, ceramics, etc. It is equally

imperative that such persons, whether working for the parent

corporation or for its branches, representative offices or sub-

sidiaries, intimately comprehend the Japanese marketplace and

Japanese business practices, culture and language. Ballon,

supra; The Japanese Interpreter, supra.

11. For the reasons set forth in Sumitomo’s Brief submitted

herewith, defendant Sumitomo respectfully requests that this

Court dismiss the complaint herein.

/s/ J. PORTIS HICKS

J. Portis Hicks

76a

Sworn to before me this

day of May, 1978

CONNIE STAVROS

Notary Public

CONNIE STAVROS

Notary Public, State of New York

No. 31-4611726

Qualified in New York County

Commission Expires March 30, 19[illegible]

77a

Plaintiffs’ Notice of Motion to Dismiss Counterclaim

Pursuant to Rule 12(b) Dated May 18, 1978

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

77 Civ. 5641 (CHT)

— >

LISA M. AVIGLIANO, et al.,

Plaintiffs,

—against—

SUMITOMO SHOJI AMERICA, INC.,

Defendant.

NOTICE OF MOTION

SIRS:

PLEASE TAKE NOTICE that, upon the complaint and answer

and counterclaim, the plaintiffs will move before the Honor-

able Charles H. Tenney on June 23, 1978 at 9:30 A.M., or as

soon thereafter as counsel may be heard, at the United States

Courthouse, Foley Square, New York, New York, to dismiss

the counterclaim for failure to state a claim upon which relief

may be granted and for lack of jurisdiction, pursuant to Rule

12(b), Federal Rules of Civil Procedure.

Dated: New York, New York

May 8, 1978

78a

Yours, etc.,

EISNER, LEVY, STEEL & BELLMAN, PC.

Attorneys for Plaintiffs

351 Broadway

New York, N.Y. 10013

(212) 966-9620

By: /s/ LEwIs M. STEEL

Lewis M. Steel

To: WENDER, MURASE & WHITE

400 Park Avenue

New York, New York 10022

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Attention: John Schmelzer, Esq.

Appellate Section

2401 E Street, N.W.

Washington, D.C. 20506

79a

CERTIFICATE OF SERVICE

This is to certify that copies of the foregoing motion to

dismiss defendant’s counterclaim and memorandum in support

were forwarded this Sth day of May, 1978, via first class mail,

postage prepaid, to the following:

WENDER, MURASE & WHITE

400 Park Avenue

New York, New York 10022

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Attention: John Schmelzer, Esq.

Appellate Section

2401 E Street, N.W.

Washington, D.C. 20506

/s/ Lewis M. STEEL

Lewis M. Steel

80a

First Amended Answer and Counterclaims of Defendant

Filed June 19, 1978

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

77 Civ. 5641 (CHT)

LISA M. AVIGLIANO, DIANNE CHENICEK, ROSEMARY T. CRIS-

TOFARI, CATHERINE CUMMINS, RAELLEN MANDELBAUM,

MARIA MANNINA, SHARON MEISELS, FRANCES PA-

CHECO, JOANNE SCHNEIDER, JANICE SILBERSTEIN, REIKO

TURNER, ELIZABETH WONG,

On Behalf of Themselves And All Others

Similarly Situated,

Plaintiffs,

—against—

SUMITOMO SHOJI AMERICA, INC.,

Defendant.

FIRST AMENDED ANSWER AND COUNTERCLAIMS

Sumitomo Shoji America, Inc. (“Sumitomo”), by its attor-

neys, Wender, Murase & White, for its Answer to the Com-

plaint, alleges as follows:

RESPONSES TO PLAINTIFFS’ PLEADINGS

1. Except as hereinafter expressly admitted or denied, Sumi-

tomo denies knowledge or information sufficient to form a

belief as to the truth of any of the allegations contained in the

Complaint.

8la

2. Admits so much of paragraph | of the Complaint as

alleges that plaintiffs purport to bring this action pursuant to

the statutes and other provisions of law referred to therein, and

denies any violation of said statutes or provisions of law.

3. Admits so much of Paragraph 2 of the Complaint as

alleges that the persons named therein are females.

4. Admits the allegations of Paragraphs 4 and 5 of the

Complaint.

5. Admits so much of Faragraph 6 of the Complaint as

alleges that the five persons named therein are former employ-

ees of Sumitomo, and denies the remaining allegations of said

paragraph 6.

6. Admits the allegations of Paragraph 7 of the Complaint.

7. Admits so much of Paragraph 8 of the Complaint as

alleges that plaintiffs purport to bring this action as a class

action, and denies the remaining allegations of said Paragraph

8. Denies the allegations of Paragraph 9 of the Complaint.

9. Denies the allegations of Paragraphs 12 through 18,

inclusive, of the Complaint.

10. Denies that plaintiffs are entitled to the relief prayed for

or any part thereof.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

11. The Complaint fails to state a claim upon which relief

can be granted.

SECOND AFFIRMATIVE DEFENSE

12. This Court lacks jurisdiction over the subject matter of

this action.

82a

THIRD AFFIRMATIVE DEFENSE

13. Sumitomo’s employment practices are proper and per-

missible and are sanctioned and privileged pursuant to the

Treaty of Friendship, Commerce & Navigation between the

United States and Japan, and applicable statutes, rules, regula-

tions and practices.

FOURTH AFFIRMATIVE DEFENSE

14. Sumitomo’s employment practices are proper, permissi-

ble and justified because they are founded upon and exist

pursuant to bona fide occupational qualifications and business

necessity.

FIFTH AFFIRMATIVE DEFENSE

15. All or portions of the plaintiffs’ claims are barred by

applicable statutes of limitations and unclean hands.

SIXTH AFFIRMATIVE DEFENSE

16. Plaintiffs lack standing to assert the claims made in the

Complaint.

SEVENTH AFFIRMATIVE DEFENSE

17. The statutes and other provisions of law pursuant to

which plaintiffs purport to bring this action do not provide the

relief demanded in the Complaint.

AMENDED COUNTERCLAIMS

18. Jurisdiction of the within counterclaims is invoked pur-

suant to 28 U.S.C. §§ 1331 and 1343 and the doctrine of

ancillary jurisdiction.

19. Upon information and belief, plaintiffs, on a date or

dates unknown to defendant Sumitomo but prior to commenc-

ing certain proceedings referred to hereinafter, entered into a

conspiracy to coerce Sumitomo to accede to plaintiffs’ de-

mands for assignment to work for which they were not quali-

83a

fied, and for payment of additional compensation to which

they were not entitled, and to retaliate against Sumitomo for

its refusal to make such assignments or pay such additional

compensation, by harassing Sumitomo and by injuring Sumi-

tomo in its business and trade.

20. Upon information and belief, as part of carrying out

their conspiracy, plaintiffs in bad faith, vexatiously, willfully

and wrongfully commenced spurious and f rivolous administra-

tive proceedings before the Division of Human Rights of the

Executive Department of the State of New York (the “Division

of Human Rights”), and before the United States Equal

Employment Cnportunity Commission (the “EEOC”), making

baseless claims in such proceedings that Sumitomo had dis-

criminated against them. In the course of such proceedings,

Sumitomo was subjected to interference with its person and

property by the purported issuance against it by the EEOC of

administrative subpoenae which were, upon information and

belief, issued by the EEOC in violation of its own rules and

regulations at the instance of and with the cooperation of

plaintiffs, and as a result of which Sumitomo was required to

spend substantial amounts of time and money responding

thereto.

21. Both the proceedings before the Division of Human

Rights and before the EEOC were terminated by such agencies

with no action being taken and with no finding by either

agency of reasonable or probable cause for the making of such

claims by plaintiffs.

22. Upon information and belief, during the pendency of

both of the aforesaid administrative proceedings plaintiffs

interfered therewith for the purpose of preventing such pro-

ceedings from coming to determinations on the merits because

plaintiffs were aware that such determinations would likely be

adverse to them, and because in any event plaintiffs’ purpose

in bringing such proceedings was not to obtain a determination

on the merits but instead was to coerce Sumitomo to accede to

their demands for assignment to work for which they were not

84a

qualified and for payment of additional compensation to

which they were not entitled.

23. Upon information and belief, in furtherance of carrying

out such conspiracy, plaintiffs also commenced the within

action. The within action, upon information and belief, is

brought by plaintiffs in bad faith and vexatiously, and is

willfully and wrongfully brought for the purpose of coercing

Sumitomo into acceding to plaintiffs’ improper and unjustified

demands concerning work assignments and additional compen-

sation and in retaliation for Sumitomo’s refusal to accede to

such demands.

24. Upon information and belief, plaintiffs, also as part of

and in furtherance of their wrongful conspiracy, have engaged

in various other wrongful acts to disrupt the business of

Sumitomo and injure it in its person and property, including by

failing to perform their work properly, by engaging in acts of

insubordination, by making divers misrepresentations about

Sumitomo, by making attempts to induce other employees to

breach their fiduciary duties to Sumitomo, by making efforts

to purloin confidential documents and business records of

Sumitomo, by coercing female employees not to accept promo-

tions from Sumitomo during the pendency of this litigation,

and by harassing and treating openly with scorn and contempt

those employees who refused to accede to plaintiff’s wrongful

efforts thus to injure Sumitomo, all to the detriment and injury

of Sumitomo.

25. As a result of the foregoing, defendant Sumitomo has

been injured in its person and property and has accrued

attorneys’ fees and other costs. Further, by reason of plaintiffs’

maintenance of the wrongful proceedings heretofore described,

and this litigation, defendant Sumitomo has been injured in

that it has been required to retain as employees one or more of

the plaintiffs herein notwithstanding the fact that good and

sufficient cause for their discharge exists, and has been re-

quired to give raises and other remuneration to one or more

plaintiffs in excess of that to which they were properly entitled,

85a

for fear that were Sumitomo to do otherwise it would be

subject to charges of wrongful retaliation, notwithstanding the

fact that any such action by Sumitomo should have been

justified, proper and not retaliatory.

26. As a result of the foregoing, Sumitomo has sustained

the following damages to date:

a) Attorneys’ fees: $125,000

b) Retention of plaintiffs: $65,000

c) Lost personnel time and other incidental and/or conse-

quential damages: $40,000

AS AND FOR A FIRST COUNTERCLAIM

27. Paragraphs 18 through 26 hereof are hereby incorpo-

rated by reference and repeated as though realleged in full.

28. Plaintiffs have instituted in bad faith, vexatiously will-

fully and wrongfully a spurious and frivolous Title VII action

against defendant Sumitomo, knowing full well that such

action has no basis in fact or law.

29. As a result of plaintiffs’ wrongful conduct in commenc-

ing such spurious and frivolous Title VII action, defendant

Sumitomo, pursuant to 42 U.S.C. § 2000(e)(5), is entitled to its

attorneys’ fees herein, and claims recovery against plaintiffs of

attorneys’ fees in the amount of $125,000 expended to date;

and because plaintiffs’ actions were willful and malicious,

further prays punitive damages in the amount of $250,000.

AS AND FOR A SECOND COUNTERCLAIM

30. Paragraphs 18 through 26 and 28 and 29 hereof are

hereby incorporated by reference and repeated as though

realleged in full.

31. Plaintiffs have instituted in bad faith, vexatiously, will-

fully and wrongfully a spurious and frivolous federal adminis-

trative proceeding and a spurious and frivolous federal civil

action against defendant Sumitomo, knowing full well that

86a

such proceeding and action had, and have, no basis in fact or

law, for the purpose of coercing and harassing Sumitomo.

32. Plaintiffs have tortiously abused the federal administra-

tive and judicial process.

33. As the result of the foregoing, defendant Sumitomo has

been injured and claims $230,000 in damages to date, and

because plaintiffs’ actions were willful and malicious, further

prays punitive damages in the amount of $250,000.

AS AND FOR A THIRD COUNTERCLAIM

34. Paragraphs 18 through 26, 28 and 29 and 31 and 32

hereof are hereby incorporated by reference and repeated as

though realleged in full.

35. Plaintiffs have instituted in bad faith, vexatiously, will-

fully and wrongfully spurious and frivolous federal and state

administrative proceedings and a spurious and frivolous fed-

eral civil action against defendant Sumitomo, knowing full

well that such proceedings and action had, and have, no basis

in fact or law for the purpose of coercing and harassing

Sumitomo.

36. Plaintiffs have deliberately and intentionally abused

process under New York State Law.

37. As the result of the foregoing, defendant Sumitomo has

been injured and claims $230,000 in damages to date, and

because plaintiffs’ actions were willful and malicious, further

prays punitive damages in the amount of $250,000.

AS AND FOR A FOURTH COUNTERCLAIM

38. Paragraphs 18 through 26, 28 and 29, 31 and 32 and 35,

36 and 37 hereof are hereby incorporated by reference and

repeated as though realleged in full.

39. Plaintiffs have instituted in bad faith, vexatiously, will-

fully and wrongfully spurious and frivolous federal and state

administrative proceedings and a spurious and frivolous fed-

87a

eral civil action against defendant Sumitomo, knowing full

well that such proceedings and action had, and have, no basis

in fact or law, for the purpose of coercing and harassing

Sumitomo and have acted otherwise to disrupt and injure the

business and trade of Sumitomo.

40. Plaintiffs have deliberately and intentionally inflicted

temporal economic harm upon defendant Sumitomo without

privilege or justification.

41. As the result of the foregoing, Sumitomo has been

injured and claims $230,000 in damages to date, and because

plaintiffs’ actions were willful and malicious, further prays

punitive damages in the amount of $250,000.

WHEREFORE, defendant-counterclaimant Sumitomo Shoji

America, Inc., prays judgment as follows:

(1) That the complaint herein be dismissed with prejudice;

(2) That it be awarded judgment on its first counterclaim in

the amount of $125,000 actual damages, plus $250,000 in

punitive damages, jointly and severally against each of the

plaintiffs named herein;

(3) That it be awarded judgment on its second counterclaim

in the amount of $230,000 actual damages, plus $250,000 in

punitive damages, jointly and severally against each of the

plaintiffs named herein;

(4) That it be awarded judgment on its third counterclaim in

the amount of $230,000 actual damages, plus $250,000 in

punitive damages, jointly and severally against each of the

plaintiffs named herein;

(5) That it be awarded judgment on its fourth counterclaim

in the amount of $230,000 actual damages, plus $250,000 in

punitive damages, jointly and severally against each of the

plaintiffs named herein;

(6) That it be awarded the costs of this action, including

reasonable attorney’s fees; and

(7) That it be awarded such other and further relief as to

this Court may seem just and proper.

WENDER, MURASE & WHITE

By /s/ J. PorTIS HICKS

(A Member of the Firm)

Attorneys for Defendant

Sumitomo Shoji America, Inc.

400 Park Avenue

New York, New York 10022

Tel: (212) 832-3333

89a

Copy of Incoming Telegram, U.S. Embassy,

Montevideo, Uruguay, to U.S. Department of State

Dated November 8, 1949

DEPARTMENT OF STATE

INCOMING TELEGRAM

CONFIDENTIAL

{Comment: illegible stamp and handwriting placed on top of

heading]

ACTION COPY

DIVISION OF

COMMUNICATIONS AND RECORDS

TELEGRAPH BRANCH

Control 3472

— ITP Rec'd November 8, 1949]

“yng 8:41 p.m.

P [Comment: illegible stamp is

Ange placed over the above]

OLI

CIA

DCL

TRC

DRC

FROM: Montevideo

TO: Secretary of State

NO: 385, November 8, 5 p.m. [Comment: “389” is

typed, but crossed out

and “385 is handwritten]

90a

Foreign Minister has incorporated suggestion re modification

FCN treaty (EMBTEL 374, October 28) in revised draft, which

Embassy has seen and which is to be presented for discussion

tomorrow. In general, Foreign Minister’s suggestions less dras-

tic than anticipated. Foreign Minister reportedly after consult-

ing President and Administration-sponsored Presidential can-

didate, desires deletion Article III re military service and

limitation of rights under Article XVII—3 and 4 of MEN.

Elsewhere, concerning granting of both nationality and MFN

rights, Foreign Minister wishes exclude least favorable. Item-

ization other specific proposals follows:

Article 5 (next to last line). Strike out “and technology”;

substitute “technology and modern equipment”.

Article VI—2, strike out subparagraph (A), (C) and (D).

Article VI--1(A) insert “cultural” after “scientific”.

Article Vi—add what was formerly VI—2(D) as new subpara-

graph (D).

Article VI—2(B) retain as uninterrupted continuation of text.

Foreign Minister’s proposal would give nationality treatment

to entire content Article VI—1 and 2, except for mineral rights.

Embassy sees no objection unless Department, for technical

reasons, unable grant similar treatment.

Article VI—4

CONFIDENTIAL [Comment: stamp

reading Filed Nov

15 19(illegible)]

[Comment: 2 illegible stamps with handwriting appear on left

margin of page; stamp with numbers 711.332/11-849 appears

on right margin}

{End of page]

CONFIDENTIAL

Article VI—4 (first sentence) after “nationality” add “on

condition that in the selection of the persons referred to,

9la

discrimination against nationals of the other party shall be

avoided, and without prejudice to laws designed to protect

their employment.” Embassy recognizes this amendment would

seriously weaken rights which this paragraph seeks to safe-

guard, and proposes resist acceptance.

Article VIII—4(A), strike out “and most favored nation”.

Reverse positions of subparagraphs (A) and (B).

Article IX—1(A), strike out. Embassy believes Foreign Minis-

ter has not clearly understood meaning this paragraph and will

try explain to his satisfaction.

Article X—2, Foreign Minister prefers translate following

portion, “in excess of that reasonably allocable or apportion-

able to its territories, nor grant deductions and exemptions less

than these reasonably allocable or apportionable to its territo-

ries,” into Spanish as, “en exceso de lo que corresponda a los

negocios que se realicon en sus territorios, ni concederal

deducciones y exenciones menores que las que razonablemente

se debau conceder con relacion a los mismes”.

Embassy believes that if above Spanish text acceptable, change

in English unnecessary.

Article XIII—1 (second sentence). After “sanitation”, add

“for the protection of the balance of payments”. Embassy

proposes explain Uruguay already protected by Article XIV—2

of IMF agreement.

Article XV—1(A). After “availability” add “of merchandise

and means of payment”. If Uruguayans insist, Embassy pro-

poses yield this point since availability foreign exchange is

commercial consideration and use accumulated balances

guaranteed in Protocol 6.

Foreign Minister stated late today Uruguay will propose no

further changes.

[Typewritten name illegible]

JSP:RWP

CONFIDENTIAL

92a

Copy of Outgoing Telegram, U.S. Department of State

to U.S. Embassy, Montevideo, Uruguay

Dated November 10, 1949

DEPARTMENT OF STATE

CONFIDENTIAL

Classification

Control 3100

AMEMBASSY, NOV 10, 1949

For DC/T Use Only

MONTEVIDEO.

262

FCN Treaty. Reopening by URUG NEGOTS on provisions

previously accepted by them disturbing. URTELS 385 NOV 8;

387 NOV 9. Difficult understand value proposed changes from

standpoint URUG interests. DEPT has on several occasions

made concessions in belief NEGOT CLD be concluded, only to

be confronted with demands for additional changes. Is there

any assurance present proposals represent final position

URUG GOVT? As counter negotiating tactic, WLD it be

helpful for EMB reopen questions on which compromise

reached with Gonzalez, or re-propose provisions previously

rejected; e.g., those referred to second PARA DEPT A-231

OCT 17 and second PARA DEPTEL 193 AUG. 5. Also ART

11(1) and IX(1,2), although accepted by DEPT as amended by

Gonzalez, are not entirely satisfactory, and DEPT’s original

draft preferable. Since NEGOT began, DEPT has developed

additional provisions that might be introduced at this time.

Re XVII(3,4), DEPT’s position remains as in DEPTEL 250

OCT 29. Although number other proposed changes appear of

no substantive importance, others may create serious difficul-

93a

ties. Proposals re V1(4) and Add. Protocol definitely in latter

category. Revised translation

{Comment: Iilegible handwriting appears on left and right

margins of page and numbers 711.332/11-949 are stamped on

right margin]

CONFIDENTIAL

Classification

[End of page]

DEPARTMENT OF STATE

CONFIDENTIAL

Classification

portion ART X(2) introduces substantive change and is unac-

ceptable. EMB SHLD obtain explanation URUG objective so

DEPT can consult TREAS expert re possible change English

text. INSTRS on certain other details possibly ready early next

week; others will require longer study.

/s/ WEBB

WEBB (Acting)

{[Comment: illegible initials}

ITP:CP:VGSetser:lhj CTP OFD EC L/T L/E

November 10, 1949 (Cleared with Oakley)

{Comment: Illegible handwriting and dates appear next to

typed letters above]

[illegible CONFIDENTIAL

stamp] Classification

94a

Letier of Lee R. Marks, Deputy Legal Adviser, U.S. Depart-

ment of State to Abner W. Sibal, General Counsel, Equal

Employment Opportunity Commission Dated October 17,

1978

DEPARTMENT OF STATE

Washington, D.C. 20520

[SEAL]

October 17, 1978

Abner W. Sibal

General Counsel

Equal Employment Opportunity Commission

Washington, D.C. 20506

Dear Mr. Sibal:

This responds to your June 9, 1978 letter to Mr. Hansell

about the 1953 Treaty of Friendship, Commerce and Naviga-

tion between the United States and Japan (the FCN Treaty).

Your letter asks for our views on four questions; the questions

and our views are set forth below.

1. Does the treaty permit subsidiaries of Japanese compa-

nies which are organized under the laws of a state of the

United States to fill all its top management positions with

Japanese nationals admitted as treaty traders? Would it be

inconsistent with the terms of the treaty to rule that even top

management positions are subject to Title VII of the Civil

Rights Act of 1964 prohibiting discrimination on the basis of

race, sex or national origin?

Article VIII(1) of the FCN Treaty gives nationals and com-

panies of each Party the right to employ, in the territory of the

other, “accountants and other technical experts, executive per-

sonnel, attorneys, agents and other specialists of their choice.”

This provision was intended to ensure that U.S. companies

operating in Japan could hire U.S. personnel for critical

95a

positions, and vice versa. The phrase “of their choice” should

be interpreted to give effect to this intention, and we therefore

believe that Article VIII(1) permits U.S. subsidiaries of Jap-

anese companies to fill all of their “executive personnel”

positions with Japanese nationals admitted to this country as

treaty traders. We express no opinion on what positions would,

in a particular case, qualify as “executive personnel.”

We do not believe the phrase “of their choice” should be

read as insulating the employment practices of foreign compa-

nies from all local laws. For example, the Treaty does not in

our view confer any right to hire in violation of child labor

laws, nor does it require the Department to issue a treaty trader

visa to persons otherwise ineligible to enter the United States

under the Immigration and Nationality Act. Similarly, we do

not believe that it confers any right to discriminate against a

particular sex, religious, or minority group.* The right granted

by the Japanese FCN Treaty to Japanese enterprises operating

in the United States is simply the right to fill certain positions

with Japanese nationals; American companies operating in

Japan enjoy the equivalent right.

2. Is the situation different if the company doing business in

the United States is not incorporated in the United States?

Article VIII is addressed to “nationals and companies of

either Party . . . within the territories of the other Party.”

Article XXIII defines “companies” as “corporations, partner-

ships, companies and other associations, whether or not with

limited liability and whether or not for pecuniary profit.” In

determining the scope of Article VIII, we see no grounds for

i“ Both the Japanese and United States Governments have subscribed

to a number of international declarations calling on multinational

enterprises to respect human rights and avoid discrimination. See point

7 of the 1976 OECD Guidelines for Multi-national Enterprises and the

ILO Tripartite Declaration of Principles Concerning Multinational

Enterprises and Social Policy. These are not binding, but they reinforce

our view that Article VIII should not be read as conferring a license to

discriminate.

96a

distinguishing between subsidiaries incorporated in the United

States owned and controlled by a Japanese company and those

operating as unincorporated branches of a Japanese company,

nor do we see any policy reason for making the applicability of

Article VIII dependent on a choice of organizational form.

3. What criteria are used by the Department of State in

determining what positions are within the scope of the treaty

when it issues non-immigrant visas to treaty traders?

The criteria derive from section 101(a) (15) (E) (i) of the

Immigration and Nationality Act of 1952, as amended, and 22

C.F.R. § 41.40 et. seq. In addition to the statute and regula-

tions (which do not define “executive personnel”), consular

officers have access to the Advisory Opinions of the State

Department’s Visa Office (special guidance to U.S. consular

officers upon request); the Administrative Decisions Under the

Immigration and Nationality Laws of the United States by the

Board of Immigration Appeals of the INS; and judicial deci-

sions rendered upon appeals from the rulings of the INS.

The Department of State, through its consular officers in

American embassies and under limited circumstances its Visa

Office in the United States, and the Immigration and Naturali-

zation Service in the case of change of visa requests, deter-

mines on an individual basis whether an applicant is entitled to

a non-immigrant visa as a treaty trader. In making this deter-

mination, both the qualifications of the applicant and pro-

posed position of employment are examined.

In granting a non-immigrant treaty trader visa, the Depart-

ment (or INS) thus makes an administrative determination that

a visa applicant will fill an “executive personnel” position, but

this determination is made for the limited purpose of adminis-

tering the visa laws. We do not believe that the determination

should preclude judicial review of the scope of the term

“executive personnel” for other purposes, including the appli-

cation of Title VII.

97a

4. Is any supervision exercised to determine if persons ad-

mitted as treaty traders do in fact operate in the type of

position for which they were admitted? What sanctions are

imposed if violations are found?

Under the terms of their visas, treaty traders must file

annual reports with the INS to show that they are maintaining

their treaty trader status. If, on the basis of information

furnished in an annual report, the INS determines after investi-

gation that an alien no longer qualifies as a treaty trader, the

INS is authorized to order the alien to leave the country, and, if

necessary, to deport the alien (8 U.S.C. Section 1257(9); 8

C.ER. Sections 241.2 and 241.9). During the course of a

nonimmigrant’s stay in the United States, the INS also has

authority to monitor the alien’s employment to insure that it

complies with the terms of the alien’s visas. Private parties may

trigger such an INS investigation by lodging a complaint with

the district INS office.

If you have any further questions or if we can provide

further help, please let us know.

Sincerely,

/s/ LEE R. MARKS

Lee R. Marks

Deputy Legal Adviser

98a

Cover Letter from Lutz Alexander Prager, Assistant General

Counsel, Equal Employment Opportunity Commission to Lewis

Steel, Esq., Dated December 14, 1978, With Enclosure from De-

partment of State (March 15, 1978 Letter of Diane Wood, Attor-

ney Adviser, U.S. Department of State)

RECEIVED Dec. 19, 1978

[SEAL]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Washington, D.C. 20506

December 14, 1978

Lewis Steel, Esq.

Eisner, Levy, Steel and

Bellman

351 Broadway

New York, New York 10013

Dear Mr. Steel:

As you requested, I enclose a copy of the State Department’s

March 15, 1978, letter to the Commission concerning the

relationship between Title VII and the 1953 United States-Jap-

anese Treaty of Friendship, Commerce and Navigation.

Very truly yours,

/s/ LUTZ ALEXANDER PRAGER

Lutz Alexander Prager

[SEAL]

DEPARTMENT OF STATE

Washington, D.C. 20520

March 15, 1978

Mr. Earl Harper, Jr.

Assistant General Counsel

Equal Employment Opportunity Commission

Washington, D.C. 20506

Dear Mr. Harper:

I have been asked to reply to your letter of December 21,

1977, to the Department of State requesting its views on the

jurisdiction of the Equal Employment Opportunity Commis-

sion (EEOC) to investigate and process claims of discrimina-

tion relating to “treaty trader” positions. The specific question

is whether the Treaty of Friendship, Commerce and Navigation

between the United States of America and Japan (the FCN

Treaty) should be interpreted to preclude EEOC jurisdiction in

a case involving allegations of national origin discrimination in

hiring for such positions.

For the reasons stated below, it is our opinion that the FCN

Treaty does not divest the EEOC of jurisdiction.

The Civil Rights Act of 1964, as amended, gives the Commis-

sion beoad [sic] jurisdiction to investigate any charge filed by a

person “claiming to be aggrieved,. . . alleging that an employer

ployer has engaged in an unlawful employment practice.” Sec.

706(b), 42 U.S.C. § 2000e-5(b). Sumitomo Shoji America, Inc.

(Sumitomo), a U.S. corporation, is an “employer” within the

meaning of section 701(b), of the Act, and the employee

positions involved fall within the meaning of seciion 701(f).

Unlawful employment practices are defined in section 703(a),

and they include, inter alia, the failure or refusal to hire an

individual because of his or her “race, color, religion, sex, or

national origin.”

100a

Unless the Treaty somehow changes things for purposes of

jurisdiction over the subject matter, jurisdiction exists if the

charging party claims national origin discrimination and satisfies

the other jurisdictional prerequisites, such as the 180 day filing

period. The charging parties in this case have done so, as we

understand the facts. Since the Civil Rights Act is silent as to the

relationship between its provisions and those of the FCN Treaty,

it is necessary to read the Treaty with the Act, and see if the two

can be reconciled.

The mere fact that Article VIII(1) of the FCN Treaty gives

employers the right to employ persons “of their choice” does

not mean that the class of employers composed of subsidiaries

of foreign companies protected by FCN Treaties is exempt

from general U.S. law. In fact, Article I of the FCN Treaty

with Japan is the article that provides the general authorization

for issuance of “E-1” visas to Japanese treaty traders. How-

ever, even assuming Article VIII(1)’s language is fully applica-

ble to treaty traders, our conclusion is the same. Every em-

ployer in the United States has the right to employ the persons

of his choice, but that does not mean that he is free to engage

in unlawful practices, such as discrimination or unfair labor

practices. The right granted by Treaty to subsidiaries of Jap-

anese companies doing business in the United States is simply

the right to employ Japanese persons on the same basis as

American nationals. The treaty trader immigration laws and

rules implement this objective by permitting entry of Japanese

“treaty traders” through procedures far less burdensome that

the normal procedures for non-treaty trader aliens seeking to

enter the United States for purposes of employment.

Neither the Civil Rights Act nor the regulations issue under

the Act contain any specific exemption for “treaty trader”

positions. Moreover, the Act’s legislative history is also silent.

The Act expresses the firm policy of the United States against

all forms of discrimination and the FCN Treaty’s language

does not compel a finding of exemption for “treaty traders.”

Therefore, we believe that the Commission does have jurisdic-

tion in this case.

10la

Concluding that the Commission has jurisdiction, however,

does not dispose of the various issues raised in [words obliterated

by interlineation] letter to the Commission concerning the merits

of the claim, such as whether the charging parties have alleged

national origin discrimination or merely citizenship discrimina-

tion, whether “treaty traders” somehow qualify for an exception

similar to the job-related exception, and whether “treaty

traders” are entitled to any benefits at all beyond the procedural

benefits spelled out in the immigration laws.

We would be happy to provide the Commission with our

views on these questions if the investigation proceeds.

I hope that you find these comments useful. If you have any

questions, or wish to discuss anything in this letter, feel free to

call me, at 632-0349, or Victor Vilaplana, at 632-2149.

Sincerely,

/s/ DIANE Woop

Diane Wood

Attorney Adviser

{Comment: various parts of the above letter have been under-

lined in handwriting]

102a

Affidavit of Lance Gotthoffer Submitted in Support of Defen-

dant’s Motion for Reconsideration, Sworn to September 10,

1979 With Exhibits Attached

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

77 Civ. 5641

_—

LISA M. AVIGLIANO, et al.,

Plaintiffs,

—against—

SUMITOMO SHOJI AMERICA, INC.,

Defendant.

—

AFFIDAVIT

State of New York )

$S.:

County of New York )

LANCE GOTTHOFFER, being duly sworn, deposes and says:

1. I am an attorney associated with the firm of Wender,

Murase & White, counsel for defendant Sumitomo Shoji

America, Inc., (“Sumitomo”). I make this affidavit in support

of Sumitomo’s motion for reconsideration of this Court’s

Opinion and Order dated June 5, 1979 to the extent that it

denies Sumitomo’s motion for an order dismissing the com-

plaint herein.

2. This motion is based upon newly discovered evidence—

certain heretofore unavailable documents only recently made

available to the parties by the United States Department of

State, This affidavit is submitted to resolve now, at the outset,

any possible question as to authenticity.

103a

3. On August 15, 1979, I received in hand from George

Lehner, Esq., an attorney advisor in the office of the Legal

Advisor, Department of State, Washington, D.C., documents

which Mr. Lehner represented to me were true copies of

documents from the files of the United States Department of

State where such documents were kept. I attach hereto true

copies of all the documents given to me by Mr. Lehner, and

represented by him to be authentic State Department docu-

ments as described above. For the convenience of the Court,

an index to the documents is also attached.

4. In light of the foregoing, defendant respectfully submits

that these documents have been sufficiently authenticated, and

that absent any showing by plaintiffs on this motion that

further authentication is required, such documents should be

for all purposes in this case, considered duly authentic as

required by law.

/s/ LANCE GOTTHOFFER

Lance Gotthoffer

Sworn to before me this

10th day of September, 1979

/s/ DOUGLAS J. DANZIG

Douglas J. Danzig

Notary Public, State of New York

No. 60-4607413

Qualified in Westchester County

Certificate filed in New York County

Commission Expires March 30, 1981

10.

104a

(INDEX TO AFFIDAVIT OF L. GOTTHOFFER)

. Communication of Department of State to United States

Political Adviser for Japan, Tokyo, marked “RE-

STRICTED No. 63”, stamped Nov. 1, 1951, and Annex

thereto.

. Foreign Service Despatch No. 915, from USPOLAD,

Tokyo, to Department of State, re FCN Treaty with

Japan, dated December 17, 1951.

. Outgoing Airgiam No. A-453, from Department of State

(Acheson) to USPOLAD, Tokyo, re FCN Treaty with

Japan and Despatch No. 915, dated January 7, 1952.

. Despatch No. 13, by Office of United States Political

Adviser for Japan, Tokyo, re Japanese FCN Treaty, dated

April 8, 1952.

. Outgoing Airgram No. A-49, from Department of State

(Acheson), to American Embassy, Tokyo, re Japanese

FCN Treaty, dated July 23, 1952.

Telegram No. 3989 from American Embassy, Tokyo, to

Secretary of State, dated March 28, 1975.

. Telegram No. 11177 from American Embassy, Tokyo, to

Secretary of State, dated August 13, 1975.

. Department of State Airgram No. A-105 (Kissinger) to

American Embassy, Tokyo, dated January 9, 1976.

. Department of State Instruction, No. A-852, to HICOG,

Bonn, re FCN Treaty with Germany, dated January 21,

1954.

Foreign Service Despatch No. 2413, from HICOG, Bonn,

to Department of State, re FCN Treaty with Germany,

dated March 8, 1954,

Foreign Service Despatch No. 2529, from HICOG, Bonn,

to Department of State, re FCN Treaty with Germany,

dated March 18, 1954,

12.

13.

14.

15.

16.

17.

105a

Letter of April 29, 1954, from Office of United States

High Commissioner for Germany, to Secretary of State,

and enclosures, consisting of 16 Notes from the Office of

the United States High Commissioner for Germany to the

German Ministry of Foreign Affairs re the FCN Treaty

with Germany, dated November 2, 1953, November 4,

1953 (ist note); November 4, 1953 (2nd note); November

5, 1953; November 12, 1953; November 23, 1953; Decem-

ber 9, 1953; December 10, 1953; December 12, 1953;

December 14, 1953; December 15, 1953; December 16,

1953 (Ist note); December 16, 1953 (2nd note); February

5, 1954; February 8, 1954; February 9, 1954.

Letter of the Trade Agreements and Treaties Division to

the Counselor of Embassy for Economic Affairs, Ameri-

can Embassy, The Hague, Netherlands, dated September

16, 1955.

Letter of the Counselor of Embassy for Economic Affairs,

American Embassy, The Hague, Netherlands, to the Com-

mercial Policy Staff, Department of State, dated Septem-

ber 28, 1955.

Letter of the Trade Agreements and Treaty Division,

Department of State, to the Counselor of Embassy for

Economic Affairs, American Embassy, The Hague,

Netherlands, dated October 28, 1955.

Letter of the Netherlands negotiator to the Counselor for

the U.S. Embassy for Economic Affairs, The Hague,

dated October 22, 1955.

Letter of the Netherlands negotiator to the Economic

Counselor of the U.S. Embassy, The Hague, dated Octo-

ber 6, 1955.

Letter of the Trade Agreements and Treaty Division,

Department of State, to the Counselor for Economic

Affairs, American Embassy, The Hague, Netherlands,

dated November 8, 1955.

19,

20.

21.

106a

Letter of the Counselor of Embassy for Economic Affairs,

American Embassy, The Hague, Netherlands, to the Com-

mercial Policy Staff, Department of State, dated Novem-

ber 4, 1955.

Letter of the Netherlands negotiator to the Economic

Counselor, U.S. Embassy, The Hague, dated November 8,

1955.

Letter of the Counselor of Embassy for Economic Affairs,

American Embassy, The Hague, Netherlands, to the Trade

Agreements Division, Department of State, dated Novem-

ber 14, 1955.

107a

Exhibit 1

{[Comment: Date “Nov | (year

illegible)” stamped

in upper right of

RESTRICTED page.]

No. (Comment: Number “63” handwritten]

{Comment: Numbers “611.944/6-1651” handwritten]

{Comments: Numbers “611,944/6-1651" stamped on right side

of letter as well as handwritten, Letters “CS/R”

also stamped on right side. File stamp, which is in-

itialled, appears on lower left side of letter].

To the [blank]

United States Political Adviser for Japan,

Tokyo.

The Secretary of State refers to the Mission's Despatch 246 of

August 16, 1951, with enclosures, regarding the development of

a negotiation between the United States and Japan for a new

treaty of friendship, commerce and navigation, This Govern-

ment shares the desire expressed by the Japanese, and as set forth

in Article 12 of the Peace Treaty, to proceed expeditiously with

discussions of such a treaty, with a view to arriving at a mutually

agreed text which may be ready for signature as soon after the

formal restoration of peace as may be possible, The fact that the

Japanese Government has seen fit to pattern its tentative treaty

draft upon the model afforded by treaties of the type which the

United States has lately entered into with other countries sug-

gests that there is general agreement on the nature, scope and

content of a treaty of sufficient extent to augur well for the

success of a negotiation.

Ordinarily, the Department prefers to use, and has used in all

negotiations to date (except in the special case of Ethiopia), its

own “standard” model as a basis for negotiating a treaty of

friendship, commerce and navigation, This draft has the advan-

tage, inter alia, of being a document which the Senate has pre-

108a

viously approved and with which it is now familiar. Six mimeo-

graphed copies thereof are enclosed. Copies of this draft should

be furnished to the Japanese for their study, and as the latest

illustration of the Department's views and preferences as to the

most suitable approach, However, although the Department

would be happy if the Japanese Government should be willing to

substitute the Department’s standard draft for its own initial

proposals as a basis for discussion, the Department will refrain

from insisting that this be done. If the Japanese strongly desire,

the Department is willing, in deference to the Japanese initiative

and as a token of good will, to use the Japanese draft, with cer-

tain amendments, as the starting point for developing the nego-

tiation. These amendments are set forth in the Annex hereto.

In the

RESTRICTED

[End of page]

RESTRICTED

ate

In the present instruction and its Annex, the Department has

confined itself to setting forth certain basic considerations that

affect the formulation, in major outline, of what it would regard

as an appropriate basis for treaty discussions. Comments on the

details of, and proposals for secondary modifications in, the

various provisions of the Japanese draft, are deferred until after

a basic negotiating draft is definitely ready and the two Govern-

ments are thereupon in a position to commence detailed discus-

sion. (As to the Japanese indication of desire to negotiate also

with respect to tariff concessions, consular rights, shipwrecks

and double taxation, the Japanese correctly appreciate that these

matters are properly treated separately from our FCN Treaty).

The Department is mindful that the Japanese draft proposals

forwarded under cover of the despatch in reference, and which

constitute the object of the comments in the present instruction,

are tentative and that the Japanese expect to give further study

109a

and consideration to perfecting their ideas of the kind of treaty

they would like to negotiate. The Department hopes that with the

information contained in the present instruction and its enclo-

sures, the Japanese will be able within the reasonably near future

to prepare, or assent to, a definitive negotiating draft which will

be satisfactory to both Governments as the starting point of de-

tailed discussions. It is understood that the acceptance, as basis

for discussion, of the Department’s standard draft, or of the Ja-

panese draft amended in the manner suggested in the Annex to

the present instruction, will not prejudice the position of the Ja-

panese or of the United States as to the final text of the treaty, nor

will it prejudice the right of either to seek such modifications and

amendments as it may wish during the course of negotiation.

There are enclosed, in addition to six copies of the Depart-

ment’s standard draft, three copies each of treaties of friendship,

commerce and navigation most recently signed by the United

States, namely: Greece (August 3, 1951), Israel (August 23, 1951)

and Denmark (October 1, 1951), plus the Supplementary Agree-

ment with Italy (September 27, 1951). These treaties, like those

with Colombia, Ireland, Uruguay and Italy previously signed

and supplied to the Mission and interested Japanese officials,

were all developed from the Department’s standard proposals of

the day. While reflecting many variations and adaptations to the

views and special circumstances of the different countries, they

all embody the same common denominator of treaty principle

and coverage. Copies of all of this material should be furnished

to the appropriate Japanese officials, along with comments on

their draft along the lines set forth in the Annex to the present

instruction.

The Department will await with interest the Mission’s report

on the reactions of the Japanese Government to the views set

forth herein. If the Japanese Government is prepared to accept

as a basic negotiating draft the Department’s standard draft, or,

alternatively, its own draft with revisions corresponding gener-

ally to those suggested by the Department, the Department is

prepared, as stated in the Department’s telegram No. 621 of Oc-

tober 17, to undertake negotiations at an early date with a view to

110a

agreement on a final document. The Department is further pre-

pared to give full

consideration

RESTRICTED

{End of page]

RESTRICTED

consideration to the preference of the Japanese Government for

either Tokyo or Washington as the site of negotiations.

The Department’s comments on the views of the American

Chamber of Commerce on a treaty of friendship, commerce and

navigation between the United States and Japan (the Mission’s

despatch No. 440 of September 19) will be submitted shortly.

Enclosures:

. Six copies of FCN Treaty (in blank).

. Three copies of FCN Treaty with Greece.

Three copies of FCN Treaty with Israel.

Three copies of FCN Treaty with Denmark.

Three copies of Supplementary Agreement with Italy.

Uhwne

{Comment: File stamp appears on lower right of page]

EET:CP:H Walker:jn

October 22, 1951

L/E L/T SD_ BPT Cleared in draft;

OFD—Mr. Young 10/15/51

Commerce—Miss Espenshade 10/1

NA—Mrs. Kallis 10/19/51

RESTRICTED

{[Comment: Various illegible initials appear on lower part of

page along with file stamp dated Oct 26 1951 and

Nov 1 1951 at bottom of page.]}

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ANNEX

Amendments to the draft treaty of friendship, commerce and

navigation which was forwarded under cover of Mission des-

patch 246 of August 16.

In the main, the Japanese draft is in general outline suffi-

ciently close to United States ideas to be an adequate basis for

commencing the process of arriving at a mutually agreed final

text. In some respects, however, the Japanese draft would need

to be amended, if it is so to be used. Such amendments fall into

three classes, as described below.

The first type of amendment is of a stylistic order, and is

merely desirable rather than essential. It is proposed to substitute

the term “companies” for “corporations and associations”

wherever used; the simple terms “national treatment” and

“most-favored-nation treatment”, respectively, with definitions

thereof in the definitions Article, for the more lenghy [sic] refer-

ences to these concepts throughout the treaty; and the term

“products” for the expression “articles the growth, produce or

manufacture”. These devices, used in all United States treaties

signed subsequent to that with Italy, save a considerable amount

of wordage and contribute to concise sentence structure.

The second group of amendments would be the addition, at

appropriate points, of several provisions found in most of the

recent United States treaties which are missing from the

Japanese draft. These include, notably, the following, the texts

of which may be found in the enclosed standard draft at the

points indicated in parentheses: provision on commercial arbi-

tration (Article V, paragraph 2); rule concerning the treatment of

private enterprises which are under competition from state en-

terprises (Article XVIII, paragraph 2); paragraph on the employ-

ment of technical personnel (Article VIII, paragraph 1); para-

graph regarding the national treatment of corporations in the

United States, in consequence of the nature of the federal system

(Article XXII, paragraph 4); provision regarding the impairment

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of vested rights and interests (Article VI, paragraph 4); and reser-

vations with respect to fissionable materials, United States terri-

torial preferences, and the GATT (Article XXI, paragraphs | (d),

2 and 3). Should there be special problems with respect to the

GATT in the case of Japan, they can be dealt with during negotia-

tion. Paragraph 4 of Article XXI of the United States draft is

also necessary. (It may further be noted that the Department has

under consideration the adding of new material to its industrial

property article, designed to encourage technological inter-

changes. Should such a proposal be formulated, it will be pre-

sented later.)

The third group of amendments consists of several Articles

from the Department’s standard draft to be substituted in

texto for certain Articles of the Japanese draft which diverge

so widely from what the Department considers appropriate for-

mulations as to be unsuitable bases for discussion. The substitu-

tions accordingly proposed below are, of course, without preju-

dice to changes in other provisions in the Japanese version which

the Department will wish to introduce during the course of the

discussions. Further Japanese study of current United States

treaty policy may, indeed, lead the Japanese on their own motion

to introduce appropriate secondary revisions in some of their

[Comment: Handwritten on right of page are illegible

letters plus “611.944/6-1651”.]

[End of page]

proposals in advance of the opening of detailed discussions.

Article I of the Japanese draft should be replaced by Article II,

paragraphs 1 and 3, of the Department’s standard draft. It is not

possible for the Department to use a treaty of this kind as a vehi-

cle for a wholesale setting aside of United States immigration

policy. National treatment is, of course, out of the question; and,

since immigrant quotas vary widely from country to country, it is

not possible to assure even most-favored-nation treatment to any

country as a general proposition. It is, however, possible to stipu-

113a

late most-favored-nation treatment for one special category of

entrants, namely, those entering for the purpose of engaging in

international trade (i.e., “treaty traders”) and who are covered in

sub-paragraph (a) of the Department’s draft. (The formulation

on this subject in the treaty with Ireland, for example, is in most-

favored-nation terms). Also, the Department would wish to sub-

stitute paragraph 2(d) and (e), of the same Article of its draft, for

Article IV, paragraph 3, of the Japanese draft, because the na-

tional treatment proviso of the latter gravely weakens a sound

rule on freedom of communication and of reporting.

The Mission is undoubtedly aware that there has been pending

in Congress a proposal, patterned after Acts already passed in

behalf of the Chinese, Filipinos and others, to remove the exist-

ing racial bar to the immigration and naturalization of Japanese.

The enactment of this proposal, which is now being considered in

connection with a comprehensive revision and recodification of

the immigration code, would remove not only the feature of

United States immigration policy which the Japanese have found

peculiarly objectionable but also the particular disabilities in the

land laws of Western states which are in terms of aliens ineligible

to citizenship.

Article V should be replaced by Article 1X of the Department’s

standard draft. Interference by treaty with State prerogatives in

the contro! of land policies has historically been a subject of great

delicacy. On at least two occasions in the past the Senate has

rejected treaties with Western Europ n powers that provided

national treatment as to land ownership; and it will be noted that

none of the recent treaties signed by the United States (China,

Italy, Uruguay, Ireland, Colombia, Greece, Israel, Ethiopia and

Denmark) attempts to prescribe State policies with respect to

ownership of real property.

On the other hand, it has been acceptable to provide national

treatment with respect to the leasing of real property necessary to

the conduct of treaty activities, notwithstanding some State laws

circumscribing alien leaseholds. The right to lease is a valuable

treaty right in the United States, as was demonstrated in the case

ll4a

of the 1911 treaty of commerce and navigation with Japan. The

Department, in proposing the formulation in the United States

standard draft, is offering to assure leasehold rights.

With respect to ownership rights, the Department is propos-

ing to deal in a special way: namely, through the “de facto

reciprocity” formula first broached in the treaty of 1937 with

Siam. This formula, devised in an effort to approach the na-

tional treatment ideal as nearly as practicable, provides in effect

for reciprocal national treatment on ownership to the extent that

the State laws

permit;

{End of page]

permit but it envisages that Japan would be free to withhold this

standard of treatment from citizens and corporations of States

that do not accord national treatment to Japanese nationals and

corporations. A like formula in the 1946 Treaty with China is

said to have influenced the States of Nevada and Utah toward

ameliorating the Chinese disabilities of their real property laws;

and the adoption of the formula in treaties with Japan and other

countries would undoubtedly be of pertinence to the reconsi-

deraticn, now variously evident in the United States, of alien

land disabilities still persisting in certain State laws. Expressly

anti-Oriental laws have been declared unconstitutional in Arkan-

sas, Oregon and in the lower courts of California; and are under-

stood to have been liberalized by legislative action in Utah and

Nevada. In half the States, aliens at present enjoy the same rights

as citizens with respect to landholding; and in only a compara-

tively few States are the disabilities against the generality of

aliens of serious proportions insofar as commercial property is

concerned.

As to Articles II] and VI, attention is invited to Articles VII

and VIII of the Department’s standard draft, as an improved

and definitely preferable approach to the framing of sound rules

on the business activities of persons and corporations. It will be

115a

noted that the second paragraph of the latter deals with a subject

apparently missing from the Japanese draft, but which the De-

partment did not include in the list, given above, of provisions

which it proposes be added to the Japanese draft. For other illus-

trations of treaty drafting deemed to be an improvement over the

China and Italy treaties, see Articles VII and VIII of the Colom-

bia Treaty and Articles XII and XIII of the Greek Treaty. The

later formulation of the standard draft (upon which the Israel

Treaty is incidentally, based), it may be emphasized, is consid-

ered to be superior to these.

Article IX. It is requested that the Japanese withdraw this Ar-

ticle altogether. It is no longer the policy of the United States to

enter into treaty undertakings to grant exemptions from military

service; and treaties most recently negotiated (Uruguay, Colom-

bia, Greece, Israel, Ethiopia and Denmark) therefore contain no

military service provisions. The necessity of maintaining this pol-

icy in future negotiations is underscored by action Congress took

this summer in amending the Selective Service Act so as to make

aliens entered for permanent residence henceforth subject to the

draft.

Articles XI through XVII. Since the negotiation of the treaty

with Italy, the Department has concluded that all essential provi-

sions On navigation can be compressed into the confines of a

single Article. (See Article XIX of the Department’s standard).

The abbreviated formulation now favored by the Department

has, aside from the virtue of compactness, the advantage of clos-

ing loopholes that might be present in the longer formulation of

the Italy Treaty, through application of the inclusio unius exclu-

sio alterius maxim. Substitution of the Department’s standard

navigation article is therefore requested. It may be noted that

material of the sort treated in Article XIV of the Japanese draft is

not included in the Department’s draft. The formulation of an

acceptable treaty rule on this would require some exploration.

(Note: the only provision in this connection to which the Depart-

ment has thus far agreed in any recent commercial treaty negotia-

1l6a

tion is Article XXII, paragraph (Comment: handwritten para-

graph “3” written in], of the Treaty with Greece).

Article

[End of page]

Article XXII. Since the negotiation of the treaty with Italy in

1948, on which the Japanese proposal is presumably based, the

Department has restudied the whole question of exchange con-

trols, with a view to the formulation of improved rules, espe-

cially as the interests of investors are affected. This reformula-

tion, as reflected in Article XII of the Department’s standard

draft, should be substituted for the Japanese proposal. It may be

noted that the major deficiencies of the exchange control article

of the 1948 Italian Treaty have now been corrected in a Supple-

mentary Agreement with Italy, signed September 27 of this year

(see Article III and IV of same).

Article XXIV. This Article creates difficulties. An agreement

in which tariff concessions are made (c.g., A trade agreement) isa

more suitable veliiclé for this sort of thing than is a treaty of the

present sort. The establishment of a general valuation policy,

moreover, is more properly the function of a multilateral than a

bilateral negotiation. Finally, Congress has indicated opposition

to the abandonment of the so-called “American selling price”

feature of the United States Customs Law. (Note. The valuation

rules set forth in the GATT are only provisional, and are applica-

ble only to the extent that the legislation of each contracting

party permits).

Article XXVII. The Department proposes that this Article be

deleted, and that in lieu thereof there be inserted in the Protocol a

provision tentatively worded as follows:

“With reference to (Article XX XI, paragraph | (7)), it is

understood that either High Contracting Party may pro-

hibit the importation into its territory or seize, in accord-

ance with the law of such High Contracting Party, any

goods of the other High Contracting Party which bear,

through labelling, marking, or otherwise, a false indication

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of geographic or commercial origin or which produce a

false impression of their true origin. Each High Contracting

Party agrees to take appropriate steps to prevent unfair

practices involving false indications, of whatever nature,

that goods produced or sold in or exported from the terri-

tory of such High Con

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