Opposition Brief — Colon v. Division of Human Rights

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MICHAEL RODAK,

Supreme Court of the United

No. 73-1502

Ramon Co.on,

Petitioner,

against

Strate or New York, Division or Human Ricuts, Rosert

J. Macnum, Jack M. Sasize, Commissioners, and Rosert

Ruiz, Assistant CoMMISSIONER,

Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

Louis J. Lerxowrrz

Attorney General of the

State of New York

Attorney for Respondents

State of New York, Division

of Human Rights, Robert J.

Magnum, Jack M. Sable, and

Robert Ruiz

Samue, A. HirsHow1tTz

First Assistant Attorney General

Davy R. Spice.

Assistant Attorney General

of Counsel

—

_ Re crenata

os

TABLE OF CONTENTS

SD DUNNING cc ccccccnccccccccccscescseses

RE CROSS wncnecnccscccetsuccencsesese

Reasons for Denying Certiorari ...................

I. The Instant Action was and is moot ..........

Il. The Present Action Is Barred By the Eleventh

DL: cchitandsenendeneenéeceuhnkeotes

REL .daeccdccsncececseeesssucenes ebendes

TasLe or CasEs

Angel v. Bullington, 330 U.S. 183 (1947) ...........

Arnett v. Kennedy, —— U.S. —— (April 16, 1974),

SE NG SE co daddecbassokdpanesnsasese

Board of Regents v. Roth, 408 U.S. 504 (1972) ......

Dandridge v. Williams, 397 U.S. 471 (1970) ........

.

ii TABLE OF CONTENTS

PAGE

DeFumis v. Odergaard, —— U.S. —— (April 23,

UG ee 4

Dugan v. Rank, 372 U.S. 609, 620 (1963) ........... 5

Edelman v. Jordan, —— U.S. —— (March 23, 1974),

i CD on ncwnnccesoooesseces 5

Francisco Enterprises v. Kirby, 482 F. 2d 481 (9th

i Mn siccctcsocenbaneeeeisusdusaeéoebns 6

Fuld v. Elliot, US. (November 12, 1973), 42

U.S.L.W. 3290, affirming 40 A D 2d 950 (1st Dept.

ty i ceddielA gh be aebdemnns aaah de Keene 6,7

Goldberg v. Kelly, 397 U.S. 254 (1970) ............ 7,9

Goosby v. Osser, 409 U.S. 512, 518 (1973) .......... 6

Haggans v. Wyman, US. (March 25, 1974) 6

Koscherak et al. v. Schmeller et al., —— U.S. ——

(February 25, 1974), 42 U.S.L.W. 3484, affirm-

ing 363 F. Supp. 932 (S.D.N.Y. 1973) ......... 6,7

McGinnis v. Royster, 410 U.S. 263, 273 (1973) ...... 8

Maryland Gas Co. v. Pacific Coal € Oil Co., 312 US.

DE dbdsdducdneaadedencarscseveresincusees 4

Matter of Colon v. State of New York, et al., 39 AD

Se Ge MS SEED nccdccdccescosevcecccs 3

Morrissey v. Brewer, 408 U.S. 471, 486 (1972) ...... 9

North Carolina v. Rice, 404 U.S. 244, 246 (1971) ...... 4

Perry v. Sinderman, 408 U.S. 593, 599 (1973) ...... 7

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)... 6

Rothstein v. Wyman, 467 F. 2d 226, 236-237 (2d Cir.

1972), cert. den. 411 U.S. 921 (1973)

Snowden v. Hughes, 321 U.S. 1 (1944) ............

TABLE OF CONTENTS iii

a7

Tang v. Appellate Division, 487 F. 2d 138 (2d Cir.

1973), cert. den. —— U.S. —— (April 1, 1974),

RR Ra ee mnt Pe erred 6

Statutes Crrep

Federal Rules of Civil Procedure, Rule 23 .......... 5

New York Executive Law § 297.2 .............. 1, 2, 3,8

REELS a aC ee, 3

EN ST a a 6

EE En er a rae 2

ERE ER A eC a 3

REE Re eae ee aE 3

—

Supreme Court of the United States

No. 73-1502

+

-

Ramon Coron,

Petitioner,

against

Srare or New York, Division or Human Ricuts, Rosert

J. Macnum, Jack M. Sasie, Commissioners, and Rosert

Rui, Assistant COMMISSIONER,

Respondents.

A.

od

BRIEF IN OPPOSITION TO CERTIORARI

In this application petitioner, a former state employee,

makes two claims: firstly, failure to provide a statement

of reasons and a hearing as to his non-promotion within

the New York State Division of Human Rights is a denial

of his right to due process; secondly, the policy of the

Division of Human Rights of refusing to accept jurisdic-

tion in discrimination complaints involving its own em-

ployees, pursuant to New York Executive Law § 297.2, is

a denial of his right to equal protection.*

*The equal protection claim was advanced at considerable

length in plaintiff’s complaint in the district court (a copy of the

complaint is found in Appendix C). However, in the court

below and his present petition Colon has relied primarily on the

due process argument. In any event, we discuss the equal pro-

tection claim at pp. 8-9, herein.

Opinion Below

On January 10, 1974, the Second Circuit affirmed with.

out opinion the decision of the United States District

Court of the Southern District of New York (Bownsat, J.).

The Second Circuit decision has not yet been reported.

The opinion of the District Court has not been reported,

but it is reproduced at pp. 4a-9a of Colon’s petition.

Jurisdiction

Appellant invokes the jurisdiction of this court under

28 U.S.C. § 1254(1).

Statute Involved

New York State Executive Law § 297.2.

Questions Presented

1. Whether this action is moot?

2. Whether this action is barred by the Eleventh

Amendment?

3. Whether the complaint fails to state a substantial

federal question?

Statement of the Case

Appellant, who is of Puerto Rican origin, is a retired

employee of the Division of Human Rights of the State

of New York (hereinafter called “Division”). He had been

hired as a provisional Field Representative for the Human

Rights Division in 1964; in 1965 he was appointed a per-

manent field representative and continued to be employed

3

in that position until May 1, 1972 when he retired, having

reached the mandatory retirement age of 70.

Appellant alleged that on July 1, 1970, and on other

occasions, he had requested promotion to a policy-making

position in the Division and that these requests were de-

nied. He thereupon filed a complaint on October 20, 1971

with the Division, charging it with unlawful discrimina-

tory practices relating to his employment.

On November 5, 1971 this complaint was dismissed pur-

suant to New York Executive Law 4 297.2 on the ground

that the Division does not take jurisdiction in cases in-

volving its own employees. However, on November 8,

1971 the Human Rights Commissioner, Jack M. Sable,

offered to appoint a special neutral panel to investigate

petitioner’s claim (a copy of Commissioner Sable’s letter

is found in Appendix A at p. 10 herein). But, through his

attorney, petitioner spurned this offer (a copy of peti-

tioner’s letter is found in Appendix B at p. 12 herein).

Accordingly, on December 31, 1971 the dismissal of the

complaint was upheld by the New York State Human

Rights Appeal Board.

Appellant then sought judicial review pursuant to § 298

of the New York Executive Law. The agency determina-

tion was affirmed by the Appellate Division, First Depart-

ment, 39 A D 2d 650, 330 N.Y.S. 2d 1013 without opinion

(1972).

Appellant did not seek further appeal but instead

brought this action on July 28, 1972 pursuant to 42 U.S.C.

§§1981 and 1983 in the District Court alleging that the

appellees had discriminated against him on the basis of

his national origin by denying him a promotion to a policy

making position with the Division. He sought an order

requiring appellees to promote him retroactively from field

representative to a policy-making position and to award

4

him damages in the amount of $1,000,000 and full pension

benefits (See Appendix C).

On January 5, 1973 the District Court (Bonsat, D. J.)

dismissed the complaint finding that the policy of the Divi.

sion not to take jurisdiction in cases involving its own em.

ployees was reasonable and rationally based (Petition, 8a).

The Court also held that petitioner had failed to set forth

facts sufficient to demonstrate that his non-promotion was

arbitrary, capricious or that it constituted a violation of

his civil rights.

On January 10, 1974 the Court of Appeals affirmed with.

out opinion the determination of the district court.

Reasons for Denying Certiorari

I. The Instant Action Was And Is Moot.

Petitioner claims that he was denied promotion to a

policy-making position by the defendants because of his

ethnic background. He concedes, however, that he has

been retired from the Division since May, 1972, when he

reached the mandatory retirement age of seventy. Ac

cordingly, since petitioner can no longer be promoted, his

claims were and are clearly moot. Defumis v. Odegaard,

— U.S. —— (April 23, 1974), 42 U.S.L.W. 4578; North

Carolina v. Rice, 404 U.S. 246 (1971), noting at 246 that

“federal courts are without power to decide questions that

cannot affect the rights of litigants in the case before

them”.®

* Moreover, declaratory relief cannot be granted unless:

“The facts alleged, under all circumstances show that there

is a substantial controversy between parties having adverse

legal interests, of sufficient immediacy and reality to warrant

the issuance of a declaratory judgment”. Maryland Gas Co. ¥.

Pacific Coal & Oil Co., 312 U.S. 270-273 (emphasis added).

This is plainly not the case here.

>>

5

Incredibly, petitioner does not controvert the fact that

his own claims are moot (see petition, p. 7, noting that “the

incident which gave rise to the controversy herein has been

resolved”). Instead, he contends that his statutory argu-

ments are still viable on behalf of an alleged class of em-

ployeees similarly situated to himself. The short answer

to this argument is that since plaintiff never sought to

maintain his action as a class action in the court of original

jurisdiction, he certainly cannot, on his own whim, do so at

this late date. Furthermore, no facts as to the existence

of any such class were presented to meet the requirement

of F.R.C.P. 23.

Il. The Present Action Is Barred By

The Eleventh Amendment.

Aside from the problem of mootness, it is equally ap-

parent that petitioner’s spurious claim for $1,000,000 in

retroactive damages against a state agency and its officers

is barred by the Eleventh Amendment.

As this Court recently stated in Edelman v. Jordan,

U.S. —— (March 25, 1974), 42 U.S.L.W. 4419, 4422:

“, .. The rule has evolved that a suit by private

parties seeking to impose a liability which must be

paid from public funds in the state treasury is barred

by the Eleventh Amendment.”

See also, Dugan v. Rank, 372 U.S. 609, 620 (1963); Roth-

stein v. Wyman, 467 F. 2d 226, 236-237 (2d Cir. 1972), cert.

den. 411 U.S. 921 (1973).

Needless to say, the rule has no application where dam-

ages are prospective, see Edelman, 42 U.S.L.W. at 4422-

4423, but this is plainly not the case here. Plaintiff

himself has conceded that his claims terminated with his

retirement in 1972; thus all the damages he is seeking are

clearly for past wrongs, accumulated prior to the time of

the present lawsuit.

a

Ill. The Complaint Raises No Substantial

Federal Question.

In the final analysis, petitioner’s application fails to raise

any substantial federal question within the meaning of

28 U.S.C. § 1343. The measuring rod for substantiality is

whether ‘“‘the prior decisions [of this Court] inescapably

render the claim frivolous”, Goosby v. Osser, 409 U.S. 512

(1973) at 518; also Haggans v. Wyman, —— US. —

(March 25, 1974). This, as the district court has already

recognized, is precisely the characterization that must be

applied to petitioner’s due process and equal protection

claims herein (Petition, 8a).

A.

Petitioner’s essential claim involves a so-called due

process argument—that he was entitled to a statement of

reasons and a hearing on the decision not to promote him.

However, this claim has no support in recent decisions of

this court.

Just recently, on February 25, 1974, this court in

Koscherak, et al. v. Schmeller, et al., 42 U.S.L.W. 3484,

rejected an appeal by candidates in a civil service examina-

tion who raised the identical claims as the present peti-

tioner. The Court affirmed the decision of a three judge

court of the Southern District of New York (363 F. Supp.

932) which held there was “no entitlement” of an in-

dividual “to demand that [the] government in effect grant

hearings and give written reasons for hiring and promo-

tion decisions as a matter of due process of law’’ (38

F. Supp. at 936). To a similar effect see Fuld v. Elliot,

* This is apart from res judicata as a result of the prior state

litigation raising the claim of discrimination, Rooker v. Fidelity

Trust Co., 263 U.S. 413 (1923); Angel v. Bullington, 330 U.S. 18

(1947); Francisco Enterprises v. Kirby, 482 F. 2d 481 (9th Cir.

1973); Tang v. Appellate Division, 487 F. 2d 188 (2d Cir. 1974),

cert. den. —— U.S. —— (April 1, 1974), 42 U.S.L.W. 3351.

|

7

— U.S. —— (November 12, 1973, 42 U.S.L.W. 3290, af-

firming 40 A D 2d 950 (1st Dept. 1972).

The Koscherak and Fuld decisions indisputably flow

from the prior decision of this Court in Board of Regents

v. Roth, 408 U.S. 564 (1972); also, Perry v. Sinderman,

408 U.S. 593, 599 (1973).*

Aside from the obvious adverse case law barrier to his

action,** petitioner’s cause is undermined by the uncon-

troverted facts herein.

On November 8, 1971, after the Division had declined

jurisdiction to hear his case, Commissioner Sable offered

to appoint a special panel to investigate petitioner’s com-

plaint (Appendix A). However, in a letter dated Novem-

ber 12, 1971, petitioner’s counsel at the time rejected the

offer, stating that the panel would constitute a “kangaroo

court” (Appendix B). Colon is thus in the incredible posi-

tion of claiming on the one hand that he is entitled to a

hearing and a statement of reasons as to his non-promotion

from his employer and, on the other hand, as having stated

in advance that any findings by his employer would have

been biased.

It should also be noted that the complaint fails to allege

any facts supporting petitioner’s underlying claim ‘hat he

* Koscherak, cited supra, 363 F. Supp. at 934-935, contains a

discussion of the relationship of the issues raised herein to the

Roth-Sinderman cases.

** We are puzzled by petitioner’s repeated reliance on Goldberg

v. Kelly, 397 U.S. 254 (1970) [Petition, pp. 9-13]. In Goldberg,

this Court specifically rejected the argument that the rationale

which favors extending pretermination evidentiary hearings to

welfare recipients applies to public employees. 397 U.S. at 263,

n. 10. The point was reiterated by this Court in its recent decision

in Arnett v. Kennedy, —— U.S. —— (April 16, 1974), 42

US.L.W. 4513, where it was held, inter alia, that the failure to

provide a trial-type, pre-removal hearing for a non-probationary

Office of Economie Opportunity employee was not a denial of due

process.

8

was not promoted because of his ethnic background. In.

deed, all the complaint alleged was that ‘‘upon information

and belief, during the past few years there have been wu.

filled higher level positions in the Division where plaintiff's

talents and experience could have been used to advantage”

and that ‘‘it is plaintiff’s belief that the available positions

remained vacant or were given to others with far less

experience and knowledge of the New York Puerto Rican

community” (Appendix C, see, in particular, paras. 17, 18).

These are, at best, mere conclusory allegations which are

insufficient to state a cause of action showing an intention

and purposeful deprivation of constitutional rights, as re.

quired of a complaint under the Civil Rights Act. See

Snowden v. Hughes, 321 U.S. 1 (1944).

What petitioner is really claiming is that he believed he

was qualified for promotion, but that the named defendants

did not agree with him. Such an ‘‘abstract’’ belief plainly

does not rise to the level of a constitutional violation. Roth,

408 U.S. at 577.

B.

Petitioner also contends that the policy of the Division

of refusing to accept jurisdiction in discrimination cases

involving its own employees, pursuant to New York Ex-

ecutive Law § 297.2, is an unconstitutional denial of his

right to equal protection of the law (Petition, p. 8). How-

ever, the claim is blatantly preposterous.

The motivation for the Division’s policy is obvious and

clearly meets the test of this court that it ‘‘rationally fur-

ther[s] some legitimate, articulated state policy’’, McGinnis

v. Royster, 410 U.S. 263, 273 (1973); also, Dandridge v.

Williams, 397 U.S. 471 (1970). As the Division indicated

in its decision herein (Petition, 1a), it is merely seeking to

avoid cases ‘‘in which discrimination is charged against

persons who would be called upon to investigate and/or

determine the charges’’. Thus, contrary to petitioner's

|

9

assertion, the idea is to eliminate rather than to increase

discrimination.

As we have noted, petitioner summarily rejected an offer

by the Human Rights Commissioner to have a special com-

mittee hear his claims (see infra, p. 10). Thus, although

petitioner has been quick to claim discrimination by the

Division, he was unwilling to avail himself of a practical

proposal to have his so-called claim of discrimination heard

and evaluated by an ‘‘independent decision maker’’,

Morrissey v. Brewer, 408 U.S. 471, 486 (1972); also, Gold-

berg v. Kelly, 397 U.S. 254 (1970). Petitioner’s alleged

plight is entirely a product of his own doing.

CONCLUSION

For the foregoing reasons, petitioner’s application

should be denied.

Dated: New York, New York, May 16, 1974.

Respectfully submitted,

Louis J. Lerxowrrz

Attorney General of the

State of New York

Attorney for Respondents

State of New York, Division

of Human Rights, Robert J.

Magnum, Jack M. Sable, and

Robert Ruiz

Samuen A. HirsHowrrz

First Assistant Attorney General

Davin R. Sprecet,

Assistant Attorney General

of Counsel

a re

APPENDIX A

Letter of Jack Sable.

(Emsiem)

Jack M. Sasrz

Commissioner

Srate or New Yorx

Executive DeParTMENT

Drvision or Human Ricuts

270 Broadway, New York, N.Y. 10007

November 8, 1971

Mr. Ramon Colon

342 East 32nd Street

Brooklyn, New York

Dear Mr. Colon:

By now you have probably received a copy of the de

termination dismissing your case for lack of jurisdiction.

I have directed that the agency not accept jurisdiction

because I believe that in fairness to you or any other

employee of the Division who feels he has been discrimi-

nated against because of his race, creed, color, national

origin, age or sex by this agency that for the Division

to accept jurisdiction would be tantamount to asking the

accused to judge the accuser.

I consider the charges made in your complaint extremely

serious. They should certainly receive attention, but not

in such a way as to permit any suspicion that they have

not received the independent and impartial consideration

that would be expected in another forum.

In view of the foregoing and the alternatives expressed

in the Human Rights Law, it is my policy to consider

eases involving charges of discrimination made by em

ployees against the Division, particularly where they i-

ooo

ll

Letter of Jack Sable.

volve personnel who would of necessity be involved in the

investigation and determination of the charges, as beyond

the scope of the Division’s jurisdiction.

However, because I have a very deep concern with re-

spect to the serious charges you have made. I am directing

an immediate investigation into those charges. I have

appointed Mr. Jose Ramon Torres, Hearing Examiner;

Mr. Robert R. Shaw, Associate Director of Regional Af-

fairs; and Mr. Antonio R. Sirvent, Regional Manager of

the Bronx office, as a panel to consider the charges and

report to me. This, of course, will be in addition to any

and all rights you have either under the Human Rights

Law, Civil Service Law or any other Law.

Sincerely,

Jack M. Sasrz

Commissioner

12

APPENDIX B

Letter of Jack Baum.

Jack Baum

Attorney at Law

66 Court Street

Brooklyn 1, N. Y.

MAin 47791

November 12, 1971

New York, N.Y. 10007

Re: Ramon Coron v. Srare or New Yorx Drvision oF

Human Rieuts et al.

Case No. IaCN-1372-71

Dear Commissioner:

This letter is in reply to your letter of November 8, 1971,

addressed to my client.

Firstly, as the attorney for Ramon Colon, in the pending

matter before the Division, your communication should

have been addresed to me directly and not to my client.

Second, your letter points out that the Division’s ds

missal of the above case was because “to accept jurisdic

tion would be tantamount to asking the accused to jndge

the accuser. But further in your letter you state that you

have appointed a three man panel to investigate my client's

case.

This is to advise you that my client rejects your appoint

ment of a kangaroo court, set up by you (the accused),

outside the Division’s facilities. Under no circumstances

13

Letter of Jack Baum.

will my client be bound by the findings of the three Division

personnel you appointed.

Your conduct exhibited herein, is most unprecedented, to

say the least.

I might add, that the order of dismissal in the above

matter and the enclosure letter attached thereto were both

undated, a most peculiar occurrence.

Hereafter, kindly refrain from addressing any corres-

pondence to my client Ramon Colon.

In conclusion, may I call your attention to the fact that

despite the Division’s order of dismissal in the above mat-

ter, an appeal is pending, and further legal proceedings are

contemplated. It would, in my judgment, therefore, be

highly irregular and improper for you or the Division to

angage in any correspondence with my client or I, or any

investigation outside the customary legal facilities under

which the Division functions.

Very truly yours,

Jack Baum

JB:jk

Copy to Human Rights Appeal Board

250 Broadway

N.Y., N.Y. 10007

In THE

UNITED STATES DISTRICT COURT

SoutHern District op New York

Civil Action No. 72 Civ. 3421

4.

¥

Ramon Coron,

Plaintiff,

agatnst

Strate or New York, Drvision or Human Ricuts, Roserr J.

Macyoum, Jack M. Sasrz, Commissioner, and Rvuszsr

Ruz, Assistant CoMMISSIONER,

Defendant.

— *

7

Ramon Coxon, through his attorney, Epwarp H. Woz,

alleges and states:

JURISDICTION

1. That plaintiff has been deprived of ‘‘equal protec

tion’’ of law under the 14th amendment of the United States

Constitution due to discrimination against plaintiff by

defendants in denying equal terms, conditions and rights

of promotiton because of plaintiff’s national origin.

2. Plaintiff further contends that Article 15 section 2972

is unconstitutional under the “equal protection clause” of

the Constitution of the United States as it reserves unto

the State Division of Human Rights (New York), the |

power not to accept jurisdiction for some, but not for

—

15

Complaint.

others. Specifically it allows the aforesaid Agency to

refuse to accept jurisdiction in cases involving its own

employees. (See decision of the State Division of Human

Rights, annexed hereto and made a part hereof, annexed

as Exhibit A).

3. Plaintiff has exhausted all administrative remedies

available to him under the Laws of the State of New York.

4. Plaintiff has not availed himself of Federal Adminis-

trative remedies pursuant to Section 42 U.S.C. 2000 et seq.

as the plaintiff elected to pursue state remedies and the

statute of limitations with respect to the Federal Adminis-

trative remedies has expired.

5. Further, the amount in controversy exceeds $10,000.00.

PaRTIEes

6. Plaintiff—Ramon Colon—342 East 32nd Street,

Brooklyn, N.Y., previously employed as a field representa-

tive for the New York State Division of Human Rights

since 1964.

7. Defendant—state of New York, Division of Human

Rights.

8. Defendant—Robert J. Mangum—Commissioner.

9. Defendant—Jack M. Sable—Commissioner.

10. Defendant—Rubert Ruiz—Assistant Commissioner.

Facrs

ll. Plaintiff was employed by the State of New York

Commission of Human Rights (since 1968 known as Divi-

16

Complaint.

sion of Human Rights) on September 3, 1964 as a field

representative. It is plaintiff’s belief that he was hired on

the professional staff because of the Commission’s needs

for a true representative of the New York Puerto Rican

Community and for his experience, identification and com.

munication in the Puerto Rican Community for over forty

years.

12. Upon being employed by the State Division of

Human Rights, Human Rights, plaintiff was designated as

a field representative. For seven years, plaintiff was

engaged in the investigation of complaints alleging dis-

crimination, attending conferences in that connection, writ

ing conference reports, and performing other regular dv-

ties as a field representative. Plaintiff also performed

additional duties requiring supervisory, administrative and

policy making talents such as the following:

(a) For the Department of Research, John H. Bushness,

director, plaintiff reviewed three books about Puerto

Ricans, to wit: Glazer and Moynihan, Beyond the Melting

Pot (1963); Glazer and McEntire, Housing and Minority

Groups (1960); Handlin, The New Comers (1969).

(b) For the Department of Communications and Public

Relations, Ralph Katz, Director, plaintiff analyzed and

translated into English various Spanish-language news

paper articles regarding Puerto Rican problems. Farther-

more, plaintiff presented lectures in both Spanish and Eng-

lish regarding the aims of the Division to various commt-

nity groups, including school children.

(c) Plaintiff was assigned to the Brooklyn office of the

Division located at 118 Court Street, Brookyln, New York,

by respondent agency’s Department of Research (Dr. Busb-

nell) to prepare a study concerning the enrollment of Puerto

17

—

Rican children in the various school districts in Brooklyn,

New York. A map of Brooklyn was prepared by plaintiff

pursuant to the study, indicating the areas of residence of

such children.

(d) During 1967, between the months of March and

October thereof, petitioner managed the Bedford-Stuy-

vesant branch office of the Division, located at 550 Nos-

trand Avenue, Brooklyn, N.Y., where plaintiff supervised

the work of Charles Collier, Field Representative, and

Julia Torres, Stenographer.

(e) On or about June, 1968, plaintiff was assigned to

manage the main Brooklyn office of the Division at 26

Court Street, Brooklyn, N.Y., where plaintiff had under

his supervision Dorothy Dillahunt and Earnell Brown,

both stenographers.

For A FIRST SEPARATE AND DISTINCT CAUSE OF ACTION

13. Repeats and realleges paragraphs one through

twelve with full force and effect as if fully herein set forth.

_ 14 Plaintiff maintained this position until on or about

the middle of July, 1968 when, without notice, Robert E.

Johnson, a Negro, walked into plaintiff’s office accom-

panied by Jean MacPherson, a Negro, and stated: “From

today on, Miss MacPherson, will be in charge here. You

stay with her.’’

15. Plaintiff protested this act as discriminatory stating

that he was qualified and was denied a promotion because

of his ethnic origin. Plaintiff was advised that his qualifi-

cations would eventually be recognized and the plaintiff

continued to perform his assigned duties in a satisfactory

manner.

18

Complaint.

16. During December, 1969, plaintiff was assigned to the

Lower Manhattan Office, located at 79 Worth Street, where

besides being asked by the defendants to act on behalf of

the Division and attend and speak at community fune.

tions involving Spanish speaking citizens as a field repre.

sentative, plaintiff performed various intake functions ip

a satisfactory manner.

17. Upon information and belief, during the past few

years, there have been unfilled higher level positions in

the Division where plaintiff’s talents and experience could

have been used to advantage.

18. On several occasions, during the last three years,

and particularly on July 1, 1970, plaintiff requested a

promotion to a policy making position in the Division

These requests were summarily denied and it is plaintiff's

belief that the available positions remained vacant or were

given to others with far less experience and knowledge or

the requirements of the New York Puerto Rican Con-

munity.

19. At the time that the requests for promotion were

made, plaintiff made known to his employer his wide ex-

perience with the social and economic needs of the

Spanish speaking community and submitted a brief auto

biography.

For A SECOND SEPARATE AND DISTINCT CAUSE OF ACTION

20. Plaintiff has constantly insisted that his employers

recognized the need for more effective communication be

tween the Division and the Spanish speaking community

of the State. Plaintiff has criticized the disregard of his

employers for the Spanish speaking community which is 2

—_—

19

Complaint.

much need of assistance and protection regarding human

and civil rights. In this connection, plaintiff has on many

oceasions called to the attention of his employer and/or

employers their failure to print Division material in the

Spanish language so as to serve more effectively the 2.5

million persons of Spanish-American origin (over one

million Puerto Ricans) residing in the State of New York.

Because of plaintiff’s continued insistence upon improved

relations between the Division and the Spanish speaking

community, plaintiff has been, on many occasions subjected

to ridicule and embarrassment.

22. Due to the unlawful, discriminatory practice and re-

taliatory acts of defendants, plaintiff has suffered humilia-

tion, degradation, mental suffering and loss of earning

estimated in the total amount of $1,000,000.00.

For A THIRD SEPARATE AND DISTINCT CAUSE OF ACTION

23. Repeats and realleges paragraphs one through

twenty-two with full force and effect as if fully herein set

forth.

24. Plaintiff is of Puerto Rican national origin.

25. Based upon the foregoing, on or about the 20th day

of October, 1971, plaintiff filed a verified complaint with the

State Division of Human Rights charging the defendants

herein with unlawful discriminatory practice relat-

ing to employment by denying him equal terms,

conditions and privileges of his employment be-

cause of his national origin, in violation of the Human

Rights Law of the State of New York. However, on or

about November 5, 1971, pursuant to Section 297.2 of the

New York Executive Law, the State Division of Human

Rights determined that it had no jurisdiction to entertain

20

Complamt.

the complaint. (See ‘‘Determination and Order After Ip.

vestigation’’, appended herein as Exhibit A). A mon

complete explanation for the denial of Judisdiction wa

presented in a letter to plaintiff from defendant Sabk

dated November 8, 1971 (appended herein Exhibit B). Ay

appeal from the denial of jurisdiction was duly filed with

the State Human Rights Appeal Board. On or about De

cember 31, 1971, the decision of the Division of Humm

Rights denying jurisdiction, was affirmed in all respects

The decision of the State Human Rights Appeal Boar

(amended herein Exhibit C) was mailed on or about Jan

uary 11,1972. Plaintiff thereafter instituted the proceeding

pursuant to Section 298 of the New York Executive Lav.

26. Said appeal was denied by the Appellate Divisio

First Department on April 13, 1972 essentially with m

opinion (see annexed exhibit).

Wuenerore, plaintiff prays that an order be entered

pursuant to the Fourteenth Amendment and 42 USC 1981,

1983 prohibiting defendants from continuing to discriminate

against plaintiff in his employment opportunities and

conditions, because of his national origin, and further &

claring Section 297.2 of the Executive Law of the State of

New York to be unconstitutional, for damages of $1,000);

000.00 for loss of income, and pension benefits, and for pai

and suffering and humiliation.

Epwarp H. Wow

Epwarp H. Wo.

Dated this 28th day of July, 1972.