# Opposition Brief — Colon v. Division of Human Rights > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1773%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1974 - **Citation:** 417 U.S. 946 ## Text BERKEL ER oa sae . : SSesgents eo) pa PGS teas odie: 7 Eye VOLE CA wee PPI gs REPLI I GO I IO TE Ey} °F SFI DO IOI Fe REE OE ST iG Tie crt 4 ES hay a _ Nae 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1773%3A2. Public record. Not legal advice.