Petition for Rehearing — Persik v. Colorado State University

Supreme Court, U.S.

FILED

MAY 14 2004

(2) OFFICE OF THE CLERK

No. 03-1278

IN THE

Supreme Court of the United States

RAYMOND CHARLES PERSIK,

Petitioner

¥.

COLORADO STATE UNIVERSITY,

Respondent

On Petition For Writ of Certiorari

To The U.S. Court ef Appeals for the 10" Circuit

PETITION FOR REHEARING

RAYMOND CHARLES PERSIK

Pro Se

7079 West 84” Way, Apt 311

Arvada, CO 80003-1509

(303) 425-3520

CPE SO ORE i ee eee ee. Per Po Pree. ad

—— ~ oe me en ee = a —— :

QUESTIONS FOR THE US SUPREME COURT ON

REHEARING

1. “Agency policy can be developed either by the adoption

of general rules or through case-by-case adjudication, The

Judicial Role in Defining Procedural Requirements for

Agency Rulemaking, 87 Harvard Law Review 782 (1974); as

an additional protection, against either a claim based either

on retaliation, or potential collateral objectives of third

parties involved in a mixed motive discriminatory action, can

this Court toll the 300-day statutory limitation, imposed to

file a valid charge with the EEOC, if a questionnaire has

already been submitted prior to the “plaintiffs” absence

from the jurisdiction of the federal circuit in which the action

of the EEOC is pending, in the event any questionable event,

criminal or civil, prevents the “plaintiff” from attending a

meeting with the EEOC to file a timely charge of

discrimination? .

2. Again, using Judicial role, supra, can this Court adopt a

uniform standard for the Federal Equal Employment

Opportunity Commission (EEOC) to operate under in the

United States of America, by adopting the filing of the Intake

Questionnaire, if a subsequent charge is filed, as fulfilling

the 300 day filing deadline, as at least two U.S. circuit courts

have done?

3. Can this Court now consider the EEOC’s alleged

violations of their own policy in dismissing the charge on

February 16, 2001, coupled with new information clearly

demonstrating the EEOC filed the charge on the 300" day

following the last date of alleged discrimination in the

questionnaire, and the 294" day following the last day, upon

amendment, and can this Court remand this action so that the

Denver EEOC can supply reasons for their alleged failure to

turn the case over to the U.S. Attorney General, SEC v.

li

Chenery Corp., 318 US 80 (1943) (agency violation of their

own policy); in addition, does this further the petitioner’s

desire to invoke equitable estoppel?

4. Does the argument, pertaining to question 3 above,

further the petitioner’s claim for equitable estoppel

pertaining to his admitted failure to serve both CSU, and the

Colorado attorney general, based on his allegation that the

CSU legal clerk, and possibly CSU’s attorney Lawrence

Pendleton, stated that CSU was not the correct body to

receive service of process, by clearly “demonstrating that

both this offense and the ‘other crimes’ show the ‘modus

operandi,’ ‘handiwork,’ or ‘signature’ of the defendant”, 29

Am Jur 2d § 423 Evidence, To show identity or modus

operandi?

5. Once again, the Petitioner asks this Court to review the

constitutionality of Roe v. Wade, 410 US 113 (1973); since

church and state are separate in the USA, is alleged religious

discrimination, based on the petitioner’s religious based pro

life view, the one area where we consider God’s love in

making a decision to add a sixth class of protected “persons”

to the five existing classes currently covered by Title VII?

TABLE OF CONTENTS

QUESTIONS FOR THE US SUPREME

COURT ON REHEARING .................... ii

TABLE OF CONTENTS on ccccccccccccccccccce iv

TABLE OF AUTHORITIES .................. Vv

CASES : inden .Vv

RULES ; ae . Vi

OTHER AUTHORITIES... : ies i w. Vi

OTHER REFERENCEG....................... vi

Ne cnecacecee 1

Part I. Tolling of 300-day statutory limitation due to an

unforeseen extension of absence by a “plaintiff” with a

pre-arranged meeting to file a charge, against a known

respondent, with the district office of the EEOC

maintaining jurisdiction over the claim.. ms

Part II. Developing a standardized Federal Equal

Employment Opportunity System where all US Circuits

treat all people as equals in the USA 4

Part III. Is the EEOC’s failure to turn the case over to

the US Attorney’s office a case of equitable estopple since

the charge was filed 300 days following April 12, 2000

and 294 days following the amended date of last

discrimination, April 18° 2000. . 1 5

Part IV. “Demonstration that both this offense and the

‘other crimes’ show the ‘modus operandi,’ ‘handiwork,’

or ‘signature’ of the defendant”, 29 Am Jur 2d § 423, asa

iv

means of furthering the petitioner’s argument for

equitable estoppel by accepting alleged statements by

CSU legal clerk personnel and ellis Mr. Pendleton,

CSU counsel. . 7

Part V. Introduction of a 6" Protected Class under Title

VII by new Case law .

COC EO BSCe vecacsnccscsensctcasssuscetesaeces 10

CERTIFICATE Pursuant to S Ct Rule

GQ Ese vevesissccvinestakayencennssoneeeesntesinenses 11

TABLE OF AUTHORITIES

CASES

Cases

Abel v. United States, 995 F. Supp. 1036 (D. Neb. 1998).............. 7

American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532,

SE ETS Fi iiniesvcsnnnstcssstsncekessniabiniiaeiibasdicana cobseaiski voliateiitapidcioebmieeed 6

Bechtel v. Robinson, 886 F.2d 644 (1990). ..........cccccsssseeeesreeeeeeeees 6

Chessman ¥. Teets, 354 US 156 (1957) ..csuicssivessercossescoorerseccossnese 10

Edelman v. Lynchburg College, 228 F. 3d 503 (4" Cir. 2000)...... 4

In re Midway Airlines, Inc. 180 B.R. 851. .........cssccsscesceescesseeseeees 7

RECOr MV: TIPE, STF TT BF CE ices esesnseseccdsensiaincersrssncinceens 10

Persik v. Colorado State University et al., 60 Fed. Appx. 209, 209

OO ie ee 5

Pera 6. CRP, Sere Oy si tstncensnstccinsectntniaticnesasiatisndion 10

Public Interest Research group of New Jersey v. Yates Industries,

Be, GE FAT F Rv iisivncitivaicrnneasccapptareneniniass 7

Rich v Jefferson Medical College, 125 F Supp 357 (1954, DC Pa)3

Be OT, Te ee Fe Rai tieitcienintsechnctensnetiasnsnasronanicgesastniinns ill,

SEC v. Chenery Corp., 318 US 80 (1943) ............csssssesseeeeseeeees 6

United States v. Foutz, 540 F 2d 733 (CA4 Md)............:cceeeeeeeeeee 8

\

Rules

Fed.Rules Civ. Proc. Rule Was A ksi 6

U.S. S. Ct. Rule 44.2 11

OTHER AUTHORITIES

Other Authorities

NED SERED PRC 3

29 Am Jur 2d § 423 Evidence, To show identity or modus

oc ae RBS AI sO AGRE OEE aera ili, 9

i PU ivi le 12

The Judicial Role in Defining Procedural Requirements for

Agency Rulemaking, 87 Harvard Law Review 782 (1974);

seahaniannetete ina Ritahnailalasali keith test aibiniasiissulhunsipeisesiinsesecses ii, 1

Tolling of Statute of Limitations during absence from State

as affected by fact that Party claiming benefit of

Limitations remained Subject to Service during Absence

or Nonresidence”, by Kenneth J. Rampino, J.D., 55 ALR

PO A BR isi eigc cise bciilse Lamisccsea, a

Violations by Agencies of Their Own Regulations, 87

Harvard L. R. 629, 629 (1974)

OTHER REFERENCES

Other References

Whose Life? A Balanced Comprehnsive View of Abortion

from its Historical Context to the Current Debate, by

Cotinerine Witney, 06 128 ..ccsccsesecesescssesoressseesesesecocsessses 10

Witness to Hope, The Biography of Pope John Paul II,

George Weigel, Harper Collins Publishers, New York, NY

pena sae een Ope NANCIE IE eR Oo eRe 10

Vil

ARGUMENT

Part I. Tolling of 300-day statutory limitation due to an

unforeseen extension of absence by a “plaintiff” with a

pre-arranged meeting to file a charge, against a known

respondent, with the district office of the EEOC

maintaining jurisdiction over the claim

1. “Agency policy can be developed either by the adoption

of general rules or through case-by-case adjudication, The

Judicial Role in Defining Procedural Requirements for

Agency Rulemaking, 87 Harvard Law Review 782 (1974); as

an additional protection, against either a claim based either

on retaliation, or potential collateral objectives of third

parties involved in a mixed motive discriminatory action, can

this Court toll the 300-day statutory limitation, imposed to

file a valid charge with the EEOC, if a questionnaire has

already been submitted prior to the “plaintiff's” absence

from the jurisdiction of the federal circuit in which the action

of the EEOC is pending, in the event any questionable event,

criminal or civil, prevents the “plaintiff” from attending a

meeting with the EEOC to file a timely charge of

discrimination?

2. In “Tolling of Statute of Limitations during absence from

State as affected by fact that Party claiming benefit of

Limitations remained Subject to Service during Absence or

Nonresidence”, by Kenneth J. Rampino, J.D., 55 ALR 3d

1158, 1161 (1974), Rampino states: “ A typical tolling

provision or, as some courts refer to it, saving clause, with

which the cases herein are concerned, states that if at the

time the cause of action arises a party is outside the

jurisdiction, or if after the cause of action occurs he departs

from the state, the time of his absence shall not be computed

Eee ae? ae ee ,

for purposes of the statute of limitations”. More specifically,

this annotation discusses a party “remaining amenable to

service of process” during an absence. The petitioner wants

to open the door to provide these same benefits to an

aggrieved person filing a charge of discrimination with the

EEOC.

3. The petitioner states that the 300-day clock begins

running on April 18, 2000 when Dr. Denke, of Colorado

State University (CSU), signed a letter denying him

acceptance back into the Ph.D. program in Chemistry, after a

university committee received compelling, new

discriminatory information about the events alleged to have

occurred at CSU. The petitioner was absent two times from

Colorado between April 18, 2000 and the filing of the EEOC

charge on February 6, 2001, petition Sor writ at A- 35.

a. The petitioner, [Persik], returned to WA State, via

Greyhound, to obtain documented facts of the alleged

disparate impact case of discrimination against CSU, on the

eve of Labor Day 2000. The petitioner attempted to remain

home in Washington State; however, the alleged

employment discrimination continued at a scientific

temporary labor company in Bellevue, WA. The petitioner

went to the Seattle, WA office of the EEOC circa early

November 2000 where an EEOC official briefly met with

him; she stated words very close to: “the problems you are

experiencing originated prior to your problems with

[Mollie}”. The petitioner took this to imply his alleged equal

employment, and alleged equal protection problems were

rooted in divorcing his former wife over a controversial

abortion taking place on September 27, 1994 at the

University of Washington (UW) Medical Center in Seattle,

WA. The petitioner was able to earn the money to return to

Colorado to complete the Intake Questionnaire prior to

Thanksgiving 2000; however, this was already 3 weeks after

his planned return.

b. The petitioner filed his EEOC Questionnaire on

December 4, 2000 in this case. Ms. Hamming previously set

up a meeting, to investigate allegations against Manpower

Inc', for January 9, 2001, and the petitioner was told, by Ms.

Hamming’, that both questionnaires would be discussed in

the scheduled meeting. The petitioner left for Pennsylvania

circa December 19, 2000 where he was hospitalized after

allegedly being hit by an automobile on December 22, 2000

near Mt. Holly Springs, PA. The meeting was postponed

due to his involuntary hospitalization from December 22,

2000 until approximately January 5, 2001. Thus, this

resulted in a 15 day unplanned extension of absence, from

the State of Colorado, because the petitioner was not able to

ear money to return to Colorado for the planned meeting on

January 9, 2001 with the EEOC in Denver.

4. In Absence as Tolling Statute of Limitations, supra, at

1162, Rampino discusses “Fraud as tolling period for

bringing action prescribed in statute creating the right of

action. 15 ALR 2d 500. Regardless of the facts surrounding

the accident, on December 22, 2000, whether it was a set-up,

or an accident, it constitutes alleged fraud because officer

Lee, PA state patrol, classified the case as a hit and run.

Therefore, equal employment opportunity case law could be

furthered if this Court is willing to grant this petition.

5. The court applied the “saving clause” in Rich v Jefferson

Medical College, 125 F Supp 357 (1954, DC Pa), where the

“court went on to say that the interpretation of the tolling

provision could not be affected by the fact that the party was

a domiciliary when he left the state , and thus could have

been served at his usual place of abode, the court holding

that the Pennsylvania saving clause operated to toll the

' Petition for Writ filed on April 12, 2004 in case 03-1473.

> The petitioner believes it was Ms. Hamming.

3

statute while the defendant was serving in the military..., the

court concluding that it had not been shown that the

defendant was subject to ordinary Pennsylvania legal

process”. Persik located additional evidencé, since filing the

petition for writ, confirming the alleged conspiracy at 32.

The alleged harassment and discrimination, at CSU, started

in August 1997; the State Board of Agriculture deposited the

petitioner’s net pay into US Bank account number

1911992297 on August 15, 1997 with check number 255588.

Officer Lee’s report states that he picked up Persik at 5:55,

and PA is the 2™ state. The US Army sent the petitioner to

Ft McClellan, Alabama in 1988 (88) for-chemical officer

basic course. ,

Part II. Developing a standardized Federal Equal

Employment Opportunity System where all US Circuits

treat all people as equals in the USA

1. Persik requests this Court to still adopt the filing of the

Intake Questionnaire as meeting the 300-day requirement as

outlined in the original petition at 36-40. This is necessary

in Persik v. Manpower Inc., 03-1473; however, it is no

longer necessary in this case.

2. While drafting this petition, Persik checked the time from

last date of alleged discrimination to the filing of the charge

of discrimination, petition for writ at A-35-37. At A-31 in

the petition for writ, Persik amended his charge to correct the

last day of alleged discrimination to be April 18, 2000;

therefore, the EEOC filed the charge on the 295" day

following the last day of alleged discrimination. However,

this was actually the 294" day following April 18, 2000.

Furthermore, the EEOC filed the charge against CSU timely

on the 300" day following the date listed in the December 4,

2000 Intake Questionnaire. In Edelman v. Lynchburg

College, 228 F. 3d 503 (4™ Cir. 2000), the court states:

EEOC regulation, providing that EEOC charge may be

4

amended to cure technical defects or omissions, ..., and that

such amendments relate back to the date charge was first

received”. An amendment was filed on March 2, 2001 in the

EEOC in Denver to a timely filed charge.

Part III. Is the EEOC’s failure to turn the case over to

the US Attorney’s office a case of equitable estopple since

the charge was filed 300 days following April 12, 2000

and 294 days following the amended date of last

discrimination, April 18° 2000.

1. In Persik v. Colorado State University et al., 60 Fed.

Appx. 209, 209 (10" Cir. 2003), the court states: “Graduate

teaching assistant waived appellate review of magistrate

judge’s report recommending dismissal of claims against

university on ground that it was not proper party by failing to

file a specific objection to report. Fed.Rules Civ. Proc. Rule

72(b), 28 U.S.C.A.”. Persik disagrees.

2. At D087, Index for Appx to Dfdt — Appellee Adecco’s

Response Brief, the petitioner clearly states in his

“Objections to the Recommendations...”: The Plaintiff

prays that this Court will except’ the following objections:

“the Attorney General should have been representing the

Plaintiff’. Persik, being pro se, considers this to be a clear

objection to CSU not being the proper party to this suit.

3. The petitioner continues by citing, at | 2 (g) of the

“Objections...”, (D 090, Appx to Dfdt -App Addeco,

supra,): 31 ALR Fed 657, 663 § 1[c], § 2000 e-3, states: (f)

Civil actions by Commission, Attorney General, ... In the

case in which a respondent is a government, government

agency, ... if the Commission has been ‘unabie to secure a

conciliation agreement, ... the Commission shall take no

> Accept is the correct spelling in the context of the sentence.

5

/

further action and shall refer the case to the Attorney General

who may bring civil action against such respondent in the

appropriate United States district court”.

4. Again, Persik asks this court to review: Violations by

Agencies of Their Own Regulations, 87 Harvard L. R. 629,

629 (1974) stating: “although the public is not free to violate

federal administrative regulations, agencies in some

circumstances have been permitted to depart from their own

regulations, American Farm Lines v. Black Ball Freight

Serv., 397 U.S. 532, 539 (1970) (permitting violation). ”

However, at 630, Violations, supra, the review states:

“Agency violations of regulations which have been

promulgated to benefit party, by entitling him to a

substantive benefit or exemption ... have generally been

invalidated by the courts. At 650, “Therefore, a court

confronted with an unexplained violation should undertake

the expense and delay of remanding the action so that the

agency can supply reasons. SEC v. Chenery Corp., 318 US

80 (1943) “provides precedent”. At 651, Violations, “if the

agency does not respond in a satisfactory manner, then the

action should be reversed”.

5. Persik maintains that this further research compliments

his claim for equitable estoppel. “Whether party

intentionally committed an act is irrelevant under doctrine of

equitable estoppel”, Bechtel v. Robinson, 886 F. 2d 644

(1990). The question can be posed, to the Denver office of

the EEOC, on remand, “did someone consult with counsel

for CSU, or the CO attorney general, between the F ebruary

6, 2001 filing of the EEOC charge and the EEOC’s February

16, 2001 dismissal for untimely filing, petition for writ, A-

33.

Furthermore, Persik states for clarity he is not alleging

fraudulent intent on the part of CSU at this stage of the

process, the dismissal of a timely filed charge, rather he

cites: “Fraudulent intent is not necessary to estoppel; rather,

estoppel is appropriate against a person who adopts position

6

which reasonably misleads someone into detrimental

reliance regardless of intent of his actions, if to hold

otherwise would have unjust effect. In re Midway Airlines,

Inc. 180 B.R. 851.

6. Persik understands that “Law does not favor use of

equitable estoppel against government”, Abel v. United

States, 995 F. Supp. 1036 (D. Neb. 1998); however, here

Persik is pushing an issue that expands the very rights,

through case law, of the people that the EEOC is to protect,

and furthermore, the function of an educational institution,

such as CSU, is to educate. Therefore, equitable estoppel

“may be invoked against a government where: government

makes misrepresentations; upon which defendant relies; to

its detriment; and where misrepresentation constitutes

affirmative misconduct”, Public Interest Research group of

New Jersey v. Yates Industries, Inc. (AET), 757 F Supp 438

(1991), reconsideration granted in part 790 F Supp 511

(1991).

Part IV. “Demonstration that both this offense and the

‘other crimes’ show the ‘modus operandi,’ ‘handiwork,’

or ‘signature’ of the defendant”, 29 Am Jur 2d § 423, as a

means of furthering the petitioner’s argument for

equitable estoppel by accepting alleged statements by

CSU legal clerk personnel and possibly Mr. Pendleton,

CSU counsel.

1. Does the argument, pertaining to question 3 above,

further the petitioner’s claim for equitable estoppel

pertaining to his admitted failure to serve both CSU, and the

Colorado attorney general, based on his allegation that the

CSU legal clerk, and possibly CSU’s attorney Lawrence

Pendleton, stated that CSU was not the correct body to

receive service of process, by clearly “demonstrating that

7

both this offense and the ‘other crimes’ show the ‘modus

operandi,’ ‘handiwork,’ or ‘signature’ of the defendant”, 29

Am Jur 2d § 423 Evidence, To show identity or modus

operandi?

2. The petitioner alleges that Ms Kristen Morrow [Morrow],

of Nebraska, allegedly requested either Ms. Schreibman, Ms.

Cutler or CSUPD’s Officer John Higney, to allegedly falsify

Statements beginning in August 1997, for potential pecuniary

benefit if Persik could be forced into the sales industry in

Pennsylvania. Morrow’s mother is an attorney, and Morrow

previously discussed, with Persik, becoming an attorney.

Thus, Morrow may know the legal ramifications of alleged

misstatements, by a CSU legal secretary, not authorized to

give advice. Persik would not know the implications in

accepting advice. Thus, Morrow’s “signature”, is allegedly

all over the act described in 91 above because it “bears a

high degree of similarity to the charged offence”, United

States v. Foutz, 540 F 2d 733 (CA4 Md) occurring since the

onset of the alleged harassment and discrimination in August

1997 at CSU. The pattern is simple; Persik maintains that he

is allegedly continuously victimized in a mixed motive,

disparate impact case of discrimination based on his gender

and religious, pro life views (anti-abortion).

3. Persik views this issue as a very simple case of equitable

estoppel.

Part V. Introduction of a 6" Protected Class under Title

VII by new Case law

1. Persik requests this Court establish a 6" class of protected

persons, the Unborn child class, always a minority in the

USA, using the arguments presented in the petition for writ

and this petition for case adjudication. Please remember the

song from our childhood: “Jesus loves all the little children

8

of the World”: the concept is simple, protect all of our

people from conception until they pass from this Earth, and

together WE must: (1) ensure they have a safest possible

environment to grow up in, (2) receive the best possible

education in the world, and (3) a workplace observing total

equality for the individual.

2. “Ordinarily, the Supreme Court will not grant certiorari

merely to review evidence or inferences drawn there from.

However, special and important reasons for the grant of

certiorari are present where the lower federal and state courts

persistently deprive litigants of their right to a jury

determination”. Rogers v. Missouri Pacific Railroad Co.,

352 US 500 (1957). Persik will give this Court very special

and important reasons, human life, human dignity and a

complete package of equal employment opportunity in the

US. Persik’s Aunt and Uncle were from Peoria, IL. They

had connections with Caterpillar in England. Persik’s 1986,

US Passport, clearly showed a P and a Visa stamp for Lima,

Peru; he alleges his son’s life was taken in 1994 for the

former President Clinton’s agenda (EEO for “gay”

personnel).

3. “The 1994 confrontation between Pope John Paul II and

the administration of U.S. President Bill Clinton over world

population and family planning issues was inevitable, and

could have been foreseen as early as the summer of 1992.

Governor Clinton ... ran on the most radical ‘social issues’

platform ... committing themselves to federal funding of

abortion on demand...”, Witness to Hope, The Biography of

Pope John Paul II, pg 715, George Weigel, Harper Collins

Publishers, New York, NY 2001.

4. Persik maintains former WA Governor Lowry, supported

the Clinton administration’s 1992 goals on both abortion and

gay rights. In 1992, Persik’s WA AR NG unit traveled to

Albany County, Wyoming. The Clinton’s now reside in NY.

9

In the book, Whose Life? A Balanced Comprehnsive View

of Abortion from its Historical Context to the Current

Debate, by Catherine Witney, pg 128, Witney states: “Now,

almost twent years later, Michelman radiated empathy for

women like herself as she stared into the hot lights of the

camera. And there was a hard edge to her voice as she

echoed the imagery of the most famous abortion rights foe

George Bush: ‘To politicians who oppose choice, we say

‘Read our lips. Take our rights. Lose your jobs’’”

5. We need this class of protected “Persons”. Persik

continues to be allegedly discriminated against by other

employers to this day. Persik now has a wonderful Christian

woman, from Switzerland, in his heart. She will remain

there for his life should she choose to.

CONCLUSION

The Petitioner prays this Court will Grant this petition for

the reasons outlined, the petition for writ, and the statements

in Persik v. Colorado, 02-875 (2002). Furthermore, the

petitioner prays that this Court will exercise it’s authority

and revisit Persik, supra, as stated in 2A Fed. Proc § 3:410, “

If Certiorari is denied earlier in a litigation and a subsequesnt

petition for certiorari is later granted, ..., may consider

questions raised by both petitions”, Chessman v. Teets, 354

US 156 (1957), Mercer v. Theriot, 377 US 152 (1964)..

Respectfully submitted this 14" day of May 2004.

pac Cane ol

Raymond Charles Persik, Pro Se

7079 West 84" Way, Apt 311

Arvada, CO 80003

(303) 425-3520

Whales4Peace@aol.com

10

CERTIFICATE PURSUANT TO SUPREME COURT

RULE 44.2

CERTIFICATE

I certify pursuant to Supreme Court Rule 44.2 that this

petition for rehearing is restricted to intervening

circumstances of a substantial or controlling effect or to

other substantial grounds not previously presented, and that

it is presented in good faith and not for delay.

(Feapunel thelhiprat

This document has been subscribed and Y oD ‘ANNA B. LYTLE =

affirmed, or sworn to before me in tho TARY PUBLIC

county of Jeffers , state of Colorado NO

this_#Y<* day of May, 200Y. STATE OF COLORADO

y Commission Expires Apr. 14, 200

vee

d D! ANNA B. LYTLE

NOTARY PUBLIC

) STATE OF cenDeee |

vay Commission Expires Apr. 14, 2007

11