Appendix — Rojas v. Ionics, Inc.

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CASE

IN THE SUPREME COURT

OFTHE UNITED STATES

EDUARDO E ROJAS PETITIONER

Vs

IONICS,INC. ET.AL., RESPONDENTS

On Petition for writ of certiorari to the United States

courts of appeals for the first circuit

Appendix to Petition for Writ of Certiorari

Volume II

EDUARDO E ROJAS

PRO-SE

5889 SW. 19ST. MIAMI, FL, 33155

TEL. 305 265 8582

APPENDIX D

QUOTES OF SIGNIFICANT

ARGUMENTS

al Ta a Se

shachoth age

A TABLE OF CONTENT

SECTION D PART |

Selected Sections of the Original Appellant Brief

Page

Tables of Authorities----------------- DI(ii),DI(i11)

Statement of issues ---------------------- 1,2

Statement of the case-------------------- 2,3

Statement of Facts ---------------------- 4-10

Stock Option Agreement--------------- 10-13

Breach of Contract ---------------------- 26-36

DI (i)

TABLES OF AUTHORITIES

Appendix D part I

er ey eee

Statute

Federal law USC 29

section 633(b)------------------------------ page 2

Massachusetts

general laws

ch 149 section 24B_ ------------------ -page 34

ch 151 section 19 (4) ----------------- page 34

ch 260 section 13 ----------------------- page 35

CASE REFERENCES

SECTION V COUNT II Breach of Contract

Cataldo v Zuckerman, 482 N.E. 2d 849, 855-856

Mass.app.ct 1985) --------------------------- page 30

Fortune v National Cash Register 364 N.E. 2d

1251 ,1257 ( Mass 1977 ) --------------- page 30,31

Gram v Liberty Mut.Ins Co. 429N.E.2d 21,29

( Mass 1981) ---------------- - page30

Green v Richmond 337 N.E.2d 691,695

( Mass 1975 ) -------------------------------- page 31

Maddaloni v Western Mass.

Bus lines. 438 N.E. 2d 351,355-56

( Mass 1982 )--------------------------------- page 30

fl

Sargent v Tenaska,inc

914 F Supp.722,729,730

( Mass 1996 )--------------------------------- page 29

Astoria Federal S & L Ass’n v Solimino

501 U.S.104 (N.Y.1991 )------------------- page 2

Vizcaino v Microsoft

US. 9th circuit court of appeals

No. 94-35770

( seatle Washington ) ----------------------- page 33

DI ( iii )

a © bt 4

ine tse —a Ce nite: os <A> nee

STATEMENT OF THE ISSUES

PRESENTED FOR REVIEW

| The most important issue is whether the service

provided by Rojas to Ionics during 1995 and 1999

were considered that of an employee or an

independent Contractor.base on evidences

presented and proof of his relationship

with Ionics. ( amended Complain #14 exh. 9A-9E )

2 The second most important question is whether

Ionics breached the Implied covenant of good

faith and fair dealing. by recalling nonvested

Interest for past services. Although retained to do

services under a nonemployee status. being the

services provided the same as before the changing

of status.

3) The last issue is : Rojas Discrimination charges

were rejected by the District court for

noncomplying with states regulation. when in fact

the evidences presented shows that it did complied

with the procedure U.S.C. 29 section 633 (b) and

the age act impliying its filing requirements,that

federal courts should recognize not preclusion by

state administrative {501 U.S. 104,105 } findings.

STATEMENT OF THE CASE

On or about December 1994 The plaintiff “ Rojas

“ was induce to accept Earlier helenae after 27

years of being employed by the defendant “

“IONICS INC “, subsequently of accepting the

deal Rojas was retained by the Defendant on

Consultant basis.

Rojas was to be paid $ 3000 per Month for half time

plus health Insurance and travel Expenses.

On November 12 of 2000 Rojas filed a Complaint

as aresult of the Defendant “ Ionics Inc” failure to

recognize the Services of Rojas from 1994 until

1999 as that of akey Employee and illegally

withholding interest that would have been vested

at the age of 65.These Interest had been recalled in

1995 with the presumption that Rojas was not

longer an Employee but an independent Contractor

as a result of having withdraw his pension fund

earlier than 65 years old, and as it was confirmed

by the IRS on February of 2000 ( amended

complaint #14 exh.11 ) . later on Rojas discovering

that the company had violated state laws,

breached the implied covenant of good faith and

3

fair dealing ,and had discriminated him among

eae who had retired earlier.and finally use

unlawful methods to terminate his Employment on

July 14 of 2000.

STATEMENT OF FACTS

Independent contractor or Employee

1.) The first issue presented is the question of

Rojas Employment Status After he accepted an

Earlier retirement deal. These facts are related

specifically to the work and duty of Rojas During

1995 through 1999

2.) Rojas Status presumable is changed on

December 15 , but retroactive to November 30 of

1994. Rojas at the Time was the only Senior

Electrical Power Engineer ,and the one who had

designed about 90% of the major Installation

through out the World , He was the only Magnetic

Electrical Engineer Responsible for all the Power

Transformer Installed in all the plants build since

1969. He was bilingual , and was being used at the

time on a major Installation in Argentina,in which

He was the Electrical Project Engineer.until on or

about July 1995. Because his vast Experience , He

was in Demand and practically 75 % of the work

was coming to his desk.Proof of the Additional jobs

that he basi iedaes his main obligation to one

project. Rojas Demand had increased over the

years and to facilitate his expertise to the various

- groups, he was allowed to be used in any project by

other groups .hence his Work rather than

decreasing in 1995 and 1996 did in fact increased

5

resulting in more than the 1/2 time as it was agree in

1994. In 1995 He did invoice the Company for

1541 Hrs on about 12 projects. not counting week

ends and travelling time on overseas duty. neither

overtime hrs. On 1996 Rojas was involved in two

large projects but was involved in or about 14

additional tasks.invoicing the company for 1104

hrs. ( Rojas asked for nonvested interest that would

have been vested on or about May 22 1996. ). as

a result of still being a key Engineer and work

more than 1/2 time. ( #14 exh. 5).

In 1997 Rojas work decline do to the Departure of

Kachadurian and a new non friendly Management

taken over. but still Rojas kept doing his job very

much with the same obligation but the company fell

in a period of transition and most of the jobs in

which Rojas was a lead project Electrical Engineer

were cancelled. except one project in Paraguay.

For 1997 Rojas Invoiced the company for 672 hrs

and worked in about 9 small projects. The

agreement of 1994 was for half time at $3000 per

month. However this agreement was questioned by

the new Manager , Who denied payments at the end

of 1997 and informing Rojas that He had retired

and was not longer an Employee neither had a

contract. Therefore He would not honor the

Invoices presented. thus provoking the meeting of

January of 1998 . see ( Amended Complaint #14

Exh.9 A,B,C.) and Factual Background

( document # 8 ) lines 7-10 page 4

3.) Method of payment

Rojas was instructed to provided a monthly invoice

on the hours spent on each job that he was assigned

to work and charge the Equivalent of $3000 Per

Month per hour basis. or $34.61 per hour.In 1998

he was allowed to charge $ 36 per hour.

See ( # 14 exh. 9A- E )

4.) Travel Expenses would be file using the

Employee Form supplied by the company. All

expenses would be charge to the job that he was

traveling for. The travel arrangement would be

inadie by the Company selected travel agency.

Schedule, meetings, and place to stay where

under the discretion of the group job Manager.

5.) On January of 1995 he was told to provide a

company name to put all traveling and office

8

expenses in Florida. And from then on two checks

were submitted to him . one bearing his employee

number ( E626 ). (#14 exh.23 )

And the other would have the Number assigned to

that company name. On January 1996 this method

of payment did change and all payments were made

on one check . however the Forms given to

accounting was still the same.

6.) After the meeting of 1998 he was transferred

to work for Exec. VP.Papastauros on a large project

for Acapulco. Rojas was to be the Electrical

project Engineer , Basically nothing had change ,

except that he was told to give a vendor number.

and he was not to be used by other groups. he was

to be used strictly on that Project. but still

employed by Ionics with his Office,Equipment,

9

Secretarial and drafting help provided by “ Ionics “

When in Boston he did complied with the

Employee working nes answer calls and was

open to meetings and question related to other jobs

or technical matter. Including holding Electrical

seminar sections to Field engineers .

Rojas Position of Key Engineer has been proved

by the function, obligation and responsibility that

he had on all the assigments given to him up to

1999. see ( amended complaint # 14 exh. 9A-E )

and Factual background document #8 page 1 1

paragraph 21 and 22.

THE STOCK OPTION AGREEMENT

1) The stock option grants were given to Rojas in

1991 and 1993 on his effort to design the

10

Formulation used by him on power transformers

used in the company water demineralization

process plants. and adapt to a computer program so

any Engineer .could select a transformer without

his assistance’s it was required then. The Program

was finished on or about 1991, and test were being

made up to 1993. ( #14 Exh. 20 )

and it is in used . This task was done on overtime

basis , but Rojas was an exempted employee , so

rather than taking time off , he was given 1000

shares in 1991 and 1000 shares in 1993, under an

Stock Option agreement and a 1979 Stock option

plan.

The share price of Ionics split two for one in

1994 and Rojas had 4000 shares at the end of 1994

1200 were vested from 1991 and 400 from 1993.

1]

The rest would be vested at the age of 65, although

fe had been told by the administration that the

1993 set would vest in 1998. Rojas had no intention

_ to Retire and the Fact that he accepted the deal on

December 1994 . was that he was offered a lump

sum of $22000 more than if he had waited until

1996. and also a suggested deal in Florida. and with

not objections he did accepted. A letter of

confirmation proceeded ( #14 exh. 3 ) and Human

resources did follow up with Distribution of other

benefits .(#14 exh. 4) Rojas Continued doing his

job, and There was no further meeting .

On or about February of 1995 Mr. Kachadurian

inform Rojas that the administration had decide to

recall the unvested options as a result of not longer

12

being on full time nor a key engineer. and of course

he could exercise the vested units. On March 1995

Rojas was instructed to work as much as he could,

so to keep up with the demand of new projects

coming in. and so he did , and in doing so he did

maintained his old position and time period to meet

a requirement of the Agreement under paragraph

4 as of the 1979 Stock option plan specified.

[ In the event that any Options granted under the

plan shall be surrendered to the company or shall

terminate,lapse or expire for any reason without

having exercised in full , the shares not purchased

under such Options shall be available again for the

purposes of issuance pursuant to the plan.]

However Ionics in 1997 had other plans.

13

PAGES 14 THROUGH 25

HAVE BEEN OMITTED

14

SECTION V : Count II Breach of Contract

1.) The court erred on his determination that Ionics

did not Breach the stock option agreement but

rather Ionics took actions which effectively denied

him the benefits of the plan.therefore calling it a tort

2.) The action of denying Rojas employee status

subsequent to his retirement is irrelevant in regard

to the Stock Options .The fact is that Ionics retained

Rojas on consulting bases for 1/2 of his time and as

required or on call was a proof that Rojas

remained being employed by Ionics. furthermore

there was a noncompetetion provision in the

agreement that would not allow Rojas to work on

any job related to Ionics business for two years

,without the consent and approval by the board of

26

director. therefore holding Rojas to that agreement

.( # 14 exh. 2A par.9 and 2 B par.12.)

Ionics could have cancel the agreement any time

for any reason, but would have to do it in

accordance with the laws of Massachusetts and

under the provision and rules of the agreement

( # 14 exh.2A paragraph 12 )

3.)this is an implied covenant under Massachusetts

law. tierefore a binding agreement or contract.

subject to a contract terms and laws

See Sargent v Tenaska, Inc ,914

F.Supp.722,729,730 ( .Mass 1996 )

which the First District Court on cross Motion for

summary judgement ruled the Employment letter

was a contract, suggesting that Sargent might be

27

;

4

;

4

entitled to ownership interests,or comparable

damages.

4.) as opposite to Sargent , Rojas accepted the

agreement on 1991 and 1993 In consideration of

having design the formulation for Magnetic power

devices on his own time.see ( #14 exh. 20 and 20A ) :

( Rojas was the Sole Magnetic Designer for the

company ). The grants were given subject to a

contract for 5 years and the vesting Schedule was

20% per year for 5 year and automatically vested at

the age of 65. Rojas remained working well passed

his 65 birthdate.

5.) Rojas case is well adapted to the fortune case.

( reference in Sargent) |

The Fortune doctrine is easy to grasp in the simple

28

case that spawned it:

an at will salesman, entitled to a commission

payable at sed date, is fired after the sale but

before the date of payment ; and the reason for the

firing is to cut off the commission . In that case ,

Massachusetts courts imply a covenant of good

faith and fair dealing, treat the discharge as a

BREACH, and affix the remedy as an award to the

salesman of future compensation for the completed

sale.

6.) Since Fortune so held in 1977, Massachusetts

appeals courts have both extended and limited the

doctrine in several important decisions. for example

Fortune-based recoveries have been allowed in

Gram v Liberty Mut. Ins Co 429N.E.2d 21,29

(Mass 1981)

29 -

Maddaloni v Western Mass. Bus Lines. 438 N.E.

2d 351,355-56 (Mass 1982)

Cataldo v Zuckerman, 482 N.E. 2d 849, 855-856

( Mass.app. Ct. 1985)

These cases make clear that Fortune is not limited

to simple cases of commission sales with deferred

payments.

7.) The First District court of appeal follow with the

following discussion

[ “ The recurring difficulty presented in the case

before us ,is how to decide whether the unvested

interest relate to“ past” or “ future services. We treat

this characterization issue as one of law. The

CONTRACT terms agreed to by the parties are in

dispute, the debate is whether the law should extend

protection ( assuming bad faith discharge ) beyond

the express terms of the contract to certain

expectancies. The extend of such protection is a

primarily a matter for judges, not juries.See Gram?

II, 461 N.E.2d at-798 ; cf. Green v Richmond, 337

N.E.2d 691,695 ( Mass 1975 )” ( Judge decides

the legal question of whether undisputed contract

terms violate public policy)]

30

‘

It is easy to find a protectable interest where, as in :

Fortune, the promised future payment is directly

tied to a particular past service.

8.) How ROJAS case fits in Fortune doctrine.

Rojas was offered a higher pension Lump Sum

payment , and oties accepted he was given two

options , A 28 week lump sump payment, ora

Consultant contract for $3000 per month for 1/2

time. by accepting the contract Option , it is

understandable that he was retained by the company

to work for them. So the question is What intention

did the company had in regard to Rojas future

employment status .whether “ was to be part time

employee, a consultant (less than 8 Hrs per week )

or an independent Contractor. and choosing the last

31

as the company claimed: It was the only offered

choice .It clearly shows that it was with Intention

to Breach the Stock Option Agreement. Basically

Rojas was terminated and then hired back under a

new term. with no benefits and all other nonvested

Interest Gone,

9.)Yet it can be seen by the evidence presented .

( #14 Exh. 9A-E ) that Rojas was doing exactly the

same function of a key Engineer. So the question

that Rojas ask the Court . Is there any difference of

Rojas to that of Fortune ?

Was not that a Breach of contract ? If the Fortune

doctrine was easy to grasp Rojas case should be

even easier to decide as Rojas service the company

for 5 more years providing same Engineering level

32

for one fraction of the rate being paid to others in

similar situation.

10.) The reason given by the company to take the

vested interest is that Rojas was not a key Engineer

or an employee ,but the fact is that the company

retained Rojas doing that work past the vesting

period . and just claiming that he was an

Independent contractor suscefully had got away

with it. However The company Intention was tested

when the IRS made the determination in February

of 2000. and Rojas submitted a bill for a sum of

$ 158319 for wages differential of an Employee ~

and that of an Independent Contractor

see ( #14 exh. 12 ) and was ignored. thus hinting

that there was bad faith in their dealing.

33

11.) Arguendo that Rojas was an Independent

contractor ,Which under the State Law M.G.L. ch

149 section 24B and ch 151: section 19 (4) He

could not have been one. at the age of 63 and 1/2.

The U.S. 9th Circuit Court of Appeals on the

Vizcaino v Microsoft case

Judge REINHARDT, had the following opinion:

| Large Corporations have increasingly adopted

the practice of hiring temporary employees or

independent contractors as a means of avoiding

payment of employee benefits, and thereby

increasing theirs profits.This practice has

understandably led to a number of problems, legal

and otherwise. One of the legal issues that arises

is exemplified by this lawsuit.

The named Plaintiffs,who were classified by

Microsoft as independent contractors, seek to

strip that label of its protective covering and to

obtain for themselves certain benefits that the

company provided to all of its regular permanent

employees. see Vizcaino v Microsoft Corporation

No 94-35770 ( 9th circ. 1996- 1997 ).]

a ee en a

34

12.) [ A three -judge panel of the Ninth Circuit

Court of Appeals in March of 1997 by a 2-1 vote

that an employer must pay benefits under two

employees benefits plans to a group of workers

that the employer misclassify as Independent

contractors.The Employers were designated as

“freelancers” by Microsoft and were treated as

independent contractors. Freelancers were

distinguished from employees among other things

that they were required to submit invoices

documenting their hours and were paid through the

accounts receivable department rather than payroll

department .The freelancers were told when hired

that would not be eligible for benefit]

13.) The District court judge erred in barring this

count under a Tort actionRather than a Breach of

contract. Rojas do disagree for various reasons.

The Language of the agreement in the Document

is clearly written as A covenant between the two

parties, for a period of 10 years. Except that

At the age of 65 , the company allows the holder of

the agreement to Exercise all unvested units

35

te eee ee ee ee

without having to wait for the period of Vesting.

This agreement is construe pursuant to the

Massachusetts law.And is binding upon the

respective parties . see (#14 exh. 2A page 5 )

14.) Under this language Ionics had the right to

not tender Employment to Rojas but had to inform

Rojas of their intention to repudiate the Agreement

in writing . and that was not done until the letter of

disclaiming any wrong doing on July 14 of 2000.

see [M.G.L. ch 260 section 13 ]

15.)Therefore the Tort action should be taken as

from July 14 of 2000 . that its Memo indicating

the Termination of the Relationship and that the

Administration would not honor his debt to Rojas.

pursuant to the letter sent by Rojas to Goldstein

on July 6 of 2000.

36

ee ae ee

TABLE OF CONTENTS

SECTION D PART II

Selected sections of the Reply Brief

Page

Table of Authorities----------.-..-... DII( ii)

Breach of Fiduciary------------------ 1-3

Breach of Contract---------.--...-... 3-7

Discrimination------------------------- 7-18

DII (i)

TABLE OF AUTHORITIES

CASE REFERENCE page

Ansin v River Oaks Furniture

#1734 First circuit (1996) ----------------------- 7

Kagan v Levensen, 134 N.E.2d 415,417

(Mass 1956) ------------------- 6

Oscar Mayer co v Evans 441 U.S. 750 (1970)

(Eight Circuit ) ----- wenn neenn nnn nnnnn------------ 14,17

Riley v Preznenl ( 1991, 565 N.E.2d )-------- 4

Robinson v Shell oil co.

( 4th circuit No. 95-1376 (1996)---------------- 1]

Royal Globe ins,co v Craven

585 N.E.2d 315,320,( Mass 1992) ------------ 6

Astoria Federal S&L Ass’n v Solimino

501 U.S. 104 (N.Y. 1991 ) ------------------- 11,12

STATUTES

Federal Law

U.S.C. 29 section 633(b)------------ 13,15,16,17,18

Massachusetts Gen law

Ch 93 section 103(a) --------- - 1]

Ch 151B 14

STATEMENT

The Argument on this document-have been edited

to remove Irrelevant material .

ARGUMENT ALLEGATIONS

on Reply brief Dated 1/25/02

BREACH OF FIDUCIARY

1.) The comments of Ionics on the Breach of

fiduciary are misleading assumptions that it not

take place , nor there is any evidence to substantiate

that Ionics acted properly in handling Rojas Earlier

: Retirement, such as in the OWBPA procedure

: enacted by congress in 1990 which was designed to

/ _ protect the Rights and benefits of older workers,or

in fact any other method of termination that would

have prevented this action and waste of precious

time. but handed a one page memo, which clearly

l

indicates that Rojas was to continue to be

employed by lontes.

2.) Rojas did not have to retired in December 1994,

Rojas had the right to cash his vested benefits,and

so he did under the influence of their Executive

VP. Mr. Kachadurian to obtain a larger lump sum.

and so others from different groups ,that were

retained on consulting bases and part time schedule

and classified Employees.

3.) The Memorandum of Mr. korn in 1997, the

financial report showing a great move by Rojas to

have retired and sacrifice the “ Options” in 1998,

and finally the grant final on July of 2000 were all

consecutive steps to conceal the big mistake that

some one had made. so to said that there was not

misleading, or misrepresentation on part of Mr.korn

2

memos in terms of the law , has to be blind. The

evidences presented, along with the States and

Federal laws are sufficient to proof that Mr. Korn

did Engaged in misleading Rojas from the true , for

unknown reasons.

BREACH OF CONTRACT

1.) The defendant argument on the Breach of

Contract does not have any lawful meaning other

than misleading statement and distorted view of

what in fact the contract is all about and the reason

that it has been breached. so to justified or agree

with the District Court Judge wrong decision.

There is enough detailed information and reasons

why Rojas feel that there was a breach of contract.

and the scenario put together by Ionics fails for

for the simple reason that Breach of F iduciary duty

3

to reveal facts constitutes Fraudulent concealment

cause of action. not a tort action.

Riley v Preznenl ( 1991 565 N.E.2d ).

and the other fact that Ionics fail to recognize is

that Rojas was retained to be employed by Ionics.

“Stock and Barrel” but by illegally making him an

Independent Contractor . Basically he had been

denied the right to exercise his then vested options

therefore breaching it.

2.) “Option contract “ A legally enforceable

agreement under which one party promises to honor

an offer to buy or sell something for a specific

prize within a set time. Rojas met his obligation

according with the rules and took his chances on

the prize of the Stock that could have gone down

below or equal to the buying prize. and in the mean

4

time he was held to work for “ Ionics only” as the

contract specified.(#14 exh.2A par 9and 2Bpar 12.)

This agreement was done under a meeting of the

mind. and the amended complaint shall be

actionable, under a Remedy selected by the Court.

3.) The fact that Rojas employment as an Employee

has been denied is the same as been fired in 1994.

therefore the circumstance in Dec 1994 were much

the same as in the Fortune case. so the Breach of

Contract “ Prevails”.

4.) The IRS ruling is irrelevant , it was for taxes

purposes and it was done base on the information

presented.without taken in consideration the current

states laws.and for all purposes invalid in this case

5.) Finally to rest this count because the shares

were transferred without proper Knowledge or

consent in derogation of contractual terms it is

characterized as an action for conversion, or an

action for breach of contract. It does not involve

the type of accident resulting in injures to person

or properties on which draftsman of Massachusetts

three year statute focussed. [ Royal Globe Ins. co

v Craven 585 N.E. 2d 315,320 (Mass 1992 )].

Rather, it involves a claim to recover from another

money which in equity and good conscience He is

not entitle to keep. The latter type of claim

according to the supreme Judicial Court is usually

advance in a contract action [ Kagan v Levensen,

134.N.E. 2d 415,417 ( Mass 1956 ) | In these

circumstances, it was not error for the District Court

to apply the six year contract Statute of limitations

to plaintiff contract claim.

6

Quoting A paragraph from [ Ansin v River Oaks

Furniture First circuit 1996 case 1734 }

DISCRIMINATION

1.) Rojas could have been discriminated on or

about December 1994, because the transition of

status was not done within the proper method and

under the law. however Rojas could not have

detected it because the following reasons.

(a) Rojas position with the company at the time was

excellent, he was very much in demand by the

various groups, and his relationship with

Mr. Kachadurian , and other Executives was of

trust and friendship. In which he would be

contacted by them when Major Electrical field

problems did arise. his Experience was essential.

7

(b) Rojas was very active at the time being

involved in new proposals, major field problems,

and ee new Installations.

(c) The Earlier pension deal was not to retire, but to

continue working . The fact that Rojas was to open

an office in Miami was with view in continuing on

and take care of Central and South America

business and field problems.So what Reason had

Rojas to file for a Peetlenieation in 1995 ? or 1997

Still in 1998 Rojas was a key Engineer in an

important Installation in Mexico up to 1999. and he

was working for the EXE. VP. of the company

Mr. Papastauros. who in 1998 informed Rojas that

he would be involved in future Plants Installations.

2.) So what triggered the company to let Rojas go

was the fact that The company heard rumors that

Rojas was to talk to the IRS. and rather than

terminate all the agreements made in 1999. opt for

not calling Rojas anymore and closing his office.

Rojas was still under the agreement of 1967, 1994

and then January 1998. So in fact the effect of this

charge is the letter of Rojas to Mr. Goldstein on

July 6 of 2000. and then the replied by Mr. Korn

repudiating Ionics agreements and debts to Rojas.

3.) This is an Intentional Discrimination , Cause

by Rojas contacting others Authorities in his effort

to find out the reason for Ionics denied his Stock

Options and other Benefits , as a result of been

mislead in December of 1994 to accept a position

which was not of an Employee.

ie a

4.) whether the Motivation for the Defendant was

Agé , Race Or retaliation. The reasons written in

the complaint are exactly the reasons given by

Ionics to take away additional benefits and Stock

Options for having taken the pension fund earlier.

Rojas could not aver the motive for this act other

than Ionics had discriminatory taken away his right

to enforce contracts and had deprived him of

employment opportunities.

5.) The EEOC is the Federal authority in charge

of all discriminations , and it was their hockii to

dismissal and submit the right to sue notice. base on

the Fact alleged. and the Reason for using Age

Discrimination is the fact that age was the factor

that made the difference.If Rojas was not at that

Retirement age , it would not had happened. Rojas

10

has explained this issue very well in his supplement

Memorandum dated 7/26/01 page 9,10 and 11

6.) the reason for using M.G.L.93 section 103 (a)

was that Rojas at the time had been considered an

Independent Contractor. by the IRS. However , later

on finding out that his Employment Status was still

a former Employee and he had the right to existing

labor laws.

Robinson v Shell oil co. ( certiorari to the United

states court of appeals for the fourth circuit. no

95-1376. 1996)

7.) Finally to close this charge once and for all . It

is very clear that the circumstances of Rojas filing

was very much on line with that of Solimino

[ Solimino v Astoria Federal 501 U.S. 104 2nd

Circuit no 89-1895 ( 1991)]

11.

In which Respondent filed a charge with the

EEOC , and under the work- sharing agreement,the

EEOC referred his claim to the State agency

responsible for claims under New York’s human

rights law. because the State decision was upheld in

administrative review . Rather than appealing he did

file in the District court. The court granted Astoria

Motion for summary judgement. holding that the

State’s age discrimination findings precluded

Federal litigation of the claim.

The Court of Appeals reversed, inferring from the

Age Act’s structure a legislative intent to deny

preclusive effect to such administrative proceedings

8.) Rojas did filed properly with the EEOC and as

indicated in the form a copy was sent to Florida

Comm.on Human relations State or local office

12

who probable dismissed it as nonjurisdictional

rather than send it to the State of Massachusetts .

Because the sharing agreement between the States

and EEOC

EEOC then issued a dismissal with the right to suit

within 90 days. If the EEOC gave Rojas the right to

suit , why Rojas had to file again with MCAD.

The Argument by the Defendant is that Rojas had

to file with MCAD , wait the 60 days period and

then file with the EEOC. well the fact that under the

new Discrimination rules , filing is simultaneously

with the EEOC and the States , So States

proceedings shall be deemed to have been

commenced at the time such statement is mailed to

the State Authority 29 U.S.C.633(b).

If EEOC sent it to Florida , because Rojas was a

13

citizen of Florida, that is beyond Rojas Control and

it is unfortunate but not a reason for dismiss an

Adea charge that Rojas would have used instead

of 151B that the Defendant has been suggesting

from day one. Rojas did file his complaint within

the time specified and the EEOC did proceed

accordingly to the rules.

but Arguendo that EEOC did not notified the state

where the discrimination did occurred and Rojas

did not file a complaint with MCAD within the time

see[Oscar Mayer co v Evans, 441 U.S. 750 1970)]

for a very interesting case.

In which a respondent was informed by the Labor

Department that he did not have to file with the

State but only the EEOC. Then dismissed by the

14

Court of Appeals. under the provision that , under

14(b), resort to Administrative remedies by

claimants in States with agencies empowered

to remedy age discrimination in employment is

mandatory , not optional and federal suit may not be

brought under the ADEA unless the claimant has

first commenced a proceeding with the appropriate

State Agency, Pp 754 -758. But then reversed by

the Supreme court and so ordered the District Court

to hold respondent’s suit in abeyance until the

respondent had complied with the mandated of

14(b) and allowed the State Civil Rights

Commission an opportunity to entertain

respondent’s grievance before his Federal litigation

can continue.

15

9.) However a grievant is not required by 14 (b) to

commence state proceedings within the time limits

specified by State Law. Pp 758-764.

(a) By its terms ,14 (b) requires only that the State

proceedings be “commenced “ 60 days before

litigation is instituted, and use of the word

“ commenced “ strongly implies that state

limitations periods are irrelevant. This implication

is made express by the provision in 14 (b) that if a

state authority imposes requirements “other than a

_requirement of the filing of a written and signed

statement of the facts upon which the proceedings

is based “ the proceedings shall be deemed to have

been commenced for purposes of 14 (b) at the time

such statement is sent by registered mail to the

16

appropriate state authority. State limitations periods

are requirements other than specified in 14(b)and,

thus, even if a state were to make timeliness a

precondition for commencement, a state proceeding

will be deemed commenced for purposes of 14(b)

as soon as the complain is filed Pp759-760

(b) This construction of the statute is consistent

both with the ADEA’S remedial purposes and with

the purposes of 14(b) , which does not stipulate an

exhaustion requirement, but is intendent only to

give states agencies a limited opportunity to settled

the grievances of ADEA claimants in a voluntary

and localized manner so that the grievants thereafter

have not need or desire for independent federal

relief. [441 U.S.750,752 ] The ADEA’S structure-

17

setting forth limitations periods in explicit terms

in 7(d) and (e) ,not 14 (b)- reinforces the conclusion

that state procedural defaults cannot foreclose

federal relief and that state limitations periods

cannot govern the efficacy of the federal remedy.

Pp 761-764.Therefore, it is clear why in Solimino

the court of appeal did reversed the district court

ruling . and Rojas case is in fact a similar case .

(18

APPENDIX E

STOCK OPTION AGREEMENT

IONICS, INCORPORATED

nL en er

This Agreement made as of this 31st day of

July, 1991, by and between Ionics, Incorporated, a

Massachusetts corporation (the “Corporation”), and

EDUARDO E. ROJAS (the “Employee”).

WITNESSETH THAT:

WHEREAS, the Corporation has adopted a

plan entitled the “1979 Stock Option Plan” for the

granting to selected employees of options to purchase

shares of its stock; and

WHEREAS, the Compensation Committee of

the Board of Directors of the Corporation has

authorized the grant of this stock option pursuant and

subject to the terms of the Plan, a copy of which is

attached hereto and incorporated herein, and subject

to the further terms and conditions set forth herein;

NOW, THEREFORE, the Corporation and the

Employee hereby agree as follows:

1. Grant. Subject to the terms and conditions of the |

Plan and this Agreement, the Corporation does hereby grant

to the Employee an option to purchase from the Corporation

an aggregate of 1000 shares of its Common Stock (“Stock”).

Thi ee 7 ze :

option” within the meaning of Section 422A of the Code.

2. OptionPrice. This option may be exercised at the

option price of $43.00 per share of Stock

3. Term and Exercisability of Option. This option shall

expire ten years and one day after the date of grant set

forth at the conclusion of this Agreement, and except as

limited pursuant to Section 7..hereof shall be exercisable in

full from and after the date of grant, provided that the

Employee is not in violation of Section 9 hereof, or of any

other agreement with the Corporation..

4. Method of Exercise. To the extent that the right

to purchase shares has accrued hereunder, this option may be

exercised from time to time by written notice to the

Corporation substantially in the form attached hereto as

Exhibit 1. As soon as practicable after its receipt of such

notice, the Company shall, without transfer or issue tax to the

Employee (or other person entitled to exercise this option),

deliver or cause to be delivered to the Employee (or other

person entitled to exercise this option), stock certificates

representing the number of shares to be issued upon such

exercise, against payment of the option price in full for the

number of shares to be delivered, by means of payment

acceptable to the Corporation in accordance with Section 7

of the Plan; provided, however, that the time of such delivery

may be postponed by the Corporation for such period as may

be required for it with reasonable diligence to comply with

any applicable law.

If the Employee (or other person entitled to exercise

this option) fails to pay for and accept delivery of all or any

part of the number of shares specified in such notice upon

tender of delivery thereof, his right to exercise this option

with respect to such undelivered shares may be terminated by

the Corporation.

5. —assi ili ights. This

option shall not be encumbered, or be assignable or

transferable by the Employee except by will or by the laws of

descent and distribution. During the life of the Employee,

this option shall be exercisable only by him.

6.

In the event that the employment of the Employee by the

Corporation (which term for purposes of this Section 6 shall

include any subsidiary of the Corporation, within the

meaning of Section 42S(f) of the Code) is terminated

voluntarily by him, or by the Corporation on account of his

malfeasance or his violation of this or any other agreement

with the Corporation, or any similar justifiable cause, this

option shall terminate immediately, In the event that the

is li to be an employee of the

Company for any reason other than those described in the

preceding sentence, this option, or the unexercised portion

hereof whi

alter the date of his termination of employment, : but in any “at

the event of the death of the Employee while he is employed

by the Company, or within the thirty—day period described

in the preceding sentence, this option, or the unexercised

portion hereof which is otherwise exercisable by the

Employee at the date of his death, may be exercised by his

personal

representative at any time prior to the expiration of ninety

(90) days from the date of death of the Employee, but in any

event no later than the date of expiration of the option;

provided, however, that the right of the personal

representative to exercise this option shall not extend to

shares of Stock which on the date of the Employee’s death

were subject to the repurchase rights set forth in Section 8

hereof,

7. Compliance with Securities Laws. The Employee

hereby represents that he or the person exercising this option

in his stead will be acquiring the Stock for investment and

not with a view to its sale or distribution, and he and they

respectively, as a condition to being issued the Stock, hereby

covenant and agree with the Corporation that no transfer,

sale, exchange, assignment, pledge or encumbrance of the

Stock or any portion thereof, nor any commitment to take

such action, shall be made, whether voluntarily,

involuntarily, or by operation of law, by bequest or

otherwise, without prior written notice of the Employee or

holder thereof to the Corporation, and compliance with this

Agreement. The issue and resale of Stock under the Plan is

presently covered by effective registration statements under

applicable securities law, and it is the policy of the

Corporation to seek to maintain such registrations in effect..

The Corporation will notify the Employees or other person

exercising this option if for any reason the registration are

not maintained in effect, and in that event the Stock may not

be transferred unless the Corporation is furnished

with assurances satisfactory to it that the transfer would not

constitute a violation of applicable securities law.

8. ion. Upon the

occurrence of a Repurchase Event (as hereinafter defined),

the Corporation shall have the right to repurchase, at a price

equal to the option price set forth in Section 2 hereof, all or a

portion of the Stock issued upon exercise of this option, in

accordance with the attached Exhibit 2; provided, however,

that (a) if the Corporation shall propose to its stockholders

that the Corporation merge or consolidate with or sell

substantially all of its assets and business to another

corporation (other than a subsidiary controlled by the

Corporation), or (b) if another corporation, entity or person,

or group of corporations, entities or persons acting in concert

shall hold, as a result of a single acquisition or a series of

acquisitions, thirty percent (30%) or more of the outstanding

voting shares of the Corporation, or shall make a tender offer

to the stockholders of the Corporation to acquire shares of its

stock, which if successful could result in said corporation,

entity, person or group holding thirty percent (30%) or more

of the outstanding voting shares of the Corporation, such

repurchase rights shall terminate on the date of the first to

occur of the events just described. A Repurchase Event shall

be (x) any action of the Employee to sell, pledge, or transfer

(whether voluntarily, by operation of law, or otherwise)

Stock acquired upon exercise of this option, or (y)

termination of the Employee’s employment with the

Corporation (or any of its subsidiaries) by his voluntary

action, or (z) termination of such employment on account of

the Employee’s malfeasance or his violation of this or any

other agreement with the Corporation or any similar

justifiable cause. The Corporation shall exercise its

repurchase rights by delivering to the Employee (or other

holder of Stock subject to such rights) written notice of

its intent to repurchase Stock pursuant to this Agreement.

Provided ; however , That if the Corporation does not

exercise its repurchase rights within thirty (30) days after it

has notice of the

5

Repurchase Event, the Stock shall thereafter be free of any

repurchase right arising from that particular Repurchase

Event. The closing of a repurchase shall occur on the fifth

business day following delivery of the Corporation’s written

notice of intent to exercise its repurchase rights, at the

principal office of the Corporation or such other place as

shall be designated in the written notice. At the closing,, the

Corporation shall pay the full purchase price in cash, against

its receipt of delivery of the stock certificates representing

the shares of Stock being repurchased, duly endorsed or

accompanied by such duly executed stock assignment powers

as shall be required to effect the transfer of ownership thereof

to the Corporation. Nothing contained in this Agreement

shall be construed to require the Corporation to repurchase

any Stock at any time.

9. Employee Not to Compete. In consideration of

the Corporation’s grant of this option, the Employee hereby

expressly consents and agrees that during the period of his

employment by the Corporation (or any of its subsidiaries),

and for a period of at least two (2) years after the date such

employment terminates, he will not without the consent of

the Board of Directors of the Corporation accept or perform

work for any entity whose business is significantly

competitive with the business carried on by the Corporation

and its subsidiaries, or engage in activities which are

significantly competitive with the business of the _

Corporation and its subsidiaries. The Employee and the

Corporation do hereby stipulate and agree that the remedies

at law for any violation of the provisions of this Section 9

would be inadequate, and that performance of said provisions

shall be ordered specifically enforced by any court of

competent jurisdiction.

10. Rights as Stockholder. No person shall have any

rights as a stockholder with respect to any shares of Stock

covered by this option until the date of issuance of a stock

certificate to him for such shares. No adjustment shall be

made for dividends or other rights for which the record date

is prior to the date such stock certificate is issued.

11. Changes in Capital Structure. In the event that

the outstanding shares of Stock of the Corporation are

hereafter increased or decreased or changed into or

exchanged for a different number or kind of shares or other

securities of the Corporation, by reason of any

reorganization, merger, consolidation, recapitalization,

reclassification, stock split—up, combination of shares or

dividend payable in capital stock, the Board of Directors

shall make appropriate adjustment in the number of shares as

to which this option, or the portion hereof then unexercised,

shall be exercisable, and in the option price (provided that in

no event shall the option price be less than the par value of

such shares) to the end that the Employee’s proportionate

interest shall be maintained as before the occurrence of such

event. An identical adjustment shall be made in the number

of shares to which the repurchase rights set forth in Section 8

apply.

12. Notices. Any notice of his personal

representative shall in writing and sent by registered the

persons being given the notice address has been changed by

notice

the Corporation or of the Employee or of be deemed to have

been properly given if or certified mail, postage prepaid, to at

the following address, unless such an given in compliance

herewith.

The Corporation

Ionics, Incorporated

65 Grove Street

Watertown, MA 02172

ATI’N: General Counsel

The Employee:

EDUARDO E . ROJAS

53 Madison St Medford Ma 02155

13. Miscellaneous: This Agreement shall inure to the

benefit of and be binding upon the respective parties hereto,

their heirs, executors, administrators, assigns, successors and

transferees. This Agreement has been executed in

Massachusetts and shall be governed by and construed in

accordance with the laws of the Commonwealth of

Massachusetts. This Agreement contains the full and

complete understanding and agreement as to the subject

matter hereof and may not be altered, modified or amended

except by a further written agreement duly executed and

delivered by their respective parties hereto.

Although the Corporation (or one of its subsidiaries)

presently intends to tender employment to the Employee,

nothing herein shall be deemed to constitute an undertaking

of the Corporation (or of any of its subsidiaries) to continue

to tender such employment to the Employee.

IN WITNESS WHEREOF , the Corporation, by

its officers hereunto duly authorized, and the

Employee have duly executed this Agreement in

duplicate counterpart copies, as of the date set forth

below.

IONICS, INCORPORATED

Date of grant: July 31, 199]

BY:”s/ Arthur L Goldstein “

Chairman and Chief

Executive Officer

ACCEPTANCE

I hereby accept the foregoing option in

accordance with its terms and conditions and the terms

and conditions of the Plans.

“s/ Eduardo E Rojas “

Date 11 / 5/ 199] (Signature of Employee)