Appendix — Christian v. New York State Dept. of Labor

Supreme Court brief1974

Ask Donna

What actually matters in this document.

Text

@ "gage wnte me

miaies Supreme

LIBRARY, FILED

SUPREME COURT, U. PPENDIX way 17 1973

“ MICHAEL RODAK, JR..CLERK

In THE

| Supreme Court of the United States

| OCTOBER TERM, 1972

No. 72-5704

de «© JEAN CHRISTIAN and VicToR L. GREEN,

. Appellants,

— ea

NEW YorK STATE DEPARTMENT OF LABOR, DIVISION OF

EMPLOYMENT; its Industrial Commissioner, Louis L.

LEVINE; UNITED STATES DEPARTMENT OF LABOR, its

, Secretary, PETER J. BRENNAN; UNITED STATES POSTAL

SERVICE CORPORATION ; its Postmaster General, ELMER

T. KLASSEN; UNITED “STATES CrviL SERVICE CoMMIS-

SION; its Chairman, ROBERT E. HAMPTON, and its

Commissioners, JAMES E. JOHNSON and JAYNE SPAIN;

UNITED STATES DEPARTMENT OF THE TREASURY; and

its Secretary, GEORGE P. SHULTZ,

Appellees.

FOR THE SOUTHERN DISTRICT OF NEW YORK

FILED NOVEMBER 14, 1972

PROBABLE JURISDICTION NOTED APRIL 16, 1973

IN THE

Supreme Court of the United States

OCTOBER TERM, 1972

é

No. 72-5704

JEAN CHRISTIAN and VICTOR L. GREEN,

Appellants,

—Y ,——

NEW YORK STATE DEPARTMENT OF LABOR, DIVISION OF

EMPLOYMENT; its Industrial Commissioner, LOUIS L.

LEVINE; UNITED STATES DEPARTMENT OF LABOR, its

Secretary, PETER J. BRENNAN; UNITED STATES POSTAL

SERVICE CORPORATION; its Postmaster General, ELMER

T. KLASSEN; UNITED STATES CIVIL SERVICE COMMIS-

SION; its Chairman, ROBERT E. HAMPTON, and its

Commissioners, JAMES E. JOHNSON and JAYNE SPAIN;

UNITED STATES DEPARTMENT OF THE TREASURY; and

its Secretary, GEORGE P. SHULTZ,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

INDEX TO APPENDIX

. Page

Relevant Docket Entries =. ee eee 1

Amended Complaint—Class Action — 4

Affidavit of Jean Christian Attached ‘ penne Com-

plaint — 15

Exhibit A ‘is Christian ‘Affidavit: “Notice. of Deter-

mination 19

Exhibit B to Christian Affidavit: Referee ‘Decision

and Notice of Decision _____.__ 21

re RA TT SE PENG

nee as |

RA DE ST ot

ii INDEX

Amended Complaint—Class Action—Continued

Affidavit of Jean Christian Attached to Amended Com-

plaint—Continued

Exhibit C to Christian Affidavit: Statement of

Industrial Commissioner In Support of His Ap-

peal from Referee Decision

Exhibit D to Christian Affidavit: Appeal Board

Decision

Affidavit of Victor L. Green Attached to Amended Com-

plaint

Exhibit A to Green Affidavit: Notice of Deter-

mination

v

Answer of Federal Defendants Department of Labor, James

D. Hodgson, Postal Service Corporation, Elmer T. Klassen,

Civil Service Commission, Robert E. Hampton, James E.

Johnson, and Jayne Spain to Amended Complaint —

Answer of the State Defendants to Amended Complaint —_--

Plaintiffs’ Notice of Motion for Summary Judgment or for

Three-Judge Court and Summary Judgment ——

Statement of Material Facts as to which Plaintiffs Con-

tend There is no Genuine Issue to be Tried

Federal Defendants’ Notice of Motion to Dismiss or for

Summary Judgment

Statement of Material Facts as to which the Federal

Defendants Contend There is no Genuine Issue to be

Tried

Exhibit B to Statement of Material Facts: Notice

of Separation to Victor L. Green

Exhibit C to Statement of Material Facts: United

States Civil Service Commission Denial of Appel

to Victor L. Green —_-_.

Answer of Federal Defendants Department of the Treasury”

and John Connally to Amended Complaint —

Order Convening Three-Judge Court -.... -.---..-----.-.

Statutory Notice of Three-Judge Court —. -.......--.—.

Opinion —_.....--- —— rrreree!

Notice of Appeal to the ‘Seanies Court of the United States.

Orders of the Supreme Court of the United States granting

motion of appellants for leave to proceed in forma pauperis

and noting probable jurisdiction —. _-_.--.-.----------.

Page

&

31

79-80

RELEVANT DOCKET ENTRIES

Civil Docket

UNITED STATES DISTRICT COURT

71 Civ. 5556

Dec. 21, 1971:. Filed Complaint—Class Action.

Dec. 21, 1971: Filed Order Appointing Process Server

(Clerk of Court).

Dec. 21, 1971: Filed Order to Proceed In Forma Pauperis

(Croake, D. J.).

Mar. 10, 1972: Filed Amended Complaint—Class Action.

Mar. 10, 1972: Filed Order Appointing Process Server

(Clerk of Court).

Mar. 22, 1972: Filed Plaintiffs’ Notice of Motion for a De-

termination of the Class.

Mar. 22, 1972: Filed Memorandum of Law in Support of

Plaintiffs’ Motion for a Determination of

the Class.

Mar. 28, 1972: Filed Answer of Federal Defendants Depart-

ment of Labor, James D. Hodgson, Postal

Service Corporation, Elmer T. Klassen, Civil

Service Commission, Robert E. Hampton,

James E. Johnson, and Jayne Spain to

Plaintiffs’ Amended Complaint.

Apr. 10, 1972: Filed Answer of State Defendants New

York State Department of Labor and Louis

L. Levine to Plaintiffs’ Amended Complaint.

Apr. 17, 1972: Filed Plaintiffs’ Notice of Motion for Sum-

mary Judgment or for a Three-Judge Court

and Summary Judgment, with attached

Statement of Material Facts as to which

Plaintiffs Contend There is no Genuine Issue

to be Tried.

RELEVANT DOCKET ENTRIES

Apr. 17, 1972: Filed Memorandum of Law in Support of

Plaintiffs’ Motion for Summary Judgment or

for a Three-Judge Court and Summary Judg-

ment.

May 12, 1972: Filed Federal Defendants’ Notice of Motion

to Dismiss or for Summary Judgment, with

attached Statement of Material Facts as to

which the Federal Defendants Contend There

is no Genuine Issue to be Tried.

May 12, 1972: Filed Memorandum of Law in Support of

Federal Defendants’ Motion to Dismiss or

for Summary Judgment.

May 16, 1972: Filed Answer of Federal Defendants Depart-

ment of the Treasury and John Connally to

Plaintiffs’ Amended Complaint.

~ May 18, 1972: Filed Memorandum for State Defendants.

- May 19, 1972: Filed Plaintiffs’ Reply Brief.

May 24, 1972: Filed Order Designating Paul R. Hays, C. J.,

and Arnold Bauman, D. J., in addition to

Marvin E. Frankel, D. J., to sit as Three-

Judge Court (Friendly, C. J.).

May 24, 1972: Filed Order Setting Hearing Date Before

Three-Judge Court (Frankel, D. J.).

May 25, 1972: Filed Statutory Notice to Convene Three-

Judge Court (Clerk of Court).

June 5, 1972: Filed Memorandum of Law in Support of

Federal Defendants’ Motion to Dismiss or

for Summary Judgment.

June 8, 1972: Three-Judge Court Convened Before Paul R.

Hays, C. J., Marvin E. Frankel, D. J., and

Arnold Bauman, D. J. Decision Reserved.

July 24, 1972: Filed Opinion dismissing the action (Hays,

C. J., and Bauman, D. J.) and iennne

Opinion (Frankel, D. J.).

he eae Seas |

RELEVANT DOCKET ENTRIES

Sept. 15, 1972: Filed Notice of Appeal to the Supreme Court

of the United States.

Apr. 24, 1973: Filed Copy of Order of the Supreme Court

of the United States.

Apr. 24, 1973: Filed Copy of Order of the Supreme Court

of the United States Noting Probable Juris-

diction.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

71 Civ. 5556

JEAN CHRISTIAN and VICTOR L. GREEN, indivually and on

behalf of all others similarly situated, PLAINTIFFS

—against—

New YorRK STATE DEPARTMENT OF LABOR, DIVISION OF

EMPLOYMENT; its Industrial Commissioner, Lous L.

LEVINE; UNITED STATES DEPARTMENT OF LABOR, its

Secretary, JAMES D. Hopcson; UNITED STATES POSTAL

SERVICE CORPORATION; its Chairman, ROBERT E.

HAMPTON, and its Commissioners, JAMES E. JOHNSON

and JAYNE SPAIN; UNITED STATES DEPARTMENT OF

THE TREASURY; and its Secretary, JOHN CONNALLY,

DEFENDANTS

AMENDED COMPLAINT—GLASS ACTION—

Filed March 10, 1972

I.

NATURE OF CLAIM

1. Plaintiffs, individually and on behalf of all others

similarly situated, seek declaratory relief, injunctive re-

lief and a writ of mandamus to redress the denial of

unemployment insurance benefits under the Unemploy-

ment Compensation for Federal Employees Program

without a fair hearing as required by the Fifth and

Fourteenth Amendments to the United States Constitu-

tion, by 42 U.S.C. § 1988, by 42 U.S.C. § 1985(3), by

42 U.S.C. § 503 and by 5 U.S.C. §§ 8501-8508.

al

II.

JURISDICTION

2. The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. §§ 2201 and 2202 which authorize the issu-

ance of declaratory judgments, to 28 U.S.C. § 1343(3)

granting original jurisdiction to District Courts over ac-

tions brought under the United States Constitution, 42

U.S.C. §§ 1983 and 1985 and to 29 U.S.C. § 1861 relat-

_ ing to actions in the nature of mandamus.

Ill.

PLAINTIFFS

_8. Plaintiff Jean Christian is forty-five years old, a

black citizen of the United States and a resident of

Brooklyn, New York. Subsequent to her termination as

a federal civilian employee with the United States Post

Office Department she was denied unemployment insur-

ance benefits without a fair. hearing.

4. Plaintiff Victor L. Green is a citizen of the United

States and a resident of Bronx, New York. Subsequent —

to his termination as a federal civilian employee with

the United States Department of the Treasury, he was

denied unemployment insurance benefits and has not and

will not be given a fair hearing.

IV.

DEFENDANTS

5. Defendant New York State Department of Labor,

Division of Employment (hereafter “Division of Em- —

ployment”) is the agency responsible for the adminis-

tration of unemployment insurance in the State of New —

York and is a party to an agreement with the United ©

States Department of Labor pursuant to 5 U-S.C.

§§ 8501 et seg. which authorize the payment of unem- —

ployment insurance benefits to federal employees and

m LCN Ren ae

deny the right to a fair hesring concerning eligibility

for such benefits.

6. Defendant Louis L. Levine is the Industrial Com-

missioner of the New York State Department of Labor,

Division of Employment, and is responsible for the ad-

ministration of unemployment insurance in the State

of New York.

7. Defendant United States Department of Labor

(hereafter “Department of Labor”) is the agency re-

sponsible for the administration of unemployment insur-

ance benefits for federal employees under 5 U.S.C.

$§ 8501 et seg. and has entered into an agreement with

the New York State Department of Labor, Division of

Employment, pursuant to 5 U.S.C. §§ 8501 et seg. which

authorize the payment of unemployment insurance bene-

fits to federal employees and deny to such employees the

right to a fair hearing concerning eligibility for such

benefits.

8. Defendant James D. Hodgson is the Secretary of

the United States Department of Labor and is respon-

sible for the administration of unemployment insurance

for federal employees.

9. Defendant United States Postal Service Corpora-

tion (hereafter “Postal Service”) assumed all obliga-

tions and liabilities of the United States Post Office De-

partment, which is the the former employer of Plaintiff

Christian and, pursuant to 5 U.S.C. § 8506 and the reg-

ulations promulgated thereunder by the Department of

Labor, it transmitted information to the Defendant Di-

vision of Employment concerning the reason for the ter-

mination of Plaintiff: Christian’s employment.

10. Defendant Elmer T. Klassen is Postmaster Gen-

eral of the United States Postal Service Corporation and

is responsible for the transmission of information to

state unemployment insurance agencies such as the De-

fendant Division of Employment.

11. Defendant United States Civil Service Commis-

sion (hereafter the “Civil Service Commission’) is re-

sponsible for the administration and regulation of work-

ing and termination procedures for federal employees.

12. Defendant Robert E. Hampton is the Chairman

of the United States Civil Service Commission and, in

conjunction with Defendants Johnson and Spain, is re-

sponsible for the administration of federal employee pro-

cedures.

13. Defendant James E. Johnson is a Commissioner

° of the United States Civil Service Commission and, in

conjunction with Defendants Hampton and Spain, is re-

sponsible for the administration of federal employee pro- |

cedures. i

14. Defendant Jayne Spain is a Cemmissioner of the

United States Civil Service Commission and, in conjunc- j

tion with Defendants Hampton and Johnson, is respon-

sible for the administration of federal employee proce- ©

dures. :

15. Defendant United States Department of the Treas- ©

ury (“hereafter “Department of Treasury”) is the for-

mer employer of Plaintiff Victor L. Green and, pursuant

to 5 U.S.C. § 8506 and the regulations promulgated there-

under by the Department of Labor, it transmitted infor-

mation to the Defendarit Division of Employment con-

cerning the reason for the termination of Plaintiff

Green’s employment.

-16. Defendant John Connally is the Secretary of the ©

United States Department of the Treasury, and is re- |

sponsible for the transmission of information to state

unemployment insurance agencies such as the Defendant ©

Division of Employment.

7.

CLASS ACTION

17. Plaintiffs bring this action pursuant to Rules 23

(a) and 23(b) (2) of the Federal Rules of Civil Proce- |

dure on behalf of themselves and all persons similarly

situated. The class is composed of all federal employees

who have been or will be subject to denial or termination |

of unempleyment compensation benefits under the Un- |

employment Compensation for Federal Employees (here-

after “UCFE”) Program on the basis of findings of fact |

&

denied Plaintiffs because the New York State De-

partment of Labor, Division of Employment gave final

usi i of Plaintiffs’ em-

law common to the members of the

class are the conformity of the practice of denying fair

hearings to federal employees who apply for unemploy-

ment insurance with requirements of the Fifth and

common to the members of the class are whether or not

such persons were terminated on the basis of findings of

fact on which the hearings were held.

The Defendants in following a policy which deprives

the members of the class of a fair hearing have acted

or refused to act on grounds generally applicable to the

class thereby making appropriate final injunctive and

declaratory relief.

VI.

STATEMENT OF THE CLAIM

18. Plaintiff Christian was a probationary employee

with the United States Post Office Department from

April 4, 1970, to October 2, 1970.

19. On October 2, 1970, Plaintiff Christian was dis-

charged by the Post Office Department because of an

allegedly unsatisfactory attendance record.

20. The Post Office Department’s alleged reason for |

the termination of Plaintiff Christian’s employment was

that she had been absent without notifying the Post

Office Department on August 31 and September 1, 1970.

21. Plaintiff Christian filed an original claim with the

Defendant Division of Employment under the UCFE ~

Program, 5 U.S.C. §§ 8502, 8506, on October 3, 1970. 3

:

doa id

22. By initial determination effective October 3, 1970,

the Defendant Division of Employment ruled that Plain-

tiff Christian was disqualified because she had volun-_

tarily left her employment without good cause by pro-_

23. This initial determination was based on reports —

made by the Post Office Department stating that Plain-

tiff Christian's employment was terminated during her

probationary period because of her unsatisfactory at-—

tendance record and her absences on August 31 and Sep- —

tember 1, 1970 without notifying the Post Office Depart- |

ment as to such absences. :

24. The initial determination was reversed by Referee _

Milton Weinstein of the Division of Employment on .-

January 8, 1971, after a full hearing in which the In-

dustrial Commissioner and the Plaintiff were heard. _

25. Referee Weinstein found that: °

“Claimant’s parental responsibilities required her

absence from work on August 31 and September 1.

Having had the employer advised of the reason for |

3

ha

her absence she did not willfully act in a manner >

to provoke her discharge. She did not voluntarily ©

leave her employment.”

26. Referee Weinstein did not accord “final and con-_

clusive” weight to the findings of the Post Office Depart-—

ment as required by 5 U.S.C. § 8506. :

27. An appeal was taken from the Referee’s decision 3

to the Appeal Board of the New York State Department”

of Labor, Division of Employment. The Board is charged

with review of determinations by the Referees of the

Division of Employment. ~

28. The Appeal Board reversed Referee Weinstein’s,

decision and upheld the initial determination. In its deci-~

10

sion, dated April 16, 1971, the Appeal Board stated that

it was bound, under 5 U.S.C. § 8506, by the federal

agency’s findings and that Plaintiff Christian had pro-

voked her discharge, which was tantamount to a volun-

tary leaving of employment without good cause.

29. The decision of the Appeal Board is final on all

questions of fact under New York unemployment insur-

ance law.

30. By Act of Congress effective primarily on July

1, 1971, the United States Post Office Department became

the Defendant United States Postal Service Corporation,

under which Act the latter assumed all the obligations

and liabilities of the former, and under which Act the

latter remains a federal agency bound by the require-

ments of 5 U.S.C. § 8506 and the regulations promul-

gated thereunder.

$1. Plaintiff Christian was not afforded a hearing by

the Defendant Civil Service Commission. Under 5 C.F.R.

§ 315.806, issued pursuant to 5 U.S.C. §§ 1801, 3301,

3302 and Executive Orders 10577 and 11103, a proba-

tionary federal employee is given no hearing on the

grounds for termination of employment unless discrimi-

nation or improper termination procedure is alleged.

32. Plaintiff Christian was not afforded a hearing by

either the Post Office Department or the Department of

Labor. Under the UCFE Program, the employing agency

makes findings of fact, including reasons for termina-

tion, and furnishes them to the Division of Employment.

5 U.S.C. § 8506.

33. 5 U.S.C. § 8506 also provides that these findings

of fact made by the employing federal agency are to be

“final and conclusive” upon the state agency determining

the eligibility of a federal employee for unemployment

insurance. The Department of Labor regulations gov-

erning this procedure, 20 C.F.R. §§ 609.9 et seq.,- provide

only for a review of the federal agency findings, but not

for a hearing. 20 C.F.R. § 609.18, as amended, July,

1971, provides for federal agency hearings over con-

tested facts only where an employee has resigned.

34. The New York State Department of Labor, Divi-

sion of Employment, Appeal Board did not afford Plain-

1l

tiff Christian a hearing concerning the reasons for her

termination. The Board found itself bound by the fed-

eral agency’s findings of fact, in accord with 5 U.S.C.

§ 8506 and 20 C.F.R. § 609.18 and thereby rejected the

de novo findings of the Referee.

35. Plaintiff Green was a probationary employee with

the Defendant United States Department of the Treasury

from December 24, 1970, to December 18, 1971.

36. During his employment, Plaintiff Green was based

in New York as a skymarshall for the Bureau of Cus-

toms of the Defendant Department of the Treasury.

37. On December 18, 1971, Plaintiff Green was dis-

charged by the Defendant Department of the Treasury

for the alleged reason of drinking an alcoholic beverage ;

within twenty-four hours of flying.

38. Plaintiff Green filed an original claim with the

Defendant Division of Employment, under the UCFE

Program, 5 U.S.C. §§ 8502, 8506, on December 23, 1971.

39. By initial determination effective on February 17,

1972, the Defendant Division of Employment ruled that

Plaintiff Green was disqualified because he had engaged

in misconduct by drinking an alcoholic beverage within

twenty-four hours of flying.

40. This initial determination was based upon reports

made by the Defendant Department of the Treasury

stating that Plaintiff Green was terminated during pro-

bation and that Plaintiff Green was terminated for

drinking an alcoholic beverage within twenty-four hours

of flying.

41. Plaintiff Green received a Notice of Determina-

tion from the Defendant Division of Employment which

advised him that he had been disqualified from receiving

benefits, and that he had a right to a hearing before the

Defendant Division of Employment. He was also advised

orally, however, that the findings of fact made by the

Defendant Department of the Treasury were final and

conclusive upon the Defendant Division of Employment.

42. Plaintiff Green was not afforded a hearing by the

Defendant Civil Service Commission. Under 5 CFR.

§ 315.806, issued pursuant to 5 U.S.C. §§ 1301, 3302 and

Executive Orders 10577 and 11103, a probationary fed-

.

i

f

N

L

r§

t

&

'

s

5

a a a ea

i

ST PNA ITE REET Ho9,

so lag

ee Oe ee, ee

12

eral employee is given no hearing on the grounds for

termination of employment unless discrimination or im-

proper termination procedure is alleged.

48. Plaintiff Green was not afforded a hearing by

either the Defendant Department of the Treasury or the

Defendant Department of Labor. Under the UCFE Pro-

gram, the employing federal agency, the Defendant De-

partment of Labor, makes findings of fact, including

reasons for termination, and furnishes them to the Divi-

sion of Employment. 5 U.S.C. § 8506.

44. 5 U.S.C. § 8506 also provides that these findings

of fact made by the employing federal agency are to be

“final and conclusive” upon the state agency determin-

ing the eligibility of a federal employee for unemploy-

ment compensation insurance. The Department of Labor

regulations governing this procedure, 20 C.F.R. §§ 609.9

et seg., provide only for a review of the federal agency

findings, but not for a hearing. 20 C.F.R. § 609.18, as

amended, July, 1971, provides for federal agency hear-

ings over contested facts only where an employee has

resigned.

45. The New York State Department of Labor, Divi-

sion of Employment will not afford Plaintiff Green a

hearing concerning the reasons for his termination, to

the extent that the Division of Employment considers

itself bound by the federal agency’s findings of fact, in

accord with 5 U.S.C. § 8506 and 20 C.F.R. § 609.18.

First Cause of Action

46. Defendants have deprived the Plaintiffs of unem-

ployment benefits without a fair hearing in violation of

the due process clauses of the Fifth and Fourteenth

Amendments to the United States Constitution.

Second Cause of Action

47. Defendants have deprived the Plaintiffs of unem-

ployment benefits without a fair hearing in violation of

their right to equal protection as guaranteed by the Fifth

and Fourteenth Amendments to the United States Con-

stitution.

= _ 13

Third Cause of Action

48. Defendants have deprived the Plaintiffs. of unem-

ployment. benefits without a fair hearing in violation of

42 U.S.C. § 1983.

Fourth Cause of Action

49. Defendants have deprived the Plaintiffs of unem-

ployment benefits without a fair hearing in violation of

42 U.S.C. § 1985.

Fifth Cause of Action

50. Defendants have deprived the Plaintiffs of unem-

ployment benefits without a fair hearing in violation of

the mandate and intent of 5 U.S.C.. §§ 8501-8506 and 42

U.S.C. § 5038.

Prayer for Relief

Wherefore, Plaintiffs respectfully pray that this Court:

1. Assume jurisdiction of this cause, convene a three-

judge District Court pursuant to 28 U.S.C. §§ 2282 and

2284 to determine this controversy and set this case

promptly for a hearing.

2. Enter a declaratory judgment declaring Defend-

ants’ denial of Plaintiffs’ unemployment insurance bene-

fits without a fair hearing to be in violation of Due Proc-

ess and Equal Protection, of 42 U.S.C. $§ 508, 1983 and

1985 and of 5 U.S.C. §§ 8501-8506.

3. Enter a preliminary and permanent injunction re-

straining Defendants from administering the UCFE Pro-

gram so as to deny Plaintiffs and the members of their

class a fair hearing, and restraining Defendants from

denying unemployment insurance benefits due to and

withheld from the Plaintiffs and the members of their

class.

4. Enter an Order in the nature of mandamus com-

pelling the federal Defendants to administer the UCFE

program so as to grant Plaintiffs and the members of

their class fair hearings.

PIERO BRE A IRB peg apes canter com

epee ancien ees

14

5. Grant such other and further relief as this Court

may find just, equitable and proper.

Dated: March 10, 1972

‘New York, New York . ,

Respectfully submitted,

BEDFORD-STUYVESANT COMMUNITY

LEGAL SERVICES CORPORATION

WILLIAM L. REESE, JR.

RUTH BALEN

1368 Fulton Street

Brooklyn, New York 11216

Tel. (212) 638-9324

BRONX LEGAL SERVICES,

CORPORATION A

ARTHUR D. MEEHAN

ERIC RUNDBAKEN

KENNETH G. SCHWARTZ

1438 Boston Road

Bronx, New York 10460

Tel. (212) 842-5300

- /s/ Dennis R. Yeager

DENNIS R. YEAGER

E. RICHARD LARSON

401 West 117th Street

New York, New York 10027

Tel. (212) 280-4112

Attorneys for Plaintiffs

AFFIDAVIT OF JEAN CHRISTIAN

ATTACHED TO AMENDED COMPLAINT

STATE OF NEW YoRK )

) ss:

COUNTY OF KINGS _)

JEAN CHRISTIAN, being duly sworn, deposes and

says: .

1. I reside at 81 DeSales Place, Brooklyn, New York

with my minor daughter.

2. From April 4, 1970, to October 2, 1970, I was em-

ployed in the federal service as a Chauffeur for the

United States Post Office in Brooklyn, New York.

3. On October 2, 1970, during my probationary pe-

riod, my federal employment was terminated, and on

October 3, 1970, I made original claim for unemployment

insurance benefits.

4. On information and belief, on November 5, 1970,

the Post Office transmitted findings to the state unem-

ployment insurance agency which gave as the reasons

for separation from federal service 1) termination .dur-

ing probation; and 2) unexcused absences on August 31,

1970, and September 1, 1970 together with an unsatis-

factory attendance record.

5. On or about November 6, 1970, the Industrial Com-

missioner of the State of New York made an initial de-

termination disallowing unemployment insurance benefits

to me on the. grounds that I had voluntarily left employ-

ment without good cause in that I provoked my discharge

by my absences of August 31, 1970, and September 1,

1970, and further, that the federal findings were final,

conclusive, and binding. (See copy of Notice of Deter-

mination attached hereto as Exhibit “A”).

6. The aforesaid Notice of Determination advised me

that I had the right to a hearing but at the same time

stated that the facts found by the Post Office were final,

conclusive, and binding.

7. On November 12, 1970, I requested a hearing from

the state unemployment insurance agency on the ground

MOIR OA ORE:

,

NE eb a Davee aa nt a ot tat eee

ASOIMPRL mS Ree rasa I ENCORE:

16

that the termination of my employment was unfair, I

was denied a hearing by the federal agency, and I had

good reason for being absent.

8. As a probationary employee of the Post Office, I

had a limited right of appeal to the Civil Service Com-

mission on the issue of my termination, an appeal which

was confined to consideration of charges of discrimina-

tion and improper procedure. § 315.80 6, Civil Service

Regulations. This appeal was not available to challenge

the federal findings as they might relate to claims for

unemployment insurance.

9. On December 16, 1970, a hearing was held before

a Referee designated by the state agency. The federal

agency did not appear. The Industrial Commissioner

submitted a statement in lieu of appearance which on

information and belief, alleged that I had provoked my

discharge because of my attendance record, and that the

findings of the federal agency must be accepted ‘as fact.

I testified on my own behalf.

10. On January 8, 1971, a decision was rendered by

the Referee overruling the initial determination and

granting my claim for benefits. The Refree held that I

had not provoked my discharge, that I had good excuse

for my absences, and had duly explained my absences to

my employer. (See Copy of Referee’s decision attached

hereto as Exhibit “B”).

11. The Industrial Commissioner appealed the decision

of the Referee to the Unemployment Insurance Appeal

Board and urged that the Referee be reversed on the

ground that the findings of the federal agency were final

and conclusive and these findings led to the conclusion,

under New York State unemployment insurance law,

that I had provoked my discharge. (See copy of letter of

Industrial Commissioner submitted in support of his ap-

peal, attached hereto as Exhibit “C’’).

12. On April 16, 1971, the Appeal Board reversed

the Referee holding that the federal findings were final,

conclusive, and binding, and based on these findings, I

had provoked my discharge. (See copy of the Decision

of the Appeal Board attached hereto as Exhibit “D”’).

%

17

13. On August 4, 1970, I had been placed on the “re-

stricted sick leave list” by the Post Office Department,

because of three allegedly unexplained absences reported

by my supervisor, Mr. Gross. Being placed “on the re-

stricted list meant that if I were absent again, I would

be required to produce a medical excuse or be deemed

AWOL, and penalized, accordingly.

14. On the occasions when I was accused of being

AWOL, I had explained to my supervisor that I was

unable to report my absences because my telephone was

out of order. To report an absence, I would have had to

telephone my employer at about 6:00 A.M. and it was

impossible for me to find a working public phone in my

neighborhood at that hour.

15. On August 31, 1970 and September 1, 1970, I

did not go to work because my minor daughter, who was

my sole responsibility, required my assistance. On Au-

gust 30, 1970, a Sunday, I learned that my daughter had

become pregnant and was seeking an illegal abortion.

She was not at home on Sunday. It then became impera-

tive for me to find my daughter to dissuade her from

taking this drastic step. I began my search for her on

Sunday, without success and continued my search through-

out the early morning hours of Monday August 31. Not

knowing where I would be at the time I would have to

report to my employer, I asked my older daughter (aged

25) who did not live at home to telephone my supervisor

to report my absence. My older daughter advised me

later that she had telephoned as requested, but that the

person who answered the telephone at the Post Office

refused to listen to the explanation and told her that I

should bring in a doctor’s note.

16. I located my minor daughter late in the after-

noon of August 31, and found her to be in a very dis-

tressed state. I made the decision not leave her in such

a state until I was assured that she would take the rash

step she had been contemplating. It was not until the

afternoon of September 1, 1970 that I was confident that

I could leave her without fear for her safety. I again

requested my older daughter to telephone my employer

‘

b

i

;

i.

¥

:

i

¥

4

18

for me on the morning of September 1, which she told

me she had done with the same result.

17. When I returned to work on September 2, 1970,

I attempted to explain my absences to my supervisor, but

he refused to speak with me.

18. I was never given an opportunity by the Post

Office or the Civil Service Commission for a hearing

during which I could challenge the findings of the Post

Office that I had been AWOL on August 31 or Septem-

ber 1, 1970, or on the prior occasions, My supervisor

who reported me AWOL refused to listen to my explana-

tions and I was never permitted to confront him before

an impartial official of the agency, the Civil Service Com-

mission, or the State unemployment insurance agency.

19. Although I was given a hearing by the state un-

employment insurance agency that hearing was not a

fair hearing because the federal findings were final con-

clusive and binding, and the favorable decision of Referee

could not therefore, be accorded full weight by the Appeal

Board.

20. I have been grievously harmed by being denied

unemployment insurance benefits without a fair hearing

in that I was deprived of a source of income which I

sorely needed after I was separated from federal em-

ployment, without due process of law.

91. On information and belief, I would not have been

denied unemployment insurance benefits if I had been

given a fair hearing and an opportunity to challenge the

federal findings in my case because I had a sound and

reasonable excuse for being absent on the days in ques-

tion, and I duly reported my absences, as was found by

the Referee.

22. I believe that there are other persons similarly

situated to myself who have been denied unemployment

compensation for federal employees upon disputed fed-

eral findings without being given a fair hearing, and

that I can fairly represent the class of such persons.

/s/ Jean Christian

JEAN CHRISTIAN

[Notary Omitted]

i i ar alts . : atuntiie oie

gn ee ee OE i eT TET a a Te ee Ne TE ss See Oe :

*asned poo

#noYyzTM Gol anoXx 41nb nox [U833TIM PpueH] NOILWNIWYSLaG

*3zunNoD jou TITM

zuewAoTdue-jJTes worzz shutuaes pue juseudoTdwe-jTes -o90z7$ 4seaeT je

peutes Io sysem f% JO yore ut skep ¢ uey3 SSeT jou azeAoTdue ue soz

pexz0m ATZuenbsesqns saey nok TtTzun OL/E/0T 5utuut6eq potied

ey} 20Z nod 03 pted aq ues S3TJousq soueANSUT AUSswWAOTdWeUN ON

"ON *300W ‘S'S

€€HT-bb-0S0 [ -

0L-9-I1l eq avert & LOZIT “A°N ‘uATHXOOIg

ueATD © S0PTd. seTeseg Tg

u ' i3 ueTISTIAYD uPer

TTOOT °A “N ‘420% MON = _ |

398238 430Z 380M zg SSOIPPV

9TS SOTFIFO TeDOT S°TIFO TROOT

LNYWIWIO OL NOILYNIWYSLaG dO AOILON

zuewAoTdugq jo uotstatg

YOdVT dO LNAWLYVdad ALVLS MYOA MAN

NOILVNINUGLIG AO FOLLON

*LIAVGIddY NVILSIYHD OL VY LISIHXY

See oe

'

;

;

}

;

}

CS ne ean ee nae, ae eee

GIN. ast Y

ae alan ha ee

19

ns AB ase: a es aE Acad ee ae EAE DE hia He eh BSCE lu AB ha il Ai Seip Apel ala esd LB ae

(22A0)

[eTqtbetTi] ka :

YANOISSIWWOD 'IVINULSNGNI 3HL YOd

*peAoTdweun utewez nof se

Huot se skep peubtsse zanof uo saotzjo yuowkoTdue

pue soueinsut anoA 03 LYOdday OL ANNILNOO ‘eseo 9y3

SepToep seteserT 943 TT3UN SLHOIY YNOA LOALOUd OL

*3Ssenbez aznoA y3TM ‘pensst jt ‘pied wte{tD pue

FASSUL AepusTeD Yyoog soueAnsul ‘yoog soueazansuy anod

Ttew 10 butzq 03 sans oq ‘Hutazeey e butysenbez usym

“AOILON SIHL dO GLVG FHL Woudd

SAWG O€ NWHL YALVT LON ZOIddO TWOOT SIHL LV TIWW

Ad dO NOSHAd NI AZQVW dd LSNW LSaNOAN ANOA *YAAAMOH

“NOA OL NOILWOITHO YO LSOD ON LV AANaday

TIWILYVGWI NY AXOdad ONTIYVGH YW YOd ASW AWW NOA

‘“NOILYNIWHALAd SIHL HLIM GAIMSILVS LON AYW NOK AI

*sHutuzee ito 470m Auenbesqns jo yuewerzTtTNbe.z

eAOoge ey peTyJstzes saey nOoA 3eY BSASTTEq pue

peAotdweun ere nok jt soTZJO TeOOT sty 03 Hutz1z0de1

Aq wteTo znoA meuez of Atdde Aew nok ‘39e1200

ST UOTIEUTWIASZEep STYRZ 3eYU peTJstTzes ere NOA J]

“Mel “SUT

zusewAOTdueun zepun Butputq pue satsn[Touoo “TeuTs

St (Od) AoUuebe Tezsepez oy Aq suop BbutputjZ zoe;

e4uUL “esned poob ynoyuRyTM JuewAOCTdUe JO HbuTAPeT

AZEZUNTOA OF JZUEeTeATNbe st SbieusSTp pexyoaoid

VY <‘Butuzem z9e33e 0OL/T/6 8 OL/TE/8 TOMY 210M NOX

se ebireyostp anoA pexoaoid nox [U933TIM pueH]

:BUTMOTTOJ 84} UO peseq ST UOTIeUTWIAeIEepP STUL

*asned poob

znoyztm qol anoA 3tnb no, (ue33TImM pueH]

quewtoTdue-jTes wozj sbhbutuzee pue juewhoTdue-jTas

peures JO syeem p JO yore ut shkep ¢ ueuy SSEeT OU

pexz0m AT3Zuenbesqns saey noA {[TAun OL/E/OT

ey? 103 nod 03 pted eq ued sztTjeueq souReAnsuT

"ON *300W “S'S

EEVT-b¥-0S0 / [-

PeTTeW K

OL-9-TT 38a j oles

_ UeATD i

TTOOT “A “N ‘420% MON =

3929238 4307 380M ZS SSeIppy

(69-6) I°ZIb O17

ONT LYOdde

ON LTYWAH

Y¥od LSanod

ONIYWAH V

OL LHOTY

WIWTO

uNOA

ONIMANAY

NOSWdau

NOILWNIWHALaG

*QZunooS 3OU TITM

"0077S SPST 3h

zekoTdwue ue 103

Hutuutbeq potied

quewhoTdweun oN

"A°N ‘UAT XOOIg

Pld setTesed 18

ueTRSTIYO uPer

_|

wo

Egat

Shag Se Se

per RN aes SK.

REE ote D

o° ° * Sufazvey ev

zsenber ‘uotzeuTwzA9s3Zep YyoOns jo sotTZOU jo AAsATTep Teuoszed 10

Hut{ttew ey z9eQze sAep Ajzatyz utyytm ‘Aew uotzZeutTwz9zep yons

Aq pezoezze Aqaed zayjo Aue 120 sztjoueq 103 wTteTS ey jo

UOTFEUTWAZZIOP TETITUT Ue YIM PeTJSTIeSSTp ST OYM JUeWTeETO Y (®),

:34eq UT S03e4S MET BOURANSU]L JUoWAOTdWeUN a4 JO T’°0Z9 UOTIDaS

Aq

YANOISSIWWOO ‘'IVWIYLSNGNI dHL wOd m

- pezetooidde ST uoTzeEwW

-1OjutT BHbuTystuzanj ut sn 03 pepuszxe saey nod yotym uotzesrzedood syL

:pezep nod 3uses suo 9Yy3 sepesizadns 9oOTWIOU STUL Ba

*sqTjyoueq 103

STATHtTe eq zezzeer9YyR Aew pUue wWTeTS mou be OaTTZ OF 3YHTA YQ BAeY

TTT’ ey /8eS790A01 BYR UO poeUOTjUeW ZUewAOTdWe jo sqjUuewerTNbe1z 3ay3

Hbutzeew z033e peAoTdwoeun sowooseq JueWTeTS 943 JT ‘AeAeMOH *UMOYUS

uoseez ey} 403 pue potzed ey 1203 szTjoueq 1203 eTQTHtTeuTt st waz0j

STU JO Opts A9YWIO SYA UO JUeWTeTS ay 3eY4 peuTwAzsxzep useq sey FI

*YdAOTIWA OL

[ |

L | _

PETTeEW

e3eq

ATHIOITANI SI LNVYWIVIO LWHL

NOILVYNIWHGLAG dO YAAOTMWA OL AODILON

LT VOI WINE eS

hes ne REAR 8

2 etl Sed, BWR OD

se OG

eee Bee ~

-Kkep zeyz quesqe oq pInom eys 7eU> pestape pue T zequeyzdes uo

zekotdue e437 PeTTee utebe zezubnep z90y3z0 294 qsonbez 204 4V *zeqyubnep 79y4

HutTuoTyNeo pue but TTesunoo Kep ey} 30 7S0U queds juewteTo pue qesdn ATTeuoTtzOwse

ezem z0Rzyubnep z9y pue ous yzoq esneoeq T zequezdes uo 410M IOS qza0de1

03 eTqeun sem 3nq Kep oy} butanp zezybnep 294 punoz us -Aep 3euy ATOM AOZJ

qz0dez 0} eTGe eq 7OU ptnom eys 3eU4 pestape pue zeKkotdue ey} 0F peuoydeT ey

zezyubnep z9y4zOUe qsenber zey 7e pue zepio butyx1z0M ut sKkemte Ou sem asuoydeTey

zeH *rzey 20Z HUTHOOCT Kep oy3 queds quewterTo pue ewoy zTeYyz woras quesqe

usoeq pey szeqybnep rz98y JO auo esneoeq TE ysnbny uo 410M z03 z20de2 oF EeTWeuN

‘sem oyg ‘Aoueby Tezeped & zo} pexyz0m ZUeUTeTO OL6T ‘2 19490300 OF {tady wo2zd

‘abaeyostp 1294 butTyoaord Aq esneod pooh 7znoyztM quewAo tT due

jo butaeetT ArequNTOA zoj petstrTenbstp sem ous OL6T “‘€ 2EqG0F90 BATIOETIP uot

-euTwz9zep TeTITUT ka “OL6T ‘GS 2999390 @AT}OeZJO EPOD *S°N PUF JO ‘g STITL

‘sg zeqdeyd zepun SzTjyousd aekoTdue Ter19eped 1IOJ PeTts ‘znezyneyo e ‘ZueUTeTO

*goureazeodde ue

jo nett UT pez ztTuqns Sem qyeuotsstumoD TeTzAySsNpul Su jo zTeyeq_uo jueuweze3s V

*peTtjt#sez pue peaeedde juewretTo yorum ye prey sem butzeey WY ‘*Lowd dO SONIGNIA

—_— —— —- —

‘

y4%I0K MON ‘uATYoo1d

3298245

u30T 3 enueAW PUz

@OTJZIO 380d UTEW

\ ITOOT AOR MON ‘AOA MON

30073S U30Z 359M ZS

quowXoTdug jo uoTsTATG

91S # POTFFJO TROOT

IL6T ‘g Axenuec NO wOaVT dO INAWLUVdad _

g

AHL NI GaII4 ATNG GNW GaTIVW NOISIOgG

LOZTT AZOA MON ‘uAT,oo1d

€€pt-by-0S0 #°S°S eoetd seTes ed T8

ueT#sTazayo urer

0L-68S-adon # 901030u =

N

:jJO 37093eW OUR UI

NOISIOaG dO AOILON AGNV NOISIOgdG

gqgod ‘S‘'N aHL dO ‘S AILIL ‘$8 YaLdWHO awaaNn

[etqtSe tir]

8TOOT “A°N ‘ATOKA MON

enueaw uzubta 00S

NOILOaS aqdadad AONWUNSNI LNAWAOTAIWaND

YOavI JO LNAWLavdad aALWLS WHOA MAN

NOISIO4 JO AOLLON ONV NOISIO’d Fawsday

:LIAVGIddY NVILSIYHD OL q LIdaiIHxg

2

os

SN OT ERLE ES

Wi AR ERRGS <u >

x aaa sa adie, LR SRE eS Oe BE ee NS, a

ey

—

adits

meta

21

ze uotzeqoid butianp pezeutwz93 eq p[nom juewAoTdwe zeyY joerTSeYyR META UT 3eUW

pue ‘souesqe pepusqUuT zeYy jo yuewubtsse jo soetd zsy AjZtRZOU OF peTTezZ sys 3eYW

pue OL6T ‘T zequeqdes pue OL6T ‘TE FSnbny uo eAReeT TeTOTJZJO YNOYUATM YUEeSqe Useq

pey eys ey Sutzeys zostazedns z9y worz ZAOder e peatedez pey sy ey ebzeYo

ut zeAoTdue sy2 JO ASOTFJO ue wOAZ 19930T © paATtTeodaaz ATQZUeNbasqns jueUTeTD

*Aep 3zey Juesqe eq pTNoOM sys 3eYR pesTApe pue T zequieqydes uo

zeXoTdue ey} peTTeo utebe zeqybnep zeyjo zey ysenbexz zey AW ‘*zeRU4Uhnep sey

Hutuotyneo pue but{TTesunoos Aep sy jo ysow Aueds juewte{[oO pue yesdn ATTeuotjowse

e70M zeRZYHnep zASsYy pue sys YyIOg ssnedseq T zsequeydes uo yAOM AOZ AYA0de2

0} eTGeun sem jnq Aep 9yQ Hbutanp zejZybnep zsy punoz sys ‘Aep ey YAOM AO;J

[320de2 03 STWQe eq ZOU PTNOM sys ey pesTApe pue xzshoTdwe oy OF peuOoYydeTe3

zazybnep zeyzoue ysenbez z9ey ye pue Aspro Huty10M ut sAemTe ou sem auoydeteay

JeH °AeY A0Z HbutyooT Aep sy jueds juewte{oO pue swoy aTeyR worzz yuesqe

useq pey szezybnep z9ey Jo suo esnedeq [TE ysnbny uo yI0M AOZ YAOdeA OF eTQeuN

sem oyg ‘Aoueby Terz9epeg e AOJF peyYAOM YUeUTRTO OLET ‘2 1°q0390 03 TTady worzg

*ebareyostp zey butyoaord Aq esned pooh ynoyATtTM yuewAoTdwe

3O Butaes,, AreZuNTOA AOZ petTztTenbstp sem sys OLET ‘€ 1940300 BATROSZJE UO0TR

-eutTwzszEep TeT3ITuT Aq “OLET ‘GS 19G0ZD0 SATIOSZJO BpOD *Ss*N BYR JO ‘GS ETITL

‘G8 zeqdeyd zepun sztjeueq eeXkoTdwe Tezspaegq AOJ petty ‘Aanezgneyo e ‘jueuwtTeTD

*aouerzeodde ue

JO NSTT UT pezyztwqns sem ASUOTSSTUMIOD TeTAFSNpuL 9syz JO JTeyeq uo AUSWezejS VY

*petstzseqz pue pezeedde juewteTo yotym ze prey sem Hbutzesy yY :LOWd JO SONIGNI

—— —— — —

'

YIOK MON ‘UATYOOIg

79917395

Y30T 8 ONnUeAY pUzZ

@OTJJO 380d uTeW

_ _ [ _

TTOOT 4IOA MON ‘HYIOK MON

38073S U30Z 3S8EM ZS

quowAoTdug jo UuOTSTATG

9TS # SOTIFJO TROOT

—_ _ —_ 4

ILZ6T ‘8 Azenuec NO YOaVI JO LNAWLYVdaa

GHL NI GaIId ATING GNW GaTIIVW NOISIO’G

LOZTT A%AI0K MON ‘UAT YOOIg

€€vT-vy-0S0 #°S°S 2e°0eld SeTes oq Te

ueT3STAYyD uesr

OL-68S-ddON # 99TBZON J

N

2JO Je33eW 8YR UT

NOISIOgd dO AZOILON GNW NOISIOga

agoo °S’N AHL dO ‘S AILIL ‘S8 YALdWHO uaaNn

{9TqtSe 111]

LOE PLFA OD.

ROPE

SINE EES

eet

aes |

’ J / ae

mika rduc "PETNAGAO ST UoTIeUTWZEzep TeTZTUT ayL

seTsjJoy

NIALSNIGM *d NOLTIW /s/

*NOISIOgd

————— *ZUuewAOTdue z90y eaesT ATTzeAZuNTOA ou PTP 8US *ebreYyoOStTp

aT9y eyoAoId 03 \Yrouuew e UT 308 ATINJTITM 30u PTP SYS SoUsSqe rey A0Z UOSR|Z

24} JO pestape’' gatordre 243 PeY butaey ‘T aequezdeg pue t¢ 3sniny uo 4IOM

worzy Ssouesqe A9sYy perztnbez SOTITTTQTsuodsez Tej,uezed S,3UePUTETD :NOINIdO

*,UOTZeGord butanp uoTzeUTUIAL,,

243 NZ@-Td-w20qg uo pezz0dez zeXoTduse sys

uoTUN 2eY eAReY 03 poezduez je FUueUTeTO

se uotjeredes z0z3 uoseaz

*TnJsssonsun sem nq peor AutT

“OL6T “2 1AqQ0RD0 sseutsnq jo asoto 2uy

-penuTtjuos- Q4-68S-a49n

ST AMON DF ret cine OY

EXHIBIT*C TO CHRISTIAN AFFIDAVIT:

STATEMENT OF INDUSTRIAL COMMISSIONER

IN SUPPORT OF HIS APPEAL FROM REFEREE DECISION

PUBLIC EMPLOYMENT SERVICE

SERVICE FOR EVERYONE

LOCAL—STATE—NATIONAL

STATE OF NEW YORK

DEPARTMENT OF LABOR

DIVISION OF EMPLOYMENT

500 Eighth Avenue—New York, New York 10018 :

Tel. 563-7660

COUNSEL’S OFFICE

March 2, 1971

New York State Unemployment

Insurance Appeal Board j

500 Eighth Avenue :

New York, New York 10018

Re: Jean Christian

S.S. No. 050-44-1433

Case No. UCFE-589-70

A.B. No. 162, 874 F

Gentlemen:

The Industrial Commissioner submits this statement in

support of his appeal from the decision of the referee

filed January 8, 1971 overruling an initial determina-

tion disqualifying claimant effective October 3, 1970 for

voluntary leaving of her employment without good cause

by provoking her discharge.

LOS LE I EELS EIT Nees

The issue presented is whether claimant pursued a course ;

of conduct which she knew or should have known would

cause her discharge from her employment, and whether

claimant was subject to disqualification pursuant to Sec-

tion 593.1 of the Unemployment Insurance Law.

:

Claimant was employed by a federal agency from April

8, 1970 to October 2, 1970. She filed for benefits under

Chapter 85, ‘Title 5 of the United States Code. Accord-

ing to the report of the federal agency, claimant’s em-

ployment was terminated during her probationary period

because of her unsatisfactory attendance record, climaxed

by her absences on August 31 and September 1, 1970

without notifying the employer as to such absences (See

employer’s letters dated September 2, and September 8,

1970 in answer to FL 4 and Fl 2N). Claimant advised

the insurance office that she did not call the employer

each time she was absent because she could not get to a

telephone that was working; that all the telephones in

the neighborhood were not in working order (LO 413

dated 10/19/70). Claimant further contended that she

failed to report to work on August 31, and September 1,

1970 because of compelling domestic problems, and that

she requested an older daughter, not residing with her,

to telephone the employer both August 31, and Septem-

ber 1, and that the daughter did make the telephone

calls (smp. 9 and 11). The employer reported that it

received no such notification of claimant’s absences on

August 31, and September 1, 1970. The record further

establishes that claimant had a poor attendance record,

and had been warned by the employer with reference

to same. As of August 4, claimant was on a restricted

list so that if she were absent even one more day, claim-

ant needed a medical substantiation. It should be noted

that during the period in issue, claimant was during

her probationary period.

The Appeal Board has held that the findings of fact by

a federal agency as to the reasons for termination of

employment are final, binding and conclusive on both the

referee and the Appeal Board (UCFE-1708). In the in-

stant case, it is submitted that the findings of fact as

outlined by the Post Office are such that lead to but one

conclusion, to wit, that claimant had a poor attendance

record; had been warned with reference to same; was

absent on August 31, and September 1 without notifica-

tion to the employer and was discharged during her

ARRAN 0 SEE, Mapas

” 25

probationary period. Under the circumstances, claimant

knew or should have known that such conduct on her

part, especially during her probationary period, would

lead to her discharge and claimant is, therefore, subject

to disqualification pursuant to Section 593.1 of the Labor

Law (See Matter of Malaspina, 309 N.Y. 413, affirming

285 App. Div. 564, reversing A.B. #42,606).

For the reasons stated, the decision of the referee should

be reversed.

Very truly yours,

HYMAN AMSEL

Counsel

By: /s/ Herman Sakoloff

HS :ems

ec: Jean Christian

Mr. Memelsdorff

UsE YouR NEW YorRK STATE EMPLOYMENT SERVICE

ey} Ssexew prvog ey ‘eseo sTYyR ut AUOUT38e3 pUe pz0Dez Buz UOC peseg

*Teedde uo zeUuoTSsTuMOD TeTI3ZSNpUI ey JO JTBYSq UO pez3zTWaNS AUeWEeReRs

US9Z3ITAM © PeTSPTSuCoO pzvog suL

ZSUCTSSTuMIOD TeTza3ysnpur ey Aq pezItwqns sem jZueWwejeZsS UER3TIM ¥

*Bbutzeey yons 3e souezeedde jo nett ut

‘use Sem

Auout3se3 pue pezeedde juewtero yotym 3e pue pzeey eq 03 Aztungzoddo TInj e

Ppepzoooe 210M seTzized [Te YOTYM We serTezeIT BYR Be70JZeq pTeYy sem buTszeSeYy Y

33°T ATTzeRun

wozjz “epod sez

~Aotdweun 2103 Bbut{ttz eefoTd

TROOT ey JO UOTIeUTWAERe

*ebreyostp zey butyoaorzd Aq esneo poob ynoy3zTtm WuewAoTdwe 1235y

TOA eYys esnRedseq ‘OL6T ‘€ 19Q0990 SATRIOEZZEO SQZTJOUseq HBuTATEeDe2

e3s peitun e

JO § ST3ITL ‘G8 zeRdeYUD ASpuN uUOTRZeSUSdUIOD AUSUW

ped zewz03 e& ‘ZueUTeTO BHbuTAztTenbstp eotsjo

T3TUT O43 S5uT[TNzzeao ‘TL6T ‘g Azenuer pets

SSISJSI SYR JO UOTSTOep 3sYyR Wor sTeedde ASUOCTSSTuMIOD TeETAISNpul SUL

szequow

Texuez Azzey ‘uttTeboy *w uyor

aGuvod aHL dO NOISIOgd

*pezeqs saoge

OWT} Sy} UTUITM ‘STOOT “A°N ‘320K MON ‘onueAY

uzubta 00S ‘pzeog

243 O03 peTtTew eq prTnoys Teedde yons jo eoT ROU

*ZuowjZIAedeq PpATYL ’342N0D ewezdns

ue33TIM

ey} JO ucTSTATG

UT PSATOAUT MPT

e432 ez10j3eq Teedde sy3 3e perzeedde oym Aqezey3

Teeddy soueznsuy juewAoTdweup |

e3eT Teddy ey} 03 UOCTSTOep Yyons

3O suot3senb Teedde Aew preog

*INaSaddd

YAOX MON ‘UATHOOIg

pezoezze Azaed zey3z0 Aue 10 zeUucTSSTUMIOD

ey} ‘UOTSTOep sty JO but{Ttew ey3 zeqzge skep ,.

AJATYF UTYFIM 2EUR AQILON UAHLUNA aNVL aSWaId

TL6T ‘9T “Ady uO z0oqey jo jUuewz2edeq

2U}+ UT PSETTF pue peTTew sem MOTEeq YRzAO0J

38S UOTSTOSep ey 3243 ADILON ANVL ASWATd

OL-68S-dd0N # 9979fOY

4pL8‘Z79T# Teeddy €€hI-FP-0S0 # “W'S’S

099L-€ ez0ebUOT

39013S U30T 3 enUSsAY pUzZ

SOTIJO 3S0q UTeW

TTOOT A270AK MON ‘HACK MON

39923S 430Z 359M ZS

9TS#

@OTJJO SOURANSUI T[eRDO07T

zuewdoTdwg jO UOTSTATG

LOZTT %20K MeN ‘UAT HOOIg

e0eTd SeTeS eq T8

ueTISTIYD uPSL

siequey

Azxe3SADES SATINOEexgY

pysceuTL °*T uowey

8TOOT “A°N ‘420% MON

enueay 434bTaz 00¢

GavOd TWadd¥ ZONWYNSNI LNAWAOTdWANN

wOEVT dO INAJWLYVdad ALWLS WHOA MAN

NOISIOd?G] duvog Ivaddy

*LIAVGIddY NVILSIXHD OL GQ LIGIHXT

edog *-c¢ Az0bae19

euocyuy *y sewer

utTebow *y uyor

A9sqVYOSeYoOS SAOpTs]

uewrzteyo

Texyuez Azzey

.

w38TT P®30F273802, B@ UO peceTd sem jUeWTeTO ‘OL6T ‘pv 38nbny uo *azeh0Tdwa

70 Y3TM BbuTZeoTUNUMOS 3nOYZTM ‘seoUesae SATSS9OXS Ae 203 popuewtiadexz

Atpezeedez sem ous *@9TZZO 380d ey Aq 2eT22"D 20330T

e s@ syjuCw xTs 30 potized wv 1203 pefotdwe sem 3UPWTeTO $LOWd dO ONIGNIA

BUTMOTTOZ

OU} SexeW pzeOg SYZ ‘eseo sty UT Auowt3803 Sue prz05e2 ey UO peseg

*Teedde uo zeu0TSsstumOD TeTz3sNpuUT eu3 JO ZTBYSq UO pezstTwaqNs juewejzeIs

USF3TIM & PeZepTSuCoc przvog SUL ‘SbuTzeey YuoNs 3e soURzeedde ZO NSTT ut

7OUCTSSTuMIOD TeTI3snpul ey3 Aq pez3ztwaqns sem FUSWEZCIS U8I3RTIM Y ‘UseXeR se

Auouwt3se3 pue pezeedde FURWTETS YOTYM 3e pue przeey eq 03 AZTUNZAz0ddo TiInjz e

POepz000e8 810m SeTZIed [Te YyoTYM ze eezeze2 9y3 82038q pIey sem butzeey y

*ebreyostp zey butyYoaozd Aq esneo pooh 3znoy3tm 3uewdotTdwe say

33°T ATtze3uNTOA sys esneseq ‘OL6T ‘€ 2090390 eAT30ez3e SZzTJOUEq BuTATeoez

wWorls ‘@pOD 8e3e3S pezTUN eY3 JO ¢ STITL ‘S8 z939deYD zepun uOoTReSUSedWOD jU<S

~ojtdweun 103 6utttz eekoTdwe Tezepeg zewz03 ke ‘ZuewteTos butAzttenbstp eotjjo

TROOT 943 JO UOTZeUTWASZEp TeTZTUT eUu3 HUTTNIAAO ‘TL6T ‘g Azenuec Peltz

SSTSJOI BYZ JO UOCTSTSSep 9y3 wWoOIrZ sTeodde ASUOCTSSTuUMIOD TeTiz4zsNpul seuy

S$ 19quey

Texuez AzzeH ‘UTTeboy ‘yw uyor : LNaSaud

Guvod AHL dO NOZSIOga

*peze3s eaoge

OWT? SUF UTUITM “STOOT “A‘N ‘420% MON ‘onusAYy

4U34USTaA 00S ‘pazeog Teeddy sourrnsul zuewhoTdweup |

243 OF peTTew eq prInoys Teedde yons jo eotjou

US33T4M “3ZUeWRZA2edeq pAzTYL ‘32N0D ewerzdns

oUF JO UOTSTATC e3eT Teddy ey3 03 uOTSsTOSep yons

UF PEATOAUT MET 30 suOoTZSenb [eedde Aew p1reog

843 e10jeq Teodde sy3 3e pezeedde oym Aqe2eu3 4YIOX MON ‘UATYOOIg

pezoezze Ajzzed zsy30 Aue 20 JSeUuCTSSsTuMoOD 39923S Y30T % enusay puz

24} ‘UOTSTOep SsTYyz JO butTtew sy3 10343;¢e skep 2°2TFJIO 380d ‘UTeYW

A324 43 UFYI5% 3OU3 ADILON UAHLUNA aL asWalTd ;

TTOOT AAOR MON ‘HACK MON

79913S 4Y30Z 389m ZS

TL6T “9T “Ady uo z0qe7 jo 3uUeWz1edeg 91S#

ou} UT PSTTZ pue peTtew sem moteq yz103 S5TJJO GOUPANSUL TeDO7

39S UOTSTOSp SY 3eY43 ADILON ANVL ASWAIa zuewhoTdug jo uoTstatga

OL-68S-ddoN # eerezEy

LOZTT 420K men ‘uATYXOOIg

40L8‘Z79T# Teeddy E€pI-pp-0So # ‘Y's's S°PTd SeTesS og TEs

UBTISTIAYUD UPSL

O099L-€ e20e6u0T

siequey

edog *-¢ Azobe1

8TOOT “A‘N ‘320K mon eucyuy *y soue

enueay uzubTa 00¢ uTTeboy ‘y uyo

Aze70209g BATINOEXxy 79zYOSYSS siopts

pysoeuty, *™T uc : 7-4 fe): Ws rt WwiMoOc

&

SRS Sa PRET He aS

TequeW ‘NITWOOU*w NHOL

"PESTGASI ST SeTeZeX BYR JO UOTSTOEp eUuL

"POUFEISNS ST SOFFZO TOOT 9Y} JO UOTZeUTMIEIEP TeTZTUT oY ?NOISIOdd

*esneo pooh 3noyztmM 3ueuhoTdue JO butaeetT Azejquntoa

eB OF FUNOWReZUeR Sem YyoTYM ‘ebreyostp zy pexyoaord FUeUTeTS 3eY3 pToy

eM *snze3s AzeuotZeqozd e uo TTT3S sem oys je pue peATtsce1 sys shutuzem

243 JO META UT ATTReTOSdse ‘Apaedoel ut zuewukoTdue zey soetd PTNOM soT WOU

#NOUFTM SeOUSSgqe esey} ey UMOUyZ SAaey PTNOYs 10 mouy AUeUTeTO *zeXoTdue ay3

5utAztz0u 3noyzTs ‘OL6T ‘T zequezdes pue tr 3snbny uo juesqe sem

sueUTeTS yey Aouebe Tezepey 243 JO Bbutputz ey Aq punog seize om *=NOINIdO

“stseq ,1T OM YW, Ue UO Useq ATqetzeaut pey seouesqe s,jueUTeTO 3eY3 BOTJJO

TR8SOT 843 pewzozuT Aoueby Te29P8G = “*OLET ‘2 20qG0300 ‘potaed Azxeuotzeqozd

794 JO pues 8Y3 3e SeoTAIES A9Y pezeutTuze; rzeXhoTdwe sayz ‘ut 5uTTTeS 3ynoyzTA

Seouesqe penutzuoo s, jueWTeTO JO esneoeq ‘*zezYhnep zey azo zUeUTeTO

uo JUeSqe eq OF peYy uTebe ous PY SsebeTte juewteTo ySnouztw *“SSSUTTT 103

UeY? T9470 ‘soUeSqe rEeYZANz Aue PFOAR T9zFeSISYR Ysnu sys 3eUR AUPOUW YOTuM

-penuTjuos- “ dvyle‘zot

wv’

AFFIDAVIT OF VicToR L. GREEN

ATTACHED TO AMENDED COMPLAINT

STATE OF NEW YorK )

) ss:

COUNTY OF BRONX )

VICTOR L. GREEN, being duly sworn, deposes and

says:

1. I reside at 1547 Commonwealth Avenue, Bronx,

New York.

2. From December 24, 1970 to December 18, 1971, I

was employed in the federal service as a Skymarshall

for the United States Department of the Treasury, Bu-

reau of Customs, based in New York.

3. On December 14, 1971, during by probationary pe-

riod, my federal employment was terminated, and on

December 23, 1971, I made original application and claim

for unemployment insurance benefits.

4. On information and belief, the Department of the

Treasury, Bureau of Customs, transmitted findings to

the state unemployment insurance agency which gave as

the reasons for separation from service 1) termination

during probation; and 2) dringing of an alcoholic bev-

erage within twenty-four hours of flying.

5. On or about February 17, 1972, the Industrial

Commissioner of the State of New York made an initial

determination disallowing unemployment insurance bene-

fits to me on the grounds that I had drunk an alcoholic

beverage within twenty-four hours of departure time for

a flight and that the federal findings were conclusive.

(See copy of Notice of Determination attached hereto as

Exhibit “A”.)

6. The aforesaid Notice of Determination advised me

_ that I had the right to a hearing but at the same time I

was told that the facts found by the Department of the

Treasury, Bureau of Customs were final, conclusive and

binding.

7. On February 17, 1972, I requested a hearing from

the state unemployment insurance agency on the ground

that the termination of my employment was unfair, I was

80

denied a hearing by the federal agency, and I had not

committed the act alleged.

8. As a probationary employee of the Treasury De-

partment, Bureau of Customs, I had a limited right of

appeal to the Civil Service Commission on the issue of

my termination, an appeal which was confined to con-

sideration of charges of discrimination and improper

procedure. § 315.80 6, Civil Service Regulations. This

appeal was not available to challenge the federal findings

as they might relate to claims for unemployment in-

surance.

9. I had never been accused of any misconduct until

receipt of the notice of termination, and had no reason to

believe that I would be so accused.

10. I have been grievously harmed by being denied

unemployment benefits without a fair hearing in that I

was deprived of a source of income which I sorely needed

after I was separated from federal employment without

due process of law.

11. On information and belief, I would not have been

denied unemployment insurance benefits if I had been

given a fair hearing and an opportunity to challenge the

federal findings in my case because I was and am inno-

cent of the charges which led to my dismissal and be-

lieve I could prove that in impartial hearing.

12. I believe that there are other persons similarly

situated to myself who have been denied unemployment

compensation for federal employees upon disputed fed-

eral findings without being given a fair hearing, and

that I can fairly represent the class of such persons.

/s/ Victor L. Green

VicToR L. GREEN

[Notary Omitted]

VS etaanens

sah anntmneiniiaaaaiiad %

*3UsWAOCTdUSa Anos UaTm UOTZOSUUOD UT

f :

FONPUCOSTU TOF Poerty 19M NOK | [U833TIM pueH] NOILWNIWYALaAG

*zunNoD ZOU TTTM

quswAOTdwe-sTes woz shutuzes pue zusewXoTduse-jtas “00Z$ 4sSPReT

78 peures 10 syoom » JO yoes ut skep ¢ uey3 SS98T Ou zafoTduse ue

t0J pextom ATjuUenbesqns aaey nod TtAun TL/6T/Z 6utuutbaq potiaed

943 4OZ no 03 pted eq ued sjZTjouseq sourinsut juewXotTdwoeun on

“ON "399" *S*g i ~|

08€L-96-9TS .

Ta ‘dy

PeTTeEW O9F0T *A “N ‘xuoag

ZL/LT/%@ aed

“SAW YUFTRPSMUOUIOD LUST

L UB8ID *T AOZOTA

ssoippy ~~

SOTIJO TeR9OT

UPATD By

DNYWIVTD OL NOILVNIWUALAG 40 AOILON

zuewhoTduq jo UOTSTATG

YOdVT dO LNaAWLYvagaa GLVLS MYOA MAN

.

NOILVNINYALAQ dO FOLON

‘MAVGIddY NIG OL VY LIGIHXY

81

09-6) [tly oF

(2000)

(OTqTbetti] Ag

\

YINOISSIWWOD Rectecces GHL Ywod

*peAoTdwoun utewez nod se

Huot se skep poubtsse 2znok uo SOOTIJO ZuSwAoTdwoe

pue souRrinsut aznok 03 LYOddY OL ANNILNOD ‘oseo su;

SOPTOSp ss795e1 OY TTIUN SLHOIY UNOL LOALOUd OL ONT LYOdau

*3senbex anodk UFTM ‘pensst JT ‘pze WTeTS pue 3zesur

TepueTeD YOog soueansur ‘yoog soueinsuy ano& trew

Io butaq 03 oans eq ‘butieey e butysenbez usUuM

“HOILON SIHL dO 3LVG 3HL WOud SAVG ONIYVGH

O€ NVHL YFLVI LON gaorado TWOOT SIHL LV TIWW Aq uwod Lsanday

YO NOSYGd NI JavW ad Lsoaw LSANOTN ANOA ‘YaTAaMOH

“NOX OL NOILVOITAO YO Lsoo ON LV daugaqu

TWILYVdWI NW auoOdga ONTUVGH W YOd MSW AWW NOA ONIYWGH W

‘NOLLVNIWUALIAG SIHL HLIM GHIdSILVS LON duYW NOA dI OL LHOIY

*shutures

10 320M jUuenbesqns jo zUSwerTNbex saoqe ayy WIWID

PeTISTZes saey nok 3eyR SA2TTSq pue pedotTdwaun YNOA

ere nod ZT BSOTJZO TeOOT sty 03 5ut310dez ONIMANAY

Aq wteTo anok mouez 03 Atdde Kew nok ‘30a2Z00

ST UOTIeUTUIEIEp sTYyZ 3eYA PeTIStTZes ere nod Fr

*butAtTy 03 AoTid sinoy Zz UTYZTM YUuTIap

OF pez}Twised you size sTTeysizew Aysg *3uBTTS e

ATOF OWT SAIn3Zaedap Jo Sanoy pz UTYITM ederTDANq

OTTOYOOTe ue yueAp NOK [ud}3taM pueAy Noswau

*5UTMOTTOZ Syz uo peseq ST UOTIEUTWIEIEp STUL

*}uaeuxXOTduie anor uaa UOT}OeUUOD UT.

FONPUOCOSTU OF PorTZ 919M NOK | [USzITAM puch] NOILWNIWUS.LaG

*ZuNOD JOU TTTM

zuewAoTdue-3Tes wor; shutuzes pue uowAoTdwe-sTag “0025 3sSeaT

38 peuzes TO syoom bp JO yors ut skep ¢ uey _S8S8T }ou zaXAoTdwua ue

TOF pexzt0m ATjuenbasqns eaey nod [t3un TéifoT/z 5utuutbeq potaed

243 2t0JZ nok 02 pted aq ueo S3TJeusq soUeAnsuT Auewkotdweun ON

"ON *399W ‘Ss [ | ~ |

O8€Z-9b-9TS

Ta *3dyv

PPTTeWN O970T “A “N ‘xuorg

CL/LT/Z = 83eq "SAW YFTeSMUOUMIOD LPST

UPATD USeID °T 10ZOTA

= =

ssoippy

S2TFIO TeOOT

¢.

waa va e e

[Caption and Title Omitted]

ANSWER OF FEDERAL DEFENDANTS

DEPARTMENT OF LABOR, JAMES D. HOGDSON,

POSTAL SERVICE CORPORATION, ELMER T. KLASSEN

CIvIL SERVICE COMMISSION, ROBERT E. HAMPTON,

JAMES E. JOHNSON, AND JAYNE SPAIN

TO THE AMENDED COMPLAINT—Filed March 28, 1972

The defendants, United States Department of Labor,

James D. Hodgson, United States Postal Service Cor-

poration, Elmer T. Klassen, United States Civil Service

Commission, ‘Robert E. Hampton, James E. Johnson,

Jayne Spain, by their attorney, Whitney North Seymour,

Jr., United States Attorney for the Southern District of

New York for their answer to the complaint as amended:

1. Deny knowledge or information sufficient to form a

belief as to the truth of the allegations of Paragraph 1

of the complaint, except deny the allegations insofar as

they purport to state a rule of law respecting the re-

quirement of providing a fair hearing.

2. Deny the allegations contained in paragraph 2 of

the complaint.

3. Admit the allegations of the first sentence of Para-

graph 3 of the complaint and deny the allegations of the

second sentence.

4. Deny knowledge or information sufficient to form a

belief as to the truth of the allegations of Paragraph 4

of the complaint. ,

5. Admit the allegations of Paragraph 5 of the com-

‘plaint except deny that the statutes referred to deny a

fair hearing as alleged.

6. Deny knowledge or information sufficient to form a

belief as to the truth of the allegations in Paragraph 6

of the complaint.

7. Admit the allegations of Paragraph 7 of the com-

plaint except deny those allegations that refer to a denial

of a right to a fair hearing.

8-14. Admit the allegations of Paragraphs 8 through

and including Paragraph 14 of the complaint.

15. Deny knowledge or information sufficient to form

a belief as to the truth of the allegations of Paragraph

15 of the complaint.

16. Admit the allegations of Paragraph 16 of the

t.

17. Deny the allegations contained in Paragraph 17 of

the complaint, except state that plaintiff Christian is a

former federal employee.

Raw Admit the allegations of Paragraph 18 of the com-

plaint.

19-20. Deny the allegations of Paragraphs 19 and

20 of the complaint, and state that plaintiff Christian .

was discharged by reason of her total record of unsatis-

factory conduct of which the instances mentioned in

Paragraphs 19 and 20 were a part.

21-22. Admit the allegations of Paragraphs 21 and 22

of the complaint.

_ 28. Deny the allegations of Paragraph 23 of the com-

plaint, except deny knowledge and information sufficient

to form a belief as to what the basis of the initial de-

termination was.

24-28. Admit the allegations of Paragraphs 24 through

and including Paragraph 28.

29. Deny Knowledge or information sufficient to form

a belief as to the truth of the allegations in Paragraph

29 of the complaint.

30. Admit the allegations of Paragraph 30 of the

complaint.

31. Admit the allegations of Paragraph 31 of the com-

plaint, but state further that plaintiff never requested a

hearing.

32-34. Admit the allegations of Paragraphs 32 through

and including Paragraph 34 of the complaint.

35-45. Deny knowledge or information sufficient to

form a belief as to the allegations of Paragraphs 35

through and including Paragraph 45 of the complaint.

46-50. Deny the allegations of Paragraph 46 through

and including Paragraph 50 of the complaint.

First Affirmative Defense

51. This Court lacks jurisdiction over the subject mat-

ter of this acfion.

i ee ee oe Coe Aa as

35

Second Affirmative Defense

52. The complaint fails to state a cause of action upon

which relief may be granted.

Third Affirmative Defense

53. State that plaintiff was dismissed from proba-

tionary federal employment for cause.

WHEREFORE, defendants demand judgment dismiss-

ing this action together with the costs and disbursements

of this action, and such other and further relief as this

court deems justified. ;

WHITNEY NorTH SEYMouR, JR.

United States Attorney for the

Southern District of New York

Attorney for defendants United

States Postal Service Corpora-

tion, Klassen, United Statés

Labor Department, Hodgson,

United States Civil Service Com-

mission, Hampton, Johnson

and Spain.

By: /s/ Taggart D. Adams

TAGGART D. ADAMS

Assistant United States Attorney

Office and Post Office Address:

United States Courthouse

Foley Square

New York, New York 10007

Tel.: (212) 264-6335

[Caption and Title Omitted]

ANSWER OF THE STATE DEFENDANTS

TO THE AMENDED COMPLAINT—Filed April 10, 1972

The defendants, NEW YORK STATE DEPARTMENT

OF LABOR and LOUIS L. LEVINE (hereinafter “State

defendants”) by their attorney LOUIS J. LEFKOWITZ,

Attorney General of the State of New York, for their

answer to the complaint as amended:

FIRST: Deny the allegations of paragraph “1” in-

sofar as they purport to state a rule of law respecting

the requirements of providing a fair hearing and insofar

as they claim that the State defendants do not provide

such a hearing.

SECOND: Deny knowledge or information sufficient

to form a belief as to the truth of the allegations in para-

graph “3” except deny that plaintiff Christian was denied

a fair hearing and admit that she was denied unem-

ployment insurance benefits.

THIRD: Deny knowledge or information sufficient to

form a belief as to the truth of the allegations in para-

graph “4” except deny that plaintiff Green was denied a

fair hearing and admit tha was denied unemployment

insurance benefits.

‘FOURTH: Admit the allegations of paragraph “5”

except deny that the State dei®ndants deny a fair hearing.

FIFTH: Admit the allegations of paragraph “6”.

SIXTH: Admit the allegations of paragraph “7” ex-

cept deny that the State defendants deny a fair hearing.

SEVENTH: Deny knowledge or information sufficient

to form a belief as to the truth of the allegations of para-

graph “8” through and including paragraph “16”.

EIGHTH: Deny the allegations in paragraph “17”

except state that plaintiffs are former federal “employees

who were found by the State defendants not to be en-

titled to unemployment insurance benefits.

NINTH: Admit the allegations of paragraph “18”.

PH IEA», MR tg

ELEVENTH: Admit the allegations of paragraphs

“21” and “22”.

TWELFTH: Deny the allegations of paragraph “23”

except state that the initial determination was based in

part on Post Office Department reports.

THIRTEENTH: Admit the allegations of paragraphs

ar ad and “—". :

FOURTEENTH: Deny the allegations of paragraph

“—-".

FIFTEENTH: Admit the allegations of paragraph

“27” except state that referees and the Appeal Board

are not under the jurisdiction of the Division of Em-

ployment.

SIXTEENTH: Admit the allegations of paragraphs

“28” and “29”,

SEVENTEENTH: Deny knowledge or information

sufficient to form a belief as to the truth of the allega-

tions of paragraphs “30” and “31”.

EIGHTEENTH: Deny knowledge or information suf-

ficient to form a belief as to the truth of the allegations

of the first sentence of paragraph “32” and admit the

second sentence thereof.

NINETEENTH: Deny knowledge or information suf-

ficient to form a belief as to the truth of the allegations

of paragraph “33”. :

TWENTIETH: Deny the allegations of paragraph

“34” except state that the Board is bound by the federal

agency’s findings of fact with respect to the reasons for

termination. é

TWENTY-FIRST: Deny knowledge or information

sufficient to form a belief as to the truth of the allega-

tions of paragraphs “35” and “36”.

TWENTY-SECOND: Admit that the allegations of

paragraph “37” constitute at least part of the reason for

termination. :

Sins tide ERT RAN ERA ES |

TWENTY-THIRD: Admit the allegations of para-

graphs “38” and “39” except state with respect to para-

graph “39” that the initial determination was issued on

February 17, 1972 effective as of December 19, 1971.

TWENTY-FOURTH: Deny the allegations of para-

graph “40” except state that the initial determination

was based in part on Treasury Department reports.

TWENTY-FIFTH: Admit the allegations of the first

sentence of paragraph “41”. Deny knowledge or informa-

tion sufficient to form a belief as to the truth of the al-

legations of the second sentence of paragraph “41”.

TWENTY-SIXTH: Deny knowledge and information

sufficient to form a belief as to the truth of the allega-

tions of paragraphs “42” through “44”.

TWENTY-SEVENTH: Deny the allegations of para-

graphs “45” through “50”.

FIRST AFFIRMATIVE DEFENSE

TWENTY-EIGHTH: This Court lacks jurisdiction

over the subject matter of this action.

SECOND AFFIRMATIVE DEFENSE .

TWENTY-NINTH: The complaint fails to state a

claim upon which relief may be granted.

THIRD AFFIRMATIVE DEFENSE

THIRTIETH: In cases involving the termination (as

distinguished from the resignation) of federal proba-

tionary employees, the State defendants are bound by

the findings of fact of the federal employer as to the

reasons for termination. 5 U.S.C. § 8506; 20 C.F.R.

§§ 609.9 et seg. (as amended to July, 1971).

Sh SRE WOE ey EEA en ~ GSMA BRP OPPS BRR NR

WHEREFORE, defendants demand judgment dismiss-

ing this action together with the costs and disbursements

of this action, and such other and further relief as this

court deems justified.

Louis J. LEFKOWITZ

Attorney General of the

State of New York

Attorney for Defendants

New York State Department

of Labor and Levine

By: /s/ Brenda Soloff

BRENDA SOLOFF

Assistant Attorney General

80 Centre Street

New York, New York 10013

Tel: (212) 488-7402

[Caption and Title Omitted]

PLAINTIFFS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT

OR FOR THREE-JUDGE COURT AND SUMMARY JUDGMENT

—Filed April 17, 1972

SIRS:

PLEASE TAKE NOTICE that upon the attached Mo-

tion and Statement of Undisputed Material Facts at-

tached thereto and upon the Pleadings and Affidavits

filed in the above-entitled matter, the Plaintiffs will move

this Court, in Room 506 of the United States Courthouse,

Foley Square, New York, New York, on the 2nd day of

May, 1972, at 10:00 A.M. or as soon thereafter as coun-

sel can be heard, for an Order:

(1) Granting Plaintiffs’ motion for summary judg-

ment and a preliminary and permanent injunction en-

joining the Defendants from enforcing and following 5

U.S.C. § 8506 and 20 C.F.R. § 609.18 and § 609.25 inso-

far as said statute and regulations deny fair hearings to

former federal employees determined ineligible for un-

employment compensation benefits under the Unemploy-

ment Compensation for Federal Employees (UCFE)

Program or; in the alternative,

(2) Granting Plaintiffs’ motion for the convening of

a three-judge court and for summary judgment and a

preliminary and permanent injunction enjoining the De-

fendants from enforcing and following 5 U.S.C. § 8606

and 20 C.F.R. § 609.18 and § 609.25 insofar as said stat-

ute and regulations deny fair hearings to former federal

employees determined ineligible for unemployment com-

pensation benefits under the Unemployment Compensa-

41

tion for Federal Employees (UCFE) Program.

Dated: April 14, 1972

New York, New York

Yours, ete.

[Attorneys and Addresses Omitted]

Attorneys for Plaintiffs

TO:

WHITNEY NorTH SEYMOUR, JR.

TAGGART D. ADAMS

United States Attorney for the

Southern District of New York

United States Courthouse

Foley Square

New York, New York 10007

Louis J. LEFKOWITZ

BRENDA SOLOFF

New York State Attorney General

80 Centre Street

New York, New York 10013

[Caption and Title Omitted]

STATEMENT OF MATERIAL FACTS AS TO WHICH PLAINTIFFS

CONTEND THERE IS NO GENUINE ISSUE TO BE TRIED

In support of the foregoing motion for summary judg-

ment, and pursuant to Rule 9(g) of the Rules of the

United States Court for the Southern District of New

York, Plaintiffs submit the following Statement of Ma-

terial Facts as to which Plaintiffs contend there is no

genuine issue to be tried:

1. Plaintiff Jean Christian is a resident of Brooklyn,

New York, and a former employee of the United States

Post Office in Brooklyn, New York. (Christian Affidavit

71, 72.; Federal Answer One, 73 { 18.)

2. Plaintiff Victor L. Green is a resident of Bronx,

New York, and a former employee of the United States

Department of the Treasury, Bureau of Customs, based

in New York. (Green Affidavit 71, { 2.)

3. Defendant New York State Department of Labor,

Division of Employment is the agency responsible for

the administration of unemployment insurance in the

State of New York and is a party to an agreement with

the United States Department of Labor pursuant to 5

U.S.C. §§ 8501 et seg. which authorize the payment of

unemployment insurance benefits to Federal employees.

(Federal Answer One 9 5; State Answer J 4.)

4. Defendant Louis L. Levine is the Industrial Com-

missioner of the New York State Department of Labor,

Division of Employment, and is responsible for the ad-

ministration of unemployment insurance in the State of

New York. (New York Labor Law §§10, 530; State

Answer { 5.)

5. Defendant United States Department of Labor is

the agency responsible for the administration of unem-

ployment insurance benefits for the administration of

unemployment insurance benefits for Federal employees

under 5 U.S.C. §§ 8501 et seg. and has entered into an

agreement with the New York State Department of

Labor, Division of Employment, pursuant to 5 U.S.C.

Dea it SiO NET TEENS

$6 CEE DR OS ee ORR Be AER TS TE So att

43

§§ 8501 et seg. which authorize the payment of unem-

ployment insurance benefits to Federal employees. (Fed-

eral Answer One 7 7; State Answer { 6.)

6. Defendant James D. Hodgson is the Secretary of

the United States Department of Labor and is responsi-

ble for the administration of unemployment insurance

for Federal employees. (Federal Answer One { 8.)

7. Defendant United States Postal Service Corpora-

tion assumed all obligations and liabilities of the United

States Post Office Department, which is the former em-

ployer of Plaintiff Christian and, pursuant to 5 U.S.C.

§ 8506 and the regulations promulgated thereunder by

the Department of Labor, it transmitted information to

the Defendant Division of Employment concerning the

reason for the termination of Plaintiff Christian’s em-

ployment.. (Federal Answer One { 9.)

8. Defendant Elmer T. Klassen is Postmaster General

of the United States Postal Service Corporation and is

responsible for the transmission of information to State

unemployment insurance agencies such as the Defendant

Division of Employment. (Federal Answer One { 10.)

9. Defendant United States Civil Service Commission

(hereafter the “Civil Service Commission”) is responsi-

ble for the administration and regulation of working

and termination procedures for Federal employees. (Fed-

eral Answer One { 11.)

10. Defendant Robert E. Hampton is the Chairman of

the United States Civil Service Commission and, in con-

junction with Defendants Johnson and Spain, is respon-

sible for the administration of Federal employee proce-

dures. (Federal Answer One { 12.)

11. Defendant James E. Johnson is a Commissioner

of the United States Civil Service Commission and, in

conjunction with Defendants Hampton and Spain, is re-

sponsible for the administration of Federal employee

procedures. (Federal Answer One { 13.)

12. Defendant Jayne Spain is a Commissioner of the

United States Civil Service Commission and, in conjunc-

tion with Defendants Hampton and Johnson, is respon-

sible for the administration of Federal employee proce-

dures. (Federal Answer One { 14.)

44

18. Defendant United States Department of the Treas-

ury is the former employer of Plaintiff Victor L. Green,

and pursuant to 5 U.S.C. § 8506 and the regulations

promulgated thereunder by the Department of Labor,

it transmitted information to the Defendant Division of

Employment concerning the reason for the termination

of Plaintiff Green’s employment. (Green Affidavit { 2,

7 4.)

14. Defendant John Connally is the Secretary of the

United States Department of the Treasury, and is re-

sponsible for the transmission of information to State

unemployment insurance agencies such as the Defendant

Division of Employment. (Federal Answer One f{ 16.)

15. Plaintiff Christian was a probationary employee

with the United States Post Office Department from

April 4, 1970, to October 2, 1970. (Christian Affidavit

7 2; Federal Answer One 7 18; State Answer f 9.)

16. On October 2, 1970, Plaintiff Christian was dis-

charged by the Post Office Department allegedly because

of a record of unsatisfactory conduct which included an

unsatisfactory attendance record. (Christian Affidavit

13, 14; Federal Answer One 7 19, { 20.)

17. Plaintiff Christian filed a valid original claim with

the Defendant Division of Employment under the Un-

employment Compensation for Federal Employees

(UCFE) Program, 5 U.S.C. §§ 8502, 8506, on October

3, 1970. (Christian Affidavit 13; Federal Answer One

21; State Answer { 11.)

18. By initial determination effective October 3, 1970,

the Defendant Division of Employment ruled that Plain-

tiff Christian was disqualified because she had volun-

tarily left her employment without good cause by pro-

voking her discharge. (Christian Affidavit 5, Exhibit

A; Federal Answer One { 22; State Answer { 11.)

19. This initial determination was based on reports

made by Post Office Department stating that Plaintiff

- Christian’s employment was terminated during her pro-

bationary period because of her unsatisfactory attend-

ance record and her absences on August 31 and Septem-

ber 1, 1970 without notifying the Post Office Department

as to such absences. (Christian Affidavit { 4.)

— o-

45

20. The initial determination was reversed by Referee

Milton Weinstein of the Division of Employment on Jan-

uary 8, 1971, after a full hearing in which the Indus-

trial Commissioner and the Plaintiff were heard. (Chris-

tian Affidavit 7 9, 110; Federal Answer One 1 24; State

Answer { 13.)

21. Referee Weinstein found that:

“Claimant’s parental responsibilities required her ab-

sence from work on August 31 and September 1.

Having had the employer advised of the reason for

her absence she did not willfully act in a manner

to provoke her discharge. She did not voluntarily

leave her employment.”

(Christian Affidavit, Exhibit B; Federal Answer

One 25; State Answer 13.)

22. Referee Weinstein did not accord “final and con-

clusive” weight to the findings of the Post Office Depart-

ment as required by 5 U.S.C. § 8506. (Federal Answer

One { 26.)

23. An appeal was taken from the Referee’s decision

to the Appeal Board of the New York State Department

of Labor. The Board is charged with review of determi-

nations by the Referees. (Christian Affidavit 711, Ex-

hibit C; Federal Answer One 127; State Answer 15.)

24. The New York State Department of Labor, Divi-

sion of Employment, Appeal Board did not afford Plain-

tiff Christian a hearing concerning the reasons for her

termination. (Federal Answer One { 34.)

25. The New York State Department of Labor re-

versed Referee Weinstein’s de novo findings and decision

and upheld the initial determination. - In its decision,

dated April 16, 1971, the Appeal Board stated that it

was bound, under 5 U.S.C. § 8506, by the Federal

agency’s findings and that Plaintiff Christian had pro-

voked her discharge, which was tantamount to a volun- -

tary leaving of employment without good cause. (Affi-

davit of Christian, Exhibit D; Federal Answer One { 28,

134; State Answer { 16.)

MOPS RON ay S meCRancemRRe esa

CENA MONG DE | ERT RH ODS O8MIn Amc ir ie Mtoe.

oe res

BEN Ne ea EE IEP,

46

26. The decision of the Appeal Board is final on all

of fact under New York unemployment insur-

ance law. (State Answer { 16.)

27. By Act of Congress effective primarily on July 1,

1971, the United States Post Office Department became

the Defendant United States Postal Service Corporation,

under which Act the latter assumed all the obligations

and liabilities of the former, and under which Act the

latter remains a Federal agency bound by the require-

ments of 5 U.S.C. § 8506 and the regulations promul-

gated thereunder. (Federal Answer One f{ 30.)

28. Plaintiff Christian was not afforded a hearing by

the Defendant Civil Service Commission. (Christian Af-

fidavit { 8; Federal Answer One f{ 31.)

29. Plaintiff Christian was not afforded a hearing by

either the Post Office Department or the Department of

Labor. (Federal Answer One { 32.)

30. Plaintiff Green was a probationary employee with

the Defendant United States Department of the Treas-

ury from December 24, 1970, to December 18, 1971.

(Green Affidavit f 2, 7 3.)

31. During his employment, Plaintiff Green was based

in New York as a skymarshall for the Bureau of Cus-

toms of the Defendant Department of the a

(Green Affidavit {[ 2.)

32. Effective December 18, 1971, Plaintiff Green bead

discharged by the Defendant Department of the Treas-

ury for the alleged reason of drinking an alcoholic bev-

erage within twenty-four hours of flying. (Green Affi-

davit J 2, 13, 74.)

36. Plaintiff Green received a Notice of -Determina-

tion from the Defendant State Department of Labor,

Division of Employment, which advised him that he had

been disqualified from receiving benefits, and that he

had a right to a hearing before the Division of Employ-

ment. He was also advised orally, however, that the

findings of fact made by the Defendant Department of

the Treasury were final and conclusive upon the Defend-

ant New York State Department of Labor, Division of

Employment. (Green Affidavit 76, Exhibit A; Green

Affidavit { 6.)

47

87. The Defendant New York State Department of

Labor, Division of Employment, treats as final and con-

clusive pursuant to 5 U.S.C. 7 8506 the reasons for ter-

mination of employment submitted to it by Federal gov-

ernment agencies, pursuant to 5 U.S.C. 1] 8501 et seq.

(State Answer ff 20, 30.)

38. Plaintiff Green was not afforded a hearing by the

Defendant Civil Service Commission. (Green Affidavit

7 8.)

_ 89. The total number of Federal employees hired in

New York State during the fiscal year June, 1970, to

June, 1971, was approximately 35,450. (Stipulation at-

tached as Exhibit B to Plaintiffs’ Class Action Motion.)

40. The first year of employment of a Federal em-

ployee who is given career or career-conditioned employ-

ment is a probationary period. The probationary period

is one year. (5 C.F.R. § 315.801, § 315, 802.)

41. The employing Federal agency may terminate the

employment of a probationary Federal employee by no-

tifying the employee about its conclusions as to why he

is being separated from employment and about the effec-

tive date of the action. (5 C.F.R. § 315.804.)

42. A probationary Federal employee has no right to

appeal the termination, and is given no hearing on the

grounds for termination of employment unless the em-

ployee alleges that the termination was based upon dis-

crimination because of race, color, religion or sex, politi-

cal reasons, martial status, discrimination because of a

physical handicap, or improper procedure not in accord-

ance with 5 C.F.R. § 815.805. (5 C.F.R. § 315.806.)

43. Each Federal agency is required to make avail-

able to State unemployment compensation agencies in-

formation concerning the reasons for termination of Fed-

eral service of former Federal employees. (5 U.S.C.

§ 8506 (a).)

44. Within four work days after receipt from a State

unemployment compensation agency of a form noting the

application of a former Federal employee for unemploy-

ment compensation benefits under the UCFE Program,

a Federal agency is required to ascribe and transmit its

PND PRE ARIE NESE IRN Me 1S

48

Federal findings to the State agency or other appropri-

ate person. (20 C.F.R. § 609.6(a).)

45. Under Federal authority as interpreted and ap-

plied by the New York State Department of Labor, Divi-

sion of Employment, Federal findings are final and con-

clusive on the State agency, except where a Federal ci-

vilian employee has contradicted the reasons alleged for

his resignation and has not received a hearing on the

issues involved in the alleged reasons for resignation. (5

U.S.C. § 8506; 20 C.F.R. § 609.18(a), as amended, July

20, 1971; Smith v. District Unemployment Compensation

Board, 435 F.2d 433 (D.C. Cir. 1970), on remand, No.

2282-68 (D.D.C. Feb. 1, 1971); State Answer { 30.)

46. Pursuant to United States Department of Labor

regulations providing for a limited ex parte review by

the Federal agency of ‘the Federal findings, there is no

provision for nor right to a hearing. (20 C.F.R.

§ 609.23; Federal Answer One { 33.)

47. Federal findings are treated as not subject to re-

view by the New York State Department of Labor,

Division of Employment, while other determinations and

redeterminations are available for review under the State

unemployment compensation law. (20 C.F.R. § 609.25,

as amended, July 20, 1971; State Answer { 20.)

48. Fair hearings on all issues of fact are made avail-

able by the New York State Department of Labor, Divi-

sion of Employment to all non-Federal employees and to

other persons who are dissatisfied with an initial deter-

mination of a claim for benefits. (New York Labor Law

§ 620.)

49. In the UCFE Program in the State of ves York

for the year 1971, there were 8,184 original claims for

benefits under the Regular Program (excluding Extended

benefits) by former Federal employees of these original

claims there were 5,276 non-monetary determinations

and redeterminations of ineligibility for benefits. (64.7%

of all original claims were denied.) Of the claims de-

nied, 1,952 were for reasons of voluntary quit without

ee ee ewe ee ta eee

49

good cause, and 96 were for misconduct. (Stipulation

attached as Exhibit A to Plaintiffs’ Class Action Mo-

tion.)

Dated: April 14, 1972

New York, New York

Respectfully submitted,

[Attorneys and Addresses Omitted]

Attorneys for Plaintiffs

{Caption and Title Omitted] —

FEDERAL DEFENDANTS’ NOTICE OF MOTION TO DISMISS OR

FoR SUMMARY JUDGMENT—Filed May 12, 1972

SIRS:

PLEASE TAKE NOTICE that upon the annexed af-

fidavit, statement pursuant to Rule 9(g), and memo-

randum of law, the undersigned will move this Court, at

a motion part thereof, held in Room 506, United States

Courthouse, Foley Square, New York, New York, on the

23rd day of May, 1972 at 10:00 A.M. or as soon there-

after as counsel may be heard, for an order pursuant to ©

- Rule 12(c} of the Federal Rules of Civil Procedure to

dismiss this action, or, in the alternative, for an order

pursuant to Rule 56 of the Federal Rules of Civil Pro-

cedure granting summary judgment to the federal de-

fendgnts named in plaintiffs’ amended complaint, and

such other and further relief as may be deemed just and

equitable.

Dated: New York, New York

May 12, 1972

Yours, etc.

[Attorneys and Addresses Omitted]

United States Attorney for the

Southern District of New York

TO:

DENNIS R. YEAGER, Esq.

E. RICHARD LARSON, ESQ.

423 W. 118th Street

New York, New York 10027

Louis J. LEFKOWITZ

BRENDA SOLOFF

80. Centre Street

. New bien i New York 10013

4

A aioli TC

51

(Caption and Title Omitted]

STATEMENT OF MATERIAL FACTS AS TO WHICH

THE FEDERAL DEFENDANTS CONTEND THERE IS

No GENUINE ISSUE TO BE TRIED

i The federal defendants accept and hereby incor-

porate the Statement of Material Facts submitted by

the plaintiffs.

2. The plaintiffs, Christian and Green, were separated

from federal employment pursuant to and in accordance

with the provisions of 5 C.F.R. § 315.804.

Respectfully submitted,

{Attorneys Omitted]

United States Attorney for the

Southern District of New York

EXHIBIT B To STATEMENT OF MATERIAL FACTS:

NOTICE OF SEPARATION TO VICTOR L. GREEN

December 14, 1971

PER:4

EG:Im

Mr. Victor L. Green

Customs Security Officer, GS-5

Dear Mr. Green:

This letter constitutes a notice to you that you will be

separated from the Customs Service on December 18,

1971, in accordance wit: Part 315 of the Civil Service

Regulations for disqualification during your probationary

period, for the following reasons:

POET RN I Bl I PON BS 8

You were assigned for duty on Tokyo flight North-

west Airlines 21 and 22 from August 28 to Septem-

ber 1, 1971. Prior to reporting for duty at approxi-

mately 1:00 a.m., on August 28, 1971, you were ob-

served in an intoxicated condition at the pool of your

apartment, the Skylark Apartments. Although the

swimming pool at the apartments closed at 10:00

p.m., you jumped the fence surrounding it, yelling

and shouting and then jumped into the pool wearing

only your jockey shorts. When the manager appeared

and requested you to leave, you began screaming at

him.

In addition, during the Tokyo flight Northwest Air-

lines 21 and 22 you had difficulty staying awake

because of your personal activities prior to departure.

A few hours prior to leaving on a Tokyo flight on

September 3, 1971, you also drank an alcoholic bev-

erage.

Your drinking an alcoholic beverage within 24 hours

of departure on assignments was contrary to instruc-

tions given to Customs Security Officers. In addi-

tion, your actions were disgraceful, and demon-

strated a lack of responsibility and dependability.

Within 15 calendar days from the effective date of this

action, you may appeal this decision to terminate your

appointment to the Regional Director, New York Region,

U.S. Civil Service Commission, Federal Building, 26

Federal Plaza, New York, N.Y. 10007. Your appeal may

be based on the grounds that the action was taken be-

cause of political reasons not required by statute, or

that it resulted from discrimination because of race, color,

religion, sex, national origit, marital status or physical

handicap. If you allege discrimination, you must sub-

mit an affidavit stating your reasons for believing there

was such discrimination.

If you desire further information on how to proceed with

your appeal, you may contact’ Mr. E. Grossi, Employee

Relations Specialist, telephone number (212) 264-5173/

5174, Room 726, U.S. Customhouse, New York, New York

10004, for further explanation.

Please sign, date and return the accompanying copy of

this notice, so that it may serve as your acknowledge-

ment of the original.

Very truly yours,

JOHN W. FALLON

Special Agent in Charge

TM PNP, Be Fi cre ey tprengee ee

See Dn a eta

54

ExuHisit C TO STATEMENT OF MATERIAL FACTS:

UNITED STATES CIVIL SERVICE COMMISSION

DENIAL OF APPEAL TO VICTOR L. GREEN

UNITED STATES CIVIL SERVICE COMMISSION

NEw YORK REGION

Comprising New York, New Jersey,

Puerto Rico and the Virgin Islands

Office of the Director, New York, New York 10007

Director New York Region

U.S. Civil Service Commission

Federal Building In Reply Please

26 Federal Plaza Refer To

New York, N.Y. 10007 NY:A:BG:js

Mr. Victor L. Green

c/o Morrisania Legal Services

1438 Boston Road

Bronx, New York 10460

Dear Mr. Green:

Reference is made to your and your representative’s let-

ters of December 30, 1971 and January 18, 1972 con-

cerning your recent employment with U.S. Bureau of

Customs, New York, New York.

Our inquiry disclosed that you were notified by letter,

dated December 14, 1971, signed by John W. Fallon, Spe-

cial Agent in Charge, that you would be separated from

your position of Customs Security Officer GS-5 because of

drinking an alcoholic beverage within 24 hours of de-

parture on assignments, etc. Accordingly, your services

were terminated effective December 18, 1971.

Section 315.804 of the Civil Service Regulations applies

to the action taken in your case. It provides that if an

agency decides to terminate an employee serving a pro-

bationary period because his work performance or con-

duct fails to demonstrate his fitness or qualifications for

continued federal employment, his services will be ter-

minated by notifying him in writing as to why he is be-

ing terminated and the effective date of the action. This

— -

55

regulation does not provide for any appeal to the Civil

Service Commission by a probationary employee on the

cannot be accepted.

Unless this decision is further appealed within 15 days

of the date it is received, it becomes the final decision of

Two copies of any further appeal should be addressed to

the Board of Appeals and Review, U.S. Civil Service

Commission, Washington, D.C. 20415. Any representa-

tions which the Board should consider beyond those now

FOR THE REGIONAL DIRECTOR

“ Sincerely yours,

BERT GANSER

Appeals Examiner

ce:

Mr. Eric Rundbaken

Morrisania Legal Services

1433 Boston Road

Bronx, New York 10460

Special Agent in Charge

Department of Treasury

Bureau of Customs

New York, New York 10014

OLN NE EY TBR Pe BRB wena aenentar EES AERIS PS GE ERO ORRIN LIN eer eran vane

WG I ee

ee

56 :

[Caption and Title Omitted]

ANSWER OF FEDERAL DEFENDANTS DEPARTMENT OF

THE TREASURY AND JOHN CONNALLY TO THE

AMENDED COMPLAINT—Filed May 16, 1972

The defendants, the United States Department of the

Treasury and John Connolly, by their attorney, Whitney

North Seymour, Jr., United States Attorney for the

Southern District of New York for their answer to the

complaint as amended:

1. Deny knowledge or information sufficient to form

a belief as to the truth of the allegations of Paragraph

1 of the complaint, except deny the allegations insofar

as they purport to state a rule of law respecting the re-

quirement of providing a fair hearing.

2. Deny the allegations contained in paragraph 2 of

the complaint.

8. Admit the allegations of the first sentence of Para-

graph 3 of the complaint and deny the allegations of

the second sentence.

4. Admit the allegation of the first sentence and deny

knowledge or information sufficient to form a belief as

to the truth of the allegations of the second sentence of

Paragraph 4 of the complaint.

5. Admit the allegations of Paragraph 5 of the com-

plaint except deny that the statutes referred to deny a

fair hearing as alleged.

6. Deny knowledge or information sufficient to form

a belief as to the truth of the allegations in Paragraph

6 of the complaint.

7. Admit the allegations of Paragraph 7 of the com-

plaint except deny those allegations that refer to a de-

nial of a right to a fair hearing.

8-16. Admit the allegations of Paragraphs 8 through

and including Paragraph 16 of the complaint.

17. Deny the allegations contained in Paragraph 17

of the complaint, except state that plaintiffs Christian

and Green are former federal employees.

ee Admit the allegations of Paragraph 18 of the com-

plaint.

57

19-20. Deny the allegations of Paragraphs 19 and 20

of the complaint, and state that plaintiff Christian was

discharged by reason of her total record of unsatisfac-

tory conduct of which the instances mentioned in Para-

graphs 19 and 20 were a part.

21-22. Admit the allegations of Paragraphs 21 and 22

of the complaint.

23. Deny the allegations of Paragraph 23 of the com-

plaint, except deny knowledge and information sufficient

to form a belief as to what the basis of the initial de-

termination was.

24-28. Admit the allegations of Paragraphs 24 through

and including Paragraph 28.

29. Deny knowledge or information sufficient to form

a belief as to the truth of the allegations in Paragraph

29 of the complaint.

30. Admit the allegations of Paragraph 30 of the com-

plaint.

31. Admit the allegations of Paragraph 31 of the com-

plaint, but state further that plaintiff never requested

a hearing.

32-34. Admit the allegations of Paragraphs 32 through

and including Paragraph 34 of the complaint.

35-36. Admit the allegations of Paragraphs 35 through .

and including Paragraph 36 of the complaint.

37. Admit the allegations of Paragraph 37 and state

that further instances of misconduct were reasons for

the discharge of Green.

38-39. Admit the allegations of Paragraphs 38 through

and including Paragraph 39 of the complaint.

40. Admit the allegations of Paragraph 40 and state

that further instances of misconduct were reasons for

the discharge of Green.

inowledge or information sufficient to form

“me truth of the allegations of Paragraph

41 of the complaint.

ETI EON LAD ISLE OR

PED IET ICT THe CECE

45. Deny knowledge or information sufficient to form

a belief as to the truth of the allegations of Paragraph

45 of the complaint.

16-50. Deny the allegations of Paragraph 46 through

and including Paragraph 50 of the complaint.

First Affirmative Defense

51. This Court lacks jurisdiction over the subject

matter of this action.

Second Affirmative Defense

52. The complaint fails to state a cause of action

upon which relief may be granted.

Third Affirmative Defense

58. State that plaintiffs were dismissed from proba-

tionary federal employment for cause.

WHEREFORE, defendants demand judgment dismiss-

ing this action together with the costs and disbursements

of this action, and such other and further relief as this

court deems justified.

WHITNEY NORTH SEYMOUR, JR.

United States Attorney for the

Southern District of New York

Attorney for defendants United

States Postal Service Corpora-

tion, Klassen, United States

Labor Department, Hodgson,

United States Civil Service

Commission, Hampton, Johnson,

and Spain, United-States De-

partment of the Treasury, and

: John Connolly

By: /s/ Taggart D. Adams

TAGGART D. ADAMS

Assistant United States Attorney

Office and Post Office Address:

United States Courthouse

Foley Square

New York, New York 10007

Tel.: (212) 264-6335

[Caption and Title Omitted]

ORDER CONVENING THREE-JUDGE CouRT

—Filed May 24, 1972

It appearing that on May 24, 1972, the undersigned -

referred this cause to the Chief Judge of the Circuit for

the convening of a court of three judges pursuant to

Title 28 U.S.C. §§ 2282 and 2284;

It further appearing that by an order dated May 24,

1972, of Hon. Henry J. Friendly, Chief Judge of the

United States Court of Appeals for the Second Circuit,

Hon. Paul R. Hays, United States Circuit Judge, Hon.

Arnold Bauman, United States District J udge, and the

ORDERED that a hearing of the pending motions be-

fore the aforesaid three Judges shall be held at 10:30

A.M. on June 8, 1972, in Room 906, United States Court-

house, Foley Square, New York, New York; and it is

further

to making timely Service of papers to be considered by

Dated: New York, New York

May 24, 1972

/8/ Marvin E. Frankel

U.S.D.J.

60

(Caption and Title Omitted]

STATUTORY NOTICE OF THREE-JUDGE COURT

—Filed May 25, 1972

_ SIRS:

Pursuant to the provisions of Title 28, United States

Code, Sections 2282 and 2284, you are hereby notified that

by an order dated May 24, 1972, made by the Honorable

Marvin E. Frankel, a hearing has been set by a three-

judge court composed of the Honorable Paul R. Hays,

United States Circuit Judge, the Honorable Marvin E.

Frankel and Honorable Arnold Bauman, United States

District Judges, for the 8th day of June, 1972, at 10:30

A.M. in Courtroom 906, United States Courthouse, Foley

Square, New York, New York.

Counsel are directed to comply with the provisions of

General Rule 25 of this Court and with the provisions

contained in the order dated May 24, 1972, signed by the

res

. . x art igaee net,

. SIRNA TORRE So 3 0 er RS

61

Honorable Marvin E. Frankel, a copy of which order is

| hereto annexed.

Dated: New York, New York

May 25, 1972

. /9/ John Livingston

Clerk

TO: Attorney for Plaintiff

DENNIS R. YEAGER and

; E. RICHARD LARSON

3 423 West 118th St.

New York, NY 10027

Attorneys for Defendants

Hon. Louis J. LEFKow1rz (for

N.Y. State Dep’t. of Labor &

Louis L. Levine)

SAMUEL A. HIRSCHOWITz and

BRENDA SOLOFF, of Counsel

80 Centre St., NYC 10013

WHITNEY NortTH SEYMOUR, JR. (for:

Federal Defendants) P

/ TAGGART D. ADAMS, of Counsel

U.S. Courthouse '

Foley Square, NYC 10007

Attorney General of the United States

Department of Justice “>

Washington, D.C.

HON. NELSON A. ROCKEFELLER

Governor of the State of N.Y.

Executive Mansion, Albany, N.Y. : e

i S Tara's eee ee OK) ee

=

ee ee Ce oe 2

+

STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

71 Civ. 5556

(Three Judge Court)

JEAN CHRISTIAN and VICTOR L. GREEN, individually and

on behalf of all others similarly situated, PLAINTIFFS

New YorK STATE DEPARTMENT OF LABOR, DIVISION OF

EMPLOYMENT; its Industrial Commissioner, Louis L.

LEVINE; UNITED STATES DEPARTMENT oF LABOR, its

Secretary, JAMES D. HODGSON ; UNITED STATES POSTAL

SERVICE CORPORATION ; its Post-Master General, ELMER

. - ' KLasseN; UNiTep STATES CIVIL SERVICE COMMIS-

SION; its Chairman, ROBERT E. HAMPTON, and its

Commissioners, JAMES E. JOHNSON and JAYNE SPAIN;

UNITED STATES DEPARTMENT OF THE TREASURY; and

its Secretary, JOHN CONNALLY, DEFENDANTS

BEDFORD-STUYVESANT COMMUNITY LEGAL SERVICES CORP.,

by Ruth Balen, Esq.; BRONX LEGAL SERVICES CORPO-

RATION A, by Eric Rundbaken, Esq.; and Dennis R.

Yeager, Esq. and E. Richard Larson, Esq., Attorneys

for Plaintiffs. :

Louis J. LerKow!Tz, Attorney General of the State of

New York, by Samuel A. Hirshowitz and Brenda

Soloff, Assistant Attorneys General, for Defendants

New York State Department of Labor and Louis L.

Levine.

WHITNEY NorTH SEYMOUR, JR., United States Attorney

for the Southern District of New York, by Taggart

T. Adams, Assistant United States Attorney, for

Federal Defendants.

Before Hays, C.J., FRANKEL and BAUMAN, DQWJ.

OPINION—Filed July 24, 1972 *

BAUMAN, DJ.

This action tests the constitutionality of the Federal

statutory scheme providing unemployment compensation

a

benefits for former Federal employees as it is applied

to those who at the time of termination of their Federal

employment were in a probationary status. The princi-

pal issue is whether the provisions of 5 U.S.C. § 8506:

and the regulations promulgated thereunder, which make

the findings of the former Federal employer as to the

reasons for termination binding and conclusive upon the

State agency in its determination of eligibility for un-

employment* compensation benefits, violate the Due Proc-

ess Clause of the Fifth and Fourteenth Amendments and

the Equal Protection Clause of the Fourteenth Amend-

ment.

This case came on before J udge Frankel for declara-

tory relief, injunctive relief and a writ of mandamus.

As the constitutionality of a Federal statute was seri-

ously in doubt# Judge Frankel invoked a Three-Judge

Court pursuant to 28 U.S.C. § 2282.

* 80 Stat. 589, 5 U.S.C. § 8506 provides in pertinent part:

“(a) Each agency of the United States and each wholly or

partially owned instrumentality of the United States shall make

available to State agencies which have agreements under this

subchapter, or to the Secretary of Labor, as the case may be,

such information concerning the Federal service and Federal

wages of a Federal employee as the Secretary considers prac-

ticable and necessary for the determination of the entitlement

of the Federal employee to compensation under this sub-

chapter. The information shall include the findings of the em-

ploying agency concerning—*

(1) whether or not the Federal-employee has performed

Federal service;

(2) the periods of Federal service;

(3) the amount of Federal wages; and

(4) the reasons for termination of Federal service.

The employing agency shall make the findings in the form and

manner prescribed by regulations of the Secretary. The regu-

lations shall include provisions for correction by the pmploy-

ing agency of errors and omissions. Findings made in: accord-

ance with the regulations are final and conclusive for the

purpose of sections 8502(d) and 8503(c) of this title.”

ee aS

IL.

Plaintiff Jean Christian is a resident of Brooklyn,

New York and a former employee of the United States

Post Office? in Brooklyn. Plaintiff Victor L. Green is a

resident of the Bronx, New York and a former employee

of the United States Department of The Treasury, Bu-

reau of Customs, based in New York. Both plaintiffs

were probationary employees when their employment was

terminated. Plaintiff Christian was employed by the Post

Office Department from April 4, 1970 to October,2, 1970

and was discharged because of an unsatisfactory attend-

~ ance record. Plaintiff Green was a sky marshal for the

Bureau of Customs from December 24, 1970 to Decem-

ber 18, 1971, when he was discharged for drinking an

alcoholic beverage within twenty-four hours of flying.

Neither plaintiff was given a prior hearing nor was one

required.

Title 5 U.S.C. § 8501 et seq.* authorizes the United

2 Defendant United States Postal Corporation assumed all the

liabilities of the United States Post Office Department pursuant to

84 Stat. 738, 39 U.S.C. § 2002.

380 Stat. 586, amended 81 Stat. 218, 5 U.S.C. § 8502 provides

in pertinent part:

“(a) The Secretary of Labor, on behalf of the United

States, may enter into an agreement with a State, or with an

agency administering the unemployment compensation law of

a State, under which the State agency shall—

(1) pay, as agent of the United States, compensation

under this subchapter to Federal employees; ‘and

(2) otherwise cooperate with the Secretary and with

other State agencies in paying compensation under this

subchapter.

(b) The agreement shall provide that compensation will be

paid by the State to a Federal employee in the same amount, on

the same terms, and subject to the same conditions as the

compensation which would be paybale to him under the unem-

ployment compensation law of the State if his Federal service

and Federal wages assigned under section 8504 of this title

to the State had been included as employment and wages under

that State law.

(d) A determination by a State agency with respect to

entitlement to compensation under an agreement is subject to

as to the reasons for termination of an employee are

binding and conclusive on the State agency which admin-

isters the UCFE p - 5 U.S.C. § 8506. Such an

agreement was entered into by the Secretary of Labor

and the State of New York. Both plaintiffs filed claims

for unemployment compensatién with the New York

State Department of Labor which is the administering

agency. After proceeding through the appropriate State

procedures each plaintiff received a final determination

denying them benefits based on the written, conclusive

statements of their former Federal employers.

As probationary employees, neither plaintiff was en-

titled to a hearing before their Federal agency employer

prior to termination of their employment.‘ Therefore,

neither had an opportunity to contest, avoNi or rebut

the written reasons for their dismissal. Because the

Federal findings were binding on the State agency, plain-

compensation benefits without due process of law and in

Il.

__ Prior to addressing the constitutional questions, this

Court must face the statutory claim* that the interpre-

review in the same manner and to the same extent as deter-

minations under the State unemployment compensation law,

and only in that manner and to that extent.”

*Compare 5 U.S.C. § 7582(c) with 5 C.F.R. §§ 315.804, 315.805,

315.806.

*The Supreme Court in Rosado Vv. Wyman, 397 U.S. 397, 402

(1970) stated that a three judge court should consider any statu-

tery claim prior to considering the constitutional claim. See also

King v. Smith, 392 U.S. 309 (1968).

tation of 5 U.S.C. § 8506 set forth in Smith v. District

Unemployment Compensation Board, 435 F.2d 433 (D.C.

1970) is the correct one. If that is so, mandamus will

lie against the Federal officials directing them to provide

a hearing regarding the reasons for termination, upon

request, to those probationary employees whose employ-

ment with a Federal agency is ended.

We refuse to follow the construction of 5 U.S.C. § 8506

set forth in Smith, supra. That Court found—

“There is no reasonable basis for supposing that

whereas Congress deliberately insisted on opportun-

ity of hearing for employees generally, it deliberately

established a no-hearing enclave for a relatively small

group of Federal employees ... .” Supra at 438.

In reaching that conclusion, we think that the Court

ignored the structure of the Federal Civil Service Laws.

Since the original Civil Service Act of 1883, Congress

has made a distinction between probationary and perma-

nent Government employees.* Probationary employees are

not entitled to the full range of hearing rights to which

permanent employees are entitled upon dismissal.‘ This

distinction between probationary and permanent.Govern-

ment employees has been recognized by the Courts on

many occasions * and Congress surely was aware of it in

1954 when it passed the legislation creating the UOFE

Certafhly the Congress intended that Federal employ-

ers should have an unfettered right to terminate proba-

tionary employees up to the time such employees acquire

permanent status. No termination hearing is prescribed

or required nor should it be. What Smith, supra, attempts

is to legislate judicially a hearing not now required by

statute which would mandate precisely the type of hear-

ing not now required for discharge. Such a hearing, as

*5 U.S.C. § 3321.

* See footnote 4, supra.

8 See, e.g., Jaeger V. Freeman, 410 F.2d 528 (5th Cir. 1969),

Medoff v. Freeman, 362 F.2d 472 (1st Cir. 1966).

8 TR PR RR OR StL. Se > ab ht rors Vary LIT

by - " sees m ,

i PED ATED eth AK REI

yhagtanbal Rese Rass Hea

6 67

a practical matter, would limit the Government in the

discharge of probationary employees to an extent never

previously contemplated by the

§ 8506 means only the written statement of reasons for

termination sent by the Federal employer to the State

agency administering the UCFE program. Had the Con-

gress meant otherwise it would have said so.

IIT.

The only statutory basis for jurisdiction over the. dis-

pute between the plaintiffs and the Federal defendants 3

alleged in the complaint is 28 U.S.C. § 1361, the manda- FE

mus remedy, which has been found lacking in merit, — :

supra.

In their complaint plaintiffs have not met the juris-

dictional requirements under 28 U.S.C. §§ 1331, 1337 or

1346, the so-called “federal question” jurisdiction sec-

- tions. As neither the Declaratory Judgment Act, 28

U.S.C. §§ 2201, 2202, nor the provisions for invoking a

Three-Judge Court, 28 U.S.C. § 2282, provide subject

matter jurisdiction in and of themselves, an additional]

statutory basis must be alleged. There are no such alle-

gations. The so-called “civil rights” jurisdictional provi-

sions, 42 U.S.C. § 1988 and 28 U.S.C. § 1343, apply to

State, not Fedéral Officials... , x

However, the situation is different as to thg State de-

fendants. Plaintiffs have properly based their claim on

hat moe

complaint against the State defendants is that their ap-

plication of the Federal law in administering the UCFE

SONAR RIG ity bis arceny

soseeeaieiesieieaniineiaaiaeanmeiaanibenameansemaeemnmensmmee

2h Bc REL SATIS PLN TER HO NDR eR ‘

’

program has denied the plaintiffs of unemployment com-

pensation benefits without due process of law and in

violation of their right to equal protection of the laws.

Ayala vy. District 60 School Board, 327 F.Supp. 980

(D. Colo. 1971) illuminates the issue. As the Court

there said (at p. 981):

“Since plaintiffs in this action claim that their

right to equal protection of the laws has been denied

by Colorado officials, acting in their capacities as

Officials, this court clearly has jurisdiction to hear

the constitutional claim and, should plaintiffs be suc-

_ cessful, to grant the relief sought. It makes no dif-

ference that plaintiffs have not cited a state or local

law upon which the defendants’ conduct may be

based. It is settled that the phrase ‘under color of’

comprehends all official behavior, even that which

is patently unlawful under state, as well as federal,

law.” >

IV.

The State defendants assert that the alleged constitu-

tional violations claimed by plaintiffs do not state a

claim upon which relief can be granted. We agree.

Plaintiffs urge that the State defendants, in applying

5 U.S.C. § 8506 to deny them tinemployment compensa-

tion benefits without a hearing, have violated the equal

protection clause of the Fourteenth Amendment. That

violation allegedly results from treatment of former pro-

bationary employees in a discriminatory and irrational

manner from all other applicants for unemployment

compensation.

To reiterate what we have — ae stated, Congress

had good reason to differentiate between probationary

and permanent employees in trying to promote the effi-

cient disposition of Federal business. As the purpose of

such classification was legitimate and the means adopted

by Congress were rational, there is no denial of equal

protection. Cf. Dandridge v. Williams, 397 U.S. 471,

485 (1970).

PES

69

The other constitutional issue is whether a denial of

unemployment compensation benefits without a hearing

violates the due process clause of the Fourteenth Amend-

ment. This depends upon striking a balance between the

loss to the claimant resulting from a denial of such a

hearing and the Government’s interest in summary ad-

-judication of claims. Goldberg v. Kelly, 397 U.S. 254

(1970). In Goldberg, supra, the Supreme Court held that

an evidentiary hearing was required before welfare pay-

ments could be terminated, but the factual distinctions

between Goldberg and the case at bar: highlight the con-

clusion that the Government’s interest in summary ad-

judication outweighs plaintiffs’ need for a hearing here.

Welfare programs, such as aid to families with de-

pendent children,® are designed to meet a different need

than unemployment com tion. Such payments are

designed to provide the recipient with essential food,

clothing and shelter. Goldberg, pra, at 264. Need is

not the criterion for eligibility under the unemployment

compensation programs." Compensation is available as a

matter of right to involuntarily unemployed workers and

benefits are based on wages previously received by the

claimant without relation to need. In fact, if an unem-

ployed person is declared ineligible for unemployment

compensation benefits he may nonetheless qualify for

welfare payments on the basis of his need. The plain

fact is that unemployment compensation benefits are not

of the same urgent nature to the survival of the claim-

ant as are welfare benefits.

Goldberg, supra, also holds that recipients already re-

ceiving benefits were entitled to a hearing before termi-

nation of those benfits. In the case at bar plaintiffs have

not received benefits but have only applied for them. In

fact, a three-Judge panel of this Court has held that the

Suspension or termination without a prior hearing #of

unemployment compensation benefits already being paid

* 49 Stat. 627, as amended, 42 U.S.C. §$ 601-610.

See N.Y. Labor Law §§ 590, 591 (McKinney’s 1972 Supp.)

which sets forth the rights and eligibility requirements for unem-

ployment compensation in New York.

:

70

without a prior hearing is not violative of the Fourteenth

Amendment. Torres v. New York State Department of

Labor, 321 F.Supp. 432 (S.D.N.Y. 1971), vacated and

remanded, 402 U.S. 968 (1971), previous decision ad-

hered to, 333 F.Supp. 341 (S.D.N.Y. 1971). That Court

pointed out that the “brutal need” of the welfare recipi-

ents in Goldberg was not present in circumstances in-

volving recipients of unemployment compensation. The

same Government interests of an orderly and summary

procedure for the efficient operation of the unemploy-

ment compensation program which were present in

Torres, are present here. On balance, the interests of

the Government outweigh plaintiffs’ need for a hearing

and so, the due process claim cannot be sustained.

Given the above disposition of the case it is not nec-

essary to reach a decision as to whether plaintiffs’ suit

is properly brought as a class action. The action is dis-

SO ORDERED.

Dated: July 24, 1972

/s/ Arnold Bauman

U.S.DJ.

/s/ Paul R. Hays

US.CJ.

FRANKEL, D.J. (dissen

ting) :

My difference with the majority is not on the ques-

tions of constitutional law, which I would not reach.

Instead, on grounds like

trict Unemployment Compensation Board, 435 F.2d 433

(D.C. Cir. 1970), I would hold as a matter o

construction that the plaintiffs and other federal proba-

tionary employees like them are entitled to at least a

rudimentary hearing somewhere on “findings” asserted

unemployment compensation.

with related statutes enacted at

widely separate times, our problem is one on which dif-

ferences respecting general principles of interpretation

may be decisive. Such Statutes, though intended to be

to mesh with automatic preci-

phrases may take varied colors

from their varying contexts. Words defining classes of

stricted interpretations to avoid a literally required in-

of legislative purposes Is among the more challenging

and creative of the tasks entrusted to judges. There is

much of other things may be required for the particular

case. The work calls tru

has fairly been described

art.” ?

the point of mistakenly

the statutory scheme. §

ly for judgment in a field that

as being “not a science but an

cludes a small group of federal] employees from the basic

right to be heard when

' Frank, Words and Music:

pretation, 47 Colum. L. Rev. 1

(1) Congress evidenced its ex-

Some Remarks on Statutory Inter-

259 (1947).

TERE ier gene te at emmca gi

72

press purpose to make that right available to all em-

ployees, private or public, (2) Congress likewise evinced

the aim of avoiding second-class citizenship for federal

employees with respect to the elemental need for a dig-

nified form of wage substitute in times of unemploy-

ment, (8) the great bulk of federal employees are in

fact upon a substantial par with private workers in

having an opportunity to contest factual determinations

which, if adverse, may preclude unemployment compen-

sation, (4) the deprived group, probationary employees,

appears not to have been specially noticed during the

legislative process, and certainly not to have been singled

out for the special deprivation to which it is today held

subject, and (5) the opposite result from the majority’s,

more consonant with the deep commitment of our juris-

prudence to fair hearings as prerequisites to adverse

determinations, is readily reconcilable with the text and

essential objects of the pertinent statutory provisions.

These thoughts are elaborated in what follows.

(1) From the inception of the federal legislation for

federal funding, and limited federal supervision, of state

unemployment compensation programs, one of the few

requirements binding the States was that their laws

include provision for

“Co]pportunity for a fair hearing before an impar-

tial tribunal, for all individuals whose claims for

unemployment compensation are denied * * *.” So-

cial Security Act of 1935, § 303(a) (3), 49 Stat.

626, 42 U.S.C. § 503(a) (3).

At the time of that enactment, almost 40 years ago,

our notions of fair procedure embraced a far less sweep-

ing insistence upon the right to be heard than is pre-

valent today. The emphasis in the statute, moreover,

was on broad latitude for state legislativ2 preferences in

“all matters in which uniformity is not absolutely essen-

tial.” * Even in those circumstances, the right of a “fair

hearing” was enshrined as a requisite of suitably “high

? Message of the President, Jan. 17, 1935, H.Doc. No. 81, 74th

Cong., 1st Sess., p. 16. .

we naidlaais aie |

APs ARAL Aaa iE Sic ht Sn Scab Sasa E ae

*

‘ 78

unemployment compensation for federal employees, out

provided, an employee denied compensation was (and is)

to be given a “fair hearing.” 5 U.S.C. §§ 8502(b), 8503

2

s

ey

“—

2.

@®

3

@

s

S

a

=

3

&

3

5

|

e

8.

S

@

=

a a RE ta ne

We come, however, to 5 U.B.C. § 8506(a), upon which

the present controversy centers. As set out in Judge

Bauman’s opinion for the court, the “findings” there

designated, including those concerning “the reasons for

termination of Federal service,” are declared to be “final

and conclusive for the purpose of sections 8520(d) and

8503(c) * * *” The question before us is whether ad-

where for the narrow group of employees who have never

had any opportunity to contest them.*

(3) When Congress wrote the provisions before us for

“federal employees,” it drew no distinction between per- a

°Td. at 4,

*S. Rep. No. 1794, 83d Cong., 2d Sess., in 3 U.S. Code, Cong. &

Ad. News 3891, 3894 (1954).

* More precisely, plaintiff Jean Christian did have a hearing be- .

fore a state hearing officer, and she prevailed—i.e, the reason \

asserted for her dismissal (and denial of unemployment compen- ‘

sation) was determined upon airing to be unfounded. In the view

rs

rs run REI ito rea

74

manent and probationary workers. Neither the statute

nor its history suggests that anyone had such a distinc-

tion, or its possible consequences, in mind. The great

majority of federal employees are, of course, those in the

permanent category. The prototypical civil servant, the

one we are likely to envision when thinking in the global

concepts of legislators, is in this group. Given that real-

ity, and given the familiar procedures governing the

separation of permanent civil servants, it is reasonable

to infer that the “findings” declared “final and conclu-

sive” were conceived as those affecting, and resulting

from procedures affecting, permanent civil servants.

The very word “findings” buttresses. this inference. If

it is not inescapably true, the word commonly refers to

resolutions or determinations following deliberations upon

evidence in a manner of which the judicial process is

the ideal case. See Black’s Law Dictionary 758 (4th ed...

1957), citing cases. If the probable image is not always

of a full-scale trial “hearing,” it is certainly not of the

simple assertion of a “fact” or merely “the conclusory

statement of a result” where there has been no oppor-

tunity for countervailing presentations and no pretense

of considering two sides. Coleman v. Brucker, 257 F.2d

661, 662-663 (D.C. Cir. 1958) ; Sims v. Greene, 161 F.2d

87, 89 (3d Cir. 1947). And if the word “findings” means

anything more than such untested declarations, it was

an apt term for’ permanent civil servants, but not apt

at all for probationary people.

For decades before the enactment of UCFE in 1954,

permanent civil servants had a right to contest, and to

make presentations opposing, grounds asserted for their

dismissal. While the Lloyd-LaFollette Act, August 24,

*I am a long way from sharing the confidence of the majority

that Congress “surely was aware” of this distinction at the time

of the passage of the UCFE. It is always a risky business to

detect sure awareness in a busy Congress where the subject appears

never to have been mentioned. The assumption would be arguable

if the UCFE legislation had been under the charge of the committee

in either house concerned with civil service affairs. That was not

the case, however; the responsible committees handling UCFE were

House Ways and Means and Senate Finance.

™

NE OPAL OP AAA! LON eT Re A Oe tras

NI TC Oh OR ARO Net a

Shs 100 A WHI AANA ADAGE

~

1912, § 6, 37 Stat. 555, as amended, 5 U.S.C. § 7501(b),

gave (and gives) no full-scale trial hearing, it required

notice and charges in writing, a reasonable time to an-

swer in writing, Opportunity to file affidavits and at

least an opportunity to seek discretionary grant of a

hearing. Executive regulations implementing these rights

have continued to expand them. Without tracking every

detail, there was a right in 1954 (when the UCFE was

enacted) to a written decision stating “the reasons for

the action taken and its effective date.” 5 C.F.R. § 9.102

(a) (1) (1949), Beginning in 1962, with Executive

Qrder No. 10987, 27 F.R. 550 (Jan. 18, 1962), perma-

nent employees have had a right to a full “hearing” to

contest dismissals, either at the agency stage or on ap-

_ peal. See 5 C.F.R. § 771.101 et seq. (1972).

(4) Thus, for the overwhelming majority of federal

employees, those in the permanent service, the findings

declared “final and conclusive” under § 8506(a) have at

all times been reached after at least some opportunity

for contest. No such opportunity has existed at any time

for the probationary employee. Our question is whether

plain language or anything else compels the harsh re-

sult of denying such an employee unemployment compen-

sation (no question is raised as to the finality of his

federal termination) on grounds he has never had a

chance to refute. :

It is not possible to Say with assurance that the “plain

language” of § 8506(a) requires a decision against the

plaintiffs. The term “findings” fits at best crudely the

ex parte declarations upon which plaintiffs were dis-

missed. But, neatly or not, the word does fit. If textual

analysis were the whole of our responsibility, plaintiffs

would probably deserve to lose. However, almost every-

thing else germane to our problem points the other way.

(5) The strikingly inferior position to which plain-

tiffs have thus far been relegated for unemployment

compensation purposes was never decreed—and seems

never to have been considered as a prospect—by the

Congress. The explicit purpose of putting public and

private employees on a par applies at least as much to

probationary workers (whose employment is more pre-

76

carious) as to permanent workers for purposes of insur-

ance against unemployment. The powerful impetus in

our law favoring the right to be heard weights against

the denial of such a right said to be required by a se-

mantic analysis so rickety as that erected upon the word

“findings” in the present context. The concern for “uni-

formity” of federal “findings,” which appears to have

prompted the finality provision, is scarcely grazed by

allowing a state hearing officer to find out with some

decent measure of reliability whether (solely, for unem-

ployment compensation purposes) the federal probation-

ary employee in fact drank when he should not have or

was improperly absent without reporting.’

The arguments against the majority’s conclusion ac-

quire at least some modest support from the constitu-

tional arguments that gave birth to this three-judge

court. Though the arguments are today rejected, neither

of my distinguished brethren suggests that the issues

thus decided lack substance. Thus, the construction I

would adopt has the merit of avoiding constitutional

doubt. United States v. Thirty Seven Photographs, 402

U.S. 368, 369 (1970); Schneider v. Rusk, 390 U.S. 17,

27 (1968); United States v. Rumely, 845 U.S. 41, 45

* The majority says a hearing solely for unemployment compensa-

tion purposes “as a practical matter, would limit the Government

in the discharge of probationary employees to an extent never

previously contemplated by Congress.” It should be stressed, there-

fore, that nobody claims a right of the probationary employee to

test his discharge in a hearing. The only question is as to the

availability of a hearing (given to everyone else, public or private)

on eligibility for unemployment compensation. When the majority

speaks of what is foreseen “as a practical matter,” it evidently

reflects the concern, exhibited in arguments to us for defendants,

that the prospect of a hearing—even though not testing the dis-

charge or capable of doing so—would make supervisors in the

employing agencies timorous about discharging probationary

people. This is a regrettable position. Insofar as it is accurate, it

portrays a regrettable situation. We ought not to be so “practical”

that we fashion legal judgments upon the premise that federal

officials commonly fire people upon grounds so tenuous that they

would not dare order the firings if they thought someone, some-

where else, without authority to reverse the firings, might so much

as air the asserted grounds.

77

(1953). More specifically, it is pertinent to recall ‘analo-

gous areas where the Supreme Court has avoided con-

stitutional doubt by discovering upon analysis that the

word “final” in a statute should not always be construed

to foreclose further review of a disputed question. Estep

v.. United States, 327 US. 114, 122, 127-28 (1945) :

Chin Yow v. United States, 208 U.S. 8 ( 1908) (Holmes,

J.) .

Finally, it is worth stressing that we deal with a class

of necessitous people claiming the benefits of broadly

& Philadelphia Steamboat Co. v. Norton, 284 US. 408,

414 (1932) ; Wheatley v. Adler, 407 F.2d 307 (D.C. Cir.

1968) ; United States y. Udy, 381 F.2d 455, 456 (10th

Cir. 1967); Phoenix Assurance Co. of N.Y. y. Britton,

289 F.2d 784, 786 (D.C. Cir. 1961). See also Pillsbu

eral agencies in which they were formerly employed. Cf,

Smith v. District nemployment ompensation Board,

/8/ Marvin E. Frankel

MARVIN E. FRANKEL

U.S.D.J.

7

SOI IN, OEE RET SEE ELLEN AO EPEL eI Es

Src. 1

, [Caption and Title Omitted]

aad NoTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES—Filed September 30, 1972

Notice is hereby given that Jean Christian and Victor

L. Green, the Plaintiffs in the above-entitled action,

hereby appeal to the Supreme Court of the United States

from the final order, entered in this action on July 24,

1972, denying Plaintiffs’ requested relief and dismissing

the complaint. ,

This appeal is taken pursuant to 28 U.S.C. § 1253.

Dated: New York, New York

September 12, 1972

[Attorneys and Addresses Omitted |

Attorneys for the Plaintiffs -~

&

79

SUPREME COURT OF THE UNITED STATES

No. 72-5704 |

JEAN CHRISTIAN and VICTOR L. GREEN, APPELLANTS

SR EAE amr n>

v.

NEW YorK STATE DEPARTMENT OF LABOR,

DIVISION OF EMPLOYMENT, ET AL. ;

% ON CONSIDERATION of the motion of the appel-

_ lants for leave to proceed herein in forma pauperis,

; IT IS ORDERED by this Court that the said motion

de © be, and the same is hereby, granted.

April 16, 1973

80

SUPREME COURT OF THE UNITED STATES

No. 72-5704

JEAN CHRISTIAN and VicTOR L. GREEN, APPELLANTS

v.

NEW YORK STATE DEPARTMENT OF LABOR,

DIVISION OF EMPLOYMENT, ET AL.

APPEAL from the United States District Court for

the Southern District of New York.

The statement of jurisdiction in this case having’ been

submitted and considered by the Court, probable juris-

diction is noted.

April 16, 1973

W ou. s. covernwent PRINTING OFFICE; 1973 502539 665

4

vandel

te eee

CE A EA iat tt Si elk Us K

prepares tcewieie

acgetes*

PS an OT Ra TT AM OF EE LS

PRR eB

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.