Washington vs WME Appeal Filing, Marcus Isaiah Washington, Workplace Racism

TABLE OF CONTENTS

Page

TABLE OF CONTENTS 1

TABLE OF AUTIlORITIES 11

PRELIMINARY STATEMENT OF FACTS 1

ARGUMENTS 5

MR WASHINGTON IS UKELY TO SUCCEED ON APPEAL 5

I The District Court Erred By Ignoring Mr Washingtons Valid Arguments to the Unenforceability of the Arbitration Agreements Provisions Omitting the Undisputed Historical Statistical and Circumstantial Evidence and Misapplying the Applicable Law in Favor ofVilliam Moms

5

A Federal Policy Favoring the Federal Arbitration Act 5

B Using The Civil Rights Act of 1964 As A Lens To Determine Unconscionability 7

C ORegan v Arbitration Forums Inc 11

mERE IS A STRONG PUBUC INTEREST TIlAT nns CASE STAY IN TIlE FEDERAL COURT TO COMBAT INSIDIOUS AND INSTITIONAL RACISM IN TIlE AMERICAN WORKPLACE IN ADDITION TO ADDRESSING HOLLYWOODS CABAL-UKE PRACTICES RICH PERPETUATES RACISM IN AMERCA 12

FURTHER DELAY WILL CREATE IRREPERABLE HARM DUE TO MY ECONOMIC HARDSHIPS UNINSURED MEDICAL CONDITIONS AND OTIlER CIRCUMSTANCES 16

GROUNDS FOR THE DISQUALIFICATION OF HON P KEVIN CASTEL AND HON JAMES C FRANCIS PURSUANT TO 28 USc 455 AND 2106 18

CONCLUSION 20

-ishy

Case 11-3576 Document 18 Page 2 09282011 405382 28

TABLE OF AUTHORITIES

CASES

Amon v Cort Furniture Rental Cop 85 F3d 1074 (3d Crr1996) 14

Armendariz v Foundation Health P-)chcare Services Inc 99 Cal Rptr 2d 745 6 6 P3d at 696 (Cal 2000) 11

Barner v City rifHarvry No 95 Civ 3316 1998 WL 664951 at 50 (NDIll Sept 181998) 8

Blake v Bronx Lebanon Hospital Center 2003 US Dist LEXlS 138572003 WL 21910867 [SDNY 2003] 7

Brennan v Bay TotalFitness 198 F Supp2d 377 (SDNY 2002) 6

Buckrye Check Cashing Inc v Cardegna 546 US 440126 S Ct 1204163

LEd2d 1038 (2006) 5-6

Capaci v Katz amp Besthiff Inc 711 F2d 647 662 (5th Cir1983) 8

Circllit City Stores Tnc v Adams 279 F3d 889 896 (9th Crr 2002) 11

Cobell v Kempthorne 455 F3d 317332 (Dc Crr 2006) 20

Desiderio v NationalAssn rif Sec Dealers Inc 191 F3d 198207 (2d Crr1999) 6

Doctors Asfociates Tnc v Casarotto 517 US 681 116 S Ct 1652134 LEd2d 902 (1996) 6

EEOC v Joes Stone Cmb Inc 220 F3d 1263 1275 (11th Cir2000) 11

Ewing v Coca Cola Bottling Co No 00 ClV 7020 (CM) 2001 WL 767070 (SDNY June 252001) 8

Franks v Bowman Transp Co Inc 424 US 747 (1976) 13

Gillman v Chose Manhattan Bank NA 73 NY2d 1537 NyS2d 787 534

NE2d 824 828 (1988) 6-7

Gilmerv InterstateJohnson Lane Corp 111 S Ct 1647 (1991) 5

-iishy


Griggs v Duke Power Co 401 US 424 91 SCt 84928 LEd2d 158

(1971) 10 12

In reo Estate ofFriedman v Egan 64 AD2d 70 (2d Dept 1978) 6

Intl Bhd ~rTeamsters v United States 431 US 324 (1977) 7-10

Hughes v UPS (2004 NY Slip Op 510008 [NY Sup Ct 2004] 7

Moses H Cone Alemorial Hosp 1 Mercury Const Corp 460 US 124 103 S Ct

92774 L Ed 2d 765 (1983) 5

ORegan v Arbitration Fomms Inc 246 F3d 975 (7th Cir2001) 11

Ortiz-Del Valle v National BasketballAssn 42 F Supp 2d 33 (SDNY1999) 8

Prima Paint Corp t Flood amp Conklin Mfg Co 388 US 39540487 S Ct 180118 LEd2d 1270 (1967) 7

Robinson v Metro-North Commuter RR 267 F3d 147 (2d Cir 2001) 8-10

Ricci 1) Destafano 129 S Ct 2658 (2009) 14

Rogers v Lodge 458 US 613102 SCt 32723281-328073 LEd2d 1012 (1982) 9

Rowe Entertainment v William Moms Agenry Inc 205 FRD 421 (SDNY2002) 19

Rossini t Ogil1J amp Mather Inc 798 F2d 590 (2d Cir 1986) 8

Quinn vJP Morgan Chase amp Co 12 Mise3d 1160 819 NYS2d212 [Sup Ct New York County 2006] 7

St Marys Honor Centerv Hicks 509 US 502 (1993) 9

Segarv Smith 738 F2d 1249 (DCCir1984) 10

State v WolowitZl 96 AD2d 47 468 NyS2d 131 145 (1983) 6

Trary v Talmage 14 NY 162 (1856) 6

United States v Bless 201 F3d 116126 (2d Cir 2000) 19

-iiishy


United Steelworkers v Weber 443 US 193 (1979) 13

Wards Cove Packing Co v Atonio 490 US 642 109 SCt 2115 104 LEd2d 733 (1989) 14

Watson v Fort Worth Bank amp Trust 487 US 977985-986 (1988) 7

Volt I1ifOrIJation Sciences Inc v Board tifTrustees tifLeland Sta1ifOrdJunior Univ 489 US 468478109 S Ct 1248103 LEd2d 488 (1989) 6

STATUTES

9 USC sect 1 et seq5-6

28 USc sect 455 and 2106 18-20

42 USC sect 1891 et seq 1 12

42 USc sectsect 2000e et seq1 7 10-11

BOOKS AND JOURNAL ARTICLES

Devllh Pagel and Bruce Western Race at Work Realities of Race and Criminal Record in the NYC Job Market Department of Sociology shyPrinceton University (December 92005) 13

Girardeau A Spann Disparate Impact The Georgetown Law Journal Volume 98 1133-1163 (2010) 14

Judicial Disqualification An Analysis of Federal Law Federal Judicial Center 2nd ed (2010) 18

Laura Crtuliano David I Levine and Jonathan Leonard Manager Race and the Race of New Hires Ouly 2008) 13

Marianne Bertrand and Sendhil Mullainathan Are Emily and Greg More Employable than Lakisha and Jamal A Field Experiment on Labor and Market Discrimination University of Chicago Graduate School of Business Oune 20 2004) 13

-ivshy


Miriam Cherry A Not So Arbitrary Arbitration Using Title VII Disparate

Impact Analysis To Invalidate Employment Contracts That Discriminate

Harvard Womens Law Journal Vol 21 267-307

(September 1998) 12

Tristin K Green Discrimination in Workplace Dynamics Toward a

Structural Account of Disparate Treatment Theory Harvard Civil Rigbts-

Civil Liberties Law Review Volume 38 91-156 (2003) 15

Tristin K Green ltTargeting Workplace Context Title VII As a

Tool for Institutional Reform Fordham Law Review

Volume 72 Issue 3 (2003) 15

Tristin K Green Work Culture and Discrimination California Law

Review Vol 93 No3 (2005) 15

Tristin K Green A Structural Approach As Anticdiscrimination Mandate

Locating Employer Wrong 60 Vanderbilt Law Review 849

(2007) 15

OTHER AUTHORITIES

John W Cones Esq ~hats Really Going On In Hollywood 199716

Kweisi Mfume Presidents Note in Out of Focus Out of Sync Take 3

NAACP (2003) 15

Sylvia Allegretto Ary Amerikaner and Steven Pitts Black Employment

and Unemployment in August 2011 UC Berkeley Center for Labor

Research and Education September 2 2011 13

-vshy


Appellant Marcus Isaiah Washington respectfully submits this memorandum of law to the

Second Circuit in support of his motion for an expedited appeal reversing Hon P Kevin Castels

harmfully erroneous Memorandum amp Order entered on July 20 2011 Mr Washingtons claims of

intentional racial discrimination in violation Section 1981 of the Civil Rights Act of 186642 USc

sect 1981 (Section 1981) Title VII of the Civil Rights Act of 1964 as codified 42 USC sectsect 2000e et

seq (Title VII) the New York State Human Rights Law New York Executive Law sectsect 296 et seq

(the NYSHRL) and the New York City Human Rights Law New York Administrative Code sectsect 8shy

107 et seq (the NYCHRL) against the 113 year old institutionally racist employer William Morris

Endeavor Entertainment LLC (in addition to Human Resources personnel Jeff Meade and Sarah

Winiarskil) (collectively William Morris) (hereinafter Appellees) were ordered to arbitration as a

result of Hon Castels refusal to acknowledge Mr Washingtons argument resulting a glaring

omission ofpertinent facts and misapplication of the prevailing law

PRELIMINARY STATEMENT OF FACTS

I Appellees Motion to Compel Arbitration

On February 25 2011 Appellees filed a motion seeking a dismissal of the complaint or a stay

pending arbitration on claims against William Morris engagement in insidious and institutional

employment discrimination against African Americans and other minorities because of two

Arbitration Agreements (the 2008 Arbitration Agreement and the 2009 Arbitration Agreement)

with Mr Washingtons signature Both agreements state that any claim dispute andor

controversy including discrimination and retaliation had to be submitted to and determined

exclusively by binding arbitration under the Federal Arbitration Act (Def Motion 3 PKC Order

3) In the 2009 Arbitration Agreement it additionally states The Arbitrator not any federal state or

local court or agency shall have exclusive authority to resolve any dispute relating to the

interpretation applicability enforceability or formation of this Agreement including but not limited

to any claim that all or any part of this Agreement is void or voidable (Delegation Provision)

1 Since filing the Complaint Sarah Winiarski has been married and now goes by the name ofSarah van Hoven

-1shy


(Def Motion Exhibit C PKC Order 4) Relying on the literal language within the agreements and

Mr Washingtons signature the Appellees asked that contracts be enforced

II Appellants Defense Provisions within the Arbitration Agreement are Unconscionable

At the onset of Mr Washingtons Oppositional Memorandum submitted March 21 2011 he

states [T]he arbitration agreements on its face appear reasonable However when scrutinized

further[] one will notice that the terms [pertaining to discrimination and retaliation] are

unconscionable and are in direct violation of Section 1981 and Title VII of the Civil Rights Act of

1964 (PI Opp Motion 3-4) A very narrow challenge is raised If it can be established by

employment discrimination law that the drafter andor issuer of an Arbitration Agreement has a

flagrant pattern and [existing] practice of engaging in intentional racial discrimination towards

African Americans and other minorities (a violation of Section 1981 Title VII NYSHRL and

NYCHRL) are the provisions which state that discrimination and retaliation claims must be

arbitrated unconscionable to the African American who signs the agreement and is unaware that no

other African Americans exist in the workplace Mr Washington answers that question by presenting

a substantial amount of historical statistical and circumstantial evidence establishing a prima facie

plus pretext case demonstrating that that the language within the Arbitration Agreements is both

substantively unconscionable and ultimately tainted with illegality due to the companys unlawful

immoral and unethical discriminatory practices polices andor procedures (pI Opp Motion 3-12)

First Mr Washington demonstrates that discrimination is only applicable to race color

andor national origin by analyzing William Morris historical treatment of other protected groups

(eg sex religion and age) Secondly Mr Washington shows that because of the inexorable zero

the terms conditions or privileges are unequal based on the employees race color andor national

origin because statistically its impossible for White employees at William Morris to be

discriminated against on the basis of their race color andor national origin because Whites are

significantly overrepresented in the workplace (737 Exhibit C PI Opp 5-6 11) As a result

-2shy


~------

the contract becomes racialize[d] and is in direct violation of Section 1981 and Title VII (PI Opp

Motion 11)

Furthermore Mr Washington provides specific evidence spanning eight decades showing

William Morris animus and discriminatory state of mind in that they have always been conscious

of their issues of racism and discrimination both internally and externally yet have remained intent

on excluding qualified minorities from employment and advancement opportunities (PI Opp 7-8)

He also demonstrates that procedural unconscionability exists due to William Morris superior

bargaining power over its employees the one-sidedness of the contracts oppressive terms lack of

meaningful choice and other explanations showing that the contract is only beneficial to the

Appellees (PI Opp Motion 11-13) Mr Washington shows that the Agreements were also signed

under undue influence and economic duress as a condition of employment and a condition to

remain employed (PI Mem 13-15) Mr Washington concludes that the unconscionable provisions

within the Agreements are highly deceptive and believes that the Arbitration Agreements are a

pretext and savvy legal loophole for William Morris to continue engaging in its egregious

discriminatory practices policies andor procedures without the scrutiny of both the Court and the

public (~~ 53 55 62-67 PI Opp Motion 3-12)

m Appellees Reply and Appellants Request for Expedited Ruling

In their Reply Memorandum filed on April 5 2011 Appellees acknowledge that Mr

Washington argues nevertheless that he should be relieved of his agreement to arbitrate because a)

he was completely oblivious to WMEs pattern and practice of discrimination b) the arbitration

provisions are unconscionable and violate 42 USc sect 1981 and c) his desire to advance his career

by obtaining and retaining a position at WME constituted under influence and economic duress

(Defs Reply 2) Appellees employ empty rhetoric that Mr Washingtons opposition is filled with

outrageous self-contradictory and utterly unsubstantiated allegations about WME and its

employees without providing one iota of evidence disputing the validity of his facts (Del Reply 2)

Appellees isolate Mr Washingtons third claim and misapply case law to show that his signature was

not signed under undue influence and economic duress (Def Reply 3)

-3shy


In between the three months waiting for a decision Mr Washington wrote a letter to Hon

Castel requesting an expedited ruling on June 10 2011 (Exhibit A) In it he reiterates his position

stating I am asking in my oppositional motion that the discrimination provision in WMEs

arbitration agreements be declared unconscionable (PI Letter to PKC 1) To further demonstrate the

consistency of Mr Washingtons argument over the last seven months in a letter sent to Hon Castel

dated February 142011 in response to the Appellees request for a Pre-Motion Conference to compel

arbitration Mr Washington states The specific language referring to discrimination and

retaliation (in the context of discrimination) in the arbitration agreement [are] procedurally and

substantively unconscionable and therefore unenforceable

IV Hon Castels Memorandum amp Order

On July 202011 Hon Castel submitted his Memorandum amp Order and ruled in favor of the

Appellees by granting arbitration However this decision was reached as a result of Hon Castels

ignoring Mr Washington argument and instead deciding an entirely different issue that wasnt raised

by the Appellant Hon Castel states that he is liberally construing Mr Washingtons words and by

doing so beHeves that Mr Washington (because he is pro se) is actually arguing that either the 2009

Arbitration Agreement as a whole andor the Delegation Provision - language introduced by Hon

Castel ~ were unconscionable (pKC Mem 4 8 9 12-13 16) Similar to the Appellees Hon Castel

directly acknowledges the crux of Mr Washingtons argument once by stating He also asserts that

the provision requiring that claims alleging discrimination or retaliation must be submitted to

arbitration is unconscionable [ ] (PKC Mem 4) Yet Hon Castel continues ultimately determines

that [b]ecuase the Delegation Provision is enforceable and the Agreement sets forth clear and

unmistakable evidence of the parties intent to arbitrate issues of arbitrability plaintiffs other

arguments are for the arbitrator to decide (PKC Order 15) (emphasis added)

As a result of intentionally ignoring Mr Washingtons arguments the historical statistical

and circumstantial evidence establishing that the Arbitration Agreements were drafted by a company

with a pattern and existing pattern of discrimination is treated as insignificant and meaningless The

context in which to analyze unconscionability within the Agreements are erased In addition the

-4shy

Case 11-3576 Document 18 0 09282011 405382 28

severity of the companys wrongdoing is diminished by creating the illusion to the individual reading

Hon Castels Order that this is simple case of disparate treatment due to Mr Washingtons belief that

hed been given a high frequency of dead-end assignments compared to his White counterparts

since there is no analysis or comments regarding the companys history of widespread discrimination

(PKC Order 2) By broadening Mr Washingtons argument this allows him not to rule against the

Appellees In what appears to be a largely pre-determined ruling Hon Castel manages to keep this

extremely important civil rights case challenging insidious and intuitional racism in the American

workplace out of the court due to his own bias prejudice and conservative ideological agenda

ARGUMENTS

MR WASHINGTON IS LIKELY TO SUCCEEED ON APPEAL

I The District Court Intentionally Erred By Ignoring Mr Washingtons Valid Arguments to the Enforceability of the Arbitration Agreements Provisions Omitting the Undisputed Historical Statistical and Circumstantial Evidence and Misapplying the Applicable Law in Favor of William Morris

Given the circumstances surrounding both parties entering into this agreement and the

uniqueness of Mr Washingtons defense determining unconscionability of provisions stating that

any claim dispute andor controversy including discrimination and retaliation must be

arbitrated requires the application of both the Federal Arbitration Act (FAA) and Civil Rights Act

of 1964 (Title VII)

A Federal Policy Favoring the Federal Arbitration Act

In Gilmer v InterstateJohnson Lane Corp 111 S Ct 1647 1651 (1991) the Court

determined that the purpose of the FAA was to place arbitration agreements upon the same footing

as other contracts and that questions of arbitrability must be addressed with a healthy regard for the

federal policy favoring arbitration (citing Moses H Cone Memorial Hosp v MereUI) Const Corp

460 US I 24 103 S Ct 927 74 L Ed 2d 765 (1983)) Section 2 of the FAA places arbitration

agreements on an equal footing with other contracts Buckeye Check Cashing Inc v Cardegna 546

US 440 443 126 S Ct 1204 163 LEd2d 1038 (2006) and requires courts to enforce them

-5shy


according to their tenns Volt Infonnation Sciences Inc v Board of Trustees of Leland Stanford

Junior Univ 489 US 468478 109 S Ct 1248 103 LEd2d 488 (1989) save upon such grounds

as exist under law or in equity for the revocation of any contract sect 2

Like other contracts they may be invalidated by generally applicable contract defenses such

as fraud duress or unconscionability Doctors Associates Inc v Casarotto 517 US 681 687 116

SCt 1652 134 LEd2d 902 (1996) There are two types of validity challenges under sect 2 One type

challenges specifically the validity of the agreement to arbitrate and [t]he other challenges the

contract as a whole either on a ground that directly affects the entire agreement (eg the agreement

was fraudulently induced) or on the ground that the illegality of one of the contracts provisions

renders the whole contract invalid Buckeye 546 US at 444 126 SCt 1204 Also under New

York law an illegal contract malum in se is unenforceable and can be voided Tracy v Talmage 14

NY 162 179 (1856)

In detennining whether a contract is unconscionable a court should take a flexible

approach examining all the facts and circumstances of a particular case See Brennan v Bally

Total Fitness 198 F Supp2d 377383 (SDNY 2002) (quoting In reo Estate of Friedman v Egan

64 AD2d 70 (2d Dept 1978) (emphasis added) Under New York law a contract is unconscionable

when it is so grossly unreasonable or unconscionable in the light of the mores and business practices

of the time and place as to be unenforcible [sic] according to its literal tenns Gillman V Chase

Manhattan Bank NA 73 NY2d I 537 NYS2d 787 534 NE2d 824 828 (1988) Generally

there must be a showing that such a contract is both procedurally and substantively unconscionable

Id The procedural element of unconscionability concerns the contract fonnation process and the

alleged lack of meaningful choice the substantive element looks to the content of the contract per

se State v Wolowitz 96 AD2d 47468 NYS2d 131 145 (1983) See also Desiderio v National

Assn of Sec Dealers Inc bull 191 F3d 198207 (2d Cir1999) (A contract or clause is unconscionable

when there is an absence of meaningful choice on the part of one of the parties together with contract

tenns which are unreasonably favorable to the other party) While detenninations of

-6shy


middot

unconscionability are ordinarily based on [a] conclusion that both the procedural and substantive

components are present there have been exceptional cases where a provision of the contract is so

outrageous as to warrant holding it unenforceable on the ground of substantive unconscionability

alone Gillman 73 NY2d at 12

The Supreme Court has held that a federal court may consider only issues relating to the

making and performance of the agreement to arbitrate and that arbitrators are to decide issues

relating to the enforceability of the contract as a whole Prima Paint Corp v Flood amp Conklin Mfg

Co 388 US 39540487 SCt 1801 18 LEd2d 1270 (1967) Given the narrowed argument raised

by Mr Washington determining unconscionability of the provisions in question is to be decided by a

judge not an arbitrator

B Using the Civil Rights Act of 1964 As A Lens To Determine Unconscionability

Title VII prohibits intentional acts of employment discrimination based on race color

religion sex and national origin 42 USC sect 2000e-2(a)(l) (disparate treatment) as well as policies

or practices that are not intended to discriminate but have a disproportionately adverse effect on

minorities sect 2000e-2(k)(I)(A)(i) (disparate impact)

In pattern-Of-practice disparate treatment cases Plaintiffs must establish by a preponderance

of the evidence that the Defendant took the challenged action because of its adverse effects on the

protected class Watson v Fort Worth Bank amp Trust 487 US 977 985-986 (1988) and that such

intentional discrimination was the Defendants standard operating procedure Intl Bhd of

Teamsters v United States 431 US 324 336 (1977) While federal district courts sitting in New

York State have expressed doubt concerning the applicability of a pattern and practice claim in an

individual action (see eg Blake v Bronx Lebanon Hospital Center 2003 US Dist LEXIS 13857

2003 WL 21910867 [SDNY 2003]) there have been a few cases that have accepted such claims in a

non-class action setting See Quinn v JP Morgan Chase amp Co 12 Misc3d 1160 819 NYS2d 212

[Sup Ct New York County 2006]) Hughes v UPS (2004 NY Slip Op 510008 [NY Sup Ct 2004])

In order to meet this burden Plaintiffs typically depend on two types of circumstantial

evidence (1) statistical evidence aimed at establishing the Defendants past treatment of the

-7shy


protected group and (2) testimony from protected class members detailing specific instances of

discrimination Robinson v Metro-North Commuter RR 267 F3d 147 158 (2d Cir 2001) As the

Supreme Court has observed statistical evidence of workforce disparities is particularly probative of

widespread intentional discrimination

Statistics showing racial or ethnic imbalance are probative in [disparate-treatment cases] because such imbalance is often a telltale sign of purposeful discrimination absent explanation it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired Evidence of long-lasting and gross disparity between the composition of a work force and that of the general population thus may be significant

Teamsters 431 US at 340 n20 (emphasis added) Therefore although anecdotal evidence

may be useful to bring the cold numbers convincingly to life ld at 339 statistical evidence is

sufficient on its own to establish a prima facie case Robinson 267 F3d at 158-59 Rossini v Ogilyy

amp Mather Inc 798 F2d 590 604 (2d Cir 1986)

Given that there were zero African Americans or Hispanics employed as of September 2008

at any level within William Morris New York City Agent Trainee program this is known as the

inexorable zero Zero is not just another number it speaks volumes and clearly supports an

inference of discrimination See Barner v City of Harvey No 95 Civ 3316 1998 WL 664951 at

50 (NDill Sept 18 1998)) see also Capaci v Katz amp Besthoff Inc 711 F2d 647 662 (5th

Cir1983) (To the noble theoretician predicting the collisions of weightless elephants on frictionless

roller skates zero may be just another integer but to us it carries special significance in discerning [ ]

policies and attitudes) In Ortiz-Del Valle v National Basketball Assn 42 F Supp 2d 33 (SDNY

1999) the Southern District of New York recognized that evidence of an inexorable zero amongst

NBA female referees can support a jurys finding ofdiscrimination against a motion for judgment as a

matter of law Likewise in Ewing v Coca Cola Bottling Co No 00 CIV 7020 (CM) 2001 WL

767070 (SDNY June 25 2001) a case of racial and ethnic discrimination at the New York bottling

plant the court noted that the inexorable zero was sufficient to defeat a motion to dismiss because a

-8shy


near-zero promotion rate of minorities into higher-skilled jobs reflected de facto segregation and

therefore supported an inference of intentional discrimination

Evidence of historical discrimination can draw an inference of purposeful discrimination in

cases where it can be shown that discriminatory practices were commonly utilized [and] were

abandoned when enjoined by courts or made illegal by civil rights legislation [then] were replaced by

laws and practices which though neutral on their face serve to maintain the status quo Rogers v

Lodge 458 US 6l3 102 SCt 327232813280 73 LEd2d 1012 (1982) If the Plaintiff makes out

a prima facie case the burden then shifts to the employer to defeat the prima facie showing of a

pattern or practice by demonstrating that the [Plaintiffs] proof is either inaccurate or insignificant

Teamsters 431 US at 360 The Second Circuit has clarified the means by which a defendant can

meet this burden ofproduction

Three basic avenues of attack are open to the defendant challenging the plaintiffI s ] statistics namely assault on the source accuracy or probative force The defendant can present its own statistical summary treatment of the protected class and try to convince the fact finder that these numbers present a more accurate complete or relevant picture than the plaintiffs statistical showing Or the defendant can present anecdotal and other non-statistical evidence tending to rebut the inference of discrimination The prudent defendant will follow all three routes if possible presenting its own version of the numbers game attempting to undennine the plaintiffs version with specific attacks on [the] validity of the plaintiffs statistics and garnering nonmiddot statistical evidentiary support as wen

Robinson 276 F3d at 159 (quoting 1 Arthur Larson et al Employment Discrimination sect 903(2) at

9-23 to 9-24 (2d ed 2001 ))

The establishment of the prima facie case creates a mandatory presumption that the employer

unlawfully discriminated against the employees St Marys Honor Center v Hicks 509 US 502506

(1993) This presumption is therefore more than just an inference or a threshold showing it is a

predicate finding that obligates the employer to come forward with an explanation or contrary proof

Teamsters 431 US at 361 Hicks 509 US at 506 If the employer fails to respond to Plaintiffs

prima facie case or if it fails to carry its burden to dispel the prima facie case then the court must

find the existence of the presumed fact of unlawful discrimination and must therefore render a

verdict for the plaintiff Hicks 509 US at 509-10 n3 (emphasis in original) see also Burdine 450

-9shy


US at 254 ([1]f the employer is silent in the face of the presumption the court must enter judgment

for the plaintiff because no issue of fact remains in the case) Teamsters 431 US at 361 The proof

of the pattern or practice supports an inference that any particular employment decision during the

period in which the discriminatory policy was in force was made in pursuit of that policy

Teamsters 431 US at 362 (emphasis added) This includes the decision to compel all employees

to arbitration although the company benefited the most from protecting itself from possible racial

discrimination claims given its continued engagement in its discriminatory practices policies andor

procedures If the Defendant meets its burden of production the trier of fact then must consider the

evidence introduced by both sides to detennine whether the plaintiffs have established by a

preponderance of the evidence that the defendant engaged in a pattern or practice of intentional

discrimination Robinson 276 F3d at 159

Like pattern-or-practice disparate treatment claims disparate impact claims are attacks on

the systemic results of employment practices Segar v Smith 738 F2d 1249 1267 (DCCir1984)

However where the inquiry in a pattern-or-practice disparate treatment claim is focused on

detennining the existence of discriminatory intent disparate impact claims are concerned with

whether employment policies or practices that are neutral on their face and were not intended to

discriminate have nevertheless had a disparate effect on the protected group See Griggs v Duke

Power Co 401 US 42443291 SCt 84928 LEd2d 158 (1971) (stating that an employers good

intent is irrelevant to a disparate impact claim)

Disparate impact claims involve three stages of proof The first is the prima facie showing of

disparate impact It requires Plaintiffs to establish by a preponderance of the evidence that the

employer uses a particular employment practice that causes a disparate impact on the basis of race

color religion sex or national origin 42 USC sect 2000e-2(k)(l)(A)(i) To make this showing a

plaintiff must (I) identifY a policy or practice (2) demonstrate that a disparity exists and (3) establish

a causal relationship between the two If the employer is unable to successfully contest the Plaintiffs

evidence the employer can try to demonstrate that the challenged practice or policy is job related for

the position in question and consistent with business necessity 42 USc sect 2000e-2(k)(l )(A)(i) If

-10shy


bull j

the employer fails to demonstrate a business justification for the policy or practice see 42 USC sectsect

2000e-2(k)(1 )(A)(i) 2000e(m) then the plaintiffs prevail If the employer succeeds in establishing a

business justification however the disparate impact claim proceeds to a third stage See EEOC v

Joes Stone Crab Inc 220 F3d 1263 1275 (11th Cir2000) During the third stage the burden of

persuasion shifts back to the Plaintiff to establish the availability of an alternative policy or practice

that would also satisfY the asserted business necessity but would do so without producing the

disparate effect See 42 USC sect 2000e-2(kXI )(A)(ii) (C) Joes Stone Crab Inc 220 F3d at 1275

William Morris failed to dispel the prima Jacie case showing that the provisions within the

arbitrations agreement are tainted with illegality are substantially unconscionable and ultimately

serves as a legal pretext to for the company to continue its atrocious discriminatory actions without

any serious ramifications By default the judge must find and conclude that these terms are

substantially unconscionable - so much so that they are extremely outrageous As a result the

terms should be severed from falling under the scope of the language which states that any claim

dispute andor controversy must be arbitrated See Circuit City Stores Inc v Adams 279 F3d 889

896 (9th Cir 2002) Armendariz v Foundation Health Psychcare Services Inc 99 Cal Rptr 2d 745

6 6 P3d at 696 (Cal 2000) (If the illegality is collateral to the main purpose of the contract the

illegal provision can be extirpated from the contract by means of severance or restriction then such

severance and restriction are appropriate) In addition the Delegation Provision giving the

arbitrator the exclusive authority to resolve any dispute within the arbitration agreement would be

voided because of the procedural unconscionability which exists and the fact that the provisions are

malum inse

C ORegan v Arbitration Forums Inc

The only remotely similar case I could find in which antidiscrimination laws were used to

challenge the enforceability of an arbitration agreement was ORegan v Arbitration Forums Inc 246

F3d 975 (7th Cir2001) Both the district and the appellate court found that based on the evidence

presented and arguments raised ORegan was unsuccessful in arguing that the non-negotiable

arbitration agreements issued by her employer created a disparate impact against four women who

-11shy


refused to the terms of the agreement and were subsequently fired Whats important for the sake of

my case is that the district judge had no difficulty combining Title VII within the framework of the

Federal Arbitration Act This case serves as further indication that my arguments are legitimate

logical and should have been decided through careful analysis of both the laws governing FAA and

Title VII

Additionally in Miriam A Cherrys Not-So-Arbitrary Arbitration Using Title VII Disparate

Impact Analysis To Invalidate Employment Contracts That Discriminate published in the Harvard

Womens Law Journal Cherry advocate[es] the use of a Title VII disparate impact claim[s] against

employers with a history of discriminatory workplace practices choosing to institute pre-dispute

mandatory arbitration policies and believes this litigation strategy holds promise invalidating

arbitration contracts I ask that the Second Circuit apply the correct standard of review and reverse

Hon Castels erroneous decision

THERE IS A STRONG PUBLIC INTEREST THAT TIDS CASE STAY IN THE

FEDERAL COITRT TO COMBAT INSIDIOUS AND INSTITIONAL RACISM IN THE

AMERICAN WORKPLACE IN ADDITION TO ADDRESSING HOLLYWOODS

CABAL-LIKE PRACTICES WIDCR PERPETUATES RACISM IN AMERCA

Although this is an individual claim of racial discrimination Im attempting to correct a

systematic wrong Whats troubling is that after Hon Castel ignored all of the undisputed historical

statistical and circumstantial evidence showing that William Morris has acted with malice or with

reckless indifference toward the federally protected rights of African Americans and other

minorities (42 U S C sect1981 a(b )(1)) he states Plaintiff has not shown that Congress intended to

preclude arbitration for claims asserted under either Title VII or 42 USC sect 1981 (PKC Order 18)

Theres no way the legislative history surrounding the passage and interpretation of one of Americas

landmark pieces of modem social legislation - the Civil Rights Act of 1964 - was considered given

his refusal to acknowledge the historical evidence mentioned above If he had I would not be

appealing his decision today

The purpose of the Act was to remove barriers that have operated in the past to favor an

identifiable group of white employees over other employees Griggs 401 US at 429-30 (emphasis

-12shy


added) See also Franks v Bowman Transp Co Inc 424 US 747 763 (1976) (Congress intended

to prohibit all practices in whatever form which create inequality in employment opportunity due to

discrimination [prohibited by Title Vll] and ordained that its policy of outlawing such

discrimination should have the highest priority) (emphasis added) United Steelworkers v Weber

443 US 193 202 (1979) (Congress primary concern in enacting the prohibition against racial

discrimination in Title VII of the Civil Rights Act of 1964 was with the plight of the Negro in our

economy) (quoting Senator Humphrey 110 CONGo REC 6548)

In less than 50 years since the passage of the Act what progress have African Americans

made in areas of employment A strong indicator of that progress if any would be the national

unemployment rate If one were to look at the unemployment numbers for the month of August there

is an extreme reason for concern Last month the African American unemployment rate reached its

peak now sitting at 167 percent - the highest its been since 1984 (the year I was born)2 For African

American males 20 years and older the rate is now at 18 percent For Whites the overall rate

currently remains unchanged at 8 percent compared to the previous month and 77 percent for White

males of the same age group Historically the unemployment rates for African Americans have

remained double that of Whites however as the number of African Americans graduating from

colleges and receiving advanced degrees increased the gap between the two groups over time should

have decreased This is a result of employers continuing to exclude qualified minorities from

meaningful opportunities of employment in an effort to preserve white supremacy

There is an incredible amount of sociological research and literature detailing how racism and

discrimination operates within the contemporary workplace and at the macro level of society 3

2 Sylvia Allegretto Ary Amerikaner and Steven Pitts Black Employment and Unemployment in August 2011 UC Berkeley Center for Labor Research and Education September 2 2011 3 See Devah Pager and Bruce Western Race at Work Realities ofRace and Criminal Record in the NYC Job Market Department of Sociology - Princeton University (December 9 2005) (black job seekers fair no better when white men release from prison) Marianne Bertrand and Sendhil Mullainathan Are Emily and Greg More Employable than Lakisha and Jamal A Field Experiment on Labor and Market Discrimination University of Chicago Graduate School ofBusiness (June 20 2004) (conducted experiment in which they concluded African Americans with African sounding names get fewer callbacks for each resume they send out and face differential treatment when

-13shy


Although public attitudes have shifted over the last five decades bias continues to operate throughout

the workplace although in a subtle and covert fashion 50 See Arnan v Cort Furniture Rental

Corp 85 F3d 1074 1081-82 (3d Cir1996) (It has become easier to coat various forms of

discrimination with the appearance of propriety or to ascribe some other less odious intention to what

is in reality discriminatory behavior In other words while discriminatory conduct persists violators

have learned not to leave the proverbial smoking gun behind) Now that the nation has elected its

first black president the incorrect belief that we have now achieved post-racial status as a society

ultimately serves to legitimate the practice of continued discrimination against racial minorities

Labeled post-racial discrimination this is problematic particularly for the Court because based on

these false assumptions it is believed that (1) current racial minorities are no longer the victims of

significant discrimination (2) as a result race-conscious effort to benefit racial minorities at the

expense of whites constitutes a form of reverse discrimination against whites that must be prevented

in the name of racial equality as evident by the ruling of Ricci v Destafano 129 S Ct 2658 (2009)

and (3) because the post-racial playing field is now level any disadvantages that racial minorities

continue to suffer must be caused by their own shortcomings rather than by the lingering effects of

now-dissipated past discrimination

Its been twenty years since Congress amended Title vn with the Civil Rights Act of 1991 shy

which in theory was intended to strengthen disparate impact by overturning Wards Cove Packing Co

v Atonio 490 US 642 109 SCt 2115 104 LEd2d 733 (1989) In that same span of time less than

two African Americans have been promoted to Agent through the Agent Trainee program in New

York City If corporations have been able to maintain their discriminatory practices with little

regulatory interference then one can conclude that the law has been ineffective in achieving its

intended purposes and goals 68

searching for jobs) Laura Giuliano David I Levine and Jonathan Leonard Manager Race and the Race of New Hires (July 2008) (examined whether the race or ethnicity of the hiring manager affects the racial composition ofnew hires) 4 Girardeau A Spann Disparate Impact The Georgetown Law Journal Volume 98 1133 1134 (2010)

-14shy


Law professor Tristin K Green advocates the need for a structural accOlmt of disparate

treatment theory to hold employers directly liable for organizational structures and institutional

practices that unreasonably enable the operation of discrimination bias in the workplaces In my

Complaint filed December 201 0 I state that the Companys decision to hire five African Americans a

month after they were notified by the EEOC that I filed a complaint of racial discrimination was a

perfunctory decision designed to create the illusion that the company was an equal opportunity

employer and that it should not be viewed as a panacea for their wrongdoing n 163-171 By

August 2011 at least four of those African Americans are no longer employed with the company shy

and Im sure none were overtly discriminated against or could pinpoint a discrete isolated or easily

identifiable decision that excluded them from advancing or staying with the company However its

the discriminatory organizational structure institutional practices and work culture defined along

racial lines that make it impossible for minorities to succeed 45

Every major talent agency (eg Creative Artists Agency (CAA) International Creative

Management (ICM) United Talent Agency (UTA) etc) has a similar racial makeup to William

Morris Not only is it the talent agencies but its also the studios the networks the media production

companies advertising etc and majority happen to be based in New York City This presents a much

larger societal problem because when it comes to forming ideas reinforcing stereotypes establishing

norms and shaping our thinking nothing affects and conditions us more than the images and concepts

delivered into our lives on a daily basis by television and filml6 64-67 There is inverse between

the racial make-up of the decision makers and (1) the number of actors and entertainers who are least

represented on television film and within the media at large and (2) how the other race is

portrayed depicted andor stereotyped through these powerful mediums of persuasion Given the

consistent bias throughout the media television and film by those in power who have a clear animus

5 Tristin K Green Discrimination in Workplace Dynamics Toward a Structural Accooot ofDisparate Treatment Theory Harvard Civil Rights-Civil Liberties Law Review Volume 38 91-156 (2003) See also Tristin K Greens Targeting Workplace Context Tide VII As a Tool for Institutional Reform Fordham Law Review Volume 72 Issue 3 (2003) Work Culture and Discrimination California Law Review Vol 93 No3 (2005) A Structural Approach As Anticdiscrimination Mandate Locating Employer Wrong 60 Vanderbilt Law Review 849 (2007) 6 Kweisi Mfume Presidents Note in Out ofFocus Out ofSync Take 3 NAACP (2003)

-15shy


or bias towards non-Whites this becomes nothing short of special interest propaganda John W

Cones Esq summarizes the issue best by stating

[I]t is time that this privately controlled culture-promotion machine be dismantled so that all segments of this nations multi-cultural society have an equal opportunity to tell their important cultural stories through this significant medium for the communication of ideas After all it is also clear that regardless of who controls Hollywood and with what results it is absolutely inappropriate in our multi-cultural society for any readily identifiable interest group (whether the group identity is based on ethnicity culture religion class or otherwise) to be allowed to dominate or control this or any important communications medium Diversity is the key7

This case demonstrates that the Obama Administrations beliefs that universal colorblind

public policies are the solution in addressing these problems - when insidious and institutional racism

still exists are shortsighted ~~ 171-173 If race conscious actions wont be taken due to political

reasons then it is even more imperative that this countrys civil and human rights laws be strictly

enforced This case should serve as a strong deterrence to similar tortfeasors that if there is a gross

underrepresentation of minorities employed in the modem workplace theres a strong chance that

somewhere along the line they are engaging (consciously or unconsciously) in discriminatory

practices policies andor procedures mr 41-49 The United States of America must realize that its

greatest natural resource is its diversity and until we truly act as a democracy this system will

continue to crumble ~~ 56 69 These conditions are completely malleable but they wont

miraculously fix themselves We can no longer make excuses Its time for employers who are in

violation of these laws to fmally be held accountable for their actions

FURTHER DELAY WILL CREATE IRREPARABLE HARM DUE TO MY ECONOMIC HARDSHIPS HEALTH AND OTHER CIRCUMSTANCES

Due to my dire economic circumstances I am unsure how much longer I will be able to

survive handling this case without a job I am still living out of the two suitcases I moved to New

York City with three years ago and if it werent for family I would be homeless ~ 162 Finding jobs

in this industry is based largely on word of mouth nepotism and cronyism which I have

demonstrated creates a disparate impact on minorities if the workforce is predominately all White

7 John W Cones Esq Whats Really Going On In Hollywood 1997

-16shy


41-49 It also doesnt help that although I am qualified for a number ofjobs any person receiving

my resume and conducting a background check on who I am will immediately find out about this

pending lawsuit which has been mentioned in the HujJington Post Billboard and the Associated

Press further limiting my chances for a callback 160-161 This pending case also limits my

ability to apply for jobs outside of the city Even going back to school is currently not an option due

to the effects unemployment has had on my inability to repay my federal and private student loans

which are in excess of $100000 (Exhibit B)

As one can imagine this has created an extreme amount of stress and anxiety due to the harm this

case has created to my employability and earning capacity uncertainty regarding my future constant

feelings of helplessness and inability of reaching my full potential amongst other things While working

within William Morris discriminatory environment I experienced a mnnber of gastrointestinal and

urinary health problems (Exhibit C) Now these stress related health problems have resurfaced

physically as I am beginning to notice a small mass growing back in an area that I had surgery For more

than a year I have been unable to receive follow-ups from my physicians because I am now without health

insurance Although I am finding constructive ways to remain positive - eg yoga and volunteering my

health is slowly deteriorating

I can demonstrate that had I been White I would have been hired into the company as an Agent

based on my qualifications and work experience I can also show that had I been free from working in a

discriminatory environment I would currently be a top earner amongst my White colleagues who were

promoted above me and are now Agents This is a pivotal time in my career and as a result my

livelihood and reputation are on the line and largely dependent on the outcome of this case I have had

to overcome a number of insurmountable obstacles throughout my life and I refuse to accept the

belief that because of my race I am or my qualifications are inherently inferior At this stage if

William Morris isnt able to provide a nondiscriminatory reason for the many instances of individual and

systemic disparate treatment against African Americans or show a business necessity for the numerous

ostensibly race neutral practices policies andor procedures that have intentionally created a disparate

impact on minorities then no real triable issues exist as majority of racial discrimination cases have been

-17shy


proven with substantially far less evidence As a result a request for an expedited discovery and jury trial

in addition to the repayment of the unemployment Ive Jost as a result of irreparable harms caused by this

further delay will be sought

GROUNDS FOR THE DISQUALIFICATION of BON CASTEL AND BON FRANCIS PURSUANT TO 28 USC 455 AND 28 USC 2106

On August 9 2011 while working on my FRCP RIDe 59(e) Motion for Reconsideration I

was informed by the Pro Se office that my case [was] closed and that any documents appealing

Hon Castels decision would have to be submitted to the Second Circuit Since I was unable to

directly express my concerns regarding Hon Castels harmfully erroneous ruling I am using this

motion to procedurally express in writing that I am seeking the disqualification of both Hon Castel

and Hon Francis for the pervasive and persistent doubts raised by their actions inside as well as

outside the court Although I am not seeking an answer on this matter from this motion I want to

preserve my request here so that there will not be any issues when my brief is filed requesting the

same relief

Upon ascending the bench every federal judge takes an oath to faithfully and impartially

discharge and perform all the duties ofjudicial office The Code ofConduct for United States Judges

also cautions judges to act at all times in a manner that promotes public confidence in the integrity

and impartiality of the judiciary and to avoid impropriety and the appearance of impropriety in all

activities By its terms 28 USC sect 455 simply states that [a] judge shall disqualify himself under

the circumstances specified In so stating it obligates disqualification regardless of whether a motion

to disqualify has been filed 28 USC 445(a) compels disqualification for the appearance of

partiality while section (b) also compels disqualification for bias financial interest and other

specific grounds The question to be decided is whether a judges impartiality might be questioned

from the perspective of a reasonable person and every circuit has adopted some version of the

reasonable person standard to answer this question8 The Second Circuit has characterized the

8 Judicial Disqualification An Analysis ofFederal Law Federal Judicial Center 2nd ed 2010

-18shy


reasonable person as an objective disinterested observer who is privy to full knowledge of the

surrounding circumstances United States v Bayless 201 F3d 116 126 (2d Cir 2000)

While conducting a background check into the history of both Hon P Kevin Castel and Hon

James C Francis I am beyond certain that there is absolutely no way these judges can be impartial on

an employment discrimination case challenging insidious and institutional racism Due to the FRAP

27(d)(2) page limit on this motion I will reserve my brief to discuss in depth my concerns of Hon

Castel presiding over this case However I will use the remainder of this motion to focus on Hon

Castels decision to select Hon Francis as the Magistrate Judge for this case

Its not surprising that Hon Francis has already presided over a case involving William

Morris - with Michael Zweig of Loeb amp Loeb LLC also acting as the attorney - in Rowe

Entertainment v William Morris Agency Inc 205 FRD 421 (SDNY2002) In this case black

concert promoters brought suit against booking agencies and other promoters contending that they

were frozen out of the market for promoting events with white bands due to the discriminatory and

anti-competitive practices of William Morris and other talent agencies Based on the evidence

presented in my case its obvious that William Morris deep-rooted animus towards African

Americans and other racial minorities influenced their decision to keep them from participating in the

marketplace Having access to emails during discovery takes on heightened importance in

discrimination cases because there is rarely a smoking gun and due to the privacy associated with

this method of communication individuals have a greater likelihood of making discriminatory or

inappropriate comments in an email than being caught saying it publicly However Hon Francis

ruling in favor of William Morris helped dismiss the case and in the process established new rules for

the process of cost shifting during electronic discovery

Professionally this has helped Hon Francis gain further notoriety as evident by the number of

speaking engagements hes participated in the last few years Most recently both he and Hon Castel

participated in NYUs 13th Annual Employment Law for Federal Judges workshop in March 2010

(Exhibit D) However a month earlier he (along with 22 other federal judges) was a featured

panelist at the American Conference Institutes Premier Forum on Defending and Managing

-19shy


Employment Discrimination Litigation (Exhibit E) Why are judges being paid to provide advice

to corporations and their in-house counsel on how to maintain and defend against discrimination in

the workplace This is a complete and total conflict of interest and further raises doubts about the

judiciarys ability to remain impartial on a case of this magnitude if there is a direct financial interest

for some judges politicians etc to keep the human race divided Hon Castel wouldnt choose

someone whom he didnt feel shared similar beliefs values and ideologies illtimately they are one

in the same

The appellate courts have employed 28 USc sect 2106 to disqualify judges on appeal and have

interpreted this statute to require reassignment to a different judge on remand when removal is

essential to preserve[] both the appearance and reality of fairness Cobell v Kempthorne 455 F3d

317332 (Dc Cir 2006) I ask that an impartial and objective set ofjudges be assigned to handle the

remainder of this case

CONCLUSION

Based on the correct legal standard of review Hon Castel not only would have determined that the

provisions discrimination and retaliation were unconscionable but he also would have had

enough reason to convert their motion for arbitration into summary judgment on my disparate impact

claims based on the evidence submitted establishing a prima facie plus pretext case that the

arbitration agreements were savvy legal tool for the company to have minorities waive their civil and

human rights as a condition of employment so that they could continue their egregiously

discriminatory practices with little legal repercussions (-r-r 535562-67 PI Opp Motion 3-12)

As a result of Hon Castels extreme bias and partiality in favor of the Appellees this case has

been harmfully delayed in an attempt to make me tap out due to my economical and financial

inability to compete long term with the Appellees For the reasons stated above I respectfully ask that

the Second Circuit grant my request for an expedited appeal in which I propose the following brief

scheduling deadline No later than October 17 2011 Appellant submits brief Appellees have 10 days

to respond and Appellant has 3 days to reply

-2()


Dated New York New York Respectfully submitted September 28 20 I I

54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com


UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

CAJYfION

___-=-________ vWashington

CERTIFICATE OF SERVICE William Moms Endeavor Entertainment LLC et at Docket Number 11-3576-CV

I Marcus Isaiah Washington hereby certify under penalty of perjury that on (name)

September 28 2011 I served a copy the Form T-1080 Motion Information Statement

Affirmation and MeIllOlB~~~Law in support of emergency motion for an expedited appeal to reverse the harmfully erroneous and biased decision of Han Castel

(list all documents)

by (select all applicable)

o United States Mail o Federal Express D Overnight Mail DFacsimile DE-mail [Z] Hand delivery

on the following parties (complete all information and add additional pages as necessary)

lilY uYI~ 345 Park Avenue 18th Floor New York NY 10154

Name Address City State Zip Code




September 28 2011

Todays Date

Ifdifferent methods of service have been used on different parties please indicate on a separate page the type of service used for each respective party

Certificate of Service Form


TABLE OF AUTHORITIES

CASES

Amon v Cort Furniture Rental Cop 85 F3d 1074 (3d Crr1996) 14

Armendariz v Foundation Health P-)chcare Services Inc 99 Cal Rptr 2d 745 6 6 P3d at 696 (Cal 2000) 11

Barner v City rifHarvry No 95 Civ 3316 1998 WL 664951 at 50 (NDIll Sept 181998) 8

Blake v Bronx Lebanon Hospital Center 2003 US Dist LEXlS 138572003 WL 21910867 [SDNY 2003] 7

Brennan v Bay TotalFitness 198 F Supp2d 377 (SDNY 2002) 6

Buckrye Check Cashing Inc v Cardegna 546 US 440126 S Ct 1204163

LEd2d 1038 (2006) 5-6

Capaci v Katz amp Besthiff Inc 711 F2d 647 662 (5th Cir1983) 8

Circllit City Stores Tnc v Adams 279 F3d 889 896 (9th Crr 2002) 11

Cobell v Kempthorne 455 F3d 317332 (Dc Crr 2006) 20

Desiderio v NationalAssn rif Sec Dealers Inc 191 F3d 198207 (2d Crr1999) 6

Doctors Asfociates Tnc v Casarotto 517 US 681 116 S Ct 1652134 LEd2d 902 (1996) 6

EEOC v Joes Stone Cmb Inc 220 F3d 1263 1275 (11th Cir2000) 11

Ewing v Coca Cola Bottling Co No 00 ClV 7020 (CM) 2001 WL 767070 (SDNY June 252001) 8

Franks v Bowman Transp Co Inc 424 US 747 (1976) 13

Gillman v Chose Manhattan Bank NA 73 NY2d 1537 NyS2d 787 534

NE2d 824 828 (1988) 6-7

Gilmerv InterstateJohnson Lane Corp 111 S Ct 1647 (1991) 5

-iishy



(1971) 10 12





92774 L Ed 2d 765 (1983) 5















-iiishy






STATUTES


28 USc sect 455 and 2106 18-20









-ivshy





(September 1998) 12











(2007) 15

OTHER AUTHORITIES



NAACP (2003) 15




-vshy




























-1shy



























-2shy


~------


Motion 11)


























-3shy





























-4shy










ARGUMENTS







of 1964 (Title VII)









-5shy













NY 162 179 (1856)















-6shy


middot




























-7shy
























-8shy















9-23 to 9-24 (2d ed 2001 ))









-9shy





























-10shy


bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy

Case 11-3576 Document 18 0 09282011 405382 28

























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date





(1971) 10 12





92774 L Ed 2d 765 (1983) 5















-iiishy






STATUTES


28 USc sect 455 and 2106 18-20









-ivshy





(September 1998) 12











(2007) 15

OTHER AUTHORITIES



NAACP (2003) 15




-vshy




























-1shy



























-2shy


~------


Motion 11)


























-3shy





























-4shy










ARGUMENTS







of 1964 (Title VII)









-5shy













NY 162 179 (1856)















-6shy


middot




























-7shy
























-8shy















9-23 to 9-24 (2d ed 2001 ))









-9shy





























-10shy


bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date








STATUTES


28 USc sect 455 and 2106 18-20









-ivshy





(September 1998) 12











(2007) 15

OTHER AUTHORITIES



NAACP (2003) 15




-vshy




























-1shy



























-2shy


~------


Motion 11)


























-3shy





























-4shy










ARGUMENTS







of 1964 (Title VII)









-5shy













NY 162 179 (1856)















-6shy


middot




























-7shy
























-8shy















9-23 to 9-24 (2d ed 2001 ))









-9shy





























-10shy


bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date







(September 1998) 12











(2007) 15

OTHER AUTHORITIES



NAACP (2003) 15




-vshy




























-1shy



























-2shy


~------


Motion 11)


























-3shy





























-4shy










ARGUMENTS







of 1964 (Title VII)









-5shy













NY 162 179 (1856)















-6shy


middot




























-7shy
























-8shy















9-23 to 9-24 (2d ed 2001 ))









-9shy





























-10shy


bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date






























-1shy



























-2shy


~------


Motion 11)


























-3shy





























-4shy










ARGUMENTS







of 1964 (Title VII)









-5shy













NY 162 179 (1856)















-6shy


middot




























-7shy
























-8shy















9-23 to 9-24 (2d ed 2001 ))









-9shy





























-10shy


bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date





























-2shy


~------


Motion 11)


























-3shy





























-4shy










ARGUMENTS







of 1964 (Title VII)









-5shy













NY 162 179 (1856)















-6shy


middot




























-7shy
























-8shy















9-23 to 9-24 (2d ed 2001 ))









-9shy





























-10shy


bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date




~------


Motion 11)


























-3shy





























-4shy










ARGUMENTS







of 1964 (Title VII)









-5shy













NY 162 179 (1856)















-6shy


middot




























-7shy
























-8shy















9-23 to 9-24 (2d ed 2001 ))









-9shy





























-10shy


bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date































-4shy










ARGUMENTS







of 1964 (Title VII)









-5shy













NY 162 179 (1856)















-6shy


middot




























-7shy
























-8shy















9-23 to 9-24 (2d ed 2001 ))









-9shy





























-10shy


bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date












ARGUMENTS







of 1964 (Title VII)









-5shy













NY 162 179 (1856)















-6shy


middot




























-7shy
























-8shy















9-23 to 9-24 (2d ed 2001 ))









-9shy





























-10shy


bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date















NY 162 179 (1856)















-6shy


middot




























-7shy
























-8shy















9-23 to 9-24 (2d ed 2001 ))









-9shy





























-10shy


bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date




middot




























-7shy
























-8shy















9-23 to 9-24 (2d ed 2001 ))









-9shy





























-10shy


bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date


























-8shy















9-23 to 9-24 (2d ed 2001 ))









-9shy





























-10shy


bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date

















9-23 to 9-24 (2d ed 2001 ))









-9shy





























-10shy


bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date































-10shy


bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date




bull j





















malum inse







-11shy






Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date








Title VII
























-12shy
























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date


























-13shy


























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date




























-14shy


























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date




























-15shy
























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date


























-16shy





























-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date































-17shy














same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date
















same relief













-18shy





























-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date































-19shy








in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date










in the same






CONCLUSION














-2()






CAJYfION















September 28 2011

Todays Date








CAJYfION















September 28 2011

Todays Date




Washington vs WME Appeal Filing, Marcus Isaiah Washington, Workplace Racism

Documents

Transcript of Washington vs WME Appeal Filing, Marcus Isaiah Washington, Workplace Racism