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. Washington's Valid
Arguments to the Unenforceability of the Arbitration Agreement's
Provisions, Omitting the Undisputed Historical, Statistical and
Circumstantial Evidence and Misapplying the Applicable Law in
Favor of\Villiam 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. O'Regan 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 HOLLYWOOD'S 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
U.S.c. 455 AND 2106
18
CONCLUSION
20
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Case: 11-3576 Document: 18 Page: 2 09/28/2011 405382 28
TABLE OF AUTHORITIES
CASES
Amon v. Cort Furniture Rental Cop., 85 F.3d 1074 (3d Crr.1996) ................. 14
Armendariz v. Foundation Health P-!)chcare Services, Inc., 99 Cal. Rptr. 2d 745, 6, 6
P.3d at 696 (Cal. 2000) .................................... '" ..................... 11
Barner v. City rifHarvry, No. 95 Civ. 3316, 1998 WL 664951, at *50 (ND.Ill.
Sept. 18,1998) ........................................................................8
Blake v. Bronx Lebanon Hospital Center, 2003 U.S. Dist LEXlS 13857,2003 WL
21910867 [SDNY 2003]. ...........................................................7
Brennan v. Ba'!y TotalFitness, 198 F. Supp.2d 377 (S.D.N.Y. 2002) ..............6
Buckrye Check Cashing, Inc. v. Cardegna, 546 U.S. 440,126 S. Ct. 1204,163
L.Ed.2d 1038 (2006) ................................................................5-6
Capaci v. Katz & Besthiff, Inc., 711 F.2d 647, 662 (5th Cir.1983) ................8
Circllit City Stores, Tnc. v. Adams, 279 F.3d 889, 896 (9th Crr. 2002) ............ 11
Cobell v. Kempthorne, 455 F.3d 317,332 (D.c. Crr. 2006) .........................20
Desiderio v. NationalAss'n rif Sec. Dealers, Inc., 191 F.3d 198,207
(2d Crr.1999) ..........................................................................6
Doctor's As.fociates, Tnc. v. Casarotto, 517 U.S. 681, 116 S. Ct. 1652,134 L.Ed.2d
902 (1996) ............................................................................6
EEOC v. Joe's Stone Cmb, Inc., 220 F.3d 1263, 1275 (11th Cir.2000) ...........11
Ewing v. Coca Cola Bottling Co., No. 00 ClV. 7020 (CM), 2001 WL 767070
(S.D.N.Y. June 25,2001) ...........................................................8
Franks v. Bowman Transp. Co, Inc., 424 U.S. 747 (1976) ..........................13
Gillman v. Chose Manhattan Bank, NA., 73 N.Y.2d 1,537 N'y.S.2d 787, 534
N.E.2d 824, 828 (1988) ...........................................................6-7
Gilmerv. Interstate/Johnson Lane Corp., 111 S. Ct. 1647 (1991) ...................... 5
-ii
Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849,28 L.Ed.2d 158
(1971) ........................................................................... 10, 12
In reo Estate ofFriedman v. Egan, 64 A.D.2d 70 (2d Dept. 1978) .........................6
Int'l Bhd v. United States. 431 U.S. 324 (1977) .....................7-10
Hughes v. UPS, (2004 N.Y. Slip Op 510008 [NY Sup Ct 2004] .................7
Moses H. Cone Alemorial Hosp. 1!. Mercury Const. Corp., 460 U.S. 1,24, 103 S. Ct.
927,74 L. Ed. 2d 765 (1983) ...................................................... 5
O'Regan v. Arbitration Fomms, Inc., 246 F.3d 975 (7th Cir.2001) ................11
Ortiz-Del Valle v. National BasketballAss'n, 42 F. Supp. 2d 33
(S.D.N.Y.1999) .......................................................................8
Prima Paint Corp. t!. Flood & Conklin Mfg. Co., 388 U.S. 395,404,87 S. Ct.
1801,18 L.Ed.2d 1270 (1967) ......................................................7
Robinson v. Metro-North Commuter RR, 267 F.3d 147 (2d Cir. 2001) ............8-10
Ricci 1). Destafano, 129 S. Ct. 2658 (2009) ..........................................14
Rogers v. Lodge, 458 U.S. 613,102 S.Ct. 3272,3281-3280,73 L.Ed.2d 1012
(1982) .................................................................................9
Rowe Entertainment v. William Moms Agenry, Inc., 205 F.R.D. 421
(S.D.N.Y.2002) ......................................................................19
Rossini t'. Ogil1!J & Mather, Inc., 798 F.2d 590 (2d Cir. 1986) ..................... 8
Quinn v.JP Morgan Chase & Co., 12 Mise.3d 1160, 819 N.Y.S.2d212 [Sup Ct
New York County 2006] ............................................................7
St. Mary's Honor Centerv. Hicks, 509 U.S. 502 (1993) ............................9
Segarv. Smith, 738 F.2d 1249 (D.C.Cir.1984) ........................................10
State v. WolowitZl 96 A.D.2d 47, 468 N.y'S.2d 131, 145 (1983) .................... 6
Trary v. Talmage, 14 N.Y. 162 (1856) ...................................................6
United States v. B'!}less, 201 F.3d 116,126 (2d Cir. 2000) ........................19
-iii
United Steelworkers v. Weber, 443 U.S. 193 (1979) ................................. 13
Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d
733 (1989) ........................................................................... 14
Watson v. Fort Worth Bank & Trust, 487 U.S. 977,985-986 (1988) ..............7
Volt I1ifOrI!Jation Sciences, Inc. v. Board tifTrustees tifLeland Sta1ifOrdJunior Univ.,
489 U.S. 468,478,109 S. Ct. 1248,103 L.Ed.2d 488 (1989) ....................6
STATUTES
9 U.S.C. 1 et seq...................................................................5-6
28 USc. 455 and 2106 ......................................................18-20
42 U.S.C. 1891 et seq..... ......................................................1, 12
42 U.S.c. 2000e et seq................................................. 1, 7, 10-11
BOOKS AND JOURNAL ARTICLES
Dev'llh Pagel' and Bruce Western. "Race at Work: Realities of Race and
Criminal Record in the NYC Job Market." Department of Sociology
Princeton University. (December 9,2005) ....................................... 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 C'rtuliano, 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
-iv
"
Miriam Cherry. A. "Not So Arbitrary Arbitration: Using Title VII Disparate
Impact Analysis To Invalidate Employment Contracts That Discriminate."
Harvard Women's LawJournal 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. <'Targeting 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, No.3. (2005) .....................................................15
Tristin K Green. "A Structural Approach As Anticdiscrimination Mandate:
Locating Employer Wrong." 60 Vanderbilt Law Review 849:
(2007) ................................................................................ 15
OTHERAUTHORITIES
John W. Cones, Esq. ' ~ ' h a t ' s Really Going On In Hollywood?" 1997...16
Kweisi Mfume. President's Note in "Out of Focus, Out of Sync: Take 3."
NAAC'P. (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
-v
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 Castel's
harmfully erroneous Memorandum & Order entered on July 20, 2011. Mr. Washington's claims of
intentional racial discrimination in violation Section 1981 of the Civil Rights Act of 1866,42 U.S.c.
1981 ("Section 1981"), Title VII of the Civil Rights Act of 1964, as codified, 42 U.S.C. 2000e et
seq. ('''Title VII"), the New York State Human Rights Law, New York Executive Law 296 et seq.
(the "NYSHRL"), and the New York City Human Rights Law, New York Administrative Code 8
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. Castel's refusal to acknowledge Mr. Washington's argument, resulting a glaring
omission of pertinent 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. Washington's signature. Both "agreements" state that "any claim, dispute and/or
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.
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(Def. Motion, Exhibit C; PKC Order, 4.) Relying on the literal language within the "agreements" and
Mr. Washington's signature, the Appellees asked that contracts be enforced.
II. Appellant's Defense: Provisions within the Arbitration Agreement are Unconscionable
At the onset of Mr. Washington's 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 and/or 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 company's unlawful,
immoral and unethical discriminatory practices, polices and/or procedures. (pI. Opp. Motion 3-12.)
First, Mr. Washington demonstrates that "discrimination" is only "applicable to race, color
and/or national origin" by analyzing William Morris' historical treatment of other protected groups
(e.g. sex, religion and age). Secondly, Mr. Washington shows that because of the "inexorable zero,"
the "terms, conditions or privileges" are unequal based on the employee's race, color and/or national
origin because statistically, it's "impossible for White employees at William Morris to be
discriminated against on the basis of their race, color and/or national origin because Whites are
significantly overrepresented" in the workplace. (,,7,37, Exhibit C; PI. Opp. 5-6, 11.) As a result,
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~ , - - - - - - ",
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
"oftheir 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 contract's 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 and/or procedures without the scrutiny of both the Court and the
public. ( ~ ~ 53, 55, 62-67; PI. Opp. Motion 3-12.)
m. Appellees' Reply and Appellant's 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 WME's pattern and practice of discrimination, b) the arbitration
provisions are "unconscionable" and violate 42 U.S.c. 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. Washington's "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. Washington's third claim and misapply case law to show that his signature was
not signed "under undue influence and economic duress." (Def. Reply 3.)
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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 WME's
arbitration agreements be declared unconscionable." (PI. Letter to PKC, 1) To further demonstrate the
consistency of Mr. Washington's argument over the last seven months, in a letter sent to Hon. Castel
dated February 14,2011 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. Castel's Memorandum & Order
On July 20,2011, Hon. Castel submitted his Memorandum & Order and ruled in favor of the
Appellees by granting arbitration. However, this decision was reached as a result of Hon. Castel's
ignoring Mr. Washington argument, and instead, deciding an entirely different issue that wasn't raised
by the Appellant. Hon. Castel states that he is liberally construing Mr. Washington's 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" and/or 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. Washington's 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, plaintiff's other
arguments are for the arbitrator to decide." (PKC Order, 15.) (emphasis added.)
As a result of intentionally ignoring Mr. Washington's 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
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severity of the company's wrongdoing is diminished by creating the illusion to the individual reading
Hon. Castel's Order that this is simple case of disparate treatment due to Mr. Washington's belief that
he'd been given a high frequency of dead-end assignments compared to his White counterparts
since there is no analysis or comments regarding the company's history of widespread discrimination.
(PKC Order, 2.) By broadening Mr. Washington's 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. Washington's Valid Arguments to the
Enforceability of the Arbitration Agreement's 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. Washington's defense, determining unconscionability of provisions stating that
"any claim, dispute and/or 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. Interstate/Johnson 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 U.S. 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
U.S. 440, 443, 126 S. Ct. 1204, 163 L.Ed.2d 1038 (2006), and requires courts to enforce them
-5
according to their tenns, Volt Infonnation Sciences, Inc. v. Board of Trustees of Leland Stanford
Junior Univ., 489 U.S. 468,478, 109 S. Ct. 1248, 103 L.Ed.2d 488 (1989), "save upon such grounds
as exist under law or in equity for the revocation of any contract," 2.
Like other contracts, they may be invalidated by "generally applicable contract defenses, such
as fraud, duress, or unconscionability." Doctor's Associates, Inc. v. Casarotto. 517 U.S. 681, 687, 116
S.Ct. 1652, 134 L.Ed.2d 902 (1996). There are two types of validity challenges under 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 (e.g., the agreement
was fraudulently induced), or on the ground that the illegality of one of the contract's provisions
renders the whole contract invalid." Buckeye, 546 U.S., at 444, 126 S.Ct. 1204. Also, under New
York law, an illegal contract malum in se is unenforceable and can be voided. Tracy v. Talmage. 14
N.Y. 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. Supp.2d 377,383 (SD.N.Y. 2002) (quoting In reo Estate of Friedman v. Egan,
64 AD.2d 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. N.A. 73 N.Y.2d I, 537 N.Y.S.2d 787, 534 N.E.2d 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 AD.2d 47,468 N.Y.S.2d 131, 145 (1983); See also Desiderio v. National
Ass'n of Sec. Dealers. Inc . 191 F.3d 198,207 (2d Cir.1999) ("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
-6
,,
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 N.Y.2d 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 & Conklin Mfg.
Co., 388 U.S. 395,404,87 S.Ct. 1801, 18 L.Ed.2d 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 US.C. 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, 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 & Trust.. 487 US. 977, 985-986 (1988), and that such
intentional discrimination was the Defendant's "standard operating procedure." Int'l Bhd. of
Teamsters v. United States, 431 U.S. 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 e.g. 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 & Co., 12 Misc.3d 1160, 819 N.Y.S.2d 212
[Sup Ct New York County 2006]); Hughes v. UPS, (2004 N.Y. 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 Defendant's past treatment of the
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protected group, and (2) testimony from protected class members detailing specific instances of
discrimination." Robinson v. Metro-North Commuter RR, 267 F.3d 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 U.S. at 340 n.20. (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 F.3d at 158-59; Rossini v. Ogilyy
& Mather, Inc., 798 F.2d 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 (N.D.ill. Sept. 18, 1998)); see also Capaci v. Katz & Besthoff, Inc., 711 F.2d 647, 662 (5th
Cir.1983) ("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 Ass'n. 42 F. Supp. 2d 33 (SD.N.Y.
1999), the Southern District of New York recognized that evidence of an inexorable zero amongst
NBA female referees can support a jury's finding of discrimination 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 (S.D.N.Y. 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
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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 U.S. 6l3, 102 S.Ct. 3272,3281.3280, 73 L.Ed.2d 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 U.S. at 360. The Second Circuit has clarified the means by which a defendant can
meet this burden of production:
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 non
statistical evidentiary support as wen.
Robinson, 276 F.3d at 159 (quoting 1 Arthur Larson et al., Employment Discrimination 9.03(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. Mary's Honor Center v. Hicks, 509 U.S. 502,506
(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 U.S. at 361; Hicks, 509 U.S. 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 U.S. at 509-10 n.3 (emphasis in original); see also Burdine, 450
-9
, '.
U.S. 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 and/or
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 F.3d 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 F.2d 1249, 1267 (D.C.Cir.1984).
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. 424,432,91 S.Ct. 849,28 L.Ed.2d 158 (1971) (stating that an employer's "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 US.C. 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 US.c. 2000e-2(k)(l )(A)(i). If
-10
j
the employer fails to demonstrate a business justification for the policy or practice, see 42 U.S.C.
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.
Joe's Stone Crab., Inc., 220 F.3d 1263, 1275 (11th Cir.2000). 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 U.S.C. 2000e-2(kXI )(A)(ii), (C); Joe's Stone Crab, Inc .. 220 F.3d 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 and/or controversy" must be arbitrated. See Circuit City Stores, Inc. v. Adams. 279 F.3d 889,
896 (9
th
Cir. 2002); Armendariz v. Foundation Health Psychcare Services., Inc .. 99 Cal. Rptr. 2d 745,
6, 6 P.3d 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. O'Regan 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 O'Regan v. Arbitration Forums, Inc .. 246
F.3d 975 (7th Cir.2001). Both the district and the appellate court found that based on the evidence
presented and arguments raised, O'Regan was unsuccessful in arguing that the non-negotiable
arbitration agreements issued by her employer created a disparate impact against four women who
-11
refused to the terms of the agreement and were subsequently fired. What's 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. Cherry's "Not-So-Arbitrary Arbitration: Using Title VII Disparate
Impact Analysis To Invalidate Employment Contracts That Discriminate" published in the Harvard
Women's 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. Castel's 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 HOLLYWOOD'S
CABAL-LIKE PRACTICES WIDCR PERPETUATES RACISM IN AMERCA
Although this is an individual claim of racial discrimination, I'm attempting to correct a
systematic wrong. What's 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. 1981 a(b )(1)), he states: "Plaintiff has not shown that Congress intended to
preclude arbitration for claims asserted under either Title VII or 42 U.S.C. 1981." (PKC Order, 18.)
There's no way the legislative history surrounding the passage and interpretation of one of America's
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 U. S. at 429-30 (emphasis
-12
added). See also Franks v. Bowman Transp. Co, Inc., 424 U.S. 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 U.S. 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 16.7 percent - the highest it's 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 7.7 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 of Race 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 of Business. (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
-13
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 F.3d 1074, 1081-82 (3d Cir.1996) ("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."
It's been twenty years since Congress amended Title vn with the Civil Rights Act of 1991
which in theory was intended to strengthen disparate impact by overturning Wards Cove Packing Co.
v. Atonio. 490 U.S. 642, 109 S.Ct 2115, 104 L.Ed.2d 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 of new hires.)
4 Girardeau A Spann. "Disparate Impact" The Georgetown Law Journal. Volume 98: 1133, 1134.
(2010).
-14
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 workplace."s In my
Complaint filed December 201 0, I state that the Company's 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
and I'm 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, it's
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 (e.g. 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 it's 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 film.''l6 " 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 and/or 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. Green's "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, No.3: (2005); "A Structural Approach As Anticdiscrimination Mandate: Locating
Employer Wrong." 60 Vanderbilt Law Review 849: (2007).
6 Kweisi Mfume. President's Note in "Out ofFocus, Out of Sync: Take 3." NAACP. (2003).
-15
;;
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 nation's 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 key.7
This case demonstrates that the Obama Administration's 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 won't be taken due to political
reasons, then it is even more imperative that this country's 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, there's a strong chance that
somewhere along the line, they are engaging (consciously or unconsciously) in discriminatory
practices, policies and/or 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 won't
miraculously fix themselves. We can no longer make excuses. It's 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 weren't 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. "What's Really Going On In Hollywood?" 1997.
-16
" 41-49. It also doesn't 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 $100,000. (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 - e.g. 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 isn't 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 and/or procedures that have intentionally created a disparate
impact on minorities then no real triable issues exist as majority of racial discrimination cases have been
-17
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 I've 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 U.S.C. 455 AND 28 U.S.C. 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. Castel's decision would have to be submitted to the Second Circuit. Since I was unable to
directly express my concerns regarding Hon. Castel's 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 of Conduct 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 U.S.C. 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 U.S.C. 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 judge's 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 question.,,8 The Second Circuit has characterized the
8 "Judicial Disqualification: An Analysis ofFederal Law." Federal Judicial Center, 2
nd
ed. 2010.
-18
reasonable person as an "objective, disinterested observer" who is privy to full knowledge of the
surrounding circumstances. United States v. Bayless, 201 F.3d 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.
Castel's decision to select Hon. Francis as the Magistrate Judge for this case.
It's not surprising that Hon. Francis has already presided over a case involving William
Morris - with Michael Zweig of Loeb & Loeb, LLC also acting as the attorney - in Rowe
Entertainment v. William Morris Agency, Inc., 205 F.R.D. 421 (SD.N.Y.2002). 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, it's 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 he's participated in the last few years. Most recently, both he and Hon. Castel
participated in NYU's 13
th
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 Institute's "Premier Forum on Defending and Managing
-19
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
judiciary's 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 wouldn't choose
someone whom he didn't feel shared similar beliefs, values and ideologies. illtimately, they are one
in the same.
The appellate courts have employed 28 U.S.c. 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 F.3d
317,332 (D.c. 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 53,55,62-67; PI. Opp. Motion 3-12.)
As a result of Hon. Castel's 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
humanrights.areamust@gmai1.com
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
CAJYfION:
___-=-________ v. Washington
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 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'
u.,....
345 Park Avenue, 18th Floor New York NY 10154
Name Address City State Zip Code
September 28. 2011
Today's Date
*If different 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

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