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
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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
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Case 11-3576 Document 18 Page 3 09282011 405382 28
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
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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
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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
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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
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(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
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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
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)
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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 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
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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
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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
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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
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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 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
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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 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
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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
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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
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Case 11-3576 Document 18 Page 17 09282011 405382 28
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
Case 11-3576 Document 18 Page 18 09282011 405382 28
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
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Case 11-3576 Document 18 Page 19 09282011 405382 28
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)
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Case 11-3576 Document 18 Page 20 09282011 405382 28
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)
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Case 11-3576 Document 18 Page 21 09282011 405382 28
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
Case 11-3576 Document 18 Page 22 09282011 405382 28
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
Case 11-3576 Document 18 Page 23 09282011 405382 28
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
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Case 11-3576 Document 18 Page 24 09282011 405382 28
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
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Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 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
Case 11-3576 Document 18 Page 3 09282011 405382 28
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
Case 11-3576 Document 18 Page 4 09282011 405382 28
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
Case 11-3576 Document 18 Page 5 09282011 405382 28
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
Case 11-3576 Document 18 Page 6 09282011 405382 28
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
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Case 11-3576 Document 18 Page 7 09282011 405382 28
(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
Case 11-3576 Document 18 Page 8 09282011 405382 28
~------
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)
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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 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
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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
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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
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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
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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 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
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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 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
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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
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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
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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
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Case 11-3576 Document 18 Page 18 09282011 405382 28
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
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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)
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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)
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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
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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
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Case 11-3576 Document 18 Page 23 09282011 405382 28
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
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Case 11-3576 Document 18 Page 24 09282011 405382 28
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
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Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
Case 11-3576 Document 18 Page 4 09282011 405382 28
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
Case 11-3576 Document 18 Page 5 09282011 405382 28
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
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Case 11-3576 Document 18 Page 6 09282011 405382 28
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
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Case 11-3576 Document 18 Page 7 09282011 405382 28
(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
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Case 11-3576 Document 18 Page 8 09282011 405382 28
~------
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)
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Case 11-3576 Document 18 Page 9 09282011 405382 28
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
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Case 11-3576 Document 18 Page 10 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
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Case 11-3576 Document 18 Page 11 09282011 405382 28
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
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Case 11-3576 Document 18 Page 12 09282011 405382 28
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
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Case 11-3576 Document 18 Page 13 09282011 405382 28
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
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Case 11-3576 Document 18 Page 14 09282011 405382 28
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
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Case 11-3576 Document 18 Page 15 09282011 405382 28
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
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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
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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
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Case 11-3576 Document 18 Page 18 09282011 405382 28
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
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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)
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Case 11-3576 Document 18 Page 20 09282011 405382 28
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)
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Case 11-3576 Document 18 Page 21 09282011 405382 28
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
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Case 11-3576 Document 18 Page 22 09282011 405382 28
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
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Case 11-3576 Document 18 Page 23 09282011 405382 28
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
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Case 11-3576 Document 18 Page 24 09282011 405382 28
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
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Case 11-3576 Document 18 Page 25 09282011 405382 28
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
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Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
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Case 11-3576 Document 18 Page 5 09282011 405382 28
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
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Case 11-3576 Document 18 Page 6 09282011 405382 28
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
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Case 11-3576 Document 18 Page 7 09282011 405382 28
(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
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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
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)
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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 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
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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
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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
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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
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Case 11-3576 Document 18 Page 13 09282011 405382 28
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
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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 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
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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
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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
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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
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Case 11-3576 Document 18 Page 18 09282011 405382 28
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
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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)
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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)
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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
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Case 11-3576 Document 18 Page 22 09282011 405382 28
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
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Case 11-3576 Document 18 Page 23 09282011 405382 28
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
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Case 11-3576 Document 18 Page 24 09282011 405382 28
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
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Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
Case 11-3576 Document 18 Page 6 09282011 405382 28
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
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Case 11-3576 Document 18 Page 7 09282011 405382 28
(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
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Case 11-3576 Document 18 Page 8 09282011 405382 28
~------
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)
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Case 11-3576 Document 18 Page 9 09282011 405382 28
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
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Case 11-3576 Document 18 Page 10 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
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Case 11-3576 Document 18 Page 11 09282011 405382 28
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
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Case 11-3576 Document 18 Page 12 09282011 405382 28
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
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Case 11-3576 Document 18 Page 13 09282011 405382 28
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
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Case 11-3576 Document 18 Page 14 09282011 405382 28
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
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Case 11-3576 Document 18 Page 15 09282011 405382 28
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
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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
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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
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Case 11-3576 Document 18 Page 18 09282011 405382 28
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
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Case 11-3576 Document 18 Page 19 09282011 405382 28
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)
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Case 11-3576 Document 18 Page 20 09282011 405382 28
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)
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Case 11-3576 Document 18 Page 21 09282011 405382 28
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
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Case 11-3576 Document 18 Page 22 09282011 405382 28
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
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Case 11-3576 Document 18 Page 23 09282011 405382 28
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
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Case 11-3576 Document 18 Page 24 09282011 405382 28
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
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Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
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Case 11-3576 Document 18 Page 7 09282011 405382 28
(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
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Case 11-3576 Document 18 Page 8 09282011 405382 28
~------
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)
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Case 11-3576 Document 18 Page 9 09282011 405382 28
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
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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
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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
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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
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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 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
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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 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
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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
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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
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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
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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
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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)
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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)
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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
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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
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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
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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
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Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
(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
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Case 11-3576 Document 18 Page 8 09282011 405382 28
~------
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)
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Case 11-3576 Document 18 Page 9 09282011 405382 28
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
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Case 11-3576 Document 18 Page 10 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
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Case 11-3576 Document 18 Page 11 09282011 405382 28
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
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Case 11-3576 Document 18 Page 12 09282011 405382 28
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
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Case 11-3576 Document 18 Page 13 09282011 405382 28
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
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Case 11-3576 Document 18 Page 14 09282011 405382 28
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
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Case 11-3576 Document 18 Page 15 09282011 405382 28
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
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Case 11-3576 Document 18 Page 16 09282011 405382 28
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
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Case 11-3576 Document 18 Page 17 09282011 405382 28
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
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Case 11-3576 Document 18 Page 18 09282011 405382 28
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
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Case 11-3576 Document 18 Page 19 09282011 405382 28
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)
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Case 11-3576 Document 18 Page 20 09282011 405382 28
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)
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Case 11-3576 Document 18 Page 21 09282011 405382 28
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
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Case 11-3576 Document 18 Page 22 09282011 405382 28
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
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Case 11-3576 Document 18 Page 23 09282011 405382 28
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
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Case 11-3576 Document 18 Page 24 09282011 405382 28
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
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Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
~------
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)
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Case 11-3576 Document 18 Page 9 09282011 405382 28
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
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Case 11-3576 Document 18 Page 10 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
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Case 11-3576 Document 18 Page 11 09282011 405382 28
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
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Case 11-3576 Document 18 Page 12 09282011 405382 28
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
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Case 11-3576 Document 18 Page 13 09282011 405382 28
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
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Case 11-3576 Document 18 Page 14 09282011 405382 28
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
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Case 11-3576 Document 18 Page 15 09282011 405382 28
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
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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
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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
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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
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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)
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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)
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Case 11-3576 Document 18 Page 21 09282011 405382 28
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
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Case 11-3576 Document 18 Page 22 09282011 405382 28
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
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Case 11-3576 Document 18 Page 23 09282011 405382 28
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
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Case 11-3576 Document 18 Page 24 09282011 405382 28
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
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Case 11-3576 Document 18 Page 25 09282011 405382 28
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
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Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
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Case 11-3576 Document 18 Page 10 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
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Case 11-3576 Document 18 Page 11 09282011 405382 28
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
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Case 11-3576 Document 18 Page 12 09282011 405382 28
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
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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 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
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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 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
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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
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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
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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
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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
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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)
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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)
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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
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Case 11-3576 Document 18 Page 22 09282011 405382 28
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
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Case 11-3576 Document 18 Page 23 09282011 405382 28
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
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Case 11-3576 Document 18 Page 24 09282011 405382 28
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
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Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 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
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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
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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
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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 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
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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 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
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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
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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
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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
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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
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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)
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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)
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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
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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
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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
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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
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Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
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Case 11-3576 Document 18 Page 12 09282011 405382 28
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
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Case 11-3576 Document 18 Page 13 09282011 405382 28
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
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Case 11-3576 Document 18 Page 14 09282011 405382 28
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
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Case 11-3576 Document 18 Page 15 09282011 405382 28
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
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Case 11-3576 Document 18 Page 16 09282011 405382 28
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
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Case 11-3576 Document 18 Page 17 09282011 405382 28
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
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Case 11-3576 Document 18 Page 18 09282011 405382 28
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
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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)
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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)
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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
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Case 11-3576 Document 18 Page 22 09282011 405382 28
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
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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
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Case 11-3576 Document 18 Page 24 09282011 405382 28
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
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Case 11-3576 Document 18 Page 25 09282011 405382 28
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
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Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
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Case 11-3576 Document 18 Page 13 09282011 405382 28
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
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Case 11-3576 Document 18 Page 14 09282011 405382 28
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
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Case 11-3576 Document 18 Page 15 09282011 405382 28
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
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Case 11-3576 Document 18 Page 16 09282011 405382 28
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
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Case 11-3576 Document 18 Page 17 09282011 405382 28
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
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Case 11-3576 Document 18 Page 18 09282011 405382 28
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
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Case 11-3576 Document 18 Page 19 09282011 405382 28
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)
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Case 11-3576 Document 18 Page 20 09282011 405382 28
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)
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Case 11-3576 Document 18 Page 21 09282011 405382 28
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
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Case 11-3576 Document 18 Page 22 09282011 405382 28
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
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Case 11-3576 Document 18 Page 23 09282011 405382 28
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
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Case 11-3576 Document 18 Page 24 09282011 405382 28
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
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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
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Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
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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 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
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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
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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
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Case 11-3576 Document 18 Page 17 09282011 405382 28
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
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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
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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)
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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)
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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
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Case 11-3576 Document 18 Page 22 09282011 405382 28
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
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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
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Case 11-3576 Document 18 Page 24 09282011 405382 28
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
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Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
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Case 11-3576 Document 18 Page 15 09282011 405382 28
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
Case 11-3576 Document 18 Page 16 09282011 405382 28
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
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Case 11-3576 Document 18 Page 17 09282011 405382 28
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
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Case 11-3576 Document 18 Page 18 09282011 405382 28
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
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Case 11-3576 Document 18 Page 19 09282011 405382 28
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)
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Case 11-3576 Document 18 Page 20 09282011 405382 28
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)
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Case 11-3576 Document 18 Page 21 09282011 405382 28
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
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Case 11-3576 Document 18 Page 22 09282011 405382 28
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
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Case 11-3576 Document 18 Page 23 09282011 405382 28
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
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Case 11-3576 Document 18 Page 24 09282011 405382 28
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
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Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
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Case 11-3576 Document 18 Page 16 09282011 405382 28
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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
Case 11-3576 Document 18 Page 17 09282011 405382 28
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
Case 11-3576 Document 18 Page 18 09282011 405382 28
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
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Case 11-3576 Document 18 Page 19 09282011 405382 28
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)
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Case 11-3576 Document 18 Page 20 09282011 405382 28
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)
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Case 11-3576 Document 18 Page 21 09282011 405382 28
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
Case 11-3576 Document 18 Page 22 09282011 405382 28
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
Case 11-3576 Document 18 Page 23 09282011 405382 28
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
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Case 11-3576 Document 18 Page 24 09282011 405382 28
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
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Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
Case 11-3576 Document 18 Page 17 09282011 405382 28
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
Case 11-3576 Document 18 Page 18 09282011 405382 28
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
Case 11-3576 Document 18 Page 19 09282011 405382 28
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
Case 11-3576 Document 18 Page 20 09282011 405382 28
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
Case 11-3576 Document 18 Page 21 09282011 405382 28
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
Case 11-3576 Document 18 Page 22 09282011 405382 28
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
Case 11-3576 Document 18 Page 23 09282011 405382 28
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
Case 11-3576 Document 18 Page 24 09282011 405382 28
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
Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
Case 11-3576 Document 18 Page 18 09282011 405382 28
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
Case 11-3576 Document 18 Page 19 09282011 405382 28
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
Case 11-3576 Document 18 Page 20 09282011 405382 28
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
Case 11-3576 Document 18 Page 21 09282011 405382 28
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
Case 11-3576 Document 18 Page 22 09282011 405382 28
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
Case 11-3576 Document 18 Page 23 09282011 405382 28
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
Case 11-3576 Document 18 Page 24 09282011 405382 28
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
Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
Case 11-3576 Document 18 Page 19 09282011 405382 28
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
Case 11-3576 Document 18 Page 20 09282011 405382 28
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
Case 11-3576 Document 18 Page 21 09282011 405382 28
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
Case 11-3576 Document 18 Page 22 09282011 405382 28
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
Case 11-3576 Document 18 Page 23 09282011 405382 28
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
Case 11-3576 Document 18 Page 24 09282011 405382 28
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
Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
Case 11-3576 Document 18 Page 20 09282011 405382 28
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
Case 11-3576 Document 18 Page 21 09282011 405382 28
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
Case 11-3576 Document 18 Page 22 09282011 405382 28
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
Case 11-3576 Document 18 Page 23 09282011 405382 28
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
Case 11-3576 Document 18 Page 24 09282011 405382 28
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
Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
Case 11-3576 Document 18 Page 21 09282011 405382 28
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
Case 11-3576 Document 18 Page 22 09282011 405382 28
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
Case 11-3576 Document 18 Page 23 09282011 405382 28
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
Case 11-3576 Document 18 Page 24 09282011 405382 28
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
Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
Case 11-3576 Document 18 Page 22 09282011 405382 28
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
Case 11-3576 Document 18 Page 23 09282011 405382 28
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
Case 11-3576 Document 18 Page 24 09282011 405382 28
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
Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
Case 11-3576 Document 18 Page 23 09282011 405382 28
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
Case 11-3576 Document 18 Page 24 09282011 405382 28
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
Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
Case 11-3576 Document 18 Page 24 09282011 405382 28
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
Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
Case 11-3576 Document 18 Page 25 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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()
Case 11-3576 Document 18 Page 26 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
Dated New York New York Respectfully submitted September 28 20 I I
54 Boerum St Apt 6M Brooklyn NY 11206 (646) 504-6497 humanrightsareamustgmai1com
Case 11-3576 Document 18 Page 27 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28
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
Name Address City State Zip Code
Name Address City State Zip Code
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
Case 11-3576 Document 18 Page 28 09282011 405382 28