I believe that the issue of race, the murder of unarmed blacks by the police, and black President Obama makes it the perfect time to PROVE racism exist to America. This blog based on my life and book can be used to prove it.
Title VII of the Civil Rights Act of 1964 needs to be amended again to prevent employers from abusing summary judgment motions. Many employment discrimination and retaliation victims are denied a jury trial and justice when one judge dismiss their lawsuit.
As a race of people who have been victimized for hundreds of years by racism. African-Americans especially our youth need and want real positive changes in our lives. President Obama can help Black people today with an Executive Order to amend Title VII of the Civil Right Act of 1964.
President Obama has supported and signed bills that have made real changes in the lives of women, the gay community, military families, and Hispanics. He has also engaged in and created headlines when he used the word THUGS during rioting in Baltimore after police officers murdered Freddie Gray.
I am an African-American woman who was unjust terminated by New York State Department of Correctional Services on November 2, 1998, after filing an October 15, 1997, employment discrimination lawsuit. My motion to amend the complaint was granted by the District Court Judge Elfvin to included my retaliatory November 2, 1998 termination.
By amended complaint filed on February 19, 1999, I charged New York State Department of Correctional Service and New York State Department of Civil Service with violating Title VII of the 1964 Civil Rights Act as amended. I filed my amended lawsuit Pro-Se because my four motions requesting appointment of counsel by the court were denied by district court judge. I also filed the amended complaint without an attorney because attoneys refused my case because the New York State Attorney General was counsel for the defendants.
PART OF MY STORY
I am entitled to Disability Retirement because of Judicial Estoppel. The legal doctrine of Judicial Estoppel means a party is not allowed to present a different legal argument that is contrary to a previous legal argument that results in a favorable decision for that party in another legal proceeding. New York State Departments of Correctional and Civil Services two different positions were successful during my worker’s compensation hearings, my employment discrimination and retaliation lawsuit, and during my disability retirement appeal hearing and final determination..
In November 1996, my doctor determined that I was disabled from physical worker compensation injuries. Since Albion supervisors had placed me on involuntary leave of absence and won’t let me return to work I contacted New York State Department of Civil Service. I made an inquiry with NYS Department of Civil Service about applying for disability retirement. After receiving the applications that they deemed appropriate. On December 6, 1996, after receiving the applications I submitted a Chapter 722 Performance of Duty Disability Retirement application on December 6, 1996 and Section 507-A Disability Retirement (Section 507-A of the Retirement and Social Security Law).
On May 22, 1997, I reported to a medical examination by a New York State disability retirement consultant. After he examined me Dr. Austin R. Leve, M.D., P.C. wrote a five-paged single spaced medical report. On page 5 Leve concluded his report with his impression that I was not disabled and could perform the duties of a correctional officer.
Although Dr. Leve, a doctor hired by the State of New York determined that I was not disabled and that I could perform the full duties of a correctional officer I was continued on involuntary leave of absence. Based on the medical examination of Dr. Leve I should have been taken off of involuntary leave of absence and allowed and/or ordered to return to work.
In a letter of Determination dated June 16, 1997, the Retirement System denied my application for Section 507-a Disability Retirement. Based on the decision that denied me Disability Retirement, I should have been allowed to return to work. On January 6, 1997, I had been placed on continued involuntary leave of absence by Albion Correctional Facility. I was not allowed to return to my Correctional Officer positon.
On October 15, 1997, I filed a pro-se Title VII of the Civil Rights Act of 1964, as amended employment discrimination lawsuit with jury demand against New York State Department of Corrections, New York State Office of State Comptroller, and New York State Department of Civil Service. I filed the lawsuit Pro Se because I could not get an attorney to take the case.
I also filed motions to precede in Forma Pauperis (Poor Person) and appointment of counsel. In a Decision and Order dated October 28, 1997, United States District Judge Richard J. Arcara granted Forma Pauperis motion and denied my motion of appointment of counsel.
In his role as New York State Attorney General Spitzer, "SCREWED" me when he filed seven (7) perjured declarations in federal court to WIN his summary judgement motion.. Based on the perjured declarations my Civil Rights Act of 1964, Title VII (employment discrimination) case was dismissed and I was denied a JURY TRIAL.
ALL of the declarations on the following docket sheet contained perjured statements and/or contradictions to sworn deposition testimony or direct evidence. The perjured declarations were filed in a federal district court with Spitzer's summary judgment motion.
I presented direct evidence that proved 7 of the declarations contained perjury to the district court AND the Supreme Court. The perjured declarations of Mike Russo, New York State Assistant Attorney General (who is still employed by NYS AG office), Gerald Goncalves (Hispanic male), Diversity Management, Superintendent Anginell Andrews (African-Amer), Sergeant William Reed (White male), James Berbary (White male), and Deputy Superintendent of Administration, and Lee Gould were filed to deny me justice and a JURY trial.
I also filed sworn declarations in support of my motion for summary judgment and in opposition to the Defendants' summary judgment motion. Attached to my motion were approximately 100 exhibits and the entire transcripts of the deposition testimony of James Berbary, A. Andrews, Sergeant Reed, Shirley Abrons, and Sergeant Adamson.
My filings proved that Berbary, Andrews, and Sergeant Reed lied about their non discriminatory or reataliatory acts. They lied in either their sworn declarations and/or depositions. I should have survived summary judgment as a matter of law once I presented the district court with direct evidence that proved their explanations to be false.
In July 2005 Jane Wolfe and Allison Gioia both US Justice Department attorneys, reviewed my perjury allegations, the declarations, and the direct evidence that proved it. The United States Justice Department attorneys confirmed the perjury and informed me that they were referring my case to the FBI for an investigation.
I telephoned the FBI and was told that they could not confirm or deny the fact that my allegations were being investigated because of confidentiality rules. The FBI and United States Justice Department under President George W. Bush leadership did not charge anyone with perjury in my case.
A jury should have decided my retaliatory claims based on the Court's precedent summary judgement rulings in Anderson v Libby Lobby, Inc., 477 U.S. 255 (1986) Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the fact are "JURY" functions, not those of a "JUDGE," whether he is ruling on a motion for summary judgment or for a direct verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Adickes, 398 U.S. at 398 U.S. 158-159.
MY TERMINATION AND LEE GOULD'S PERJURED DECLARATION
Direct Evidence that Gould lied about the date of my retaliatory firing including his October 26, 1998, letter, NYSDOCS employee change status sheet and Judge Elfvin's District Court Orders. Elfvin was appointed by President Ford and was a Senior Judge and 80 years when I filed my October 15, 1997, lawsuit.
One of the orders denied my motion for a temporary injunction to prevent Gould from terminating me on November 2, 1998. Another order granted my motion to amend my lawsuit to include my November 2, 1998, termination as a retaliatory act.
In 2008 as New York State Attorney General Andrew Cuomo refused my written requests to address and correct the unjust denial of my disability retirement application and appeal.
As Governor Cuomo should address, investigate, and use an Executive Order if necessary to award me entitled disability retirements benefits. Cuomo can use an executive order or support a bill that will give me entitled disability benefits from the date of my original application.
In his role as New York State Attorney General Spitzer, "SCREWED" me when he filed seven (7) perjured declarations in federal court to WIN his summary judgement motion.. Based on the perjured declarations my Civil Rights Act of 1964, Title VII (employment discrimination) case was dismissed and I was denied a JURY TRIAL.
ALL of the declarations on the following docket sheet contained perjured statements and/or contradictions to sworn deposition testimony or direct evidence. The perjured declarations were filed in a federal district court with Spitzer's summary judgment motion.
I presented direct evidence that proved 7 of the declarations contained perjury to the district court AND the Supreme Court. The perjured declarations of Mike Russo, New York State Assistant Attorney General (who is still employed by NYS AG office), Gerald Goncalves (Hispanic male), Diversity Management, Superintendent Anginell Andrews (African-Amer), Sergeant William Reed (White male), James Berbary (White male), and Deputy Superintendent of Administration, and Lee Gould were filed to deny me justice and a JURY trial.
I also filed sworn declarations in support of my motion for summary judgment and in opposition to the Defendants' summary judgment motion. Attached to my motion were approximately 100 exhibits and the entire transcripts of the deposition testimony of James Berbary, A. Andrews, Sergeant Reed, Shirley Abrons, and Sergeant Adamson.
My filings proved that Berbary, Andrews, and Sergeant Reed lied about their non discriminatory or reataliatory acts. They lied in either their sworn declarations and/or depositions. I should have survived summary judgment as a matter of law once I presented the district court with direct evidence that proved their explanations to be false.
The United States Supreme Court in Reeves v Sanderson Plumbing Products, Inc 530 U.S. 133 (2000) stated: “In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. See, e.g., Wright v West, 505 U.S. 277, 296.
Supreme Court Justice Ginsburg in her concurring opinion in Reeves, stated “The Court holds that an employment discrimination plaintiff may survive a summary judgment motion as a matter of law by submitting two categories of evidence: first, evidence establishing a “prima facie case” as that term is used in McDonnell Douglas Corp. v Green 411 U.S. 792, 802, (1973); and second, evidence from which a rational fact finder could conclude that the employer’ proffered explanation for its actions was false.
I telephoned the FBI and was told that they could not confirm or deny the fact that my allegations were being investigated because of confidentiality rules. The FBI and United States Justice Department under President George W. Bush leadership did not charge anyone with perjury in my case.
A jury should have decided my retaliatory claims based on the Court's precedent summary judgement rulings in Anderson v Libby Lobby, Inc., 477 U.S. 255 (1986) Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the fact are "JURY" functions, not those of a "JUDGE," whether he is ruling on a motion for summary judgment or for a direct verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Adickes, 398 U.S. at 398 U.S. 158-159.
MY TERMINATION AND LEE GOULD'S PERJURED DECLARATION
One of the three claims that the Defendants retaliated against me after I filed an October 15, 1997, lawsuit included my retaliatory November 2, 1998, termination. NOTE: It is not necessary to prove employment discrimination in order to win a Title VII employment retaliation claim.
On November 15, 2000, Lee P. Gould, Director of Personnel for New York State Department of Correctional Services signed one of the perjured declaration that was filed in federal court. Lee Gould committed perjury when he stated in his declaration that I was terminated on December 7, 1998. I was terminated at the close of business on November 2, 1998.
One of the orders denied my motion for a temporary injunction to prevent Gould from terminating me on November 2, 1998. Another order granted my motion to amend my lawsuit to include my November 2, 1998, termination as a retaliatory act.
In an order dated May 25, 2001, now deceased Judge Elfvin, granted the Defendant's summary judgment motion in its entirety. In his ruling on my retaliatory termination, he cited Gould's perjured declaration. "Turning first to plaintiff's claim regarding retaliatory discharge, it is plain that there are no facts in the record upon which such allegation can succeed. Assuming that plaintiff has set forth a prima facie case of retaliatory discharge, she fails to articulate any reason why the proffered justification for terminating her was pretext -viz., that her medical condition rendered her incapable of performing the duties of a correctional officer.
See Gould Declaration filed November 17, 2000. The evidence amply supports this conclusion and, as will be discussed more fully below, plaintiff’s references to a retaliatory motive behind her discharge based on race and sex are at best, conclusory assertions."
See Gould Declaration filed November 17, 2000. The evidence amply supports this conclusion and, as will be discussed more fully below, plaintiff’s references to a retaliatory motive behind her discharge based on race and sex are at best, conclusory assertions."
Based on Lee Gould's declarations that contains the LIE that I was terminated on December 7, 1998, his credibility is questionable. Again according to the Supreme Court ruling in Anderson v Libby Lobby, Inc., 477 U.S. 255 (1986) Credibility determinations, the weighing of the evidence, and the drawingof legitimate inferences from the fact are "JURY" functions, not those of a "JUDGE," Therefore, my case should not have been dismissed a JURY should have decided my case.
On August 7, 2001, a Worker's Compensation Board hearing was held in White Plains, NY. Although the hearing was about my three work related accidents and cases I was not present at the hearing. A transcript of the hearing reveals I had been awarded and receiving worker's compensation payments since October 21, 1997,
The transcript of the August 7, 2001, hearing also states in part: " ...carrier to continue payments of $304.17, without prejudice to apportionment, based on $912.52 average weekly wage. 10-21-to date at $304.17 partial disability without prejudice to apportionment.
I got over the initial disappointment that my case was dismissed by the district court. I forced myself to start working on my appeal to the Second Circuit Court of Appeals. I had previously filed three appeal motions to the United States Court of Appeals for the Second Circuit. The Appeals Court denied each one of my appeals. Although my previous appeals were denied I felt confident that Elfvin’s May 29, 2001, court order would be reversed based of my retaliatory claims and judicial estoppel doctrine.
I believed that after the case was sent back to the District Court I would be able to get a lawyer to take my case. I also believed that the case would end with a settlement or a jury would hear and render a verdict against all of the Defendants named in my lawsuit.
ELIOT SPITZER'S PERJURED APPELLEES' BRIEF
On October 1, 2001, Eliot Spitzer Appellant's Brief to the Second Circuit Court of Appeals was completed by Assistant Solicitor General Denise Hartman AND Assistant Solicitor General Nancy Spiegel. The brief like seven of the declarations filed in the District Court by Spitzer contained several instances of perjury.
To my utter disappointment and amazement the brief contained the same 'LIE' and perjury that I was terminated in December 1998.
Today is June 16, 2015, and I just realized how egregious the December 7, 1998 date stated on page numbered 4 was in the Defendants-Appellees brief. Assistant Solicitor Generals Denise Hartman AND Nancy Spiegel had the audacity to discuss Judge Elfvin's January 29, 1999, order. The order that stated I filed a motion to amend my complaint to include my November 2, 1998, termination. The order also gave me the right to amend my original lawsuit to include my November 2, 1998, retaliatory termination.
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The same paragraph containing the December 7, 1998, lie, states "Plaintiff amended her complaint accordingly (Docket No 43). Defendants duly answered (Docket No 47)." My February 19, 1999, amended complaint (Docket No 43) at number 115 "On Monday November 2, 1998, plaintiff was terminated from her employment with Defendant NYSDOCS."
In their grossly untimely April 30, 1998 duly answered complain (Docket No 47), the Defendants ADMITTED that I was terminated on November 2, 1998. The following pages of Spitzer's brief discuss my termination further and doesn't correct the fact that I was FIRED in November 1998 not December 1998.
On October 22, 2001, I attended a hearing and re-determination on my denied June 16, 1997, disability retirement. During my testimony at that hearing I made the judge and New York State and Retirement Systems Attorney Dana S. Riell aware of my employment discrimination case and the doctrine of judicial estoppel.
I told the Judge and Riell that since NYS had won their summary judgment motion with the legal position that I was fired because I was medically unable to perform the duties of a Correctional Officer. Therefore, I was entitled to disability retirement.
On August 7, 2001, a Worker's Compensation Board hearing was held in White Plains, NY. Although the hearing was about my three work related accidents and cases I was not present at the hearing. A transcript of the hearing reveals I had been awarded and receiving worker's compensation payments since October 21, 1997,
The transcript of the August 7, 2001, hearing also states in part: " ...carrier to continue payments of $304.17, without prejudice to apportionment, based on $912.52 average weekly wage. 10-21-to date at $304.17 partial disability without prejudice to apportionment.
I got over the initial disappointment that my case was dismissed by the district court. I forced myself to start working on my appeal to the Second Circuit Court of Appeals. I had previously filed three appeal motions to the United States Court of Appeals for the Second Circuit. The Appeals Court denied each one of my appeals. Although my previous appeals were denied I felt confident that Elfvin’s May 29, 2001, court order would be reversed based of my retaliatory claims and judicial estoppel doctrine.
I believed that after the case was sent back to the District Court I would be able to get a lawyer to take my case. I also believed that the case would end with a settlement or a jury would hear and render a verdict against all of the Defendants named in my lawsuit.
ELIOT SPITZER'S PERJURED APPELLEES' BRIEF
On October 1, 2001, Eliot Spitzer Appellant's Brief to the Second Circuit Court of Appeals was completed by Assistant Solicitor General Denise Hartman AND Assistant Solicitor General Nancy Spiegel. The brief like seven of the declarations filed in the District Court by Spitzer contained several instances of perjury.
To my utter disappointment and amazement the brief contained the same 'LIE' and perjury that I was terminated in December 1998.
Today is June 16, 2015, and I just realized how egregious the December 7, 1998 date stated on page numbered 4 was in the Defendants-Appellees brief. Assistant Solicitor Generals Denise Hartman AND Nancy Spiegel had the audacity to discuss Judge Elfvin's January 29, 1999, order. The order that stated I filed a motion to amend my complaint to include my November 2, 1998, termination. The order also gave me the right to amend my original lawsuit to include my November 2, 1998, retaliatory termination.
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The same paragraph containing the December 7, 1998, lie, states "Plaintiff amended her complaint accordingly (Docket No 43). Defendants duly answered (Docket No 47)." My February 19, 1999, amended complaint (Docket No 43) at number 115 "On Monday November 2, 1998, plaintiff was terminated from her employment with Defendant NYSDOCS."
In their grossly untimely April 30, 1998 duly answered complain (Docket No 47), the Defendants ADMITTED that I was terminated on November 2, 1998. The following pages of Spitzer's brief discuss my termination further and doesn't correct the fact that I was FIRED in November 1998 not December 1998.
More outrages and complete lack respect for me and Second Circuit Court of Appeals was her brief to that court. Hartman stated in her PERJURED Brief that NYSDOCS terminated me on December 7, 1998. She knew that NYSAG Spitzer opposed my appeal to that same court when I appealed District Court Judge Elfvin's order that denied me a temporary injunction to prevent my termination. She also knew that New York State Attorney General was successful because Second Circuit Court of Appeals denied my appeal. Therefore, I was terminated on November 2, 1998, not December 7, 1998.
FINAL APPEAL OF MY DISABILITY RETIREMENT APPLICATION
On October 22, 2001, I attended a hearing and re-determination on my denied June 16, 1997, disability retirement. During my testimony at that hearing I made the judge and New York State and Retirement Systems Attorney Dana S. Riell aware of my employment discrimination case and the doctrine of judicial estoppel.
I told the Judge and Riell that since NYS had won their summary judgment motion with the legal position that I was fired because I was medically unable to perform the duties of a Correctional Officer. Therefore, I was entitled to disability retirement.
The Retirement System’s Attorney Riell presented a length memorandum of law dated January 23, 2002. In the memorandum the New York State Retirement System legal position was that I was not disabled from performing the duties of a correctional officer. To support that position the judge was given the medical report of state hired doctor who said I could do the full duties of a correctional officer or any other job.
As you can see that Rielli's clearly stated legal position clearly contradicts Spitzer's legal position in both his summary judgment motion and Appellant's Brief to the
Judge Marinelli should have issued a decision on my final appeal of my disability by March 29, 2002. In a July 2002, decision Marinelli ruled that "(1) applicant is not permanently incapacitated for the performance of duties as a correctional officer, and (2) the alleged May 20, 1993, and October 26, 1994, incidents were not the result of the act of an inmate (System's Exhibit 4).
On January 25, 2002, the United States Court of Appeals for the Second Circuit issued its order. The Court of Appeals upheld the decision of the United States District Court for the Western District of New York. The Appeal Court agreed with Judge Elfvin’s order that dismissed my entire case including amy allegation of being unlawfully terminated in November 1998 in retaliation for filing my lawsuit.
Judge Marinelli should have issued a decision on my final appeal of my disability by March 29, 2002. In a July 2002, decision Marinelli ruled that "(1) applicant is not permanently incapacitated for the performance of duties as a correctional officer, and (2) the alleged May 20, 1993, and October 26, 1994, incidents were not the result of the act of an inmate (System's Exhibit 4).
On January 25, 2002, the United States Court of Appeals for the Second Circuit issued its order. The Court of Appeals upheld the decision of the United States District Court for the Western District of New York. The Appeal Court agreed with Judge Elfvin’s order that dismissed my entire case including amy allegation of being unlawfully terminated in November 1998 in retaliation for filing my lawsuit.
As Governor Cuomo should address, investigate, and use an Executive Order if necessary to award me entitled disability retirements benefits. Cuomo can use an executive order or support a bill that will give me entitled disability benefits from the date of my original application.
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