09-2860-cvPugh-Perry v. The City of New York

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ROBIN PUGH-PERRY,

Plaintiff - Appellant,

v.

THE CITY OF NEW YORK

HUMAN RESOURCES ADMINISTRATION,

Defendant - Appellee

ON APPEAL FROM AN ORDER OF DISMISSAL OF THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

Brief of Plaintiff – Appellant.

Robin Pugh-Perry, pro se

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Table of Contents

I. Preliminary Statement

II. Statement of Subject Matter and Appellate Jurisdiction

III. Statement of Issues

IV. Statement of the Case

V. Summary of Argument

VI. Argument

VII. Conclusion And Prayer For Relief

VIII. Appendix

Tables of Authority

Table of Cases

Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1984)Barrett v. United States, 798 F. 2d 565, 575 (2d Cir. 1986)Blumberg v. HCA Mgmt. Co., Inc., 848 F.2d 642, 644 (5th Cir. 1988)Burt v. City of New York, 2Cir., (1946) 156 F.2d 791.Bowers v. Hardwick, 478 U.S. 186, 201 (1986) Chappell v. Emco Mach. Works Co., 601 F.2d 1295, 1303 (5th Cir. 1979)Centifanti v. Nix, 865 F.2d 1422, 1431 n.9 (3d Cir.1989),Conley v. Gibson, 355 U.S. 41, 45-46Early v. Bankers Life & Cas. Co., 959 F.2d 75, 81 (7th Cir. 1992) Espinoza v. Mo. Pac. R.R. Co., 754 F.2d 1247, 1248 n.1 (5th Cir. 1985) Foman v. Davis, 371 U.S. 178Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir. 1983) Haines v. Kerner et al., 404 U.S. 519Harbury v. Deutch, No. 96-00438 (D.D.C filed Mar.23, 1999)Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999)Lawrence v. Cooper Communities, Inc., 132 F.3d 447, 452 (8th Cir. 1998) McDonald v. Hall, 579 F.2d 120, 121 (1st Cir. 1978). James Wm. Moore, et al., Moore’s Federal Practice § 12.34[5] (3d ed. 2000)Miller v. Marsh, 766 F.2d 490, 493 (11th Cir. 1985)Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002)Oshiver v. Levin, Fishbein, Sedran & Herman, 38 F.3d 1380 (3d Cir. 1994)Pacheco v. Rice, 966 F.2d 904, 906 (5th Cir. 1992)Page v. U.S. Indus., Inc., 556 F.2d 346, 351 (5th Cir. 1977)

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Ramirez v. City of San Antonio, 312 F.3d 178, 184 (5th Cir. 2002)Reuber v. United States, 750 F.2d 1039, 1062 n. 35 (D.C. Cir. 1984)Ryland V. Shapiro, 708 F. 2d 967 (5th Cir. 1983)Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). St. Louis v. Tex. Worker's Comp. Comm'n, 65 F.3d 43, 47 (5th Cir. 1995)Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002)Toll v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir., 1992)United States v. Patterson, 211 F.3d 927, 931-32 (5th Cir. 2000) United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, 549 (5th Cir. 1890). Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir. 1994)Washington v. Ball, 890 F.2d 413, 415 (11th Cir. 1989)

Statutes

29 C.F.R § 1601.12, 5b 29 C.F.R § 1601.13, 3 (ii); 4(i); 4(i)A; 4(i)B; 4(i)C; 4(ii)A; 4(ii)B29 C.F.R. § 1601.15, b(1); b(2); b(3)29 C.F.R. § 1601.18, a; b; 29 C.F.R. § 1601.19, a; b29 C.F.R. § 1601.28, a(1); a(2); e(2); e(3)15 U.S.C. § 4 (Jurisdiction of courts; duty of district attorney; procedure)28 U.S.C. § 636(b)(1)(C).28 U.S.C. § 129142 U.S.C. § 198142 U.S.C. § 198342 U.S.C. § 198542 U.S.C. § 198642 U.S.C. § 2000e-5(a); (b); (c); (d); (e)(1); (e)(2); (f)(1)(A); (f)(1)(B); (f)(2); (f)(3); (f)(4): (f)(5)

City of New York Administrative Code

Section 12-113 Title 7 Legal Affairs §7-805

Rules

F.R.A.P. Rule 3(a)Rule 12(b)(6)Federal Rules of Evidence Article IV, 401; 402

Constitutional Provisions

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U.S. Constitution, Amendment IU.S. Constitution, Amendment VI 2, 6,U.S. Constitution, Amendment XIVAmericans with Disabilities Act (1990)Civil Service Reform Act (1978)Civil Liberties Act (1988)Civil Rights Act (1866)Civil Rights Act (1871)Civil Rights Act (1964)Counterfeit Access Device and Computer Fraud and Abuse Act (1984)Ethics in Government Act (1978)Hobbs Anti-Racketeering Act (1946)Ku Klux Klan Act (1871)Legal Services Corporation Act (1974)Whistleblower Protection Act (1989)

Preliminary Statement

The Honorable Judge Sandra Feuerstein of the Eastern District Court NY dismissed plaintiff’s case 07CV4050 as time-barred on June 2, 2009.

Statement of Subject Matter and Appellate Jurisdiction

This case raises federal questions under 29 C.F.R § 1601.12, 5b; 29 C.F.R § 1601.13, 3 (ii); 4(i); 4(i)A; 4(i)B; 4(i)C; 4(ii)A; 4(ii)B; 29 C.F.R. § 1601.15, b(1); b(2); b(3); 29 C.F.R. § 1601.18, a; b; 29 C.F.R. § 1601.19, a; b; 29 C.F.R. § 1601.28, a(1); a(2); e(2); e(3); 28 U.S.C. ; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 1985 and 42 U.S.C. § 1986 and 42 U.S.C. § 2000e-5(a); (b); (c); (d); (e)(1); (e)(2); (f)(1)(A); (f)(1)(B); (f)(2); (f)(3); (f)(4): (f)(5) Plaintiff contends that, as a result of these actions, she has been deprived, inter alia, of her rights under the first, fourth, fifth, and fourteenth amendment of the U.S. Constitution. Additionally, plaintiff questions the constitutionality of the following acts of Congress:

Civil Rights Act of 1964 with regard to the establishment of the EEOC as an independent federal agency that does not provide citizens in general, and employees of state and local government adequate redress of the decisions of the EEOC independent of the EEOC itself. Abuse of power at the state and local levels leaves citizens without access to redress.

Civil Service Reform Act of 1978 with regard to the exclusion of state and local employees thus denying them protection under federal law to be protected from the abuses of power of corrupt state and local government managers who, operate, for the most part, without benefit of greater oversight.

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Whistleblower Protection Laws of 1989 with regard to the exclusion of state and local employees as it leaves them without recourse or protection from the abuses of power of corrupt state and local officials due to lack of oversight as suffered by the plaintiff. Plaintiff contends that Serbanes-Oxley should be expanded to include state and local government employees.

This appeal was filed pursuant to F.R.A.P. Rule 3(a) within 30 days after entry of the district court's entry of its order dismissing the Action. This court, therefore, has appellate jurisdiction under 28 U.S.C. § 1291.

Statement of Issues

1) Whether the District Court erred in dismissing the Complaint as time barred; 2) whether the District Court erred in dismissing the Complaint for failure to state a claim upon which relief can be granted; 3) whether the District Court erred in denying Plaintiff’s Motion for Reconsideration of its Order Dismissing the Complaint or, in the Alternative, for Leave to Amend the Complaint; 4) whether plaintiff should be provided with a new right-to-sue letter from the Department of Justice or the EEOC based on the EEOC’s mishandling of plaintiff’s EEOC Complaint #520-2006-01362.

Statement of the Case

The plaintiff in this case is Robin Pugh-Perry, a 53 year old black, African-American woman who, until her termination in October 2009 while she was disabled and out on medical leave, was a 30 year veteran civil servant of the City of New York Human Resources Administration. defendant in this case is identified as the City of New York Human Resources Administration. Plaintiff worked for Management Information Systems, the agency’s IT arm.

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With regard to what follows, plaintiff contends that the primary goal of this court to ensure justice with regard to its determination as to whether or not the district court erred in their finding to dismiss the plaintiff’s case as time barred cannot be accomplished without the plaintiff’s ability to report and be heard on issues, concerns, and evidence that has heretofore been suppressed by defendant and their political partners. The reporting of this information has a direct bearing on the plaintiff’s ability to have timely filed and additionally provides cause to excuse plaintiff’s late filing due to acts of suppression and/or omission on the part of defendant and/or its political partners.

Prior to 1994, plaintiff was a rising star at HRA. She started out as a level I clerk in 1979 and averaged a promotion every two years. Plaintiff entered the computer field within HRA in approx 1980. In approx 1985, plaintiff was assigned the position of System Supervisor while still working at Williamsburg Welfare Center. In 1986, after becoming Control Supervisor at Waverly Center in 1986, plaintiff went to work for what had by that time been consolidated into what is now known as HRA Management Information Systems. After a stint providing PC support and eventually training for HRA executive staff with the advent of the use personal computers within HRA at their 250 Church Street headquarters (plaintiff was the only source of general PC training for agency staff and only executives received PC training at the time), plaintiff was tapped by newly appointed Commissioner Barbara J. Sabol to be her IT liaison in 1990. In 1992, plaintiff began attending HBCU Lincoln University on the weekends in pursuit of her Master of Human Services degree. During that time plaintiff was mentored by Commissioner Sabol. She was allowed to sit in on certain meetings as they pertained to computer services as provided by MIS and was made project manager for the revision of the Commissioner’s Correspondence System. When advised that plaintiff was being paid at the bottom level of her civil service title, Commissioner Sabol granted plaintiff a promotion to a Computer Associate III. Peers doing similar work were being paid in a higher title as Computer Specialist III’s and IV’s.

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Although reason enough, the basis for her trouble is not only because plaintiff is a black, African-American woman, it is also because her affiliation with the Dinkins administration. Only through such an affiliation would plaintiff have been enabled to break the proverbial glass ceiling with regard to working in a predominantly white and male IT environment in the early 1990s as the Dinkins administration, relative to that majority white and male management at the City of New York Human Resources Administration Management Information Systems, was predominantly black and African-American as well. David N. Dinkins was the first black mayor of the City of New York. He appointed Barbara J. Sabol who was the first black and female Commissioner of HRA. Inell Gilmore was the first black and female Chief of Staff and Roger McMillan was the first black head of MIS. On the other hand, HRA Management Information Systems was, and remains a bastion of white and male privilege. As far as MIS management was concerned, there were too many blacks and too many firsts occurring in their world. With the exception of the Commissioner of HRA (held once by a black male in two separate administrations), prior to the election of Mayor Dinkins, all of the above positions, including mayor, had previously been held by white males. All of these black firsts so deeply offended MIS management that they targeted plaintiff (a career civil servant) for retaliation with regard to their loss of position at the table of power during the Dinkins administration. It is at that point that plaintiff ceased to exist as a human being with rights and became little more than a symbol of the deeply entrenched hatred of predominantly white and male MIS management.

After Commissioner Sabol and the other high echelon black administrators stepped down upon the election of Mayor Rudolph Giuliani, in December 1993 and just after plaintiff had graduated with her master’s degree in 1994, plaintiff was tapped as the new Director of MIS Inventory Systems. Advised that it was her charge to clean up the inventory and get it under control, plaintiff became responsible for protecting the agency’s multimillion dollar distributed systems inventory. At the time plaintiff accepted the assignment, she was unaware that she was being set up to fail at the inventory and had no reason to believe that she had just been set up to fail on many different levels spanning many years.

Defendant and their political partners have controlled and as such, they have had plaintiff at an overwhelming and seemingly inescapable disadvantage because of their ability to manipulate and therefore control the work environment. In this case, defendant sought to and did indeed manipulate and control plaintiff’s home environment as well.

The only difference between defendant and the Ku Klux Klan is the fact that the Klan at least had a physical presence though they hid behind hoods and sheets. defendant hides behind a virtually unlimited network of resources by virtue of their political affiliations which include partnerships with the EEOC and District Council 37, plaintiff has been denied her human rights, and civil rights and liberties under the law. As such, although there is are no nooses, hoods, or sheets, plaintiff’s rights and liberties have been violated much like those blacks in the south during reconstruction who endured the lawlessness of the Klan.

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Whereas 20th century lynchings were done quickly, plaintiff’s positioning with regard to her deteriorating health, lack of access to health benefits, and lack of income will lead to her eventual death if left unchecked. Plaintiff has been positioned to proceed without legal counsel as well. Upon meeting with Attorney Richard Birnstein on July 30, 2008, he advised plaintiff that she would likely not be able to get a lawyer due to the complexity of the case. His comparison of plaintiff to Karen Silkwood established the political tone of this case as well. Mr. Birnstein, refused to take plaintiff’s as have several other lawyers since then.

Much like the Klan, the defendants live above the law by virtue of their intra-agency partnerships, interagency partnerships, and extra-agency partnerships that are primarily afforded to those who are white and/or wealthy, and well connected. Ultimately, the hate crimes detailed within have been perpetrated against plaintiff in conjunction with the cover up of public corruption.

Procedural Background

The case on which this appeal is taken is an action for declaratory and injunctive relief relating to the dismissal of the plaintiff’s employment discrimination case as time barred, for failure to state a claim upon which relief can be granted, for denying plaintiff’s motion for Reconsideration of its Order Dismissing the Complaint or, in the Alternative, for Leave to Amend the Complaint. Plaintiff is also requesting a new right-to-sue letter based on the mishandling of her case by the EEOC and the district court.

Until now, the facts of this case have been suppressed via improper dismissals of complaints, the removal of evidence from plaintiff’s personnel file by the defendant, and the refusal of HRA as well as outside agencies, including the EEOC, to conduct fair and impartial investigations and/or review. For those reasons, plaintiff has had to go into some detail that would otherwise be unnecessary.

June 1996 Internal HRA/EEO ComplaintStatus: Dismissed, Suppressed via removal from plaintiff’s personnel file

In June 1996 plaintiff filed an internal complaint against the top managers, including the head of MIS, with the City of New York Human Resources Administration Office of Equal Employment Opportunity. The plaintiff’s complaint was dismissed on September 30, 1996 as baseless despite the overwhelming evidence and plaintiff testimony to the contrary and withheld from her personnel file. This missing documentation serves to suppress the very existence of plaintiff’s damning 1996 in-house EEO complaint which included the above take over via reorganization and confirmed the existence of a hostile work environment and continuing violations from as early as 1994.

March 2000

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Local 1180 Class Action Grievance Alleging Patronage, Favoritism, Cronyism, and Nepotism against Management Information SystemsStatus: Unresolved

In 2000, plaintiff and other MIS staff members in Local 1180 broad banded union titles, including Computer Associate, met with the President of Local 1180, Arthur Cheviots, at Management Information Systems offices at 111 Eighth Avenue with regard to the pattern and practice of consistently selecting white and male employees in the majority and giving them promotions to higher levels in titles (i.e., II, III, and IV). There is no test required to be promoted to higher level in broad banded titles. Selections are supposed to be made based on seniority, education/training, and experience. While white males enjoyed selection for the higher levels of broad banding, blacks, non-whites and women employees at MIS remained in the lower levels for years, often never got past level I regardless of seniority, education, training, or experience as was the case with the plaintiff.

August 2000EEOC Class Action ComplaintStatus: Unresolved

In September 2000 a group of approx 36 employees of the City of New York Human Resources Administration’s IT arm, Management Information Systems met with Attorney William T. Martin at his court street office to discuss the class action complaint filed with the EEOC. The complaint was based on pattern and practice violations with regard to MIS as a “racially stratified workplace which confers favor on Caucasian employees” and discriminates against blacks, non-white, and female employees. There was no follow up or mail communication from the EEOC to the complainants with regard to the status of the complaint or complaint number provided. The above supports the plaintiff’s allegations that HRA and the EEOC have a long term partnership which calls into question the EEOC’s ability to remain impartial. The above paperwork was missing from plaintiff’s personnel file as of May 3, 2006.

January 2005 Internal EEO ComplaintStatus: Final Disposition Unknown

After enduring over ten years of discrimination and retaliatory harassment in a hostile work environment, on or about January 21, 2005, plaintiff once again contacted the HRA Office of Equal Employment Opportunity, this time regarding the escalation of tensions between herself and then supervisor, Renee LiCorish based on the verbal disparagement of plaintiff by making it seem as though plaintiff was incompetent in front of other white and male staff when plaintiff received no formal training on the IBM system and processes as well as the ongoing downgrade of plaintiff’s assignments over the years that landed her in a dead end position, supporting a dead IBM technology with no possibility

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of advancement. EEO Counselor Donald Lemons advised that if plaintiff hadn’t actively pursued promotions and was denied, it would be difficult to prove discrimination. Plaintiff countered that she had been blackballed and passed over for assignments that she had never been made aware of. Mr. Lemons also advised that HRA management would, as most employers do, side with their managers so there wasn’t much he could do to help the plaintiff. Mr. Lemons advised that he would keep plaintiff’s file open for a year in case any new issues came up. As with her previous complaints against the agency, there was no record of her January 2005 complaint in plaintiff’s personnel file as of May 3, 2006.

February 2006 Charged With Alleged Acts of Official MisconductStatus: Denied Written Explanation/Final Disposition of Charges

In February 2006, plaintiff was brought up on charges of alleged acts of official misconduct. This is a well established tactic that government agencies take against disfavored employees, being those who might have reported wrongdoing and/or corruption on the part of management as described on pages 2 and 3 of the Project on Government Oversight’ s Whistleblower’s manual. Also described therein is that while the agency subjects the disfavored employee to various forms of retaliatory harassment, management is often also in the process of generating trumped up charges against that disfavored employee which sometimes leads to criminal charges against that disfavored employee. The fact that plaintiff was brought under investigation in February 2006 after having been positioned to speak out on the intentional mismanagement of the agency’s multimillion dollar in order to protect herself as early as 1994 ties together all of the prior retaliatory acts as alleged by plaintiff as having taken place between 1994 and 2006 and establishes a hostile work environment via those continuing violations that extended into 2009 when plaintiff was terminated while out on medical leave after having been dropped from payroll on April 2, 2009 – the same day she had originally been scheduled for reconstructive ankle surgery. The fact that plaintiff was denied a written list of charges and a written final disposition of same, points to the possibility a future malicious prosecution against the plaintiff, especially given the scope of the corruption involved. Also key to this scenario is the fact that plaintiff was not advised of her rights with regard to the May 3, 2006 investigation interview by Special Investigator Harris or by District Council 37 union rep Tyler Hemingway and the fact that key evidence in the form of the April 8, 2006 voicemail by plaintiff’s husband’s ex, Candice Sena whereon she said she was the person who had plaintiff investigated in the first place was never requested by Special Investigations Officer Harris. Furthermore, as in the proceedings above, there was no paperwork relative to the investigation in plaintiff’s personnel file.

January 2007 HRA Commissioner Review of 2006 Investigation of Alleged Acts of Official Misconduct Status: No Follow Up by HRA/Office of Legal Affairs

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After being denied a written copy of charges/written final disposition of the charges against her, plaintiff hand delivered a package to then HRA Commissioner Verna Eggleston in January 2007 reporting that plaintiff believed that she had been set up by HRA Special Investigator Michael Harris and that PC on the job, as well as her home computers had been hacked into by HRA staff. A few days later, plaintiff received an undated letter from lawyer Paul Ligretsi from the HRA Office of Legal Affairs advising that they were in receipt of plaintiff’s letter to Commissioner Eggleston, that they would review the situation, and that no further information was necessary from plaintiff unless requested by OLA. Though, to plaintiff’s knowledge there was no follow up by OLA, Mr. Lisgretsi’s acknowledged of receipt of her January 2007 hand delivered package to Commissioner Eggleston confirms that HRA was aware of plaintiff’s allegations of having been set up by HRA Special Investigations as well as the unauthorized intrusions into her home computers as early as January 2007. Shortly after receiving the above package from plaintiff on January 9, 2007, if not on the same day, Commissioner Eggleston announced that she was stepping down, in mid term, as the head of HRA.

March 2006Plaintiff Filed Discrimination Complaint with EEOCStatus: June 2007/Dismissed, Plaintiff Denied Right to Appeal

In March 2006, plaintiff filed a complaint with the US Equal Employment Opportunity Commission alleging race and gender discrimination as well as retaliatory harassment against the City of New York Human Resources Administration after having been brought up on charges of alleged acts of official misconduct in February 2006 and as a continuation of the discrimination and retaliatory harassment via the hostile work environment she had been subjected to since as early as 1994. Plaintiff was not assigned a worker. Plaintiff was not advised of her rights with regard to the EEOC process. Plaintiff only had contact with the EEOC if she initiated it. After hearing nothing from the EEOC since May 2006, plaintiff faxed a copy of her 1996 in house HRA/EEO complaint to both the EEOC and HRA Special Investigations in July 2006. Within the next few days, plaintiff received a phone call from someone at the EEOC named Jason advising her to file an equal pay suit instead of the complaint she had filed alleging discrimination and retaliatory harassment among other things. From that point on, plaintiff heard nothing more from the EEOC until she contacted them again in February 2007 – this after going the in-house route only to discover that HRA Special Investigations was not going to investigate wrongdoing on the part of MIS management and the former HRA commissioner had stepped down.

In February 2007 plaintiff submitted a detailed package to the EEOC containing copies of the above complaints and other quality evidence to support plaintiff’s allegations including a transcript of Ms. Sena April 8, 2006 voicemail. However, no one from the EEOC followed up to interview plaintiff or to go over what plaintiff had submitted. Plaintiff was not given the opportunity to name individuals in her complaint, nor did anyone from the EEOC request a digital copy of the Ms. Sena’s voicemail. Plaintiff reported unauthorized intrusions into her home computers to the EEOC at that time as

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well. Towards the end of February 2007, plaintiff received a letter from EEOC Supervisory Investigator William Lai advising that plaintiff had neglected to provide him with a notarized EEOC Charge Form 5. Plaintiff complied with his request. Subsequently, plaintiff received a letter from Mr. Lai dated March 6, 2007 stating that the plaintiff’s notarized complaint was being forwarded to the New York State Division of Human Rights and that they might choose to investigate the case as though based on choice, not on law. Mr. Lai did not advise of the NYSDHR component until after receiving plaintiff’s notarized form. Plaintiff was subsequently verbally advised by a Ms. Walcott from the EEOC, in June 2006, that plaintiff’s complaint was never sent to the NYS FEPA. This being the case, and considering the fact that the plaintiff’s complaint might have been construed as verified by virtue of her signed statement “I declare (certify, verify, or state) under penalty of perjury that the foregoing is true and correct to the best of my knowledge”, there would appear to be no practical purpose for having plaintiff complete a notarized Charge Form 5 unless solely for the purpose of being sent for processing by the state FEPA as opposed to forwarding a copy for the state file. Either way, Mr. Lai should have advised plaintiff of the state complaint process in his February 2007 letter to plaintiff requesting the notarized EEOC Charge Form 5. The bottom of the charge form itself clearly indicates that by signing same, the complainant wants their charge filed with both the EEOC and the state or local agency. The form also says “Notary – When necessary for State or local agency requirements” which would seem to indicate that the notarization was only necessary under specific conditions which were not explained to plaintiff. As such, plaintiff signed and the form and had it notarized per the instruction of Mr. Lai without question in an effort to expedite the case as it had been almost a year since any type of action had been initiated on her case by the EEOC on plaintiff’s behalf.

Without any further contact with the EEOC, that agency issued a letter of Dismissal/Right to Sue letter on June 22, 2007, approx 15 months after she plaintiff first submitted her intake questionnaire to the EEOC and approx 11 months past the EEOC’s own 180 day deadline for case completion. Plaintiff’s case was dismissed without the possibility for appeal per Senior Investigator Donna Walcott who, on June 26, 2007, advised plaintiff via phone that the decision rendered was a final decision and that the only recourse for plaintiff was to file suit in federal court within 90 days. When plaintiff asked if the complaint had been sent to the New York State Division of Human Rights, Ms. Walcott advised that it had not. Plaintiff found it hard to believe that it took such a long time for the EEOC to determine that there was no cause for discrimination with regard to her case.

At the beginning of September 2007 in preparation of filing suit, the plaintiff, in review of the June 22, 2007 letter from the EEOC found that the allegations as written by Ms. Walcott were incorrectly stated and in large part to defendant’s benefit. On or about September 7, 2007, plaintiff called Ms. Walcott to request a revised letter of dismissal. Ms. Walcott advised plaintiff to put here request in writing but advised that plaintiff would still have to file suit in court within 90 days because the deadline could not be extended. One of the key errors in the June 22, 2007 letter was the omission of the

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existence of Ms. Sena’s April 8, 2006 voicemail, the one that plaintiff played at the twice rescheduled May 3, 2006 investigation interview whereon Ms. Sena claimed to be the person to have brought plaintiff under investigation in the first place. Instead, Ms. Walcott wrote, “Your employer has provided information and/or documentation to show that your work number was not monitored nor did it tape and thereafter play you a voicemail recording during the May 3rd meeting.”

Also, nowhere in her letter did Ms. Walcott refer to the initial 1996 in house HRA/EEO complaint that was the basis for all of the retaliatory harassment that followed, up through and including the plaintiff’s having been brought up on charges of alleged official misconduct in February 2006. Without this key information regarding the long term and ongoing cover up of public corruption at HRA, no correlations can be made to any of the plaintiff’s other allegations. As well, there is no apparent connection to the political aspects of the discrimination which is rooted in the fact that plaintiff is a black woman with an affiliation to the to the Dinkins administration. At the end of the day, by having disregarded the plaintiff’s evidence and sworn testimony, and without benefit of interview, review, or investigation of plaintiff’s claims, the issues of a hostile work environment and of continuing violations were not brought to the fore until 2009.

Plaintiff called the EEOC on September 12, 2007 to follow up on the status of her September 8, 2007 request to Ms. Walcott and was advised by Supervisory Investigator William Lai that his office was in receipt of plaintiff’s letter but that plaintiff must file suit in court within 90 days because the deadline for filing could not be extended.

As plaintiff’s case was not immediately dismissed, nor was reasonable cause determined, it would appear that plaintiff’s complaint was being investigated but the outcome of no determination demonstrates that and investigation did not occur. Various internet legal sites advise that the complainant should prepare carefully for their initial meeting with the EEOC investigator. Plaintiff never received any notices to attend any type of meetings with the EEOC. And based on the intricacies as detailed here, clearly at least one interview with plaintiff would have been required.

Online legal info goes on to state that after the EEOC receives the charge of discrimination and all relevant information, the commission will typically require the employer to provide a position statement and states that the complainant should make every attempt to review the position statement to show the commission how it is factually incorrect and a pretext for a hidden motive. Plaintiff was never advised as to the when defendant actually received or responded to the complaint, nor was she even made aware of the existence of position papers in general because she was not advised thusly by the EEOC. With regard to Filing a Charge of Employment Discrimination findlaw.com states “The EEOC makes a finding of “no cause” to believe that there was discrimination. Within fourteen days of the “no cause” finding, you can request a review of the determination. If the EEOC affirms the “no cause” finding, it will issue a “right to sue” letter. If it decides there is cause to believe your employer discriminated, it will start conciliation.” Plaintiff never received a letter indicating a “no cause” finding and

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therefore was not afforded the opportunity to review the Commission’s determination prior to receiving the dismissal/right to sue letter dated June 22, 2007. Plaintiff had never heard of or from Ms. Donna Walcott, who wrote the letter in question, prior to receipt of that letter. Through its actions, the EEOC had, in effect, ensured a complete disconnect between plaintiff’s home life and job life via the suppression of, among other things, Candice Sena’s April 8, 2006 voicemail thereby sending plaintiff into court with a fatally flawed document that served wholly to support the defendant’s cover up of the long term public corruption at HRA as well as the discriminatory treatment plaintiff had been subjected to for many years. Largely through omission, the EEOC has so far suppressed any evidence of the retaliatory harassment that plaintiff had been subjected to for, at that point, the prior ten years while at the same time creating the illusion that HRA and its political partners, including the EEOC and District Council 37, had no involvement with plaintiff with regard to her personal life and more specifically with access to her personal computers at home.

September 2007Plaintiff Filed Complaint in US Eastern District Court NYStatus: Case Dismissed As Time Barred

On or about September 18, 2007 plaintiff went to the Eastern District NY court to inquire as to the specifics of filing suit and to advise that she was waiting for a revised letter of Dismissal from the EEOC, reporting her concern that she would not receive a replacement letter prior to the 90 day deadline. The pro se court clerk advised that the only flexibility in the filing date was based on the date that the dismissal/right to sue letter was received by the plaintiff. The clerk advised plaintiff how to complete what he referred to as the coversheet for her complaint and provided the name of the attorney for defendant. The clerk advised plaintiff to bring the coversheet back to the court with her complaint stating that she at least would have a head start by having completed the complaint coversheet. By going to the court to find out what the process was with regard to filing suit and as well to seek a resolution for the flawed June 22, 2007 letter from the EEOC, plaintiff had clearly exercised her due diligence in pursuing her cause of action.

Due to computer and other problems as reported to the court via her April 7, 2008 motion to oppose dismissal, plaintiff delivered her completed complaint to the court on September 26, 2007. The clerk who had plaintiff complete what he referred to as the coversheet for her complaint was not in or gone for the day by the time plaintiff arrived at the court at around 4:20pm and handed over the three sets of paperwork per the September 18, 2007 instructions of the absent male pro se court clerk to the clerk on duty. When plaintiff asked how to request a jury trial, the young black female clerk on duty advised plaintiff to add “Jury Trial Demanded” toward the top right hand side of each coversheet. She then stamped the coversheet and advised plaintiff that as the cashier had already gone for the day, plaintiff would have to return the next day, September 27, 2007 to pay the filing fee. Plaintiff asked how the court would know how many attachments were included with her submission. The clerk advised that all of the paperwork would be cataloged in sets. Plaintiff left the courthouse and returned the next day to pay the filing

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fee. Plaintiff served defendant by the January 2008 deadline. Based on the above, plaintiff clearly did her due diligence with regard to pursuing her cause of action.

By mid February, plaintiff had received notice from the court for a conference for early March 2008.

On March 6, 2008, plaintiff attended a conference at the Eastern District NY court regarding the fact that she had filed her complaint two days past the 90 day statute of limitations. During the conference, Judge Lois Bloom advised plaintiff that there were few instances, short of being hospitalized or held hostage somewhere that would allow for a late filing with the court. After both the judge and defendant stressed the fact that only an extreme circumstance would qualify as an excuse for late filing, defendant stated, much like an afterthought, that plaintiff could have filed a basic complaint with the court. When plaintiff stated that she didn’t know she could do that, either defendant or the judge stated that ignorance of the law was no excuse. Plaintiff’s ignorance of that fact was due to an omission on the part of the court as the pro se clerk neglected to advice plaintiff that she could have filed what the defendant referred to as a basic complaint that very same day. It was only in the preparation of this brief that plaintiff discovered that the basic complaint referred to by the defendant was also known as a “bare bones” complaint.

Plaintiff was given the opportunity to file a motion to oppose dismissal and was instructed by Judge Bloom that plaintiff could only qualify for a timely filing due to extreme circumstances. Key here is the fact that just as with the EEOC, plaintiff had already provided evidence of corruption in the millions of dollars, unauthorized access of her home computers, the April 8, 2006 voicemail, and the withholding of the nature and final disposition of the charges against plaintiff by HRA. Plaintiff had also provided a copy of the September 8, 2007 letter to the EEOC requesting a revision of the June 22, 2007 Dismissal/Right to Sue letter to the court and to defendant as well. What follows makes it clear that plaintiff’s evidence and written testimony was once again ignored in an effort to support the ongoing and long term cover up.

Prior to adjourning the conference, plaintiff was taken to task for having placed the name of a lawyer on the coversheet of her complaint even though plaintiff had been instructed to do so by the Pro Se Court Clerk during her first visit to the district court on or about September 18, 2007. As plaintiff came into the court that day to receive information on how to file a complaint and find out what to do with regard to waiting on a revision from the EEOC she had no information with regard to what was required to complete any paperwork or what the paperwork itself would consist of. Certainly plaintiff would not know the names of any attorneys working for the city, let alone one as unique as Hilit Kroman. When plaintiff attempted to explain this, Judge Bloom cut her short, by asking plaintiff if it was her handwriting on the coversheet, and gave plaintiff instructions on how to remove the lawyer as a defendant in the case. Had the judge, however, allowed plaintiff to complete her statement, the court would have discovered that plaintiff was at the pro se counter performing her due diligence on or about September 18, 2007, approx

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a week prior to September 26, 2007 and can be verified via the district court records and/or any transcripts of that day’s proceedings.

Judge Bloom gave plaintiff until April 7, 2008 to oppose the defendant’s motion to dismiss and advised that upon review of the plaintiff’s motion to oppose dismissal, defendant would enter a motion for summary judgment and Judge Bloom expected to dismiss the case shortly thereafter. These statements, which are also a matter of court record makes it clear that Judge Bloom, who is supposed to be impartial in these matters, had already decided that the outcome of this case was to be made to the defendant’s benefit.

Per Judge Bloom’s instructions and working within the context that only an extreme circumstance would qualify plaintiff for equitable tolling, plaintiff entered her motion to oppose dismissal on April 7, 2008, citing Oshiver v. Levin, Fishbein, Sedran & Herman, 38 F.3d 1380 (3d Cir. 1994). with regard to the following determination by that court stating that to allow a defendant to benefit from the statute of limitations defense after intentionally misleading plaintiff with regard to the cause of action, thereby causing the plaintiffs tardiness, would be "manifestly unjust."

Standard of Review

The defendant’s April 18, 2008 reply brief states that “Without offering any evidence to substantiate her request for equitable tolling, as is her burden, plaintiff’s excuses fall woefully short of justifying her late filing. If anything, by her own admission plaintiff concedes her lack of diligence.”

On the contrary, plaintiff had already provided proof of what she alleged within the complaint that she filed with the court on September 26, 2007 however, that proof was ignored by defendant and as well by the court. Beyond that, neither this nor any other plaintiff has the burden of setting forth such minutiae in a complaint. Instead, such details belong in the parties’ answers to interrogatories, depositions, and other vessels for evidence unearthed in discovery. Aside from the fact that no discovery has been had as of yet regarding any evidence, the allegations in the complaint are based on plaintiff’s knowledge of what she has experienced a the hands of the defendant, statements by the defendants, statements against interest, and other admissible evidence. Separate and apart from what evidence is unearthed in discovery, plaintiff intends to testify as to her first hand knowledge and other evidence which is relevant and admissible pursuant to Fed. R. Avid. 401, 602, 801(d)(2), 804 (c), 807, etc. Plaintiff submits that unlike as stated by defendant that plaintiff had not offered “any evidence to substantiate her request for equitable tolling” when plaintiff did indeed provide evidence that would qualify her case to be equitably tolled but that evidence, as previously stated, was ignored, Plaintiff’s intended testimony will constitute abundant evidence that her allegations are true.

Plaintiff contends that she was mislead by both the court and defendant into believing that she had to prove her case within the context of a motion to dismiss. Defendant

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characterizes plaintiff’s explanations as “convoluted” and “irrational” and goes on to state that “plaintiff has failed to produce any evidence of the alleged “’passive: retaliation’ other than her garbled, speculative, and self-serving statements about the defendant’s motive, objective and methodologies [and that] Even assuming her claims are true, she fails to indicate how those circumstances delayed her ability to file within the 90-day limitations period.”

With regard to defendants’ above statement, plaintiff’s claims are true with regard to the defendant’s motive, objective and methodologies as described with regard to plaintiff’s having positioned as a whistleblower and then retaliated against as such due to politically based discrimination that began in 1994. defendant created a hostile work environment and engaged in acts of retaliatory harassment that constitute continuing violations. Per the EEOC: “Because the incidents that make up a hostile work environment claim "collectively constitute one ‘unlawful employment practice,'" the entire claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the charging party knew or should have known were actionable at the time of their occurrence. Morgan, 501 U.S. at 117 (quoting 42 U.S.C. § 2000e-5(e)(1)); see also id. at 115 ("[The] very nature of [hostile work environment claims] involves repeated conduct. . . . The ‘unlawful employment practice' therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. . . . Such claims are based on the cumulative effect of individual acts.") (citations omitted).

City of New York Administrative Code

Section 12-113 of the administrative code of the City of New York, subdivision as amended by local law number 68 for the year 1993 identifies the multiple adverse personnel actions that plaintiff had been subjected to since as early 1994 not only demonstrates strong evidence of a hostile work environment and include dismissal, demotion, suspension, disciplinary action, negative performance evaluations, loss of staff, office space or equipment or any other benefit, failure to appoint, promote, or transfer or assignment or failure to transfer or assign against the wishes of the affected officer or employee and ties together the abuses of power plaintiff was subjected to from 1994 through 2006 when plaintiff was brought under investigation for alleged acts of official misconduct.

As far as producing evidence with regard to any “passive retaliation”, a better description is retaliation via omission. Such retaliation creates the need to attempt to prove a negative much like when a teacher of the DOE is required to prove that they did not engage in corporal or sexual misconduct. The construct of these artificially generated circumstances, as detailed in the aforementioned POGO whistleblower manual, do not allow for the provision of an affirmative defense. As such, individuals who have been targeted as whistleblowers, like plaintiff and as it turns out, similarly situated teachers who also work(ed) for the City of New York, can only, for the most part profess their

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innocence while the City buries said employee (or former employee) with the “proof” that it generated along with the charges via a malicious prosecution while any evidence of wrongdoing on the part of the City of New York, as has happened in the plaintiff’s case, is ignored.

Defendant stated that “Equitable tolling is appropriate where plaintiff actively pursued judicial remedies but (1) received inadequate notice, (2) filed a defective pleading during the specified time period, (3) was unaware of her cause of action due to misleading conduct of the defendant, or (4) where the plaintiff’s medical condition or mental impairment prevented her from proceeding in a timely fashion.”

Defendant failed include any indication that plaintiff could have filed timely and later amended her complaint in his Standard of Review, although he did cite and apply that criteria (with regard to a timely filing and amending thereafter) in his Application Of The Standard To This Case. Additionally, this (timely filing and amend later) criteria was positioned in the very the last sentence of the next to the last paragraph just prior to conclusion of defendant’s April 18, 2008 reply brief as though his intent was to hide it. . as mentioned above, plaintiff only became aware of a fuller concept of the filing of what is known as a “bare bones” complaint while researching in preparation for this appeal.

Defendant also states in his Application of the Standard to This Case that plaintiff “failed to provide a shred of competent evidence that establishes the causal connection between the alleged circumstances and her late filing.” This was not true as plaintiff had provided detailed information to HRA, DC 37, the EEOC and to the district court which had, in one way or another, ended up being suppressed while the public corruption and politically based racial issues as they specifically pertain to plaintiff remained unaddressed by each of the above entities.

Defendant’s April 18, 2008 reply brief is premised on the mistaken assumption that in order to survive a 12(b)(1) or (6) challenge, a complaint must allege fact with such specificity as to include, e.g., the location and exact dates of each wrongdoing. This not withstanding, that it is not necessary for a complaint to plead evidence, or that it is not necessary to even plead the facts that serve as the basis for the claims in a complaint…Bogosian v. Gulf Oil Corp., 561 F 2d 434, 446 (3d Cir. 1977). Defendant mistakenly assumes otherwise when asserting at the 12(b) stage, that in a case over which no discovery has yet been had, no production made, interrogatories answered, and no witnesses deposed, that hasn’t offered “any evidence to substantiate her request for equitable tolling as is her burden.” In addition to being mistaken about the amount of evidence necessary in a complaint, it should by noted that rather than make the aforementioned denial of assertion of fact in an Answer as is proper, As such, defendant is improperly utilizing a 12(b) motion to dismiss as a vessel in which to substitute opinion of counsel for a denial of fact regarding the evidence in this case. Citing Haseler v. Novartis Consumer Health, Inc., 426 F. Supp. 2d 227 (D. NJ 2006). Defendants reply brief seeks to mistakenly define Plaintiff’s complaint as one of “conclusory allegations.” In doing so, defendant confuses assertions of fact with conclusions of law. In relevant

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part, Haesler held that: “On a motion to dismiss for failure to state a claim, pursuant to FED. R. CIV. P 12(b)(6), the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party. A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. The question is whether that person will ultimately prevail. “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claims which would entitle him to relief…While a court will accept well-plead allegations as true for the purposes of the motion, it will not accept unsupported conclusions, unwarranted inferences or sweeping legal conclusions cast in the form of factual allegations. All reasonable inferences, however, must be drawn in the plaintiff’s favor.”

The problem in this case is that the plaintiff’s allegations are politically unpopular and as such her testimony and evidence as submitted both to the EEOC and to the court has, for the most part, been ignored. Considering the circumstances of this case, it is quite possible that just as the EEOC stated in their June 22, 2007 letter of dismissal that defendant submitted various “proofs” to counter plaintiff’s allegations, once again, as described in the POGO whistleblower manual, and that since, to date, the plaintiff’s evidence has been suppressed, and tampered with (via the unauthorized intrusions to the plaintiff’s home computers) defendant might attempt to submit documentation on behalf of plaintiff that she herself did not produce.

Defendant goes on to state that “Plaintiff also blames a series of computer and car issues for her late filing. First, none of those issues rise to the level of the ‘rare and exceptional’ circumstances which justify equitable tolling of the 90-day rule.” Plaintiff contends that because the very nature of white collar crime is characterized by deceit, concealment, and/or violations (as is often the case with computer crime as well) of course plaintiff would be hard pressed to prove the relatedness of the above without benefit of proper investigation and the suppression of Ms. Sena’s April 8, 2006 voicemail.

With regard to the computer issues referenced by the defendant’s April 2008 reply brief, on September 8, 2007 (the same day that plaintiff sent a letter to EEOC Investigator Walcott re: the problems with her June 22, 2007 letter of dismissal), plaintiff also contacted Dell computers via online chat to find out why only two of the four systems she had purchased from Dell were listed on her systems and peripheral page. These are the same two Dell laptops in question in this case, and were the most recently purchased systems. At the conclusion of the September 8, 2007 online chat, the tech sent a copy of an invoice via email but never answered the question with regard to why the plaintiff’s two laptop computers were not listed. The invoice did not contain the detailed specs of the original December 2004 Dell invoice and once again, this information was provided to the court and to defendant but was ignored.

Over the course of this past summer of 2009, plaintiff accidentally spilled salt water onto her laptop, effectively killing it. She needed the info on the hard drive so she switched

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her hard drive into her husband’s former laptop. As reported previously in her documentation to HRA, the EEOC, and to the district court, both systems were identically configured when purchased towards the end of 2004. Plaintiff had also previously reported two different bios dates for the two laptops in question but was under the impression that bios can be updated over the internet via. However, upon changing out the hard drives, plaintiff discovered that it was the hard drive itself that generated the bios info when the system was booted up instead of the usual BIOS chip on the motherboard. After swapping drives, the bios version and date changed from A08 to A06 and from March 2005 to November 2004. Based on the above, clearly it was the hard drive that had been modified to generate the environment represented upon booting the system and that both physical and password acess was required to accomplish this.

Because of the changes made to both her and her husband’s laptop systems through early January 2007, and as reported to the defendant, the EEOC, and the court, plaintiff had changed the boot password on her own laptop. Because of the addition of the boot password, any changes made to the plaintiff’s laptop would require the knowledge of the boot password and physical access to the plaintiff’s laptop as remote access to plaintiff’s laptop via the internet was not possible at this point in the boot process. The only way to make the type of sophisticated changes that had been made to the plaintiff’s laptop in November 2007 was through actual physical contact with it. The only two people who had both password and physical access to the plaintiff’s laptop computer were plaintiff and her husband, Kevin Perry – hence the reference to the plaintiff’s husband in her April 7, 2008 opposition to dismissal. Both the modifications to the plaintiff’s laptop in November 2007 and the changes to the bios on plaintiff’s husband’s laptop, require sophisticated knowledge of systems that goes way beyond basic computing skills.

The connection here is between plaintiff’s husband, plaintiff’s computers and HRA or a political partner that would have the technical expertise to accomplish the above modifications. A secondary thread of connections exists between plaintiff’s husband, his connection to his ex, Candice Sena, her connection to HRA Special Investigations Officer Michael Harris and his email denying plaintiff a written list of charges and a final disposition of those charges. The EEOC’s mishandling of the plaintiff’s March 2006 complaint resulted in the suppression of Ms. Sena’s April 2006 voicemail which served to disconnect Ms. Sena, and therefore plaintiff’s husband from any activities having to do with HRA However, when viewed in retrospect, the combination of HRA’s refusal to provide plaintiff with written evidence of the charges against her, Mr. Perry’s alleged January 2006 back problems, plaintiff’s subsequent request from a co-worker for her step-daughter’s social security number on or about January 30, 2006 to be used expressly for the purpose of getting the child off the Medicaid rolls, Mr. Perry’s application for a social security card for his daughter two days later, on February 1, 2006 and plaintiff subsequently being notified that she had been brought up on charges of alleged acts of official misconduct on or about February 9, 2006 via a phone call from MIS personnel, in conjunction with the other acts of lawlessness as engaged in by defendant and their political partners, it becomes clear that plaintiff was set up just as she had consistently claimed all along. This timeline is inconsistent with the timeline presented by Ms. Sena

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in her April 6, 2006 voicemail on which she proclaims to have had plaintiff placed under investigation for over a year at the time. That would have placed Ms. Sena’s initial contact with HRA Special Investigations, which she claims as having occurring in approximately March 2005. Not only does this statement by Ms. Sena not fit the above timeline, HRA’s investigation does not bring into consideration the employee that provided plaintiff with the requested social security number in the first place.

Based on defendant’s own words, the above, in combination with the fact that all of this was being done to protect HRA management and perpetuate the cover up of corruption at HRA, is the type of evidence that should “rise to the level of rare and exceptional and should justify equitable tolling of the 90-day rule.”

What defendant did not, however, cite in his Standard of Review were the grounds for equitable tolling as stated in § 2-IV D.1 of the EEOC Compliance Manual which states that the complainant has grounds for equitable tolling under four conditions including providing misleading information or mishandling of charge by the EEOC or FEPA. As such, the EEOC’s own compliance manual states that equitable tolling may be appropriate if a charge is untimely because the EEOC or a FEPA made misleading statements to the charging party or mishandled the processing of the charge.

That defendant neglected to cite the mishandling of a case by the EEOC as grounds for equitable tolling is significant as the defendant, as well as the court, had a copy of the plaintiff’s letter to the EEOC, but again, chose to ignore this evidence. Otherwise, there would have been every reason for defendant to cite the § 2-IV D.1 of the EEOC Compliance Manual criteria and eliminate it as a source of contention. More disturbing however, is the fact that even though defendant did not raise the issue of the mishandling of cases by the EEOC, neither did the court.

Hostile Work Environment

The plaintiff has been subjected to a hostile work environment, from 1994 through the day she was terminated on October 14, 2009, to the extent that she walked away from the prospect of any subsequent promotions out of fear of losing her job based on the threats she received as reported in her 1996 in house HRA/EEO complaint which was dismissed and subsequently suppressed via the removal from, or non-inclusion in plaintiff’s personnel file. Coworkers have remained silent over the years with regard to the plaintiff’s situation and due to the overall situation with regard to the ongoing corruption at HRA because they are afraid of losing their jobs – the same reason, along with the fact that she had been threatened as reported in her 1996 in house complaint. The hostile work environment goes to the ongoing public corruption at HRA which, though reported by the plaintiff, has so far not been mentioned by HRA, the EEOC, or the district court.

Continuing Violations

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On April 2, 2009, plaintiff was dropped from payroll while out on medical leave since August 2008 on the same day she was to have had surgery on her dislocated left ankle with complications from diabetes. Due to this condition, plaintiff’s left leg is now approx two inches shorter than her right leg. Because her entire body is out of alignment she cannot stand for more than a few minutes at a time with out excruciating back pain.

It wasn’t until April 27, 2009, after going to the District Counsel 37 headquarters on Barclay Street in Manhattan to file a grievance against HRA for dropping her from payroll without notice on April 2, 2009 (the same day that plaintiff was originally scheduled for reconstructive ankle surgery) that plaintiff discovered that the continuing violations as previously reported to the EEOC via charge #520-2006-01362, were also violations of the citywide contract and that as such, District Council 37 Union Rep, Tyler Hemingway, had breached his duty in his representation of plaintiff during the 2006 investigation against the plaintiff. Mr. Hemingway, among other things, never advised plaintiff of her rights with regard to the investigation that had been brought against her. Plaintiff’s May 15, 2009 request to amend her pleadings to include those contract violations that were also continuing violations as reported to the EEOC was rejected by the district court even though plaintiff indicated that she might need to add District Council 37 as a defendant in the case based on Mr. Hemingway’s omissions.

One of the most heinous contract/continuing violations occurred in 2001 and would have remained unknown to plaintiff had it not been for her hospitalization in August 2008. It was only then that plaintiff was advised by HRA personnel that there was such a thing as the Family Medical Leave Act of 1993 and that she would have to apply for and exhaust advanced sick leave and grant leave prior to requesting donated time from her coworkers. Ironically, that 2001 injury impacts greatly on the plaintiff’s current condition.

Appellate Division in Caggiano v. Fontoura, et al. 2002 N.J. Super. LEXIS 367, imbued the continuing violation concept so as to broaden the potential for liability of those accused of engaging in harassing conduct. In Caggiano, the Appellate Division held that a hostile work environment claim is timely so long as at least one of a series of acts which together constituted the hostile work environment fell within the statutory period. As a corollary to the bright line rule created, the Court held that the entire hostile work environment encompasses a single unlawful practice.” Further, to facilitate a plaintiffs’ ability to prove a hostile environment claim, the Appellate Division held that an alleged harassing employee’s “mere presence” in the working environment within the limitations period may suffice to support a continuing violation based upon prior conduct, even though plaintiff claimed no specific harassing that fell within the limitations period.

In the Preliminary Statement of his April 3, 2009 brief, defendant states that Judge Bloom issued a Report and Recommendation that the plaintiff’s case be dismissed for having been filed 92 days after receiving a right to sue letter and that the plaintiff’s reasons for her untimely filing did not provide a basis for equitable tolling. As stated above, both defendant and the court ignored much of the evidence submitted by the plaintiff and plaintiff was instructed by Judge Bloom that only extreme circumstances would qualify

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for equitable tolling, and defendant never cited the criteria regarding the mishandling of a case by the EEOC as one that would allow for equitable tolling. Even if defendant declined to bring that up, the judge, who is supposed to be impartial in these proceedings, should have.

Defendant also states that on March 27, 2009, plaintiff filed a document entitled “Allegations Overview (official acts of misconduct).” Plaintiff did no such thing. Upon receipt of the correspondence from the court on or about April 7, 2009, plaintiff sent a written request to Judge Bloom dated April 8, 2009, asking to have the matter adjourned to August 2009 so that plaintiff might have her reconstructive ankle surgery which had at that point, been rescheduled to April 16, 2009. Even if plaintiff had contacted the court on March 27, 2009 to file exceptions to the R&R to dismiss, plaintiff at that time still would have requested an adjournment until August 2009 because plaintiff’s surgery was scheduled for April 2, 2009, had been so since February 2009. As such a similar timeframe for recuperation in a non-weight bearing status would still have been needed. On April 1, 2009, plaintiff’s surgery was rescheduled to April 16, 2009. On April 8, 2009, plaintiff mailed her letter of the same date to the court requesting the extension of time to file exceptions. In her April 15, 2009 response to plaintiff, Judge Bloom denied plaintiff’s request for an extension until August, but gave plaintiff until May 15, 2009 to file any exceptions with regard to the court’s recommendation to dismiss. Judge Bloom did not reference the receipt of any alleged March 27, 2009 filing of exceptions by the plaintiff nor did the judge clarify why, if such filings had been made approx just 10 days prior, she would allow for a subsequent filing of exceptions in such close proximity without explanation. Considering the fact that plaintiff would have been just one month into her three month recuperative period from her yet to be performed April 16, 2009 reconstructive ankle surgery, the court’s ruling in this circumstance was highly unreasonable. Beyond that, since the court had already adjourned the case for a year, plaintiff didn’t see why the court refused to accommodate plaintiff’s request for an additional four month adjournment for plaintiff’s ankle surgery.

After finding out that the continuing violations as perpetuated by HRA over many years were also violations of the citywide contract due to DC 37 union rep, Tyler Hemingway’s breach of duty, plaintiff requested to amend her pleadings to document these newly discovered dual violations and to include District Council 37 as a defendant in plaintiff’s complaint as the newly discovered violations of the citywide contract also happened to be one in the same as the various instances of retaliatory harassment as plaintiff had previously reported to the EEOC in 2006 and therefore acts of continuing violations as well. By doing this, plaintiff was denied her right to state a viable claim with regard to the existence of a hostile work environment and continuing violations. Both situations, per the EEOC, constitute criteria that would effect equitable tolling on the plaintiff’s behalf – a claim upon which relief might be granted. With regard to claims that plaintiff re-filed paperwork that was already in possession of the court, such allegations appear to be par for the course considering the long history of suppressed and ignored evidence, and omissions among the defendants’ political partners thus far. Plaintiff’s case was dismissed on June 2, 2009.

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Based on the above it becomes clear that the district court is one of HRA’s political partners along with the EEOC and District Council 37. With regard to the EEOC, they affirmatively deceived plaintiff into believing that they were actively involved in investigating plaintiff’s allegations. Instead of advising plaintiff that she had the right to request a right to sue letter at any point after 180 days had passed, the EEOC held on to plaintiff’s case for approximately 11 months prior to taking any action at all. By proceeding in this way, the EEOC lulled plaintiff into believing that they were working on her behalf. Similarly involved is District Council 37, whose rep, Tyler Hemingway represented plaintiff in the February 2006 investigation she was subjected to by accompanying her to the HRA headquarters at 180 Water Street on May 3, 2006. Officers of the Eastern District NY Court provided plaintiff with false and deceptive information related to the pursuit of her cause of action. They held the plaintiff’s case for approximately a year after the summary judgment was to have been filed by defendant and then actually fabricated evidence to make it seem as though plaintiff had responded to the court when she did not until almost two weeks later. The court concealed other information from plaintiff which deprived plaintiff of her right to adequate, effective, and meaningful access to the courts as ultimately her case was dismissed. Due to the cover-up, "key witnesses ... may now be dead or missing ... crucial evidence has destroyed, and ... memories may have faded." Harbury v. Deutch, No. 96-00438 (D.D.C. filed Mar. 23, 1999) at 18.

The Fifth Circuit reached a similar result in Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983), recognizing a potential denial of the right of access when an alleged cover-up delayed release of the facts of a murder for eleven months. Noting that "[d]elay haunts the administration of justice," the court held that the victim's parents could state a denial of access claim since "[t]he defendants' actions could have prejudiced [their] chances of recovery in state court because the resulting delay would cause stale evidence and the fading of material facts in the minds of potential witnesses." Id. at 974, 975.

cf. Barrett v. United States, 798 F.2d 565, 575 (2d Cir. 1986) ("Unconstitutional deprivation of a cause of action occurs when government officials thwart vindication of a claim by violating basic principles that enable civil claimants to assert their rights effectively.").

Access to Court

With regard to Harbury v. Deutch, No. 96-00438 (D.D.C filed Mar.23, 1999) the court held that: “Joining our sister circuits, we therefore hold that when public officials affirmatively mislead citizens in order to prevent them from filing suit, they violate clearly established constitutional rights and thus enjoy no qualified immunity. Returning to the question before us--Should it have been clear to an objectively reasonable official that affirmatively misleading Harbury for the purpose of preventing her from filing a lawsuit would violate her constitutional rights?--we think the answer is plainly yes. Not only have five of our sister circuits held that cover-ups that conceal the existence of a

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cause of action (or make it difficult to prosecute one) infringe the constitutional right of access to courts, and not only are we unaware of any contrary decision, but we think it should be obvious to public officials that they may not affirmatively mislead citizens for the purpose of protecting themselves from suit. Harlow developed qualified immunity to protect public officials from "insubstantial lawsuits" that threatened to "[divert] official energy from pressing public issues" and "[deter] able citizens from acceptance of public office," as well as to ensure that these officials could exercise their discretion without fear of suit. See Harlow, 457 U.S. at 814. Qualified immunity was never intended to protect public officials who affirmatively mislead citizens for the purpose of protecting themselves from being held accountable in a court of law.

Leave to Amend

Rule 15(a) of the Federal Rules of Civil Procedure permits a party to amend a pleading ‘once as a matter of course at any time before a responsive pleading is served.’” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). A motion to dismiss is not a responsive pleading under Rule 15(a). Centifanti v. Nix, 865 F.2d 1422, 1431 n.9 (3d Cir. 1989), citing Reuber v. United States, 750 F.2d 1039, 1062 n. 35 (D.C. Cir. 1984); McDonald v. Hall, 579 F.2d 120, 121 (1st Cir. 1978). See also 2 James Wm. Moore, et al., Moore’s Federal Practice § 12.34[5] (3d ed. 2000) (“Because a motion to dismiss for failure to state a claim is not a ‘responsive pleading,’ a plaintiff may amend the complaint once without leave, even during the pendency of a motion to dismiss, if defendant has not yet served an answer.”)

The appropriate standard of review over a district court's dismissal of a claim under Rule 12(b)(6) is de novo or plenary. Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir. 1994). This standard also applies to the district court's denial to grant leave to amend the complaint. The allegations of the complaint are to be taken as true, and the court is to determine whether, under any theory, the allegations are sufficient to state a cause of action in accordance with the law. Conversely, the court may also affirm the district court's dismissal order under any independently sufficient grounds. Id.

A district court's denial of equitable tolling is reviewed under an abuse of discretion standard. See Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002). Equitable tolling may be appropriate “where a plaintiff has been ‘lulled into inaction by ... state or federal agencies, or the courts.'” Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002)(citation omitted).

Failure to State a Claim

The Complaint that is the subject of this appeal was dismissed by the District Court pursuant to Rule 12(b)(6) for being time barred, failure to state a claim upon which relief can be granted and plaintiff was refused to grant leave to amend. Under Rule 12(b)(6), the "complaint should not be dismissed merely because a plaintiff's allegations do not support the particular legal theory he advances, for the court is under a duty to examine

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the complaint to determine if the allegations provide for relief on any possible theory." Bowers v. Hardwick, 478 U.S. 186, 201 (1986) (emphasis supplied)

In conclusion, we reiterate what we said at the outset: because the district court dismissed Harbury's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), our task is to assess neither the strength nor plausibility of Harbury's allegations, but to determine whether, assuming the truth of her allegations, "[she] can prove [any] set of facts in support of [her] claim which would entitle [her] to relief." Conley, 355 U.S. at 45-46. Applying that standard, we reverse the district court's dismissal of Harbury's access to courts claim and remand for further proceedings.

It is not even necessary that a plaintiff request appropriate relief, properly categorize legal theories, or point to any legal theory at all. Toll v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir., 1992) (complaint need not point to appropriate status or law to raise a claim for relief; complaint sufficiently states a claim even if it points to no legal theory or even if it points to wrong legal theory, as long as "relief is possible under any set of facts that could be established consistent with the allegations") (emphasis supplied)

The party moving for dismissal must show "beyond doubt that plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46. (emphasis supplied)

Moreover, the likelihood that a plaintiff will ultimately prevail on his claims has no place in determining whether or not to grant a motion to dismiss. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (issue is not whether plaintiff will prevail but whether claimant is entitled to offer evidence to support claims)

Additionally, when making a determination as to the sufficiency of a complaint, initial pleadings must be construed liberally. United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, 549 (5th Cir. 1890). This is especially true for a pro se Complaint under Haines v. Kerner et al., 404 U.S. 519. With respect to this Action, plaintiff contends that the District Court erred in determining that there is no theory of law under which relief can be granted. Plaintiff asks this court to review the Complaint, de novo, to perform again the examination referred to in Bowers, and to reverse the District Court's Order dismissing the Complaint. The arguments advanced herein constitute plaintiff’s reasons for contenting that plaintiff’s Complaint ought not to have been dismissed; however, if this court finds other reasons as a result of its examination, it should use its authority to reverse the dismissal on those grounds.

Time Barred

It is well settled that equitable considerations may toll the time period for filing a lawsuit alleging violations of federal anti-discrimination laws. See Espinoza v. Mo. Pac. R.R. Co., 754 F.2d 1247, 1248 n.1 (5th Cir. 1985) (holding that EEOC's 90-day filing requirement is akin to a statute of limitations and thus subject to equitable tolling).

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The Fifth Circuit has long recognized that equitable tolling may apply“ when the EEOC misleads the claimant about the nature of her rights.” Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999); see also Blumberg v. HCA Mgmt. Co., Inc., 848 F.2d 642, 644 (5th Cir. 1988); Chappell v. Emco Mach. Works Co., 601 F.2d 1295, 1303 (5th Cir. 1979). Recently, the Fifth Circuit elaborated on this issue, stating that to prevail on such a claim for equitable tolling, “[i]t is not sufficient for [plaintiff] to show that the EEOC failed to give him some relevant information; he must demonstrate that the EEOC gave him information that was affirmatively wrong.” Ramirez v. City of San Antonio, 312 F.3d 178, 184 (5th Cir. 2002). Thus, when a plaintiff has reasonably relied to her detriment on incorrect representations from EEOC, courts have permitted equitable tolling. See Page v. U.S. Indus., Inc., 556 F.2d 346, 351 (5th Cir. 1977) (allowing equitable tolling where plaintiff filed complaint late because he reasonably relied on erroneous information from EEOC); Lawrence v. Cooper Communities, Inc., 132 F.3d 447, 452 (8th Cir. 1998) (permitting equitable tolling where plaintiff reasonably relied to his detriment on EEOC's representation that he had filed a formal charge of discrimination).

In addition, the Fifth Circuit, following the Supreme Court's decision in Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1984), has found that equitable tolling may be appropriate when “the court itself has led plaintiff to believe that she has done everything required of her.” St. Louis v. Tex. Worker's Comp. Comm'n, 65 F.3d 43, 47 (5th Cir. 1995). In any event, when considering claims for equitable tolling, courts — including the Fifth Circuit — routinely look at other factors, such as whether plaintiff acted with “due diligence” in pursuing her rights, Pacheco v. Rice, 966 F.2d 904, 906 (5th Cir. 1992), and whether defendant was “prejudiced” by the plaintiff's failure to comply with the relevant statute of limitations, Baldwin County Welcome Ctr.,466 U.S. at 151.

Not wanting to rely solely on the half-hearted verbal commitment that plaintiff might receive a revision of the deeply flawed June 22, 2007 letter of dismissal from EEOC within the 90 day deadline by both Senior Investigator Donna Walcott and Supervisory Investigator William Lai, plaintiff went to the district court on or about September 18, 2007 to find out what she could do to preserve her right to sue while waiting to receiving the above revised of dismissal from the EEOC. The June 22, 2007 letter of dismissal that plaintiff had received had misstated the facts and was overwhelmingly written in favor of HRA. By issuing the fatally flawed June 22, 2007 letter and advising plaintiff to proceed to court with it regardless as to whether a revised letter received or not, the Commission in effect was sending plaintiff to the pursue a losing lawsuit and by doing so the EEOC gave plaintiff “information that was affirmatively wrong,” Ramirez, 312 F.3d at 184. plaintiff reasonably believed that the Commission would send a revised letter at some point, even if not during the 90 day deadline for filing. This type of detrimental reliance on misleading information by EEOC in itself is grounds for equitable tolling. See, e.g., Lawrence, 132 F.3d at 452 (equitable tolling allowed where “[plaintiff's] failure to file a timely charge arose from the EEOC's misconduct which is a circumstance beyond [plaintiff's] control and constitutes excusable neglect”); Early v. Bankers Life & Cas. Co.,

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959 F.2d 75, 81 (7th Cir. 1992) (“Misleading conduct by the EEOC can be a basis for tolling the administrative statute of limitations.”); Miller v. Marsh, 766 F.2d 490, 493 (11th Cir. 1985) (“equitable tolling may be appropriate when a plaintiff has been lulled into inaction by ... federal agencies”) (internal quotation marks omitted).

Equitable tolling of the limitations period in this case is further supported by the actions of the district court, which led plaintiff “to believe that she had done everything required of her.” Baldwin County Welcome Ctr., 466 U.S. at 151. When plaintiff spoke with the district court pro se clerk on or about September 18, 2007, he gave no indication that plaintiff could file a bare bones complaint within the deadline and then amend the complaint to cure any deficiencies at a later date but still within the four month time frame between filing with the district court and service on the defendant. Further, at the March 6, 2008 hearing that was expressly held to resolve the issue of the plaintiff’s late filing and within the defendant’s subsequent memoranda of law, in citing the reasons for equitable tolling, defendant never mentioned that the mishandling of a case by the EEOC was in itself a reason for equitable tolling per § 2-IV D.1 of the EEOC Compliance Manual. Instead, defendant vaguely mentioned the filing of a basic complaint as an afterthought and cited four other reasons including 1) received inadequate notice, 2) filed a defective pleading during the specified time period, 3) was unaware of her cause of action due to misleading conduct of the defendant, or 4) where the plaintiff’s medical condition or mental impairment prevented her from proceeding in a timely fashion.

After almost a year had passed, the district court gave plaintiff an opportunity to file exceptions to the district court’s Report and Recommendations. On April 8, 2009 plaintiff advised the court that she was in the process of being cleared for reconstructive ankle surgery w/complications due to diabetes, and requested an adjournment to August 2009 to have the surgery and time to heal but was denied. Plaintiff was given to May 15, 2009 to oppose dismissal. Instead, plaintiff requested to amend her pleadings to include District Council 37 as a defendant in the case due to the plaintiff’s discovery that the DC 37 union rep, Tyler Hemingway, had breached his duty by not acting on the plaintiff’s behalf. The same issues that plaintiff had reported to the EEOC as retaliatory harassment through 2006 and 2007 in her EEOC complaint/charge #520-2006-01362 were also violations of the citywide contract, including the fact that Mr. Hemingway neglected to advise plaintiff of her rights with regard to a written explanation of charges/final disposition. These violations of the contract were discovered by plaintiff when she went, with a friend, to DC 37 headquarters to file a grievance against HRA for dropping plaintiff from payroll on the same day she had initially been scheduled for surgery. The district court, however, refused the plaintiff’s request and dismissed the plaintiff’s case in June 2009. With regard to the district court clerk, plaintiff “should not be penalized for following the instructions of the district court”); Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir. 1983) (holding that 90-day suit-filing period equitably tolled where district court clerk misled plaintiff about filing requirements).

In addition, plaintiff acted reasonably and with due diligence throughout the relevant time period by going to the district court to find out how to proceed. Plaintiff should not be

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held accountable for the omissions of the district court, whether intentional or not with regard to the fact that she was never advised that she could file a bare bones complaint by the district court clerk and neither the defendant, nor the judge made reference to the term at the March 6, 2008 conference or within the defendant’s April 18, 2007 supplemental memorandum of law. Although the defendant’s intentionally vague reference to plaintiff filing a basic complaint and then amending it afterward was stated as an afterthought instead of calling it a bare bones complaint, and totally neglecting to mention the EEOC guideline regarding the mishandling of the plaintiff’s case by the EEOC might be what defense lawyers do, the district court, which is supposed to be impartial on all matters, had to know better yet remained silent on these two issues.

Preparation of Summons for Service

With regard to the plaintiff’s completion of the “coversheet”, plaintiff came into the district court on or about September 18, 2007 to find out how to best proceed under the above circumstances. She was instructed by the pro se court clerk on how to complete the coversheet. The clerk provided plaintiff with the name of the HRA lawyer, Hilit Kroman, for placement onto the coversheet to, as he explained it, to ensure proper service. However, regardless of how the information on the coversheet got there, the Federal Rules of Civil Procedure Rule 4 maintains, with regard to summons, that “On or after filing the complaint, plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to plaintiff for service on the defendant. A summons — or a copy of a summons that is addressed to multiple defendants — must be issued for each defendant to be served.

After returning to the district court to pay the filing fee on September 27, 2007 as instructed by the black female pro se clerk on September 26, 2007, plaintiff was presented with copies of the typed summons (case #07 4050) complete with the name of Hilit Kroman, to be used for service on the defendant. Based on Rule 4, such a summons was defective and should not have been authorized for service.

Thus, the evidence demonstrates that far from sleeping on her rights, plaintiff “acted with utmost diligence, pursuing [her] claim first through administrative channels and ultimately to th[e] court.” Martinez v. Orr, 738 F.2d 1107, 1112 (10th Cir. 1984) (finding that plaintiff did not “attempt to revive a long stale claim or otherwise circumvent the statutory period at issue”). As a matter of fact, it appears as though both the EEOC and district court attempted to create a stale claim by each holding the plaintiff’s complaints for at least an additional year each, with regard to the EEOC weighing in at approx 15 months and the district court weighing in at approx 19 months from initial intake through dismissal of plaintiff’s complaints; see also Warren v. Dep't of the Army, 867 F.2d 1156, 1160 (8th Cir. 1989) (equitable tolling warranted where “record reveals that [plaintiff] acted with utmost diligence, only to find himself caught up in an arcane procedural snare”) (internal quotation marks and citation omitted). Accordingly, this Court should equitably toll the limitations period in the plaintiff’s case and hold that she filed her lawsuit in a timely manner.

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Federal Rules of Evidence (Article IV)

As filed with the EDNY, plaintiff is filing a copy of a CD of the April 8, 2006 voicemail of Candice Sena. The fact that the above agencies went to such great lengths to suppress and/or ignore this voicemail is a clear demonstration of plaintiff’s claims of abuse of power through political partnerships that extend all the way down to private citizens. The content of the voicemail as well as the great effort and coordination that has been expended to suppress this voicemail by the above entities make it both relevant and admissible.

Conclusion and Prayer For Relief

The district court abused its discretion by refusing to equitably toll the 90-day statute of limitations in the plaintiff’s case. Plaintiff believes that the record evidence overwhelmingly demonstrates that plaintiff had no choice but to rely, to her detriment on representations by EEOC and the district court thus warranting equitable tolling in this case. For the foregoing reasons, this Court should not only reverse the district court's ruling and remand this case for further proceedings, this Court should declare that plaintiff be granted a new right to sue letter based on the fact that the defendants, District Council 37, the EEOC, and the District Court affirmatively deceived plaintiff into believing that they were actively involved preserving her rights to pursue her cause of action when all the while they were working to ensure that plaintiff would not be able to engage in an effective lawsuit. Plaintiff would appreciate the opportunity to offer oral argument in support of this brief.

Respectfully submitted,Robin Pugh-Perry, pro sePlaintiff-Appellant

Amended, Dated and Filed: February 16, 2010

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CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32

I, Robin Pugh-Perry, hereby certify pursuant to F.R.A.P 32(A)(7) that according to the word-count feature of Microsoft Word 2002, the foregoing appellate brief contains 13,701 words (exclusive of the table of contents, table of authorities, and this certificate) and therefore complies with the 14,000 word limit for appellate briefs in the Federal Rules of Appellate Procedure for the Second Circuit.

Dated: February 16, 2010

_________________________________Robin Pugh-Perry

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