UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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MARCUS I. WASHINGTON, :

:

Plaintiff, :

:

v. :

:

WILLIAM MORRIS ENDEAVOR :

ENTERTAINMENT, LLC; formerly known as :

the WILLIAM MORRIS AGENCY, JEFF :

MEADE and SARAH WINIARSKI, :

:

Defendants. :

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Civil Action No. 10 CV 9647 (PKC)

PLAINTIFF‟S MEMOMORANDUM OF LAW IN OPPOSITION OF DEFENDANTS‟ MOTION TO DISMISS,

OR, IN THE ALTERNATIVE, FOR STAY PENDING ARBITRATION

Marcus Isaiah Washington

54 Boerum St. Apt. 6M

Brooklyn, NY 11206

(646) 504-6497

humanrights.areamust@gmail.com

Pro Se Litigant

TABLE OF CONTENTS

STATEMENT OF RELEVANT FACTS

ARGUMENT

I SIGNED THE ARBITRATION AGREEMENT COMPLETELY OBLIVIOUS

TO WILLIAM MORRIS‟ 112 YEAR „PATTERN AND PRACTICE‟ OF

DISCRIMINATION WHICH HAS RESULTED IN A PRE-EXISTING

DISPARATE IMPACT AND SYSTEMIC DISPARATE TREATMENT

TOWARDS AFRICAN AMERICANS.

THE ARBITRATION PROVISIONS REGARDING „DISCRIMIANTION‟

AND „RETALIATION‟ ARE UNCONSCIONABLE AND VIOLATE

SECTION 1981AND TITLE VII GIVEN WILLIAM MORRIS‟

STATISTICALLY SIGNIFICANT RACIAL IMBALANCE.

THE ARBITRATION AGREEMENTS WERE SIGNED BECAUSE OF

UNDUE INFLUENCE & ECONOMIC DURESS AS A CONDITION OF

EMPLOYMENT AND COERCION AS A CONDITION TO REMAIN

EMPLOYMED.

CONCLUSION

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Plaintiff Marcus Isaiah Washington respectfully submits this memorandum of law in opposition of

Defendants‟ William Morris Endeavor Entertainment, LLC, Jeff Meade, and Sarah Winiarski‟s (collectively, “William

Morris” or “WME”) (hereinafter “Defendants”) motion to dismiss, pursuant to the Federal Arbitration Act, seeking

dismissal of Plaintiff‟s complaint or, in the alternative, a stay of this action pending arbitration. Plaintiff asks that the

Court compel the Defendants to respond to the initial complaint so the case may proceed in federal court based on the

reasons set forth below.

STATEMENT OF RELEVANT FACTS

After a rigorous three part interview to join the William Morris Agency‟s Agent Trainee program, I began

working for the Defendants on September 2, 2008. In preparation for my interviews, I spent numerous hours

researching the history of the company via various websites, which detailed the prestigious talent and literary agency‟s

history of representing some of America‟s biggest cultural and international icons of all races and ethnicities including

Frank Sinatra, Bill Cosby, Jennifer Lopez, Jackie Chan and hundreds of others. However, none of my search results

forewarned or alerted me to the company‟s history of racism, discrimination and diversity issues (not including the

support and mailroom staff) in the workplace which has remained frozen since it was founded in 1898. I discovered the

company‟s discriminatory practices shortly after relinquishing my civil and human rights by signing an arbitration

agreement as a condition of employment with the intent of advancing my career.

ARGUMENT

I SIGNED THE ARBITRATION AGREEMENT COMPLETELY OBLIVIOUS TO WILLIAM MORRIS‟ 112 YEAR

„PATTERN AND PRACTICE‟ OF DISCRIMINATION WHICH HAS RESULTED IN A PRE-EXISTING DISPARATE

IMPACT AND SYSTEMIC DISPARATE TREATMENT TOWARDS AFRICAN AMERICANS.

According to the Civil Rights Act of 1964, employers are not to discriminate on the basis of a person‟s

“race, color, religion, sex or national origin.” Additional classes protected under the New York State Human Rights

Law (“NYSHRL”)1 and New York City Human Rights Law (“NYCHRL”)2 include, but are not limited to, age,

disability and sexual orientation. William Morris‟ agreements contained language stating that issues, even ones

pertaining to “discrimination,” were to be resolved by and through arbitration. The arbitration agreements on its face

appear reasonable. However, when scrutinized further one will notice that the terms of the agreement are

1 New York State Human Rights Law, New York Executive Law § 291 2 New York City Human Rights Law, New York Administrative Code § 8-101

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unconscionable and are in direct violation of Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“Section

1981”) and Title VII of the Civil Rights Act of 1964, as codified, 42 U.S.C. §§ 2000e et seq. (“Title VII”). The agreement

must not be viewed in and of itself. Instead, it must be analyzed and comprehended in its full context to realize that

this language applies specifically to “discrimination” based on race, color and/or national origin.

The gender and racial composition of Agents and decision makers is positively associated with that of those

who are hired, and ultimately promoted at William Morris. As far as sex is concerned, women have made considerable

gains and progress within the company throughout the decades. The first female Agent – Shelly Baumstein – was hired

as an Agent Trainee in 1975.3 Thirty-three years later, at the start of my employment, women accounted for 20 out of

the 50 Agents, and represented 50% of the Agent Trainees in my group (¶ 44). In addition, at the time of my leaving in

April of 2010, women in the New York office also held top positions with Cara Stein serving as COO and Jennifer

Rudolph Walsh being one of five members on the board of directors. Regarding age, two Agents went into retirement

on their own accord while I was employed. Veteran theatrical Agent – Biff Liff – retired well past the age of 90 and

film Agent – Jeff Hunter – was over the age of 80. As for disability, William Morris was accommodating and

understanding, so much so that an Agent who suffered from serious medical complications – Barbara Skydel – never

worked out of the office during the entire 18 months I was employed. She passed away in June of 2010. Because the

company was racially homogenous at the decision making level and observed majority of the Jewish holidays, one‟s

religious beliefs were not an issue. From September 2008 through April 2010, minorities were either underrepresented

or non-existent at each level of the Agent track (e.g. Agent Trainee, Floater, Assistant, Coordinator and Agent), in the

New York office, decreasing from 11.2% to 6.4% (¶ 55, Complaint Exhibit C). Upon closer inspection, each of the

protected classes aside from race, color and national origin were well represented at all levels of William Morris‟ Agent

Trainee program or were historically accommodated for by the company, demonstrating through deeper analysis, that

“discrimination” is actually applicable to race, color and/or national origin.

In Griggs v. Duke Power Co., 401 U.S. 424 (1971), a unanimous Court (absent participation from Justice

Brennan) agreed that Congress' purpose in enacting Title VII was not just to root out overt discrimination, but to

"achieve equality of employment opportunities." To do so, "practices, procedures, or tests neutral on their face, and

3 David Resin, “The Mailroom,” 143 (2003).

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even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory

employment practices.” Int'l Bhd. of Teamsters v. United States, 431 U.S. 339 n.20 (1977) states:

Statistics showing racial or ethnic imbalance are probative in a case such as this one only because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of longlasting and gross disparity between the composition of a work force and that of the general population thus may be significant even though §703(j) makes clear that Title VII imposes no requirement that a work force mirror the general population. (citations omitted)

By hiring mostly on a “who you know” or referral basis, William Morris‟ discriminatory practices have

remained frozen over the course of 112 years. As a result, the past is just as relevant as the present. Due to this

considerable span of time, intergenerational and longitudinal observations detailing an intentional „pattern and practice‟

of discrimination can be seen. What I experienced was not an episodic or isolated offense. In a city with a sizeable

African American and minority population, the fact that there were zero African Americans hired into the Agent

Trainee program at least two years before I began employment was a sign of my token status. In addition, there were

more African American Agents employed in 1965 (one), than there have been in the last six years working in the New

York office (¶ 61). The statistics for Hispanics and Asian Americans are no better. This is statistically significant and

not due to chance, further indication of a company with an animus towards African Americans and other minorities.

See NAACP v. Town of East Haven, 70 F.3d 219 (2d Cir. 1995). In an environment where advancement is based on

access to networks and nepotism, this creates an additional barrier for minorities in their attempt to rise above the

company‟s glass ceiling.

An inexorable zero “speaks volumes” for itself, and for some district courts, no other statistics are necessary

to support a prima facie inference of discrimination. See Barner v. City of Harvey, No. 95 C 3316, 1998 WL 664951, at

*50 (N.D. Ill. Sept. 18, 1998) (“In cases, such as this one, the „inexorable zero‟ speaks volumes and clearly supports an

inference of discrimination.”). In the case of women referees in the NBA, Ortiz-Del Valle v. National Basketball Ass'n,

42 F. Supp. 2d 33 (S.D.N.Y. 1999), the Southern District of New York recognized that evidence of an inexorable zero

can support a jury's finding of discrimination against a motion for judgment as a matter of law. In Victory v. Hewlett-

Packard Company, 34 F. Supp. 2d 809 (E.D.N.Y. 1999), the Eastern District of New York read Teamsters as holding

that an inexorable zero standing alone could support a disparate impact claim of sex discrimination in promotions,

asserting that “[t]he Supreme Court has repeated countenanced the use of statistical evidence, and evidence of the

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absence of a single minority employee being hired, labeled the „inexorable zero,‟ would in and of itself support an

inference of discrimination.” Likewise, in Ewing v. Coca Cola Bottling Co., No. 00 CIV. 7020(CM), 2001 WL 767070

(S.D.N.Y. June 25, 2001) a case of racial and ethnic discrimination at a New York bottling plant, the court found a

claim noting that the inexorable zero was sufficient to defeat a motion to dismiss because a near-zero promotion rate

of minorities into higher-skilled jobs reflected de facto segregation, and therefore supported an inference of intentional

discrimination.4

This glaring absence of minorities was proven to be intentional, and not the result of a “business necessity,”

when William Morris decided to hire five African Americans in July 2010, a month after they were notified by the

EEOC that I filed a complaint for racial discrimination (¶ 165). In the first year of the newly merged company‟s

existence, the New York office hired zero African Americans from April 2009 to June 2010. For a company that

claimed no wrongdoing when I confronted senior management about the issue, why would the number of African

Americans hired suddenly jump 500% between May and July? In one month, they hired more African Americans than

they had in the last four years (and possibly longer). No matter how shocking the numbers are, the statistical data

cannot be denied or disputed. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (“The reason for treating

circumstantial and direct evidence alike is both clear and deep-rooted: „Circumstantial evidence is not only sufficient,

but may also be more certain, satisfying and persuasive than direct evidence.‟”)

“The intuition relies on the fact that zero is the lowest number or proportion of women or minorities that

an employer can have. A court that views employment discrimination law as a means for society to root out

employment practices based on prejudice (whether of workers, of customers, or of employers themselves) might

rationally infer that the employers with the most egregious practices would be among those near this lower bound.”5

Based on this reasoning, a prima facie inference and pretext for disparate impact and systemic disparate treatment

towards non-Whites was already established before I signed the arbitration agreement, however, I was completely

clueless to this highly relevant fact. Like many, I once believed the rhetoric that we live in a “post-racial” society, so

when signing the arbitration agreement, I had no reason to be suspicious of the language regarding “discrimination.”

4 Id. at *5-6 (“While this is not the case of the strict „inexorable [z]ero,‟ given [the promotion of one minority employee], the

allegations of significant segregation of the production workforce [are] a sure sign of discrimination.”). 5 “The „Inexorable Zero,” Harvard Law Review, 117 Harv. L. Rev. 1215, (Feburary 2004).

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Also, being that the company represented numerous high-profile African American entertainers, I never imagined that

in 2008, I would be the only African American hired at any level of the Agent Trainee program in New York City.

Over the last eight decades, there has been a substantial amount of documented evidence supporting the

fact that William Morris has been aware of their issues of racism and discrimination, both internally and externally. The

first 63 years included engaging in ostensibly race-neutral employment practices that were however, intentionally

designed to exclude African Americans and minorities from employment, e.g. requiring a college degree during a period

of time when schools were largely segregated and limited educational funding prevented Blacks from receiving an

adequate education (see Complaint Exhibit B). As a result of protests from civil rights organizations like the NAACP,6

the company hired its first African American – Wally Amos – in 1961. After six years with the company and

representing acts such as The Supremes, Simon & Garfunkel and Marvin Gaye, Amos was told he couldn‟t be

promoted from a music Agent to a television or film Agent because the networks and studios weren‟t “ready for a

black agent” (¶ 57). In the 1980s, William Morris‟ most lucrative client was African American comedian/actor Bill

Cosby, whose NBC show The Cosby Show was the highest rated sitcom on primetime television and has raked in

hundreds of millions of dollars for the company through packaging and syndication deals alone. Senior management

knew that there was something wrong with there being little to no African Americans employed at the company given

Cosby‟s history of social activism. In 1968, his Emmy Award winning documentary Black History: Lost, Stolen or Strayed,

“daringly challenge[d] the lies that the establishment ha[d] been indoctrinating millions of people with” and specifically

highlighted Hollywood‟s role throughout history in perpetuating stereotypes about African Americans, characterizing

them in his words as “typical negroes – lazy, stupid and happy the way he was.”7 In 1989, the company made

superficial progress by starting a “Black and Urban Contemporary Music” division headed by veteran music executive

Kevin Harewood (¶ 58). However, he left the company after one year. Since that time, there has not been another

African American music Agent employed in William Morris‟ U.S. offices. I was doomed from the beginning given that

this was my initial area of interest upon joining the company.

6 “Out of Focus, Out of Sync: Take 3,” The National Association of Colored People, (2003). 7 “A Look At Militant Bill Cosby's „Black History: Lost, Stolen or Strayed,‟” (February 28, 2011)

http://hiphopwired.com/2011/02/28/a-look-at-militant-bill-cosby%E2%80%99s-black-history-lost-stolen-or-strayed-video/.

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There has also been numerous articles written throughout major media and trade publications, including one

titled “Jews, Blacks and Trouble in Hollywood,”8 by the New York Times on September 2, 1990 detailing the very same

issue at the heart of this case. In 112 years, there have been less than 20 African Americans who have worked as Agents

at William Morris (¶ 60), and as of March 2011, less than 4 out of more than 200 Agents are African American. The last

statistic becomes even more appalling when it becomes known that Dave Wirtschafter, former co-CEO of WME who

stepped down in December of 2010 and is still on the board of directors, a Partner and Agent for the company, was

married to an African American woman, yet did little to nothing in encouraging his workforce to become more

inclusive. What‟s troubling about this is that the company has profited immensely from African American entertainers

and has had a complete monopoly along with other agencies, studios and networks in determining and creating how

minorities are depicted through the media and viewed by society at large. The racial composition of the company‟s

other businesses, which include an advertising agency, are just as atrocious.

These are just a few examples to show the state of mind of William Morris, which continues to manifest

through the private attitudes of its employees today. With few “smoking gun” examples of discrimination, this becomes

problematic because the institutional dynamics legitimate and promote racist behavior in a systematic and subtle

manner. Instead of truly correcting these problems by restructuring its organization to become more inclusive or giving

qualified minorities an equal opportunity, they chose instead to compel minorities to waive their civil and human rights

through mandatory arbitration agreements as conditions for employment. Their actions are highly deceptive and

corrupt, and to any reasonable person with egalitarian beliefs and principles, the examples mentioned above would be

enough to shock the conscience.

The enactment of the Local Civil Rights Restoration Act (“Restoration Act”)9 in 2005 reflected the New

York City Council‟s concern that the NYCHRL was being “construed to[o] narrowly.”10 It was designed to be more

protective by viewing the provisions of state and federal civil rights statutes “as a floor below which the City‟s Human

8 Neal Gabler, “Jews, Blacks and Trouble in Hollywood,” New York Times, (September 2, 1990)

http://www.nytimes.com/1990/09/02/movies/film-view-jews-blacks-and-trouble-in-hollywood.html. 9 N.Y.C. Local Law No. 85 of 2005 (Oct. 3, 2005) [hereinafter Restoration Act]. The Restoration Act is found in New York

City, Legislative Annual (2005). The text of the Restoration Act was signed into law on October 3, 2005 and available at

www.antibiaslaw.com/RestorationAct.pdf. Found in Craig Gurian, “A Return to Eyes on the Prize: Litigating Under the

Restored New York City Human Rights Law,” Fordham Urban Law Journal, 255 (2006). 10 Restoration Act, supra note 7, § 1.

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Rights law cannot fall, rather than a ceiling above which the local law cannot rise.”11 It is also to be interpreted on an

independent and liberal basis with the goal of “making it the most progressive in the nation.” Farrugia v. North Shore

University Hospital, 13 Misc 3d 740, 747, 820 N.Y.S.2d 718 (Sup Ct, NY County 2006) (quoting Jordan v. Bates Adv.

Holdings, Inc., 11 Misc 3d 764, 816 N.Y.S.2d 310 (Sup Ct, NY County 2006))

The Restoration Act requires that provisions of the City's Human Rights Law be construed liberally to

accomplish the “uniquely broad and remedial” purposes of the local law. In Craig Gurian‟s “A Return to Eyes on the

Prize: Litigating Under the Restored New York City Human Rights Law,” he states:

What the phrases „uniquely broad and remedial purposes‟ and „fundamental amendments‟ reflect is the fact that, in 1991, the City Human Rights Law shifted decisively away from the „let's see if we can conciliate and become friends‟ philosophy that animated the first generation of modern civil rights statutes. The City Human Rights Law became instead a statute that had at its core traditional law enforcement values. These included the belief that deterrence was necessary to maximize compliance, and that deterrence could only be achieved: (a) under a regime that maximized responsibility for discriminatory acts and concurrently minimized the leeway accorded covered entities to evade such responsibility; and (b) where non-compliance was seen to have serious consequences.12

From civil rights protests to the threat of racial discrimination lawsuits, every possible option has been exhausted in

trying to address and resolve this problem, yet William Morris has remained diligent in engaging in discriminatory

practices. “The courts in construing a statute should consider the mischief sought to be remedied by the new

legislation, and they should construe the act in question so as to suppress the evil and advance the remedy.”13 Litigation

is the only solution that will effectively “suppress the [societal] evil” known as discrimination and deter William Morris

and similar tortfeasors from continuing to engage in these unlawful practices.14

THE ARBITRATION PROVISIONS REGARDING „DISCRIMIANTION‟ AND „RETALIATION‟ ARE

UNCONSCIONABLE AND VIOLATE SECTION 1981AND TITLE VII GIVEN WILLIAM MORRIS‟

STATISTICALLY SIGNIFICANT RACIAL IMBALANCE.

Race is relentlessly relevant and continues to play an inevitable role in the allocation of societal benefits and

burdens. Therefore, in America, matters dealing with the issue of race cannot be separated from its historical context.

When the Federal Arbitration Act was enacted in 1925, African Americans didn‟t have civil, political or social rights

11 Id. 12 Craig Gurian, “A Return to Eyes on the Prize: Litigating Under the Restored New York City Human Rights Law,”

Fordham Urban Law Journal, 283 (2006). 13 N.Y. Stat. Law § 95. (McKinney 2005) 14 Marc Bendick, Jr., Ph.D. and Mary Lou Egan, Ph.D, “Research Perspectives on Race and Employment in the Advertising

Industry,” Bendick and Egan Economic Consultants, Inc. (2009).

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and were explicitly barred from employment opportunities due to their deemed inferior status. Although

Reconstruction Era Civil Rights Acts and the 13th, 14th and 15th Amendments were created to increase the rights of

African Americans, it wasn‟t enough to defeat Jim Crow laws and overt forms of racism due to attitudes and beliefs of

white supremacy. This is further supported by the fact that this country, after numerous attempts, has never been

successful at passing federal anti-lynching legislation. Therefore, how could the drafters of the FAA, which originally

started out as a tool for resolving disputes between businesspeople of semi-equal bargaining power, be able to foresee

that four decades later, African Americans would be given civil and human rights to protect them from employment,

housing and education discrimination?

Nevertheless, the Federal Arbitration Act (FAA) §2 expresses a preference of arbitration over litigation in

that contracts decided to be settled “by arbitration shall be valid, irrevocable, and enforceable.” There is a possibility

however, that arbitration agreements can be subject to nullification if “grounds…exist at law or in equity for the

revocation of any contract.” Under New York law, a contract is unenforceable when it is unconscionable, and a

contract is unconscionable in the absence of meaningful choice on part of one of the parties (procedural

unconscionability) together with contract terms which are unreasonably favorable and oppressive to that party

(substantive unconscionability). See Desiderio v. Nat'l Assoc. of Sec. Dealers, 191 F.3d 198, 207 (2d Cir.1999); Gillman

v. Chase Manhattan Bank, N.A., 73 N.Y. 2d 1, 534 N.E.2d 824, 828 (1988).

Given the historical and statistical evidence of a “pattern and practice” of discrimination in the last section,

a closer inspection of this agreement demonstrates how unfair and one-sided this agreement is. It‟s without question

that William Morris‟ bargaining power is superior to that of its employees due the allure of working for a major

entertainment company that represents some of the biggest celebrities throughout the world and the potential to earn

income well into the seven figure range. Offered on a take-it-or-leave-it, non-negotiable basis, the employee has no

choice between seeking redress through the federal courts because arbitration is “mandatory.” Terms such as

“determined exclusively by binding arbitration,” “exclusive authority to resolve dispute…including but not limited to

any claim that all or any part of this Agreement is void or voidable,” and that the arbitration is “final,” leaves no room

for judicial review of the decision and negates the Defendant‟s request for “stay, pending arbitration.” Aviall v. Ryder

System, Inc. 913 F.Supp.2d 826, 831 (S.D.N.Y.) (“Typical contracts of adhesion are standard-form contracts offered by

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large economically powerful corporations to underrepresented, uneducated and needy individuals on a take it or leave it

basis.”)

William Morris‟ decision to consciously include specific language regarding “discrimination” racializes the

standard contract as a result of the company‟s statistically significant racial imbalance at the level in which I was hired.

Due to the race of the employee, the contract has a different benefits, privileges, terms and conditions. This violates

specific language found in Section 1981 and Title VII. 42 U.S.C. § 1981(a) states that “all persons within the jurisdiction

of the United States shall have the same right to make and enforce contracts…as is enjoyed by white citizens, and shall

be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” In 42

U.S.C. § 1981(b), “make and enforce contracts” is defined to include “the making, performance, modification, and

termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual

relationship.” [emphasis added]

This language is also repeated in 42 U.S.C. § 2000e-2(a)(1), which makes it an unlawful employment practice

“to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual's race, color, religion, sex or national origin.” Regarding this specific set of

circumstances and facts of the racial makeup of the company, it‟s impossible for White employees at William Morris to

be discriminated against on the basis of their race, color and/or national origin because Whites are significantly

overrepresented at every level of the Agent Trainee program within the New York office.

In both the policy manual and second arbitration agreement, there is language expressing William Morris‟

belief that because employees are “at-will,” the employee or company can terminate the employment relationship at any

time, “with or without notice, and with or without cause.” The flaw in their logic however, is that the rights of the

employee and the employer are not equal because employers, whether public or private, are governed by specific laws

against employment discrimination. Because of the company‟s forgetfulness and belief that they can do whatever they

want, they also forgot to comply with their own “open door,” “equal employment opportunity” and/or “reporting

harassment, discrimination and retaliation” policies when I began to confront senior management about being

discriminated against. This further reflects the company‟s superior power, especially over its minority employees,

because based on the language in their agreements, they are basically saying: “As a condition of employment, you must

waive your civil and human rights. And if you have a complaint of discrimination, we don‟t have to comply with our

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own policies to investigate the matter because we don‟t have to provide you an explanation for our adverse

employment decisions because you are an at-will employee.” It doesn‟t get more one-sided than that. I am naturally a

positive person, so I gave William Morris the benefit of the doubt that my race, color and/or national origin was not a

factor in why my White counterparts, who were considerably less qualified, all advanced above myself and the other

African American Agent Trainee. However, after numerous questionable incidents, I decided to confront Human

Resources and senior management, only for it to be suggested that I was the problem and that the company “would

never” discriminate against its minority employees (¶ 145). They never attempted to investigate my complaints because

they knew it would only expose their wrongdoing.

In this industry, there are not an abundance of opportunities to discover and develop successful and

profitable talent. Given the decline of the music and entertainment industries, it has become even harder to find the

next generation of highly lucrative stars. Nor does success happen overnight. I consciously went above and beyond in

my academic and professional achievements because I‟ve always had goals of making it at this level of the industry. My

resume demonstrates my work ethic, ability and the dues I paid to make my dreams a reality (see Complaint ¶ 15-24). I

spent two years helping co-manage a now 8x GRAMMY® nominated singer/songwriter, Jazmine Sullivan, who has

amassed millions of dollars cumulatively for various companies, including William Morris, only to find out when I

joined the company, they viewed my achievements to be the equivalent of Whites with absolutely no experience. No

Agent Trainee has ever done this. No matter how disrespected and insulted I felt, I humbled myself and did everything

that was asked of me, in addition to bringing other profitable ideas to the company. However, none of these things

seemed to matter because they were so focused on making sure I wouldn‟t succeed.

I took the job because I was told by members of Human Resources that “everybody starts in the

mailroom,” not knowing that the skills I acquired from working various jobs throughout the industry, were what Agent

hopefuls were training to master. Once working inside the company, I realized that I was lied to in that the company

hired numerous professionals during the course of my employment directly as Agents. By law, one must be licensed to

become an Agent, so I thought there were unique skills that I had yet to acquire to perform the job. However, there

were little to no differences between the responsibilities of a manager and that of an Agent and many of the Agents I

worked with represented clients that were performing miserably in the marketplace. I also discovered that a large

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percentage of the business conducted with buyers occurred without ever having to meet face to face – another

indication that race is meaningless to the job.

As a result of speaking out publicly against William Morris, I have yet to find employment since leaving the

company in April of 2010. The headlines of these articles alone are enough to frighten potential employers even though

I am the company‟s latest victim of discrimination. Former and current employees have also posted comments

assassinating my character and slandering my name – which will never be erased from the memory of the Internet. Not

only have I suffered the indignity of discrimination while working at William Morris, my personal and professional

reputation has been destroyed as a result of speaking out against these injustices. I continue to suffer from considerable

mental anguish and emotional distress, including but not limited to stress which manifested in physical illness, harm to

my earning capacity, loss of self-esteem and self-confidence, emotional pain and suffering, embarrassment and

humiliation, disruption to my personal life and loss of enjoyment of the ordinary pleasures of everyday life. This is not

my first job where I‟ve been the only African American on the team. This lawsuit is the result of people deliberately

going out of their way to set me up to fail, so that others could believe their promotions were due to merit and not

privilege. Since leaving the company, a few of my peers have been promoted to Coordinator and Agent without

coming close to accomplishing what I have throughout this industry before working at William Morris. Had I been able

to work in an environment free of discriminatory distractions and bias, I can demonstrate that more likely than not, I

would be enjoying the success of my career‟s trajectory due to my unique understanding and experience in this business

for my age.

THE ARBITRATION AGREEMENTS WERE SIGNED BECAUSE OF UNDUE INFLUENCE & ECONOMIC

DURESS AS A CONDITION OF EMPLOYMENT AND COERCION AS A CONDITION TO REMAIN

EMPLOYMED.

I signed two arbitration agreements throughout the course of my employment with William Morris. The

first agreement was signed on September 2, 2008 in the first hour of employment while in the lobby of William Morris‟

New York office. In order to advance my career, agreeing to the terms and conditions stated in these contracts was not

up for debate. Despite my research efforts, the only information I knew about the company was that of the company‟s

greatness and dominance throughout the entertainment industry. Upon entering the office, myself and two others were

given a packet with various forms that were to be read and signed. I knew that if all the papers weren‟t signed by the

time Sarah Winiarski came back, I would not be able to start working at one of the most prestigious talent agencies in

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the world. The test for procedural unconscionability “is whether, in light of all the facts and circumstances, a party

lacked a „meaningful choice‟ in deciding whether to sign the contract.” Brennan, 198 F.Supp.2d at 382 (quoting

Desiderio v. National Assn' of Sec. Dealers, 191 F.3d 198, 207 (2d Cir. 1999)).

William Morris‟ attempt to take advantage of its undue leverage against me was further reflected by the fact

that in the first hour of employment, the arbitration agreement which waived my civil and human rights was given to

me to sign before I was able to realize that I was the only African American employed. See David L. Threlkeld v.

Metallgesellschaft Ltd., 923 F.2d 245, 249 (2d Cir. 1991) (purpose of unconscionability doctrine is to prevent unfair

surprise and undue oppression). None of my past employers made me sign an arbitration agreement, so although I read

the agreement and my signature is there, there was no way I was fully able to comprehend the consequences of my

actions being that I knew nothing about employment discrimination law. Due to William Morris‟ superior bargaining

power which resulted in no real or meaningful negotiation, the provisions dealing with “discrimination” and

“retaliation” (as a result of discrimination) are oppressive and procedurally unconscionable.15 This is the very sort of

undue surprise and oppression the unconscionability doctrine is intended to prevent.

After the William Morris Agency and Endeavor merged to become WME Entertainment in April of 2010 –

a publicized process including a massive layoff in which a disproportionate number of women and minorities were let

go – I had no choice but to “voluntar[ily]” sign the second Mutual Arbitration Agreement ten months into my

employment as a condition of remaining employed by WME. Being that I signed an arbitration agreement in

September 2008, the only alternative would have been to re-enter the job market during a Recession, in which

employment opportunities for minorities at this level of the industry are at a depressed state. By the time this

agreement was signed, I was completely aware that I was being treated differently than my White peers. Sarah Winiarski

and Jeff Meade played an integral role in making sure I was given a high frequency of dead-end assignments and

Sisyphean tasks, while at the same time, giving me highly subjective evaluations and rating me low in areas that I wasn‟t

given ample opportunity to perform well in. Due to their logical shortcomings, I became cognizant that they were

plotting and looking for grounds to have me removed from the company. Not being viewed negatively or characterized

as being “difficult” was another reason for signing the agreement.

15 Joan M. Brovins, J.D. & Thomas H. Oehmke, J.D., “The Arbitration Contract – Making It and Breaking It,” American Jurisprudence Proof of Facts 3d, (2010).

15

Before and after the merger, Human Resources and other senior members of the company talked about

Agent Trainees and Floaters being easily replaceable due to the high volume of applicants. For me, remaining employed

was out of pure necessity because I reliant on the company‟s health insurance after experiencing extreme health

problems. Throughout 2009-10, I made numerous visits with doctors and specialists in search of a diagnosis for my

unexplainable gastrointestinal/urinary medical ailments. While employed with the company, my health deteriorated

while all of my tests and results said I was extremely healthy. Since leaving the company, I have learned that bottling up

my emotions due to the uncertainty surrounding my beliefs that I was being discriminated against led to extreme stress

and mental anguish. Working 10 hours a day in William Morris‟ toxic work environment played a significant role in the

physical manifestation of my health problems, which I am still recovering from. The pressure to sign the arbitration

agreement was further complicated due to the fact that I owed $100,000 in student loans to Sallie Mae and various

lenders for pursing an advanced degree in Music Business and Entertainment Industries from the University of Miami.

In order to meet my monthly payments, I couldn‟t stop working unless I found another job. Given my set of

circumstances, remaining employed was my only choice, even at the expense of my mental and physical health.

CONCLUSION

“In determining whether a contract is unconscionable, a court should take a „flexible‟ approach, examining

„all the facts and circumstances of a particular case.‟” See Brennan, 198 F. Supp.2d at 383 (quoting In re. Estate of

Friedman v. Egan, 64 A.D.2d 70 (2d Dept. 1978)). A case of this magnitude, in which William Morris has engaged in

intentional and willful discrimination without ever being held accountable for their actions should not be decided by

arbiter simply because the company and their legal defense team are savvy enough to compel their employees to waive

their civil and human rights as a condition of employment. An arbitration agreement does not change the fact that

William Morris has engaged in discriminatory practices, before, while and after my employment with the company –

and no matter whether an arbitration agreement was signed, they have still violated federal, state and city civil and

human rights laws.

Given the gross pattern and practice of individual and systemic discrimination against minorities, specifically

African Americans, detailed in my 56 page complaint (not including exhibits) over the course of 112 years, my claims

are wholly with merit, legally and factually. I have worked extremely hard and made a lot of sacrifices to make it

throughout this industry only to have my dreams left unfulfilled, not because I didn‟t deliver results, but because of

16

something that is scientifically proven to be irrelevant. Race is a social construct that doesn‟t determine one‟s abilities

or capabilities, so to have a workforce with an extreme overrepresentation of Whites in the 21st century is not a natural

occurrence. These ascriptive inequalities, including occupational segregation and racial stratification, are only the results

of continued and intentional desire to exclude minorities from employment opportunities.

The unemployment rate for African Americans in the United States before the passage of the Civil Rights

Act of 1964 was double that of Whites. Almost fifty years later, the rate is still the same, although the number of

African Americans who have graduated from college and received advanced degrees has increased. If minorities are

intentionally being denied employment and advancement opportunities in a capitalistic society, then the disparities

found in education, housing, healthcare and other areas of life are only natural. And as long as corporations and entire

industries continue to act above the laws that govern a democracy, what will their incentive be to change? Had the

EEOC complied with its own policies and made sure upper level companies like William Morris submitted EEO-1 data

each year, they would‟ve noticed a “pattern and practice” of discrimination decades ago. If these actions continue to go

unpunished, we ultimately punish ourselves. Racism hurts not only the individual, but our nation. Since race has always

been a “decisive factor” in William Morris‟ employment decisions, there is a “strong basis in evidence” that the court

needs to attack the root of the problem and mandate structural and institutional policy changes (e.g. affirmative action

program), to rectify the blatant disparate impact and systemic disparate treatment towards non-Whites. See Ricci v.

DeStefano, 129 S.Ct. 2658 (2009).

In past rulings, the inexorable zero alone has been sufficient to establish an inference of discrimination and

survive summary judgment and motions to dismiss. Therefore, it should also be enough to defeat an arbitration

provision dealing with “discrimination” and “retaliation” given that it was offered by a hardcore discriminatory

employer. I am asking that the Court invalidate these unconscionable provisions based upon the reasons set forth

above and compel the Defendants to issue their responsive pleading so that the case can proceed to the General

Pretrial phase under the supervision of Magistrate Judge James C. Francis, ultimately being decided by a jury that

reflects the rich diversity of New York City.

17

Dated: New York, New York

March 21, 2011

Respectfully submitted,

By: ______________________________________

Marcus I. Washington

54 Boerum St. Apt. 6M

Brooklyn, NY 11206

(646) 504-6497

humanrights.areamust@gmail.com