Contrary to the naked assertions of Respondent's own counsel that the employee statements and video would substantiate their position, the Respondent failed to produce any video or employee statements, just naked hearsay assertions -- authored by licensed counsel Sam Shaulson, who should know better -- who was not a witness to any of it. May I remind the Commission of the exact words of Counselor Benjamin Velella and my attorney's response to same:MCAD 09BPA02502.
"Please be advised that we do have video from the South End Branch from March 24 that captures interaction between staff and your clients and have also taken statements from the affected employees."
"Sir, I couldn't care less about the self-serving employee statements. The proof is in the video from that day and all other days that you have maintained and that the court will compel you and your client to produce."
The prima facie case has been met, and as I will show, the proffered legitimate nondiscriminatory rationale is not worthy of credence and is more likely demonstrative of pretext for unlawful discrimination: Respondent opened an account for ____ of ____, a white woman, and did not open one for me, despite my specific request. Respondent pretends that Ms. _____ is not similarly-situated because:
a) she was not disruptive
b) the alleged acts of discrimination did not occur on the same day.
In response to a), there is absolutely no reliable proof -- despite the representations of Attorney Velella or other hearsay commentary by counsel for Defendant -- that Mr. Gillenwater or I were disruptive in the least. If we were, they could have and should have produced the Best Evidence to support that contention, i.e. the audio and video that they still have maintained. In point of fact, I ask that the MCAD compel production of same.
In response to b), the Respondent clearly needs a lesson in Civil Rights Law. A difference of a week between incidents is wholly insignificant when viewing a public accommodations case. If that were the case you could almost never have a public accommodations case, a housing case, an employment case or any other sort of Civil Rights case unless all of the acts of unlawful discrimination occurred on the same day, date and time. But I, as someone whose family was involved in the landmark litigation of Heights Community Congress v. Hilltop Realty 629 F. Supp. 1232; 1983 U.S. Dist. LEXIS 11264 (1983) proves, that is not the law, has never been the law, will never be the law, and there is no Good Faith Basis for the modification, extension or reversal of such law. Wherefore the Responding party should be sanctioned if they make that same argument as we reach Federal Court on a 42 U.S.C. 1981 case.
I have shown that the Respondent has failed to rebut the reasonable inference of unlawful discrimination with any viable, admissible evidence because they know their proffered rationale is bogus, per Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248 (1981), citing McDonnell Douglas v. Green 411 U.S. 792 (1973) at 804-805.
At one point in the rambling response the Respondent infers that Mr. Gillenwater asking the Complaining Party if he could open an account in a "sarcastic manner" meant that the statement was not to be taken seriously. The sarcasm, however, was being directed at the Respondent for its reneging on its explicit promises -- most assuredly captured on video -- to cash the check in the FIRST PLACE. Moreover, if the 100+ pages of emails and blog entries about this case prove anything, it is that this case was being taken quite seriously, and obviously it is serious when there is a $24,500 check sitting before you that is not being cashed.
I have personal and direct knowledge of the account being opened for Ms. _____ because she and I shredded the card when it came in the mail, but certainly Respondents have that relevant information in their system, just as they have the relevant videos in their system, but have failed to produce them, because they are lying.
Lastly, Respondent's cited case of Lizardo v. Denny's, Inc., 270 F.3d 94 (2001) is of no worth herein. In that case (involving folks who had come from a bar at 2:30 a.m. and were inebriated and loud and profane throughout) the Court found that the other Asians and African-Americans were indeed being treated fairly : "there were a number of minorities seated throughout the restaurant, including one other Asian American and several African Americans...." Id. at 100, and "We concur in the district court's analysis that the parties seated before them were not similarly situated. As discussed earlier, the groups were smaller in size and there is no evidence that any of these groups were seated at tables that could have accommodated the African American party of six." Id. at 104.
Nobody in this case was allegedly drunk and the ONLY profanity occurred by Respondent's own admission, at the door on the way out.(Fn). Therefore that would only leave loud or disrespectful activity, which again would have been captured on the video that Attorney Velella threatened to produce, but failed to produce, just as Respondent failed to produce any signed Affidavits or employee statements that would buttress their arguments.
As such, this case is much more akin to the Cracker Barrel line of cases. See US DOJ paper 04-288 (attached) in which the U.S. Justice Department settled with Respondent Cracker Barrel after allegations having been posited that they:
- allowed white servers to refuse to wait on African-American customers;
- segregated customer seating by race;
- seated white customers before African-American customers who arrived earlier;
- provided inferior service to African-American customers after they were seated; and
- treated African-Americans who complained about the quality of Cracker Barrel's food or service less favorably than white customers who lodged similar complaints.
For the foregoing reasons I respectfully request a finding of Probable Cause such that Respondent be compelled to provide the audio/video documentation that both Parties claim supports their respective positions.
Christopher King, J.D.
Fn: Respondent claims that Branch Manager Carlo Caramanna did not threaten to have me arrested and that he did not pick up the telephone to call 911 while I was standing at the teller window. Of course the highly-touted video and some sworn Affidavits would clear all of that up.