Abrams v. Johnson Brief of Appellants

    IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NEW YORK

RICARDO R. BROWN,
Plaintiff, 

- against - 
FREDERICK DENT, et al.. 

Defendants

■x

■x

CIVIL ACTION NO. 
73-C-510

NOTICE OF MOTION

TO: David G. Trager
United States Attorney for the 
Eastern District of New York 
Federal Courthouse 
225 Cadman Plaza East 
New York, New York 11201
ATTENTION: Constance Vecellio, Esq.

PLEASE TAKE NOTICE that plaintiff will move this Court
at 10:00 a.m. E.D.T. on ____________  July _____, 1976 at
Courtroom 1, HONORABLE MARK A. COSTANTINO presiding, Federal
Courthouse, 225 Cadman Plaza East, Brooklyn, New York, or as
soon thereafter as plaintiff can be heard for an order granting 
plaintiff's Motion for Partial Summary Judgment.

Respectfully submitted,

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
JAMES C. GRAY, JR.
ULYSSES GENE THIBODEAUX 

10 Columbus Circle Suite 2030
New York, New York 10019

(212) 586-8397
Attorneys For Plaintiff.



IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK

x

CIVIL ACTION 
: NO. 73-C-510

x

PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON ENTITLEMENT 
TO RELIEF REQUESTED BY COUNT 
ONE OF HIS AMENDED COMPLAINT

Pursuant to Rule 56 of the Federal Rules of Civil Procedure 
(F.R.C.P.), plaintiff Ricardo R. Brown moves this Court to enter 
Summary Judgment in his favor on Count One of his Amended 
Complaint as to his entitlement to the relief prayed for there­
in, on the grounds that:

1. As a result of the evidence presented in the adminis­
trative proceeding, the Department of Commerce found that 
plaintiff was the victim of discrimination on account of race
in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. 
§2000e, as amended, entitling him to Summary Judgment on the 
issue of discrimination as a matter of law;

2. The uncontested facts demonstrate that he was denied 
equal employment opportunity and was the victim of racial dis­
crimination entitling him to Summary Judgment on the issue of 
discrimination;

3. Having proven discrimination, plaintiff is entitled to

RICARDO R. BROWN,
Pla intiff,

- against - 
FREDERICK DENT, et al.,

Defendants.



receive the full range of remedial relief provided for by Title 
VII to restore him to his rightful place or to make him whole;

4. Under the circumstances of this case, the relief to 
which plaintiff is entitled includes injunctive relief requir­
ing the Academy to offer him appointment with equitable rank 
and tenure provisions, back pay for any income lost and a 
reasonable attorneys' fees.

Plaintiff further moves this Court pursuant to subsections 
(c) and (d) of Rule 56 that after granting him summary judgment 
on the question of his entitlement to the prayed-for relief it 
hear whatever additional evidence is necessary to determine the 
extent of said relief and order the same.

Respectfully submitted,

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
JAMES C. GRAY, JR.
ULYSSES GENE THIBODEAUX 

10 Columbus Circle 
Suite 2030
New York, New York 10019 

(212) 586-8397
Attorneys For Plaintiff.

-  2 -

. . .  . v



IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK

RICARDO R. BROWN,
Plaintiff,

-against-
FREDERICK DENT, et al.,

Defendants.

CIVIL ACTION NO. 73-C-510

Statement Under Local Rule 9(g)

1. Plaintiff Ricardo R. Brown is a black citizen of the United 
States and was employed by the United States Merchant Marine 
Academy (hereinafter "the Academy") from January 5, 1971 until 
January 5, 1973 as an "Instructor-Trainee", a position also re­
ferred to as a "Teaching Fellow". Plaintiff's initial appointment 
was for one year and, effective January 4, 1972, his appointment 
was renewed for a second year. Plaintiff served as a Teaching 
Fellow in the Academy’s Department of Physical Education and 
Athletics.
2. The United States Merchant Marine Academy at Kings Point, New 
York is defined by 46 U.S.C. §1126(b)(1) as an institution main­
tained "for the instruction and preparation for service in the 
merchant marine of selected persons as officers thereof." The 
Academy was established two years after the passage of the Merchant 
Marine Act of 1936. On February 20, 1956, the Academy was made
a permanent institution by an Act of Congress and was placed under 
the auspices of the Department of Commerce.
3. The Academy has been under an Affirmative Action Program 
since 1968.
4. In the entire history of the Academy, only one Black person 
has held a regular faculty appointment, Mr. Kenneth Bantum.



5. The Academy has a faculty of approximately 90 Full, Associate 
and Assistant Professors and Instructors.
6. The Instructor-Trainee Program began at the Academy at the 
beginning of the 1970-71 academic year. Originally, there were 
four billets but later this number was increased to six.
7. The purpose of the Instructor-Trainee Program was to provide 
entry into faculty positions for minority group members. The 
theory being that a pool of young qualified minority group members 
would be formed upon which the Academy could draw in cases of 
vacancies.
8. In January and February, 1972, one of the Maritime Adminis­
tration's Civil Rights Specialists, Ms. Jeannette E. Perry, con­
ducted an "In-House Compliance Review" of the Academy. In her 
report of this review, Ms. Perry states that Admiral Engel replied 
in response to comments regarding minority group representation on 
the faculty that the Academy "had a couple of'them' on the faculty 
as 'Instructor-Trainees' in an effort to prepare them eventually 
to qualify for places on the faculty."
9. Plaintiff commenced this action and the appropriate United 
States Civil Service Commission proceedings under Title VII after 
he was not selected for either of two regular faculty position 
vacancies in the Department of Physical Education and Athletics in 
1972. Plaintiff also sought a temporary appointment from January 
1973 to June 1973 but was denied this. The Department of Commerce 
through the Assistant Secretary for Administration reached a final 
decision for the agency in April 1974 "that [plaintiff's] allega­
tion of discrimination because of race is supported by the evidence 
in the record." Nevertheless, plaintiff received no remedial 
relief other than consideration for the next available vacancy.
10. At the time that plaintiff started as an Instructor-Trainee, 
he had received an Associate degree from Kingsborough Community



College and a Bachelor of Science degree from New York University 
in Physical Education. Plaintiff also had experience as a sports 
and recreational leader at the Flatbush Boys Club and Grace Church 
School, Brooklyn, and student teacher experience at both Simon 
Baruch Junior High School and Aviation Trades High School, in New 
York City.
11. At the time plaintiff became a teaching fellow; he was en­
rolled in a Masters of Arts program at Brooklyn College and receive: 
his Master's in Physical Education in the summer of 1972.
12. Plaintiff, a native of Panama, has a strong background in 
playing and teaching baseball and soccer and is also experienced 
in teaching wrestling, basketball, volleyball, physical fitness, 
adaptive football, bowling and table tennis. Plaintiff is also 
proficient in the Spanish language.
13. During the first year of his employment, plaintiff received 
several highly favorable oral evaluations from Commander Zuaro of 
the Physical Education Department; he did not, however, receive 
any written evaluations of his performance.
14. In the course of his two years at the Academy, plaintiff 
definitely demonstrated his ability to handle the position as an 
instructor of Physical Education. The Academy places great 
emphasis on the fact that they appoint people who are "qualified 
for the position." Plaintiff demonstrated his competency and his 
qualifications. The testimony at the Civil Service Commission 
hearing and the report of investigation set forth one fact quite 
clearly, namely that plaintiff's services as a Teaching Fellow at 
the Academy were satisfactory or better. During his employment
at the Academy, plaintiff received only outstanding written evalua­
tions by his supervisor at the Academy. Commander A.C. Zuaro 
described the plaintiff as "a truly professional educator who is 
interested in his work and his professional growth". Academic 
Dean Janus Poppe described the plaintiff as an "outstanding teacher".

- 3 -



Defendant NEGRATTI, Head of the Physical Education and Athletics
Department observed of the plaintiff:

"1. He has excellent rapport with his students and 
is readily accepted by his colleagues.

2. He is very intelligent, industrious, and most cooperative.
3. He has been very diligent in his academic 

preparation."
15. During Plaintiff's two-year tenure as an instructor-trainee, 
the Academy made no effort to see that he received coaching ex­
perience. The Academy and the defendants do not have any evidence 
which shows that plaintiff is not capable of performing certain 
coaching duties.
16. An evaluation of the Academy's Department of Physical Educa­
tion and Athletics conducted by Captain Anthony Rubino of the U.S. 
Naval Academy and Dr. Jack Frost of Springfield College in August 
1971 found a lack of qualified instructors in the Department and 
concluded that there was a condition of understaffing relative to 
work load.
17. When a vacancy arises, faculty for the Academy are usually 
recruited through the head of the department where the vacancy 
exists by the drafting and circulating of a "vacancy announcement". 
The general requirements for qualification for a faculty position 
include a baccalaureate degree, a master's degree and some college- 
level teaching experience. Selection is normally made by an Ad 
Hoc Committee of three faculty members chaired by the head of the 
department where the vacancy exists.
L8. in the beginning of April 1972, plaintiff heard that a regular 
faculty position was presently available in the Department of 
Physical Education and he later also was informed that a second 
position would become available in August, 1972 because a member of 
the Physical Education Department, Mr. Donald Kennedy, was sche­
duled to leave the Academy.

4



19. Plsifitiff, on April 5, 1972, formally applied for a regular
faculty position. In response, defendant JOHN O'GRADY, the 
Academy's Personnel Representative informed plaintiff that he was 
not qualified for the position because plaintiff lacked a Master's 
degree. Mr. O'GRADY, however, knew that plaintiff would complete 
all the necessary requirements for a Master's Degree in physical 
education by May, 1972; defendant O'GRADY also knew that the plain­
tiff would receive his degree in August 1972 prior to the time at 
which his duties as a regular faculty member would have commenced. 
Defendant O'GRADY also advised the plaintiff that he would not be 
considered for a regular faculty position until the expiration.
20. The Academy did not make any vacancy announcement of a posi­
tion in the Department of Physical Education and Athletics during 
the months preceding plaintiff's application.
21. The Academy did not establish any ad_ hoc selection committee 
to recruit and interview candidates for this vacancy.
22. On February 23, 1972, Admiral Engel wrote a Mr. Daniel J. 
Buckley a letter offering him a faculty position as an Associate 
Professor in the Department of Physical Education and Athletics at 
a salary of $18,290, commencing in September of 1972.
23. On March 31, 1972, Admiral Engel wrote the Acting Personnel 
Officer requesting a waiver of the Ad Hoc Committee requirement.
24. In his letter of March 31, 1972, Admiral Engel stated "Of 
course, all current faculty members who are eligible and applicants 
of record with appropriate education and experience will be con­
sidered. "
25. Mr. Buckley as of April 1972 had a bachelors degree in his­
tory and had taught high school in a variety of subjects, but had 
no college teaching experience. He was scheduled to receive a 
Master's degree in secondary education and administration in the 
summer of 1972.

5



26. On April 18, 1972, Superintendent Engel wrote the Acting 
Personnel Officer asking for a Waiver of Qualifications for Mr.
Buckley and an "Advanced-in-Hiring Rate of $18,290." The waiver 
was necessitated by the fact that Mr. Buckley lacked the normal 
qualifications for a person holding the Associate Professor rank, 
in particular the requirement of five years college teaching.
27. The Admiral in his April 18, 1972 letter based his request 
for associate professorship status for Mr. Buckley primarily on 
his high school basketball coaching experience.
28. Mr. Buckley who is white was selected to fill this vacancy.
29. As of August, 1972, Mr. Kenneth Bantum was the only black 
member of the Academy's regular faculty. Mr. Bantum was recom­
mended for tenure by the Tenure Committee. Defendant ENGEL, the 
Superintendent of the Academy, however, denied tenure to Bantum. 
After Mr. Bantum was denied tenure, he tendered his resignation.
30. On August 9, 1972, because of Mr. Bantum's announced resigna­
tion, the Academic Dean appointed an Ad_ Hoc Committee to Recruit 
and Select a new Faculty Member in the Department of Physical Edu­
cation and Athletics. Defendants CAPTAIN ALBERT E. NEGRATTI,
CLEM STRALKA, and LIEUTENANT (JG) A. ZIELINSKI were appointed to 
this committee.
31. On August 16, 1972 plaintiff formally applied for this posi­
tion on the regular faculty. Plaintiff had, by this time, earned 
his Master of Arts degree in physical education and had success­
fully completed over a year and a half of teaching at the Academy.
32. On October 17, 1972, the Academic Dean, Mr. Janus Poppee, 
urged the Acl Hoc Committee to consider the plaintiff for the avail­
able position and explicitly stated that the plaintiff had the 
qualifications necessary for appointment to the faculty.
33. On November 2, 1972, defendant NEGRATTI reported to the 
Academic Dean that qualified applicants were still being sought to 
fill the vacancy. Mr. NEGRATTI indicated that this position



These re-required experience in coaching track and football, 
quirements, however, are not and were not listed in the Faculty 
Qualifications Standards established by the United States Depart­
ment of Commerce Maritime Administration.
34. On November 6, 1972, Dean Poppe wrote the Ad Hoc Committee 
urging the members to consider plaintiff for the still unfilled 
position and further stating that defendant CAPTAIN NEGRATTI seemed 
uncommitted to hiring and retaining minority group faculty members.
35. Plaintiff was never interviewed nor considered by the Ad Hoc 
Committee.
36. On November 16, 1972, the Ad Hoc Committee indicated its 
selection of a Mr. John Sussi, a white male, to fill the vacancy.
Mr. Sussi was to commence his employment on December 23, 1972 as 
Assistant Professor of Physical Education.
37. Mr. Sussi, the successful white applicant, held a master's 
degree but in a field, guidance, other than physical education.
38. On November 16, 1972, the Academic Dean, Janus Poppe, in a 
letter to the Superintendent of the Academy, defendant ADMIRAL A.B. 
ENGEL, recommended against the appointment of Mr. Sussi. Dean 
Poppe characterized the football and track requirement as "discri­
minatory and written in such a manner that they fit a particular 
candidate". Dean Poppe noted that Mr. Sussi had obtained his 
master's degree in guidance and stated that the Department needed 
someone with a master's degree in physical education. In conclu­
sion, Dean Poppe observed that "the faculty of this Academy is 
again 'lily white'".
39. Plaintiff's appointment as a Teaching Fellow was scheduled 
to expire in January, 1973. Plaintiff requested from Miss Hoxie 
Personnel Management Representative, an extension of his Fellowship. 
3he advised the plaintiff that this was impossible but she indicated, 
that plaintiff could apply for an "excepted temporary position".

•• v.-,



40. On December 1, 1972 plaintiff made written application to 
defendants ENGEL and NEGRATTI and also to Dean Poppe for an 
"accepted temporary appointment" as Assistant Professor in the 
Department of Physical Education and Athletics. Also the plain­
tiff made a second written application as of the same date to the 
Chairman of the Physical Education Department for an accepted 
temporary appointment. In this second application, plaintiff 
indicated that he had been accepted in the doctoral program at 
Fordham University. But the plaintiff was told that there were no 
positions available at the time.
41. Plaintiff's Instructor-Trainee appointment expired on January 
2, 1973. He was not rehired and he is no longer employed at the 
Merchant Marine Academy.
42. Defendant Lt. (JG) A. Zielinski retired, effective December 
31, 1973, from the position of laboratory instructor in the Depart­
ment of Physical Education and Athletics.
43. At the time of the February 1974 hearing, the position 
vacated by Mr. Zielinski had not been filled.
44. The Zielinski position has not been filled as of this date.

Respectfully submitted,

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
JAMES C. GRAY, JR.
ULYSSES GENE THIBODEAUX 

10 Columbus Circle Suite 2030
New York, New York 10019 
(212) 586-8397

Attorneys For Plaintiff.

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CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Notice of Motion, 
Plaintiff's Motion for Partial Summary Judgment on Entitlement to 
Relief Requested by Count One of His Amended Complaint, Statement 
Under Local Rule 9(g) and the accompanying Memorandum in Support 
were served on David G. Trager, United States Attorney for the 
Eastern District of New York, attorney for the defendants, by 
delivering a copy of the same to his offices at the Federal Court­
house, 225 Cadman Plaza East, Brooklyn, New York 11202, attention 
Constance Vecellio, Esq. on this 29th day of June, 1976.

James C. Gray, Jr.

: .

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