EDNY Case 21-cv-02194 US Court of Appeals Second Circuit 21-1573 Doc #8 Civil Appeal Pre-Argument Statement (Form C)

Case

Case 21-1573, Document 8, 07/12/2021, 3135699, Page10 of 158 inadequate training of persons in the Plaintiff Class so as to have equal employment opportunity by possessing the necessary skills to compete for jobs. Demonstration to the putative members of the class defendant (a “demonstration” within the meaning of 42 USC 2000e-2), meets the burden of persuasion of the Plaintiff Class as defined at 42 U.S.C. Section 2000d. The members of the putative class defendants in question “refuse[d] to adopt” the alternative employment practice. The Class Plaintiffs, as the Complaining Party under 42 U.S.C. § 2000e– 2(k)(1)(A)(ii), made the requisite demonstration to the Respondent [as described in subparagraph (C) as required by 42 U.S.C. § 2000e–2 (k)(1)(A)(ii)], and the Respondents failed to implement training, thereby causing unfair employment practices and disparate impact. The Alternative Employment Practice and its demonstration, referencing subparagraph (A)(ii), is in accordance with the law as it existed on June 4, 1989 as required by 42 U.S.C. § 2000e–2(k)(1)(C), the National Apprenticeship Act of 1937, section 1 (29 U.S.C. 50). Respondents refused to adopt the Alternative Employment Practice and therefore, under 42 U.S.C. § 2000e–2(k)(1)(A)(ii), this action was brought to obtain relief for the Complaining Party Plaintiff Class, a meritorious federal cause of action of disparate impact on the plaintiff class as an illegal employment practice. Only 9 of the eleven Federal Actions recited by the Lower Court in footnote 3 on Page 12 of the Lower Court Decision and Order assert identical or substantially similar claims. The Health Care Employers are not among the 8733 potential members of the defendant class in the nine cases (Lead Case 21-cv-01631 et seq). Whether a member of the putative class of defendants failed to adopt the alternative employment practice upon due demonstration and persuasion is a matter of proof. It may be due to difficulty with 8

Case 21-1573, Document 8, 07/12/2021, 3135699, Page11 of 158 business interruption in 2020 during the Covid 19 pandemic that many of the demonstrations may have not reached members of the putative class, but that shortcoming should not be cause to dismiss the nine Federal Actions with prejudice. Existing Worker's Compensation with any carrier does not need to change. Rather, enhanced skill and safety learned by members of the Plaintiff Class on-the-job to compete for permanent occupations, is necessary. Pride that comes with earning the fruits of one's labor; enabling them to buy, sell, and enjoy this happiness, is missing for a large segment of the Percy Class of black and Spanish surnamed persons who have been marginalized by restricting access to the skills gained from formal apprenticeship under the Apprenticeship Act of 1937. Instead, access should be universal. By drilling these repetitive skills and methods that apply to each occupation as established in work processes by the Bureau of Apprenticeship Training of the US Department of Labor, we can reestablish what is missing from existing employment practices which block black and Spanish surnamed persons from free entry into occupations to gain skills. The uniform common denominator that applies to all employers and provides the uniformity required of FRCP 23 is workers' compensation coverage as identified in the 6131 Complaint and the tag-along complaints. Workers' compensation can be obtained from any carrier, and Oriska Insurance Company is not proffered to write the worker's compensation as the Lower Court has concluded. An employer's workers' compensation carrier is not even a party. Instead, it is the common denominator that is used to identify occupations that would benefit by the Percy Program eliminating disparate treatment. The Plaintiff Class is prepared to prove this by statistical evidence. CLASS REPRESENTATIVES’ COUNSEL, Representation of the Plaintiff class was not improper, and sanctions are not warranted 9