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UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK
Andrea Peterson, P.O. Box 582
New York, New York 10108
Apple Inc., 1981 Broadway, New York, NY
10023, Apple Inc., One Infinite Loop,
Cupertino, CA 95014
DOCKET NO: 12-CV-6467 (GBD)(GWG)
PLAINTIFF MOTION FOR ORDER TO
SHOW CAUSE PRELIMINARY INJUNCTION
Plaintiff moves by order to show cause for a preliminary injunction pursuant to Fed. R.
Civ. P. Rule 65, and pursuant to the ADEA 29 626 (b). Plaintiff further requests that
pursuant to Rule 65 (3) that, “the hearing be set at the earliest possible time taking
precedence over all other matters except hearings on older matters of the same
Pleadings in the case are being filed by Plaintiff In Propria Persona, wherein pleadings
are to be considered without regard to technalities. Propria pleadings are not to be
held to the same high standards of perfection as practicing lawyers. See Haines v.
Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th Cir.1990) also See Hulsey v.
Ownes 63 F3d 354 (5th Cir 1995). Also See In Re: Hall v. Belmon 935 F.2d 1106 (10th
STANDARD FOR PRELIMINARY INJUNCTION
The Court of Appeals for the Second Circuit has recently commented on the standards
for a preliminary injunction as follows:
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The purpose of a preliminary injunction is to maintain the status quo pending a final
determination on the merits. It provides relief which is 'interlocutory, tentative,
provisional, ad interim, impermanent, mutable, not fixed or final or conclusive,
characterized by its for-the-time-beingness.
Citing from Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70 (2d Cir. 1979),
“The standard in the Second Circuit for injunctive relief clearly calls for a showing of (a)
irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently
serious questions going to the merits to make them a fair ground for litigation and a
balance of hardships tipping decidedly toward the party requesting the preliminary
relief. See Caulfield v. Board of Education, 583 F.2d 605, 610 (2d Cir. 1978); See also
New York v. Nuclear Regulatory Commission, 550 F.2d 745, 750, 755 (2d Cir.
1977); Triebwasser & Katz v. American Telephone & Telegraph Co. 535 F.2d 1356,
1358-59 (2d Cir. 1976). As to the kind of irreparable harm that the party seeking an
injunction must show, the language of some past cases has suggested to some a
spectrum ranging from possible to probable, which is defined as "not remote or
speculative but . . . actual and imminent.”
In the precedent setting Supreme Court case. Sampson v. Murray, 415 U.S. 61, 94 S.
Ct. 937, 938, 39 [*1072] L. Ed. 2d 166 (1974), the court held that a mere loss of income
or damaged reputation would fall short of the type of irreparable injury that is necessary
for issuance of a temporary injunction as requested in this particular case. Further,
Sampson holds that mere injury, however substantial in terms of money, time and
energy necessarily expended in the absence of an injunction, is not enough. The Court
said that the possibility that adequate compensation or other corrective relief will be
available at a later date, in the ordinary course of litigation, weighs heavily against the
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claim of irreparable harm. See also the courts analysis in Callicotte v. Carlucci, 698
An Eastern District of New York case stated that to obtain a preliminary injunction a
discharged employee must show that he or she (1) has very little chance of securing
further employment; (2) has no personal or family resources at [his or] her disposal; (3)
lacks private unemployment insurance; (4) is unable to obtain a privately financed loan;
(5) is ineligible for any type of public support or relief ... and (6) [is affected by] any other
compelling circumstances which weigh heavily in favor of granting interim equitable
relief. In essence the plaintiff must quite literally find [himself or] herself being forced into
the streets or facing the spectre of bankruptcy before a court can enter a finding of
irreparable harm. Williams v. State University of New York, 635 F.Supp. 1243, 1248
Another line of cases in the Fifth Circuit, Hayes, Culpepper, and Murry, involve
employees who, having exhausted EEOC or other administrative remedies, have filed
Title VII actions in the district courts seeking final adjudication on the merits. These
cases hold that where an employee with an action in this posture petitions the court for
a preliminary injunction, the element of irreparable injury will be presumed. We find that
the Sampson, Parks, and Morgan decisions are inapplicable when, as here, the
employee has exhausted all administrative remedies and has filed suit in the district
In United States v. Hayes International Corp., 415 F.2d 1038 (5th Cir. 1969), this
court stated: “Where ... the statutory rights of employees are involved and an
injunction is authorized by statute and the statutory conditions are satisfied ... the
usual prerequisite of irreparable injury need not be established and the agency to
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whom the enforcement of the right has been entrusted is not required to show
irreparable injury before obtaining an injunction.... We take the position that in
such a case, irreparable injury should be presumed from the very fact that the
statute has been violated. Whenever a qualified ... employee is discriminatorily
denied a chance to fill a position for which he is qualified and has the seniority to
obtain, he suffers irreparable injury and so does the labor force of the country as a
1. In early January 2011 plaintiff was in Apple retail store located on Fifth Avenue at
59th Street. Plaintiff was surprised when plaintiff saw a mature sales
representative and commented to her plaintiff surprise that Apple hires mature
2. Plaintiff chatted with Toni for a while and told her about a letter plaintiff wrote to
Steve Jobs years prior in which plaintiff stated that each day 7,912 Baby
Boomers with a combined financial worth that exceeds trillions turn 60 and that
Apple’s marketing campaign’s does not indicate a conscience strategy to target
this market. Based on plaintiff visits to Apple stores, Apple employees represent
the demographic that Apple wants to attract, markets to. Plaintiff letter, EXHIBIT
A summarized that most boomers are PC users, and as many retire they would
be in the market for a notebook as a desktop alternative due to among other
3. Toni introduced plaintiff to some of her colleagues who shared their diverse
backgrounds, and that Apple does not look for individuals with technical
background but are more interested in individuals with a diversity of experiences.
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Toni shared how she collaborates and draws upon the strengths of her team
members’ background and knowledge in response to customer’s questions and
encouraged plaintiff to apply for a job. Toni stated that employee referrals are
given first consideration. Toni and her colleagues appeared to be considerably
lower than plaintiff age however plaintiff decided to apply.
4. On February 17, 2011 plaintiff received an email from [email protected]
stated, “Hi Andrea, Your friend Toni, thinks you'd be a good fit for Apple and has
sent us your resume. Apple recruiters have access to your resume and if they
find a good match between your experience and an open position, a recruiter will
contact you directly. We'll keep your resume in our database for future
5. In an email dated March 4, 2011 plaintiff responded to Apple. “Thanks for your
email alerting me that Toni referred me and thinks that I would be a good fit for
Apple. I do to. I would like to be considered for the Expert and Specialist
positions that are currently open at various locations in New York. Please let me
know when we may meet to explore the ways the diversity of my skills and
experience would be an asset to Apple”.
6. On June 28, 2011 plaintiff received an email from Joe Ferry, the Recruitment
Manager, New York City for Apple. His email stated; “My name is Joe Ferry and
I am a recruiter at Apple for our Manhattan Apple Retail Stores. After reviewing
your resume, I would like to invite you to attend our invitation-only recruiting
seminar for the NYC Apple Stores as the first step in the interview process. Our
team is currently seeking qualified Specialists and Inventory Specialists for our
NYC Apple stores”.
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7. On June 30, 2011 the recruiting session was not a traditional recruitment
interview. In addition to Mr. Ferry, several Apple representatives attended.
Approximately twenty people (approximate average age 30) who were in
attendance were broken down in groups. Each group was given a scenario of a
hypothetical customer and asked to decide what products would be recommend,
and what additional products would be proposed to the customer. Each team
made presentations to the overall group.
8. At the end of the session plaintiff met with Mr. Ferry and again stated plaintiff
interest in working for Apple. Plaintiff shared plaintiff surprise in seeing a mature
Associate at the Apple store in January, and that plaintiff was encouraged to
apply. Plaintiff also told him about the letter plaintiff sent to Steve Jobs in which
plaintiff discussed Apple’s marketing focus, and that Apple’s workforce
represents the younger demographic that Apple markets to, and plaintiff
suggestion that Apple recognize the potential market of millions of retiring Baby
9. On July 6, 2011 Sarone Kruoch a Human Resource person from Apple’s Upper
West side called plaintiff and requested that plaintiff send him plaintiff resume.
Mr. Kruoch scheduled plaintiff for an interview with Charles Kelly at Apple’s
Regional headquarters office, 401 W. 14th Street.
10. In July 2011 plaintiff was interviewed by Charles Kelly and another Apple
11. On July 18, 2011 Sarone Kruoch called, and verbally offered plaintiff a Specialist
position at Apple’s Upper West side store at 1981 Broadway. Mr. Kruoch asked
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plaintiff to come in to complete New Hire paperwork. He also told plaintiff that
plaintiff should bring a current Passport.
12. On July 19, 2011 plaintiff was given a written Offer Letter EXHIBIT B, and
completed New Hire paperwork. One of the documents was an Intellectual
Property Agreement (IPA). Where indicated on the form plaintiff inserted plaintiff
Copyright Registration Number and listed some examples of the Copyright
Application as; Curriculum Development, Performance Management, Training
and Development, Competency Development…
13. Plaintiff informed Mr. Kruoch and another HR representative, Bryant Martinez of
plaintiff concern with the language of the IPA, (EXHIBIT C, 2 pages of the IPA)
“if you do list such prior inventions, you hereby grant to Apple a royalty-free,
irrevocable, perpetual, worldwide license to any prior invention that is now or
hereafter infringed by an apple product, process, or method of doing business”.
It sounded to plaintiff that plaintiff would be giving Apple a royalty-free,
irrevocable…use of plaintiff Copyright. Mr. Kruoch and Mr. Martinez informed
plaintiff that they would obtain clarification on this statement. Plaintiff completed
the new hire paperwork and signed the offer letter, contingent on agreement on
14. On the bus back to New Jersey plaintiff opened the documents plaintiff was
given. The New Hire documents plaintiff signed were not included therefore
plaintiff called and spoke with Patricia Bailey. Plaintiff told Ms. Bailey that plaintiff
would pick up the documents on Thursday (referencing July 21) when plaintiff
would be in New York again.
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15. On July 20, 2011 to respond to plaintiff request for clarification of the IPA, Mr.
Martinez forwarded the attached email EXHIBIT D. The email stated:
“Hi Andrea, Per our conversation, below is the response we received from Trey
Wichmann with our Compliance & Business Conduct team. If this appropriately
addresses your concerns please advise of your availability to quickly stop by
today to complete your new hire paperwork.
If you have any additional questions please feel free to contact us by 5p today.
If someone lists an invention as a "Prior Invention" on the IPA and does no
further work on it while they are an Apple employee, then it's theirs and theirs
alone, except as stated in the IPA:
If you do list such Prior Inventions, you hereby grant to Apple a royalty-
free, irrevocable, perpetual, worldwide license to any Prior Invention that is now
or hereafter infringed by an Apple product, process, or method of doing business
(hereinafter “Apple Product”) if: (i) you were involved in the development or
implementation of that portion of the Apple Product which infringes your Prior
Invention, or (ii) you acquiesced or permitted other Apple employees to utilize
your Prior Invention in the course of their development or implementation of the
Apple Product, or (iii) upon first learning of Apple’s use of your Prior Invention
you do not immediately notify in writing your Apple vice president of Apple’s
infringing use of your Prior Invention and the need for a license thereto.
We can't advise people about the interpretation of this language, though -- the
agreement is what it is. If they have questions about it, they would need to
consult with their own counsel...”.
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16. The IPA immediately prior to the signature line stated, “7.0 Voluntary Agreement.
You further acknowledge that you have had the opportunity to discuss this
Agreement with your private legal counsel”.
17. Plaintiff does not have an attorney on retainer; therefore plaintiffs had to identify
attorneys, forward the IPA to them, discuss plaintiff questions with them and
obtain their advice. Between July 20 to 26 2011 plaintiff sent emails and had
conversations with several attorneys to obtain clarification on the IPA. One
attorney suggested that plaintiff consider a document to protect plaintiff, as Apple
is a big Corporation with lots of legal resources.
18. On July 20, 2011 after the close of business plaintiff received an email from Ken
Cooke, Apple Training and Development that welcomed new Apple store
employees. EXHIBIT E.
19. On July 21 plaintiff returned to Apple to pick up the documents and was given
copies of a package of documents titled; new hire paperwork checklist. Plaintiff
again discussed the IPA and was told that all employees sign the IPA, before
they start work. Page two of the offer letter states “You must sign the Intellectual
Property Agreement and return the signed agreement with this offer letter. Any
exceptions or approvals required under the terms of the Intellectual Property
Agreement must be approved by your division’s vice president and Apple’s Legal
Department prior to your beginning work”. Plaintiff explained that plaintiff would
need to obtain advice from an attorney. Mr. Kruoch told plaintiff that plaintiff
would not be able to start on July 23, the date on the offer letter, and that the
next time date plaintiff could start would be August 6, 2011. Mr. Kruoch nor any
other person offered or suggested that a request for an exception could be
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requested from the division vice president so that plaintiff could begin training on
20. Plaintiff sent emails to several attorneys and explained that Apple’s employment
offer was contingent on plaintiff signing an IPA. Following an exchange of
emails, one of the attorney’s pointed out the “if” in the IPA statement. If, any one
of the three events takes place, Apple would have rights to plaintiff work. “If”,
a. you were involved in the development or implementation of that portion of
the Apple Product which infringes your Prior Invention.
b. you acquiesced or permitted other Apple employees to utilize your Prior
Invention in the course of their development or implementation of the
c. upon first learning of Apple’s use of your Prior Invention you do not
immediately notify in writing your Apple vice president of Apple’s infringing
use of your Prior Invention and the need for a license thereto.
21. It is a challenge for a person plaintiff age to get a job particularly in the current
economic environment therefore, because the scope of the work of the Specialist
position that Apple offered plaintiff does not involve plaintiff copyrighted work
plaintiff decided to sign the IPA.
22. On August 1, 2011 plaintiff stopped at Apple to sign the IPA. Sal informed
plaintiff that no one was in HR and that he could not accept a sealed envelope
with the IPA.
23. On August 1, 2011 a couple hours after leaving the Apple store Dana Brooks
called plaintiff. Plaintiff later learned Ms. Brooks is the Assistant HR Lead. Ms.
Brooks told plaintiff that all positions were filled. Plaintiff scheduled an August 3,
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2011 meeting with Ms. Brooks to discuss what happened to the offer Apple
made, and that plaintiff accepted contingent on IPA agreement.
24. On August 3 prior to the meeting plaintiff chatted with Mr. Kruoch. Plaintiff was
surprised when neither Mr. Kruoch nor Mr. Martinez whom plaintiff had primarily
interacted with were not in the meeting. As the forgoing indicates, most if not all
of plaintiff communication had been with Mr. Kruoch and or Mr. Martinez. Mr.
Kruoch could confirm that he told plaintiff that plaintiff could start on August 6.
Patricia Bailey was in the room during the meeting, however did not participate.
Also in the room was a man who sat at a computer with his back to plaintiff.
Plaintiff had never seen him before. When plaintiff asked who he was, Ms.
Brooks stated that he is a senior manager. He did not participate or make any
comment during the meeting, nor was plaintiff introduced to him. As plaintiff was
leaving plaintiff introduced herself and the man told plaintiff his name is Mario.
25. Ms. Brooks stated “most” positions were filled, a difference from her statement on
the August 1st phone call that “all” positions were filled. Plaintiff stated “most”
indicates positions are still open, and Ms. Brooks stated, there are qualified
candidates in the pipeline and Apple has thousands of candidates. Ms. Brooks
stated that plaintiff did not accept the position and that plaintiff offer had expired.
Plaintiff told Ms. Brooks that since plaintiff could not sign the IPA until plaintiff
obtained legal advice, Mr. Kruoch told plaintiff that plaintiff would not be able to
start on July 23 and that plaintiff start date would be August 6. Dana stated that
the August 6 date was a date plaintiff could start, not that it was offered as a start
date. Plaintiff wrote in plaintiff notes, what is the difference.
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26. Ms. Brooks also stated that Mr. Wichmann email provided the clarification on the
IPA. Plaintiff went over to the computer Ms. Brooks was reading from and asked
Ms. Brooks to scroll down to the section of Mr. Wichmann’s email that states, “we
can't advise people about the interpretation of this language, though -- the
agreement is what it is. If they have questions about it, they would need to
consult with their own counsel.”
27. Ms. Brooks made issue with plaintiff return on July 21 to pick up copies of docs,
to sign the IPA, and that plaintiff asked for forms plaintiff had signed contingent
on…Plaintiff clarified and asked Ms. Bailey to confirm plaintiff conversation with
her that plaintiff did not have the forms plaintiff signed and would return to pick
them up, and that plaintiff return was not to sign the IPA.
28. Plaintiff questioned, why the offer letter dated July 19, 2011 was only valid until
Friday July 22, 2011 while Apple continued to actively recruit to fill positions. Is
it typical that all of Apple’s offers are made and require acceptance within a three
(3) day window? Both Mr. Kruoch and Mr. Martinez were fully aware that the
delay was because plaintiff had to obtain legal advice on Apple’s IPA. Plaintiff
was not concerned because Mr. Kruoch informed plaintiff that since plaintiff could
not sign the IPA plaintiff training start date would be August 6, 2011.
29. Plaintiff also questioned the reason plaintiff was “qualified” when the offer was
made, and was not “qualified” for the open positions that Ms. Brooks stated
Apple had qualified candidates in the pipe line to fill.
30. On August 10th plaintiff called Apple and left a message for Ms. Brooks. Mr.
Kruoch asked the reason for plaintiff call. Plaintiff told Mr. Kruoch that plaintiff
had just reviewed the package of new hire docs plaintiff was given and a
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document was missing that plaintiff had signed, contingent on… Mr. Krouch
immediately acknowledged and stated it was the offer letter and that he would
get it from Mr. Martinez and send it to plaintiff.
31. On August 11th Mr. Kruoch called and told plaintiff that Ms. Brooks wanted
plaintiff to send her an email requesting the offer letter plaintiff signed contingent
on. Plaintiff asked Mr. Kruoch to send plaintiff an email making the request.
When plaintiff did on receive the email plaintiff sent an email to Ms. Brooks.
Several days later on August 15, 2011 plaintiff received an email, from Ms.
Brooks. The email stated, “We discard all documents and do not retain
paperwork onsite. When your offer expired on July 22, your documents were
properly discarded. It is also my understanding that you previously requested all
signed copies of all your documents on July 19 and you picked these documents
up on July 20”.
32. Because of Federal record retention laws, plaintiff thought Ms. Brooks meant that
documents were not kept “onsite” so plaintiff responded. Plaintiff summarized
from the August 3rd meeting discussion and plaintiff August 10th call with Mr.
Kruoch. Ms. Brooks replied that when plaintiff offer expired, Apple discarded all
documents with plaintiff signature and that the documents no longer exist.
EXHIBIT F are the emails exchanged.
33. Plaintiff questioned when did Apple know that the document was “no longer
available”, “discarded”. On plaintiff August 10, 2011 call Mr. Kruoch
acknowledged it was the offer letter that was missing, and stated he would get it
from Mr. Martinez and send it to plaintiff. On August 11, 2011 Mr. Kruoch called
and stated that Ms. Brooks wanted plaintiff to send an email requesting the letter.
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34. Did Apple make a job offer, or was it pretext to suggest that Apple does hire older
individuals? Plaintiff discussed plaintiff believe that Apple does not hire mature
individuals with Toni and Apple Human Resource recruitment staff. Plaintiff also
discussed plaintiff letter to Steve Job that stated Apple’s workforce represents
the younger demographic that Apple markets to.
• Was it reasonable to expect that within three (3) days plaintiff could
identify attorneys, provide the IPA to attorneys, obtain their advice and
sign a five (5) page IPA agreement?
• Was it reasonable for plaintiff to believe as informed by Mr. Kruoch, that
plaintiff would be able to start on August 6, 2011?
• Was it reasonable as Apple continued to recruit to fill open positions to
expect that Apple would have called plaintiff to obtain the status, and or
advise plaintiff that the offer would expire, or suggest that an exception
would be requested?
35. Plaintiff was informed that Maggie Gregg is the HR Lead for the Region. Plaintiff
was unable to leave a message on Ms. Gregg’s voice mail and did not receive a
response to the email plaintiff sent therefore plaintiff went to Apple’s Regional
office on West 14th Street. While plaintiff waited to see Ms. Gregg plaintiff could
hear two women making calls to applicants and asking their interest in
employment with Apple. Plaintiff briefly told Ms. Gregg that plaintiff had not
been able to reach her by phone and had not received a response to plaintiff
email. Ms. Gregg stated that her schedule was busy and that she would prefer a
phone discussion rather than an in person meeting.
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36. On the August 30, 2011 scheduled call Ms. Gregg informed plaintiff that she was
aware of the events that occurred, and stated that plaintiff did not complete the
paperwork and that plaintiff offer expired. Ms. Gregg further stated that plaintiff
was not an Apple employee, that the store had discretion to make a decision and
that Apple did not have to maintain the documents, plaintiff paperwork was
37. Plaintiff called Apple corporate office and spoke to the Assistant of the VP of
Human Resources. She informed plaintiff that someone would be in contact
38. Tony Lagares a Senior Manager of Apple Retail Human Resources contacted
plaintiff. Plaintiff asserted that plaintiff signed the offer letter contingent on the
IPA Agreement. Plaintiff requested a position at another Apple store. Because
of the lower cost of living and that plaintiff had been unemployed for months,
plaintiff requested to be considered for positions in the Metro Atlanta area.
39. For two (2) months from September 2, 2011 to November 11, 2011 plaintiff had
voice, text and, email communications with Mr. Lagares without resolution. Mr.
Lagares often stated he was traveling; going in a meeting… plaintiff did not get
the sense that resolution of plaintiff HR issue was a priority. Apple did not offer
plaintiff a position.
40. Plaintiff continued to update plaintiff profile on Apple’s Job Opportunities website
and applied for Specialist, Business Specialist and Business Leader positions at
all retail stores within a reasonable commuting distance of New York City, and
the Metro Atlanta area. Apple website consistently lists current openings at
multiple locations. In addition, Apple staffed and opened two (2) new stores.
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EXHIBIT G is the Wall Street Journal article on the December 2011 Grand
Central store opening that stated that the store, one of Apple's largest at 23,000
square feet would employ 315 people. In June 2012 Apple staffed and opened
the Yonkers store that employs approximately 200 people.
41. Based on the foregoing plaintiff asserts that Apple filled a significant number of
positions with individuals significantly younger than plaintiff to infer Age
Discrimination, and did not again interview or offer plaintiff a Specialist position.
42. Apple discriminated against plaintiff due to plaintiff age. Aside the expired offer,
there were multiple opportunities for Apple to hire plaintiff.
“The Supreme Court has said: "It seems clear that the temporary loss of income,
ultimately to be recovered does not usually constitute irreparable injury." Sampson v.
Murray, 415 U.S. 61, 90 [39 L. Ed. 2d 166, 94 S. Ct. 937] . . . (1974)
In Callicotte v. Carlucci, 698 F.Supp. 944 the court in citing Sampson v. Murray stated;
“The government, relying on Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.
2d 166 (1974), urges the Court to adopt a higher standard for interim injunctive relief in
federal personnel actions. The Supreme Court in Sampson required the plaintiff, a
federal employee who alleged that the agency dismissed her without following the
procedures under the Civil Service Act, to show irreparable injury of an "extraordinary
degree" for injunctive relief, id. 415 U.S. at 92 n. 68, 94 S.Ct. at 953 n. 68. The Court
predicated its imposition of a higher standard on the grounds that the government must
be given wide latitude to handle its own internal personnel affairs. Id. at 83, 94 S.Ct. at
949. The Court, however, did not and has not expressly extended this rule to employees
alleging violations of their statutory civil rights. Such challenges raise equally
Case 1:12-cv-06467-GBD-GWG Document 17 Filed 10/22/12 Page 17 of 29
compelling, if not stronger governmental interests, in the enforcement of our nation's
cases would undermine this vital interest in eradicating discrimination”.
It would also undermine the Congressional Intent in the passing of the ADEA.
When evaluating motions for injunctive relief in discrimination actions, several circuit
courts have refused to adopt a higher standard and relied instead on the traditional one.
See Holt v. Continental Group Inc., 708 F.2d 87, 91 (2d Cir.1983); E.E.O.C. v. Anchor
Hocking Corp., 666 F.2d 1037 (6th Cir.1981); Porter v. Adams, 639 F.2d 273 (5th
Cir.1981). This Circuit has not resolved whether or not a higher standard is required for
plaintiffs challenging their dismissal on grounds of discrimination. See Wagner v. Taylor,
836 F.2d 566, 575 n. 66 (D.C.Cir.1987). While the Court is not persuaded that the
higher standard should apply in actions brought under the civil rights laws, it need not
resolve the issue for purposes of this litigation because the plaintiff has satisfied her
burden under either standard.
In, Akili v. Sise, 38 FEP 553 (N.D.N.Y. 1984,in a Title VII case. The plaintiff sought a
preliminary injunction to prevent his being discharged from his job as a typist, allegedly
because of race discrimination. The court held that the pending loss of his earnings
and the possibility that he might be unable to secure another job were clearly
insufficient to show "irreparable harm."
In Holt v. Continental, 708 F.2d 87 a Title VII case, the court stated, “With respect to
irreparable injury, an absolute requirement for a preliminary injunction, Triebwasser &
Katz v. American Telephone & Telegraph Co., 535 F.2d 1356, 1359 (2d Cir.1976), we
agree with Judge Zampano that the requisite irreparable harm is not established in
employee discharge cases by financial distress or inability to find other employment,
unless truly extraordinary circumstances are shown. Sampson v. Murray, 415 U.S.
Case 1:12-cv-06467-GBD-GWG Document 17 Filed 10/22/12 Page 18 of 29
61, 91-92 & n. 68, 94 S.Ct. 937, 953 & n. 68, 39 L.Ed.2d 166 (1974); EEOC v. City of
Janesville, 630 F.2d 1254, 1259 (7th Cir.1980)”.
Most ADEA cases are extraordinary. It is stated and was acknowledged in the ADEA
Congressional Statement of Findings and Purpose. It is demonstrated in the
challenges that individuals protected under the Act experience in finding employment in
the current economic environment. Today, the country is beginning to show signs of
recovery from a recession and jobs and employment are the top issues cited by citizens
in the current presidential campaign. Due to high unemployment and the economic
environment older workers have experienced the greatest impact as they are who are
first laid off, and who must compete with younger workers who because of high
unemployment apply and will accept even part time positions well below their skills,
experience and qualifications.
The loss is not “temporary” as cited by the Supreme Court in Sampson. Mature
applicants never regain the lost compensation and in many, many cases prematurely
began Social Security annuity to obtain a source of income. Moreover it is a different
economic environment than when the Supreme Court in Sampson ruled in 1974. The
high unemployment of the past 4 years is almost double what it was in 1974 therein loss
of income, as in the case of plaintiff, has not been “temporary”.
Citing from Monroe v. United Air Lines Inc. 736 F. 2d 394. The ADEA was enacted in
1967 in response to growing concern over unemployment among older workers and
Congress’ belief that much of the problem was attributable to “arbitrary discrimination in
employment because of age. “29 U.S.C. Sec. 621 (Congressional Statement of
Findings and Purpose). One step Congress took in dealing with age discrimination was
Case 1:12-cv-06467-GBD-GWG Document 17 Filed 10/22/12 Page 19 of 29
to make it unlawful for an employer “to fail or refuse to hire or to discharge any
individual … because of such individual’s age. “29 U.S.C. Sec. 623 (a)(1).
29 USC § 621 - CONGRESSIONAL STATEMENT OF FINDINGS AND PURPOSE
(a) The Congress hereby finds and declares that—
(1) in the face of rising productivity and affluence, older workers find themselves
disadvantaged in their efforts to retain employment, and especially to regain
employment when displaced from jobs;
(2) the setting of arbitrary age limits regardless of potential for job performance has
become a common practice, and certain otherwise desirable practices may work to the
disadvantage of older persons;
(3) the incidence of unemployment, especially long-term unemployment with
resultant deterioration of skill, morale, and employer acceptability is, relative to
the younger ages, high among older workers; their numbers are great and
growing; and their employment problems grave;
(4) the existence in industries affecting commerce, of arbitrary discrimination in
employment because of age, burdens commerce and the free flow of goods in
(b) It is therefore the purpose of this chapter to promote employment of older persons
based on their ability rather than age; to prohibit arbitrary age discrimination in
employment; to help employers and workers find ways of meeting problems arising from
the impact of age on employment.
Further in support is the court’s statement in Callicotte v. Carlucci. Extending the higher
standard to employment discrimination cases will undermine the vital interest in
Case 1:12-cv-06467-GBD-GWG Document 17 Filed 10/22/12 Page 20 of 29
eradicating discrimination and, will also undermine the Congressional Intent/Purpose in
passing the ADEA.
Additional evidence is a recently published article in the Wall Street Journal, "Oldest
Baby Boomers Face Jobs Bust," cited U.S. Department of Labor ("DOL") statistics that
four million Americans aged 55 to 64 are unable to find work, a number that has
doubled over the course of five years. The article also cited DOL statistics showing that
the average duration of unemployment for those aged 55 to 64 is 56.6 weeks, as
compared to 35.9 weeks for 25- to 34-year-olds, and 47.8 weeks for 45- to 54-year-olds.
For the reasons cited and discussed plaintiff further asserts that the standard for
Preliminary injunction in ADEA cases should not be the same as in than other
employment discrimination cases
In age discrimination cases, courts have awarded preliminary relief when the
employee’s entire future economic stability would be jeopardized by the employer’s
action. Thus, in Morrow v. Inmont Corp., 30 F.E.P.Cas. (BNA) 1019 (W.D.N.C. 1982),
the court issued a preliminary injunction reinstating a saleswoman who was fired after
filing charges of sex and age discrimination. The court justified its action on the basis
that she would suffer irreparable loss of commissions and business contacts while
waiting for her charges to be litigated. The plaintiff had been unable to find other
work. The court observed that she “is being punished daily for pursuing her
rights, and there is substantial likelihood that she cannot be made whole . . . if she
is not provided interim relief.” 30 F.E.P.Cas. (BNA) at 1026. See Monroe v. United
Airlines, Inc., 34 F.E.P.Cas. (BNA) 1610 (N.D.Ill. 1983).
According to information prepared by Nancy Pelosi, former Speaker of the U.S. House
of Representatives, job losses in the current recession have been much more severe
Case 1:12-cv-06467-GBD-GWG Document 17 Filed 10/22/12 Page 21 of 29
than previous recessions. Till vonWachter, an economics professor at Columbia
University in a study on the long-term earnings of workers who lost their jobs1 stated,
“On average most workers do not recover their old annual earnings.” The study further
stated, “Older workers’ wages usually slide more than those of younger workers”.
Ann Huff Stevens, an economics professor at the University of California, Davis In the
book, Never Say Die: The Myth and Marketing of the New Old Age2 stated; “You’re at
the bottom of the totem pole again.” The book also quotes, Till von Wachter, “”most
workers will not find new jobs that pay as much as their old jobs – lifetime earnings
will inevitable be lower as a result of a midlife employment interruption”.
Unlike Sampson plaintiff exhausted administrative remedies and filed an action in the
Federal Court. Plaintiff in the instant case is homeless because plaintiff has not been
able to find employment. Plaintiff income is fixed as plaintiff also prematurely began
Social Security annuity. Plaintiff projected earnings with Apple of approximately
$2000.00 per month would have allowed plaintiff to obtain housing. Plaintiff has not
recovered from lost income and is homeless. Plaintiff stayed in a hotel in Secaucus,
New Jersey where plaintiff had obtained a favorable monthly rate that is affordable
given plaintiff’s fixed income. However on October 3, 2012 plaintiff was illegally locked
out of plaintiff room. The attached Warrant of Removal, EXHIBIT H shows that the
Hudson County Court Special Civil Part granted the Warrant to remove plaintiff from the
Hotel plaintiff stayed. Plaintiff Affidavit further attests to the hardship and emotional
distress the actions caused plaintiff.
Case 1:12-cv-06467-GBD-GWG Document 17 Filed 10/22/12 Page 22 of 29
In the instant case the claim is not simply that an employee has been discharged and
thereby has suffered injuries normally compensable by money. Rather plaintiff has
experienced emotional distress, loss of income that would have enabled plaintiff to
obtain housing. Plaintiff cannot recover; no monetary reward can compensate for the
loss of housing, for the emotional pain and suffering, from the loss of constitutional
rights, for other fundamental rights such as being counted in the census. When plaintiff
applied for employment with Apple one of plaintiff’s objective was a source of income to
find housing. Plaintiff informed Apple’s recruitment manager Tony Lagares that due to
the high cost of housing in the New York area plaintiff would like to be considered for
Specialist positions in Atlanta. Because of the lower cost of housing, the income
plaintiff would have earned would more than comfortably have allowed plaintiff to find
housing in that area.
Reuters Ltd. v. United Press Int'l, 903 F.2d 904 (2d Cir. 1990). "[A] plaintiff must
demonstrate an actual and imminent threat of irreparable injury if the
injunction were not granted. The harm must not be remote or speculative, and
the injury alleged must be one incapable of being fully remedies by money
damages." 903 F.2d at 907. Plaintiff has experienced/demonstrated actualized
irreparable injury. The granting of plaintiff request for injunctive relief will enable
plaintiff to afford and obtain housing.
A tongue-in-cheek review in the Wall Street Journal, entitled "Revenge of the
60-Year-Old Has Beens," recently suggested that, "Once you're past 60, you should be
thinking about making a graceful, dignified move towards the exit." No wonder those
who have attained the sixth decade of life may face the competitive job market not only
with fear and trembling, but also with exquisite sensitivity for their legal rights.
Case 1:12-cv-06467-GBD-GWG Document 17 Filed 10/22/12 Page 23 of 29
Consequently, employers' time will also be well-spent considering in detail the ADEA
and other laws that deal with duties to older workers.”
In a Title VII case where the plaintiff’s faced eviction, there are similar elements to the
instant case, Carlos Aguilar; Eugenia Balcarcel; Dalton Castellano; Ralph Degracia;
Apolonio Palencia; Blanca Rivera; And Enrique Valderama, Plaintiffs, v. Baine Service
Systems, Inc., 538 F. Supp. 581, the court cited the standard for preliminary injunction
in the 2nd Circuit, Jackson Dairy, granted preliminary relief for the plaintiff and stated; “If
a preliminary injunction is not issued, plaintiffs will lose their jobs and sole means of
financial support. See affidavits attached to Plaintiffs' Motion for Preliminary Injunction.
The opportunity for unemployment insurance only exists if the defendants do not renew
their allegedly empty promises of reemployment. The general rule is that an injunction
should not issue when the remedy at law is adequate, Jackson Dairy, supra, 596 F.2d
at 72. However, the harm generated by loss of employment extends beyond financial
boundaries. The plaintiffs face eviction, cut-off of their utilities and the inability to
provide for their children. "[In] many cases the effect on the complainant of several
months without work... will constitute harm that cannot be adequately remedied by a
later award of damages." Sheehan, supra, slip. op. at 5540. The plaintiffs'
circumstances present ample support for a finding of irreparable harm.”
Plaintiff circumstances in this case present overwhelming evidence in support of a
finding of irreparable harm.
Finally, the Fifteenth Amendment ratified February 3, 1870 provided that, “The right of
U.S. Citizens to vote shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of servitude”. Plaintiff Fifteenth
Amendment rights have been abridged simply because plaintiff cannot obtain
Case 1:12-cv-06467-GBD-GWG Document 17 Filed 10/22/12 Page 24 of 29
employment so that plaintiff may afford housing and therein have an address so that
plaintiff may register to vote, be counted. That is irreparable!
SUCCESS ON THE MERITS
The instant case is not a mixed motive case. Plaintiff established a Prima Facie
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any
individual (over 40 years of age) or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment because of
such individual’s age.” 29 U.S.C. §§ 623 (a)(1), 631(a).
To establish a prima facie case of age discrimination under the ADEA, a claimant must
demonstrate that: 1) he was within the protected age group; 2) he was qualified for the
position; 3) he was subject to an adverse employment action; and 4) the adverse action
occurred under "circumstances giving rise to an inference of discrimination." See Roge
v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir.2001). See Terry v. Ashcroft, 336 F.3d
Under either statute, once a plaintiff has established a prima facie case, the burden
shifts to the defendant, which is required to offer a legitimate, non-discriminatory
rationale for its actions. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973) (Title VII); Schnabel v. Abramson, 232 F.3d 83, 87
(2d Cir.2000) (ADEA). Thus, once the defendant has made a showing of a neutral
reason for the complained of action, "to defeat summary judgment ... the plaintiff's
admissible evidence must show circumstances that would be sufficient to permit a
rational finder of fact to infer that the defendant's employment decision was more likely
than not based in whole or in part on discrimination." Stern, 131 F.3d at 312.
Case 1:12-cv-06467-GBD-GWG Document 17 Filed 10/22/12 Page 25 of 29
It is undisputed that plaintiff is over the age of 60 and protected by the ADEA. It
is also undisputed that plaintiff applied for positions with Apple and that Apple
acknowledged plaintiff qualifications when Apple made a written offer to plaintiff
for a Specialist position. ¶ 12, Ex B.
It is also undisputed that plaintiff questioned and requested clarification on a
statement in Apple’s Intellectual Property Agreement, Ex C, that stated, “If you do
list such Prior Inventions, you hereby grant to Apple a royalty-free, irrevocable,
perpetual, worldwide license to any Prior Invention that is now or hereafter
infringed by an Apple product, process, or method of doing business (hereinafter
“Apple Product”. In response Apple forwarded to plaintiff an email from Trey
Wichmann of Apple Compliance. ¶ 15 Ex D.
Plaintiff informed Mr. Kruoch and Mr. Martinez that plaintiff would need to obtain
advice from an attorney. Mr. Kruoch informed plaintiff that plaintiff would not be
able to start on July 23, the date on the offer letter, and that the next time/date
plaintiff could start would be August 6, 2011. ¶ 19.
When plaintiff returned on August 1, 2011 to sign the IPA Ms. Brooks stated that
all positions were filled. On August 3, 2011 Ms. Brooks then stated that “most”
positions were filled and that there were qualified applicants in the pipeline.
Plaintiff asserts that plaintiff was as qualified on August 3, as plaintiff was on July
19 when Apple made a written offer to plaintiff therefore questioned why plaintiff
was not at the top of the pipeline of qualified candidates?
Apple stated that it was their discretion whether to offer plaintiff a position as
plaintiff offer letter had expired. Plaintiff further questioned, the reason the offer
letter dated July 19, 2011 was only valid until Friday July 22, 2011 while Apple
Case 1:12-cv-06467-GBD-GWG Document 17 Filed 10/22/12 Page 26 of 29
continued to actively recruit and call applicants to find out their interest in
Plaintiff signed the offer letter contingent on the IPA agreement and, a day later
Apple sent plaintiff a welcome employee letter, ¶ 18, Ex. E. Henceforth plaintiff
believed that plaintiff was an Apple employee.
Apple stated that the offer letter plaintiff signed contingent on the IPA agreement
was destroyed. ¶¶ 30 to 34. Therein Apple violated Federal Record retention
laws and destroyed evidence that would substantiate plaintiff claims.
Pursuant to U.S. Code 29 CFR § 1627.3(b)(1), Employer record retention
requirements for ADEA are established by Federal law and states, “Every
employer who in the regular course of his business, makes, obtain, or uses, any
personnel or employment records related to the following shall except as provided
in paragraph (b)(3) and (4) of this section, keep them for a period of 1 years from
the date of the personnel action to which any records relate”.
(i) “Job applications, resumes or any other form of employment inquiry
whenever submitted to the employer in response to his advertisement or
other notice of existing or anticipated job openings, including records
pertaining to the failure or refusal to hire any individual”.
(ii) “Any advertisement or notices to the public or to employees relating to job
openings, promotions, training programs, or opportunities for overtime
(3) “When an enforcement action is commenced under section 7 of the Act
regarding a particular applicant or employee, the Commission or its authorized
representative shall require the employer to retain any record required to be kept
Case 1:12-cv-06467-GBD-GWG Document 17 Filed 10/22/12 Page 27 of 29
under paragraph (b) (1) or (2) of this section which is relative to such action until
the final disposition thereof”.
Apple stated that the offer letter had expired and was destroyed, and is the reason
Apple did not hire plaintiff. What is Apple’s response to the plaintiff questions in ¶
34. And, as discussed in ¶ 40 and Ex. G since plaintiff continued to be qualified
what is the reason plaintiff was not hired when Apple staffed and opened the
Grand Central store in December 2011 with 315 employees, and the Yonkers
store in June 2012 with approximately 200 employees.
Additionally, Apple job opportunities website consistently showed current openings
for Specialist positions at just about all New York retail stores and, all Metro
Jobs for all individuals in the current economic environment are difficult to find and
multiple times more difficult for individuals protected under the ADEA. Plaintiff
alleges the reason Apple offered plaintiff a position was plaintiff discussions and
statements that Apple’s marketing focus is younger individuals, college students,
and that Apple’s workforce represents the demographic Apple wants to attract.
The picture shown on Apple’s Job Opportunities website, EXHIBIT I
communicates/publishes Apple’s hiring preference.
“The McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence
of discrimination”, as plaintiff has in the instant case. TransWorld v. Thurston, 469 U.S.
Case 1:12-cv-06467-GBD-GWG Document 17 Filed 10/22/12 Page 28 of 29
McDonnell Douglas Prima Facie
Membership in a protected group
Applied and was qualified for the jobs in
Was subject to adverse action
The circumstances give rise to an inference of
Peterson V. Apple
Achieved. Plaintiff is over the age of 60 and
protected by the ADEA,
Achieved. Applied and Qualified established
by Apple offer to plaintiff
Achieved. Plaintiff returned to sign the IPA.
However, Apple stated no openings, then told
“most” positions were filled and qualified
candidates were in the pipeline while Apple
continued to actively recruit
Achieved. Apple staffed and opened two
stores. Grand Central 315 positions, Yonkers
approximately 200 positions, and filled a
significant number of Specialist positions in the
Metro NYC area and, the Metro Atlanta area
BALANCING OF HARDSHIPS TIPPING DECIDEDLY TOWARD THE PARTY
REQUESTING THE PRELIMINARY RELIEF
The Jackson Dairy analysis requires that after this court determines that both irreparable harm
and sufficiently serious questions addressing the merits are present, a balance of hardships
tipping towards the plaintiffs must be found before an injunction will issue.
Apple Inc., is a California Corporation established in 1977. Apple Inc. and its wholly-owned
subsidiaries designs, manufactures and markets mobile communication and media devices,
personal computers, and portable digital music players, and sells a variety of related software,
services, peripherals, networking solutions, and third-party digital content an applications. The
Company sells its products worldwide through its retail stores, online stores, and direct sales
force, as well as through third-party cellular network carriers, wholesalers, retailers, and value-
Apple reported quarterly revenue of $35.0 billion and a quarterly net profit of $8.8 billion for the
Third Quarter, Ju