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Exhibit 5
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UNITED STATES DISTRICT COURT for the
EASTERN DISTRICT OF NEW YORK
Donna Hodge, Annette Hall, Karen Grant Williams, Alexi
Arias, Albert E. Percy, Percy Jobs and Careers Corporation an
IRC 501(c)(3) non-profit, as Class Representative,
Plaintiff,
-against-
ANDREW M. CUOMO as Governor of the State of New York;
STATE OF NEW YORK; ROBERTA REARDON as
Commissioner of the New York State Department of Labor; COMPLAINT
NEW YORK STATE DEPARTMENT OF LABOR; `
Defendants from SDNY 73-cv-04279,
CASE#:
Linda A. Lacewell as Superintendent of Insurance of the State
of New York Department of Financial Services, Martha Lees as
General Counsel of the Department of Financial Services,
Carolyn Robinson, Supervisor with the New York State
Department of Labor, Dr. Merryl H. Tisch, Chairman of the
A PRIVATE
State University of New York Board of Trustees, the State
ATTORNEY
University of New York, Scott Dietrich and Peter Fountas of
GENERAL
the Research Foundation of the State University of New York,
ACTION
Howard A. Zucker, M.D., as the Commissioner of the State of
New York Department of Health, Basil Seggos as the present
Acting Commission of the New York State Department of
Environmental Conservation, Jeremy Attie, Ziv Kimmel,
Vincent Licause Officers of the New York Compensation
Insurance Rating Board,
State Officer Defendants,
Allstate Administrators, LLC, d/b/a Allstate ASO; Gary Baker;
Broad Coverage Services, Inc.; Christopher Buckey; Michael
Camilleri; Cullen and Dykman; Dynamic Claim Services, Inc;
Eagle North, LLC; Wolf Eisenbach; Grandview Brokerage; Jon
Halpern; Chaim Hirsch; Ben Landa a/k/a Benjamin Landa;
Lipsium Benheim; Ira Lipsius; Isaac Muller; Philipson Family
Trust; Avi Philipson, Deborah Philipson; Samuel Schlesinger;
Michael Schremer; Martin Schwartzman; Michael
Schweimmer; Spencer Street Realty; Standard and Preferred
Insurance Company; Joseph Stern; The Berkshire Group. Inc.;
The Pitterman Family Trust; The Schlesinger Family Trust;
Stella M. Vilardi; Israel Weber; Raphael A. Weitzner;
Whiteman Osterman & Hanna, Israel Ziegelman;
Party-in-Interest Defendants,
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Gabor Adler; George Adler; Kwame Amoafo-danquah; Agnes
Arnestein; Anthony Bacchi; Matthew Barbara; Paul Barbara;
Aaron Becher; Pola Becher; Hershel Bedansky; Howard
Belford; Scott Bialick; Robert Bleier; David Bloom; Paula
Bokow; Joel Brach; Natan Brach; Barry Braunstein; Murray
Bresky; Steven Brown; Philip Buchsbaum; Richard Bursek;
Richard Busell; Colin C. Hart; Ira Cammeyer; Alan Chopp;
Joshua Chopp; David Cohen; David Crytryn; David Dachs;
Solomon Eidlisz; Neil Einhorn; Scott Einiger; Abraham
Eisen; Sam Eisen; Steve Eisman; Ignatius Elefant; Philipson
Family Trust; Martin Farbeblum; Benjamin Farbenblum; Ed
Farbenblum; Edward Farbenblum; Martin Farbenblum;
Michael Farbenblum; Esther Farkovits; Jordan Fensterman;
Lori Fensterman; Robert Fensterman; Staci Fensterman;
Samuel Ferrara; Mayer Fischl; Benjamin Fishoff; Patrick
Formato; John Francher; David Freid; Moshe Freilich;
Andrew Freundlich; Sigmund Freundlich; Leo Friedman;
David Gast; Louis Gellis; William Gillick; Rivky Goldberger;
Leon Goldenberg; Jeffrey Goldstein; Anne Gottlieb; Miklows
Gottlieb; Niklos Gottlieb; Solomon Green; Joel Greenberg;
Eric Greenberger; Eli Greenspan; Steven Greenstein; Avrumi
Grossman; Marton Guttman; Valarie Henry; Johanan
Hirsch; Leopold Hirsch; Libe Hirsch; Ruth Hirsch; David
Hoffman; Pinchos Hoffman; Pinchus Hoffman; Steven J
Eisman; Anthony J. Bacchi; Jack Janklowicz; Leonard
Janklowicz; Jack Janklowitz; Shorefront Jewish Geriatric
Center; David Jones; Judith Jones; Mendel Kaff; Eric Kalt;
Yoel Karpen; Miriam Karpf; Allen Kass; Martin Kass;
Martin Katz; Shelley Katz; Shelly Katz; Manny Kaufman;
Yosef Kaufman; Alan Kessler; Arnold Klapper; George Klein;
Larry Klein; Eleanor Kluger; Robert Kolman; Dean Korlik;
William Korn; Irina Kostesky; Howard Krant; Ephram
Lahasky; Benjamin Landa; David Landa; Yechiel Landa;
Nathan Landau; James Lapolla; Tibor Lebovich; Morty
Lehasky; David Leifer; Barry Leistner; Chana Lerner;
Michael Levitan; Rich Levitan; Teddy Lichtscein; Neuman Lj
Partners; Isaac Madeb; Dovi Marc Faivish; Sam Mayerovitz;
Girshas Minster; Neuman Mn Partners; Gavriel Mordechaev;
Gabriel Mordechey; Sharyn Mukamal; Katherine Muller;
Laurie Netzer; Leo Oberlander; Sander Oberlander; Milton
Ostreicher; Susan Ostreicher; Irwin Peckman; Ben
Philipson; Bent Philipson; Deborah Philipson; Robert Pines;
Israel Pollak; Jacob Pollak; Natan Pollak; Renee Pollak;
Sylvia Pollak; Theodore Pollak; Michael Pruzansky; Diana R.
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Koehler; Jonathan Redner; Lawrence Reichenberger; Mark
Reisman; Mayer Rispler; Brian Rosenman; Kenneth
Rozenberg; Berish Rubenstein; Dina Rubenstein; Rivkie
Rubenstein; Ira Rubin; Malky Saffran; Boruch Schepps;
Pamela Schepps; Nat Scherman; Richard Schildron; Samuel
Schlesinger; Jacob Schoenberger; Michael Schwartz; Leslie
Shafrank; Henry Shayovitz; Agnes Shemia; Jeff Shemia;
Alexander Sherman; Israel Sherman; Leah Sherman; Nat
Sherman; Samuel Sherman; Warren Sherman; Hindy Sirkis;
Moshe Sirkis; Alexander Skoczlas; Joseph Skoczylas; Tali
Skoczylas; Dominic Spira Md; Jonathan Steinberg; Miriam
Steinberg; Ronald Stern; Mariam Sternberg; Lorraine
Takesky; Mitch Teller; Kenneth Tesslar; Kenneth Tessler;
Aaron Unger; Unknown; Eila Vinitzky; Yuliya Vinokurova;
Jeffrey Vogel; Sherman Vogel; Peggy Weberman; Philip
Weberman; Toby Weinberger; Zoltan Weinberger; Regina
Weinstock; Ari Weiss; Berish Weiss; Berry Weiss; Micahel
Weiss; Michael Weiss; Robyn Weiss; Shlomie Weiss; Chaya
Willinger; Robert Wolf; Peyman Younesi; Mark Zaffrin;
Ephraim Zagelbaum; Kenneth Zitter; David Zohler;
Owner Operator Defendants
Local 1199 of the Service Employees International Union
Union Defendant,
Oriska Insurance Company,
Carrier Defendant,
Rashbi Management, Inc.,
Trust Defendant.
Oriska Corporation derivatively to the Carrier Defendant and
by Subrogation to the Class,
Derivative Defendant,
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TABLE OF CONTENTS
COMPLAINT ............................................................................................................... 10
PRELUDE ............................................................................................................... 10
Lincoln ....................................................................................................................................10
Grant and Conkling ................................................................................................................ 11
Franklin Roosevelt..................................................................................................................12
Lyndon B. Johnson ................................................................................................................. 13
BASIS AND SUMMARY OF CAUSES FOR ACTION ...................................................... 14
PRIVATE ATTORNEY GENERAL ACTION.................................................................... 22
JURISDICTION ............................................................................................................... 23
VENUE and PRIOR PROCEEDINGS .............................................................................. 23
PARTIES ............................................................................................................... 24
PLAINTIFF: ........................................................................................................................... 24
DEFENDANTS: ..................................................................................................................... 25
The State Officer Defendants named in their official and individual capacities are as follows:
............................................................................................................................................... 26
The Party-in-Interest Defendants are as follows: ................................................................. 26
Owner Operator Defendants are the owners and operators of Employers referred to as the
Employer Defendants identified in a related case EDNY 21-cv-01366 as follows: ............... 28
Carrier, Derivative, and Trust Defendants are as follows: ..................................................... 41
Union Defendant ................................................................................................................... 42
Parties previously named in Case SDNY 73-cv-04279 who are not named here because the
Percy Class does not have a controversy with the following former defendants: ................. 42
FACTS COMMON TO ALL CAUSES OF ACTION .......................................................... 43
Precedent, Authority and Jurisdiction .................................................................................. 44
DEFENDANT GOVERNOR OF THE STATE OF NEW YORK presented Executive Order 45
in an effort toward affirmative action, but it failed and has never been corrected, Percy
undertakes self-help with the PERCY PROGRAM but is Stymied. ....................................... 46
NUMEROSITY ............................................................................................................... 48
CLASS ACTION COMMON ISSUES OF LAW AND FACT ............................................. 48
JUDICIAL ECONOMY ..................................................................................................... 49
CLASS COUNSEL ............................................................................................................ 49
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CLASS REPRESENTATIVE ............................................................................................. 50
First Cause of Action against Defendant Government Agencies and State Officers for
Injunctive Relief Prohibiting interference with the Alternative Employment
Practice under 42 U.S.C. 1981 and 1985 in violation of 42 U.S.C. 1983 .............. 50
Focusing on the current spread of infection that has occurred in nursing homes as it affects
members of the Plaintiff Class employed in nursing homes, the root cause of this disaster
begins with the failure of Governors Executive Order 45. We draw here from the following as
evidence of the consequence: .................................................................................................51
Findings of the New York Attorney General in Report of January 30, 2021, Attachment #1
hereto ...................................................................................................................................... 51
Second Cause of Action against Owner Operator Defendants OF Identified Employers
for Breach of ERISA Fiduciary Duties in the Diversion of $53 Million in Plan
Assets ............................................................................................................... 61
$53 Million- Embezzlement Admitted in Court Documents ................................................ 63
Third Cause of Action against Party-in-Interest Defendants to Recover Plan Assets
Diverted by Parties-in-Interest in Prohibited Transactions ................................ 76
Parties-in-Interest ................................................................................................................. 76
Fourth Cause of Action against Identified Owner Operator Defendants for Breach of
ERISA Fiduciary Duties in the Diversion of $68 million in Plan Assets ............. 77
Fifth Cause of Action under 42 U.S.C. 1983 invoking 42 U.S.C. 1981 and 1985 against
the Party-in-Interest Defendants and Owner Operator Defendants in Complicity
with State Officer Defendants Conspiring to deprive the Class of Rights and
Privileges Denying Equal Protection of the Laws under the 14th Amendment .. 85
What Happened to the Monies Expensed in Cost Reports to Fund the ERISA Plan and
Program? ............................................................................................................................... 86
Sixth Cause of Action under 42 U.S.C. 1983 invoking 42 U.S.C. 1981 and 1985 against
the Party-in-Interest Defendants and Owner Operator Defendants conspiring
with State Officers to Deprive the Class of Rights and Privileges Denying Equal
Protection of the Laws under the 14th Amendment ............................................ 89
Damages for an illegal employment practice ........................................................................ 92
Seventh Cause of Action Against the Governor of the State of New York and the
Defendant Government Agencies for failure of Governor’s Executive order 45 . 92
DEFENDANT GOVERNOR OF THE STATE OF NEW YORK OFFERED A SETTLEMENT OF
PERCY V. BRENNAN IN CASE 73-CV-04279 THAT IS UNENFORCEABLE AND FAILED
............................................................................................................................................... 96
Defendant Governor and his Agencies Actively Undermine the Percy Program .................. 97
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Eighth Cause of Action against Owner Operator and the Union Defendants for Illegal
Employment Practices in Violation of 42 U.S.C. § 2000e-2 ................................ 98
ALTERNATIVE EMPLOYMENT PRACTICE The Percy Program, referenced herein
(Document #6, Attachment 21 in EDNY Case No. 21-cv-01366) ........................ 99
The Advocates........................................................................................................................ 99
The Percy Program Presented by the Advocates as an Alternative Employment Practice under
42 USC 2000 e-2(k)(1)(A)(ii) and (k)(1)(C) meets the burden of production and persuasion
under Title VII of the Civil Rights Act. .................................................................................. 99
The Percy Program is a Less Discriminatory Alternative Method of Employment Practice
Available to these Employers and Presented it the Defendant US Department of Labor and
the Executive Branch Office of the President of the United States ......................................103
The Percy Program Presented to the NYS Empire State Development Corporation is an
Available Less Discriminatory Alternative Method of Employment Practice..................... 104
The Percy Program Presented to the Port Authority of New York/New Jersey is an Available
Less Discriminatory Alternative Method of Employment Practice .................................... 104
The Percy Program Presented to the Metropolitan Transportation Authority is an Available
Less Discriminatory Alternative Method of Employment Practice .................................... 104
The Percy Program Presented to the New York Dormitory Authority is an Available Less
Discriminatory Alternative Method of Employment Practice ............................................ 104
The Percy Program Presented to the School Construction Authority is an Available Less
Discriminatory Alternative Method of Employment Practice .............................................105
The Percy Program Presented to the State University of New York is an Available Less
Discriminatory Alternative Method of Employment Practice .............................................105
The Percy Program Presented to the City Of New York and its Agencies is an Available Less
Discriminatory Alternative Method of Employment Practice .............................................105
Percy Class as Third-Party Beneficiaries of Contracts .........................................................105
Defendant Owner Operators have Violated and Continue to Violate 42 U.S.C. §2000e–
2(k)(1)(A)(ii) and 2(k)(1)(C) .................................................................................................107
Local 1199 of the National Health Care Workers' Union ......................................................111
Precedent and Jurisdiction to Enforce the Alternative Employment Practice .................... 112
Damages for an illegal employment practice ....................................................................... 113
Ninth Cause of Action under 42 U.S.C. §1983 for Damages under 42 U.S.C. §1981 and
1985 against State Officer Defendants Conspiring with Party-in-Interest
Defendants to Violate 14th Amendment Equal Protection Constitutional Rights
of the Class ........................................................................................................... 113
DFS State Actions under Color of Law in Support of the Scheme ....................................... 115
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NYCIRB as an Arm of Government Agency DFS ................................................................. 116
Tenth Cause of Action is brought under 42 U.S.C. §1983 to enjoin State Officers from
Prohibiting Right to Assemble by the Class as Protected by the First Amendment
to the United States Constitution ........................................................................ 118
State Officer Interference with Right of Assembly of the Percy Subclass at SUNY Maritime
.............................................................................................................................................. 119
Replacement Training and Laboratory Facilities ................................................................ 120
Eleventh Cause of Action 42 U.S.C. §1981 for Racial, or otherwise Class-based Invidious
Discriminatory Animus by the Party-in-Interest and Owner Operator
Defendants .......................................................................................................... 124
Twelfth Cause of Action against the Party-in-Interest Defendants and Owner/Operator
Defendants conspiring with State Officers to Aid and Abet Breaches of Fiduciary
Duties and Obligations ....................................................................................... 125
Thirteenth Cause of Action against Employer Defendants and Parties in Interest
Prohibited Transaction Defendants for Conversion .......................................... 125
Fourteenth Cause of Action against Owner Operator Defendants and Parties in Interest
Prohibited Transaction Defendants for Unjust Enrichment ............................. 126
Fifteenth Cause of Action against Owner Operator and Parties-in-Interest Defendants
for Conducting and Participating in the Affairs of an Enterprise Through a
Pattern of Racketeering Activity under 18 U.S.C. § 1962 ................................... 126
The Enterprise ...................................................................................................................... 127
Embezzlement from an Employee Benefit Plan (18 U.S.C. § 664)....................................... 127
The Trust Fund Scheme .......................................................................................................128
In March 2013 the Trust Defendant took over as the settlor, became the administrator of a
114 Trust at IDB Bank of New York ......................................................................................128
The 2013 and Prior Theft of Plan Assets ..............................................................................129
Renunciation of Obligation to pay for Benefits Required by their Plan. .............................130
Investing Income from Racketeering Activity in the Enterprise ......................................... 131
S & P Insurance .................................................................................................................... 131
Judgment on this RICO Cause of Action .............................................................................. 132
THE PERCY PROGRAM ................................................................................................ 132
History of Apprenticeship in the Percy Program ................................................................. 132
Worker Assessment ..............................................................................................................133
Hazards in the Workplace OSHA Application ..................................................................... 133
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OSHA 10 and 30 Hour Courses ............................................................................................143
OSHA 10 Confined Space Entry ...........................................................................................143
OSHA Ergonomics................................................................................................................143
OSHA Excavation .................................................................................................................143
OSHA 7600 Disaster Site Worker ........................................................................................143
OSHA 2225 Respiratory Protection .....................................................................................144
OSHA 3110 Fall Arrest Systems ...........................................................................................144
Safety and Emergency Preparedness ...................................................................................144
American Heart Association First Aid, CPR with AED ........................................................144
Enforcement of smoking prohibitions .................................................................................144
Environmental Training Lead - Renovation, Repair and Painting Class ............................. 145
Mold and Bacteria Remediation........................................................................................... 145
Blood Borne Pathogens ........................................................................................................145
Lead Worker EPA ................................................................................................................. 145
Asbestos Handler.................................................................................................................. 145
COMPONENTS OF THE PERCY PROGRAM ............................................................... 146
REGULATORY APPROVALS OF PERCY PROGRAM .................................................. 149
EXIGENT CIRCUMSTANCES ....................................................................................... 152
RELIEF ............................................................................................................. 152
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COMPLAINT
The Plaintiffs, Donna Hodge, Annette Hall, Karen Grant Williams, Alexi Arias,
Albert E. Percy, and Percy Jobs and Careers Corporation an IRC 501(c)(3) non-profit, as
Class Representatives, by their attorney James M. Kernan, ask the indulgence of the
reader, as we try to add depth to historical events, events in which we are even now
continuing to be engulfed, for all of the deficiencies by this Complaint on these flat pages,
we dare to bring forth so great an urgency, we state as follows:
PRELUDE
Lincoln
The relief sought from you, the reader, was first identified in the last speech
President Abraham Lincoln, (“Lincoln”), ever made, three days before Lincoln’s
assassination. It was two days after the surrender of Robert E. Lee's army to Grant,
ending the Civil War, to a crowd gathered outside the White House calling for President
Lincoln, reporter Noah Brooks wrote, "Outside was a vast sea of faces, illuminated by the
lights that burned in the festal array of the White House, and stretching far out into the
misty darkness. It was a silent, intent, and perhaps surprised, multitude." "Within stood
the tall, gaunt figure of the President, deeply thoughtful, intent upon the elucidation of
the generous policy which should be pursued toward the South. That this was not the
sort of speech which the multitude had expected is tolerably certain."
Lincoln stood at the window over the building's main north door while Brooks
held a light so Lincoln could read his speech.
The Lincoln speech of April 11, 1865:
“We meet this evening, not in sorrow, but in gladness of heart . . . . . . .
This plan was, in advance, submitted to the then Cabinet, and distinctly approved
by every member of it. One of them suggested that I should then, and in that
connection, apply the Emancipation Proclamation to the theretofore excepted parts
of Virginia and Louisiana; that I should drop the suggestion about
apprenticeship for freed-people, and that I should omit the protest against my
own power, in regard to the admission of members to Congress; but even he
approved every part and parcel of the plan which has since been employed or
touched by the action of Louisiana. The new constitution of Louisiana,
declaring emancipation for the whole State, practically applies the
Proclamation to the part previously excepted. It does not adopt
apprenticeship for freed-people
.......
Again, if we reject Louisiana, we also reject one vote in favor of the proposed
amendment to the national Constitution.
. . . . . . . ” (emphasis added)
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The dilemma Lincoln was facing was how to gradually eliminate inequality.
Lincoln envisioned using apprenticeship as the Union was reconstructed. Lincoln
recognized that freedom without the opportunity to earn a living would be disastrous and
only lead to and did lead to misery. Lincoln’s proposal occurred when Louisiana wanted
to return to the Union. Lincoln identified apprenticeship for the freed-people as the tool
to repair and bring the freed people into the mainstream of economic opportunity.
Lincoln recognized that freed persons had to be provided skills as workers through
apprenticeship to assimilate them into a working, earning and thriving class, without
which there would be immense suffering and damages to the freed class.
The 10-minute speech of only 1819 words introducing the complex topic of
reconstruction, twice identified apprenticeship for freed-people as a means to survive
and prosper, as it was viewed through the prism of the State of Louisiana. Incensed John
Wilkes Booth, a member of the audience that evening on April 11, 1865, vowed, Brooks
wrote "That is the last speech he will make." An acknowledged white supremacist
according to Brooks, Booth made good on his threat.
The assassination of Lincoln by Booth 3 days after this speech, frustrated the
proposed reconstruction opportunities: “apprenticeship for freed-people”, a vision
not spoken of again since April 11, 1865. Instead, Lincoln’s nightmare of disaster and
misery came true with lynching, massacres, and the anarchy of Reconstruction followed
by the Jim Crow laws of separation and discrimination. Out of this cauldron of a
beginning the 14th amendment grew to ensure equal opportunity to freed-people, enter
Roscoe Conkling.
Grant and Conkling
Roscoe Conkling, was a US Congressman, and later US Senator from Utica, New
York, at a time when both US Senators from New York State were from Utica New York,
the other Senator being Francis Kernan. Ulysses S. Grant and Conkling enter the story.
In 1865 Vice President Andrew Johnson became President and reconstruction of the
south began. Conkling had previously been Lincoln's collaborator and supporter in
Congress for freeing the enslaved people, and later a staunch supporter of President
Grant’s efforts. Conkling began work in earnest on the 13th, 14th and 15th amendments to
the Constitution of the United States as a member of the Congressional drafting
committee. Conkling’s focus was on the 14th Amendment. Conkling understood the
phrase "apprenticeship for freed-people” as a fundamental natural right to work, earn,
live, and pursue happiness, full equal opportunity that should be afforded to all,
including those as freed-people, natural rights of life, liberty and pursuit of happiness.
When Lincoln was assassinated, Conkling rose to the need to determine and
assure that the Constitution protected these rights, which lead to the 14th amendment to
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the U.S. Constitution. Conkling was instrumental to not only implementing
emancipation which was granted by the 13th Amendment, but also equal protection of
the laws afforded to all persons by the 14th Amendment. The 14th Amendment, drafted
by committee, was ratified in 1866. Conkling was a principal contributor on the
Committee drafting the 14th Amendment and its equal protection and due process
clauses.
Conkling tried to pursue the Lincoln vision, but the 10 years after Lincoln’s
assassination, the 10 years following Lincoln’s vision of apprenticeship for freed people,
were 10 years of anarchy and lawlessness which brought President Ulysses S. Grant and
his close friend Conkling to utter frustration. Reconstruction was failing. Conkling and
Grant accomplished the Ku Klux Klan Act of 1871 which is now codified at 42 U.S.C. 1983
with its companion sections 42 U.S.C. 1981 and 42 U.S.C. 1985, to provide a remedy
against abuse of government authority and to enforce the provisions of the United States
Constitution.
It was then that US Senator Francis Kernan, on an Electoral Commission to settle
the Presidential Election of 1876, cast a deciding vote to accomplishing the compromise
of 1877 to preserve the Union, end Reconstruction, and bring the southern states behind
a compromise presidential candidate - Rutherford B. Hayes. Apprenticeship for freed
people was lost, the apprenticeship plank of Reconstruction was abandoned in the
compromise of 1877 which ended Reconstruction. Conkling had declined a seat on the
committee knowing what the outcome was sure to be – there would be an abandonment
of all efforts to provide equality. Conkling later became lost as a dark figure of graft and
corruption at the New York City Customs House, finally dying in the blizzard of 1888
walking from his office at Wall Street to Union Square. A sorry end, Conkling lost the
fervor of his moral compass. Frederick Douglas, one of the first emerging slave to civil
rights leaders, an apprentice himself mentored by Conkling, eulogized Conkling: “the
country’s loss is great, but let us hope that men will yet be found as true to the cause of
justice, liberty and equality”.
Apprenticeship did not again resurface for the benefit of freed persons until the
Percy Class sued in 1973 to eliminate discrimination in economic opportunity, eliminate
segregation and eliminate disparate opportunity. The Percy v. Brennan lawsuit followed
as a result of the civil rights movements of the 1960s. Percy as a Class now complains
that if the Class had gotten what was long ago a vision called apprenticeship, a vision not
fulfilled even 154 years later, the world would be a much different place today.
Franklin Roosevelt
Apprenticeship was not formalized as a federally adopted structured program
until the National Apprenticeship Act of 1937, and even then, was not used as an
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opportunity to teach skills to disadvantaged persons.
In 1937, the Congress passed the National Apprenticeship Act (29 U.S.C. 50), also
known as "the Fitzgerald Act." The Act established a national advisory committee whose
task was to research and draft regulations to establish minimum standards for
apprenticeship programs. The Act was later amended to permit the United States
Department of Labor to issue regulations protecting the health, safety and general
welfare of apprentices, and to encourage the use of contracts in the hiring and
employment of them.
Much like FDR’s Work Projects Administration (WPA), which put the unskilled to
work building America’s airports, schools, and highways, apprenticeship programs can
once again train the unskilled to build today’s infrastructure. The WPA maintained and
increased working skills; and it enabled the unskilled to take their rightful places in
public or in private employment.
The Fitzgerald Act is administered by the Employment and Training
Administration in the Department of Labor. Regulations banning racial, ethnic,
religious, age and gender discrimination in apprenticeship programs are located at Title
29, CFR Part 30, but did little to foster affirmative action for equal employment.
Unfortunately, even though apprenticeship was formalized as a federally adopted
structured program under the National Apprenticeship Act of 1937, it was not used as an
opportunity to teach skills to disadvantaged persons.
Lyndon B. Johnson
President Johnson is credited with the Civil Rights Act of 1964 and LBJ’s
Executive Order 11246.
The term affirmative action arose from Johnson’s 1965 commencement speech at
predominantly black Howard University when speaking about the adoption of the Civil
Rights Act of 1964, President Johnson declared that equality has to be actual equality,
not equality in name, when he said:
“You do not take a man who, for years has been hobbled by chains, liberate
him, bring him to the starting line of a race, saying you are free to compete
with all the others, and still justly believe you have been completely fair.
Thus, it is not enough to open the gates of opportunity. All our citizens must
have the ability to walk through those gates. This is the next and the more
profound stage of the battle for civil rights. We seek not just freedom but
opportunity--not just legal equity but human ability--not just equality as a
right and a theory, but equality as a fact and a result.”
Equal opportunity at its core carries the simple mandate that opportunities should
be open to all on the basis of competence alone. This complaint is that the Percy Class
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lacks the minimum training, skills and preparation needed to be eligible for the jobs that
become available, and those who do secure work as a result of affirmative action
mandates are often unable to keep their jobs and the dignity of work.
Apprenticeship is the bedrock foundation upon which our country and freedom is
based. Opportunity to gain basic work skills is necessary. But equal opportunity to gain
skills doesn’t exist in many instances, exposing unskilled workers and the public to
unmanaged risk, one example is the recent virus pandemic and its rapid spread.
Apprenticeship, identified as affirmative action, is the natural right of all peoples
because “The greatest wealth results from the greatest economic liberty, freedom of all
individuals to work, save, buy, and earn at their pleasure, and economic life would settle
into a natural order and productivity would thrive.”[ 1]. A natural right identified in the
Declaration of Independence, the US Constitution and the 14th Amendment to the US
Constitution mandating equal protection of laws that affect these rights, Apprenticeship
envisioned in Abraham Lincoln's forgotten last speech, from the balcony of the White
House to a crowd gathered on the White House Lawn at the end of the Civil War, twice
envisioning apprenticeship for freed people to gradually reconstruct the nation, yet in
the 155 years since, not only has it not occurred, it has been thwarted by the same State
Government Agencies of the Governor charged with protecting equal opportunity.
BASIS AND SUMMARY OF CAUSES FOR ACTION
1. The Class Plaintiff is a class of victims, first looted of their benefits by Owner Operator
Defendants who had a fiduciary duty to protect and steward Employment Retirement
Income Security Act (“ERISA”) Plan assets; and second, victimized by State Officer
Defendants that received Cost Reports but neglected or intentionally ignored and never
examined to see if accrued and expensed costs for employee benefits were in fact
expended for the benefit of the Class Plaintiff. We now know that the costs reported as
expensed for employee benefits, were not used for employee benefits amounting to tens
of millions of dollars diverted, converted and embezzled for years while the State Officer
Defendants failed to discover this defalcation because of either gross negligence or
conscious disregard so that the per bed reimbursement rate remained elevated, even
while human resource costs were gutted, the net difference going to the pockets of Party-
and-Interest Defendants and Employer Operator Defendants. Is there a money trail to
the State Officer Defendants? It is not unreasonable and within the authority of a trier of
1 The Wealth of Nations by Adam Smith, studied and emulated by Jefferson and the Franklin over
two centuries ago
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fact to make the connection between the Owner Operator Defendants and the State
Officer Defendants as herein described.
2. In March 2020, the Owner Operator Defendants were losing a significant portion of their
income with residents going to hospitals with Covid 19 sickness, leaving beds un-
occupied. Unoccupied beds are not paid for by Medicaid/Medicare unde
Preview
FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 NYSCEF DOC. NO. 378 RECEIVED NYSCEF: 03/13/2023 Exhibit 5 FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 Case NYSCEF DOC. NO. 1:21-cv-01421 Document 1 Filed 03/17/21 Page 2 of 154RECEIVED 378 PageID #: 258 03/13/2023 NYSCEF: UNITED STATES DISTRICT COURT for the EASTERN DISTRICT OF NEW YORK Donna Hodge, Annette Hall, Karen Grant Williams, Alexi Arias, Albert E. Percy, Percy Jobs and Careers Corporation an IRC 501(c)(3) non-profit, as Class Representative, Plaintiff, -against- ANDREW M. CUOMO as Governor of the State of New York; STATE OF NEW YORK; ROBERTA REARDON as Commissioner of the New York State Department of Labor; COMPLAINT NEW YORK STATE DEPARTMENT OF LABOR; ` Defendants from SDNY 73-cv-04279, CASE#: Linda A. Lacewell as Superintendent of Insurance of the State of New York Department of Financial Services, Martha Lees as General Counsel of the Department of Financial Services, Carolyn Robinson, Supervisor with the New York State Department of Labor, Dr. Merryl H. Tisch, Chairman of the A PRIVATE State University of New York Board of Trustees, the State ATTORNEY University of New York, Scott Dietrich and Peter Fountas of GENERAL the Research Foundation of the State University of New York, ACTION Howard A. Zucker, M.D., as the Commissioner of the State of New York Department of Health, Basil Seggos as the present Acting Commission of the New York State Department of Environmental Conservation, Jeremy Attie, Ziv Kimmel, Vincent Licause Officers of the New York Compensation Insurance Rating Board, State Officer Defendants, Allstate Administrators, LLC, d/b/a Allstate ASO; Gary Baker; Broad Coverage Services, Inc.; Christopher Buckey; Michael Camilleri; Cullen and Dykman; Dynamic Claim Services, Inc; Eagle North, LLC; Wolf Eisenbach; Grandview Brokerage; Jon Halpern; Chaim Hirsch; Ben Landa a/k/a Benjamin Landa; Lipsium Benheim; Ira Lipsius; Isaac Muller; Philipson Family Trust; Avi Philipson, Deborah Philipson; Samuel Schlesinger; Michael Schremer; Martin Schwartzman; Michael Schweimmer; Spencer Street Realty; Standard and Preferred Insurance Company; Joseph Stern; The Berkshire Group. Inc.; The Pitterman Family Trust; The Schlesinger Family Trust; Stella M. Vilardi; Israel Weber; Raphael A. Weitzner; Whiteman Osterman & Hanna, Israel Ziegelman; Party-in-Interest Defendants, 2 FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 Case NYSCEF DOC. NO. 1:21-cv-01421 Document 1 Filed 03/17/21 Page 3 of 154RECEIVED 378 PageID #: 259 03/13/2023 NYSCEF: Gabor Adler; George Adler; Kwame Amoafo-danquah; Agnes Arnestein; Anthony Bacchi; Matthew Barbara; Paul Barbara; Aaron Becher; Pola Becher; Hershel Bedansky; Howard Belford; Scott Bialick; Robert Bleier; David Bloom; Paula Bokow; Joel Brach; Natan Brach; Barry Braunstein; Murray Bresky; Steven Brown; Philip Buchsbaum; Richard Bursek; Richard Busell; Colin C. Hart; Ira Cammeyer; Alan Chopp; Joshua Chopp; David Cohen; David Crytryn; David Dachs; Solomon Eidlisz; Neil Einhorn; Scott Einiger; Abraham Eisen; Sam Eisen; Steve Eisman; Ignatius Elefant; Philipson Family Trust; Martin Farbeblum; Benjamin Farbenblum; Ed Farbenblum; Edward Farbenblum; Martin Farbenblum; Michael Farbenblum; Esther Farkovits; Jordan Fensterman; Lori Fensterman; Robert Fensterman; Staci Fensterman; Samuel Ferrara; Mayer Fischl; Benjamin Fishoff; Patrick Formato; John Francher; David Freid; Moshe Freilich; Andrew Freundlich; Sigmund Freundlich; Leo Friedman; David Gast; Louis Gellis; William Gillick; Rivky Goldberger; Leon Goldenberg; Jeffrey Goldstein; Anne Gottlieb; Miklows Gottlieb; Niklos Gottlieb; Solomon Green; Joel Greenberg; Eric Greenberger; Eli Greenspan; Steven Greenstein; Avrumi Grossman; Marton Guttman; Valarie Henry; Johanan Hirsch; Leopold Hirsch; Libe Hirsch; Ruth Hirsch; David Hoffman; Pinchos Hoffman; Pinchus Hoffman; Steven J Eisman; Anthony J. Bacchi; Jack Janklowicz; Leonard Janklowicz; Jack Janklowitz; Shorefront Jewish Geriatric Center; David Jones; Judith Jones; Mendel Kaff; Eric Kalt; Yoel Karpen; Miriam Karpf; Allen Kass; Martin Kass; Martin Katz; Shelley Katz; Shelly Katz; Manny Kaufman; Yosef Kaufman; Alan Kessler; Arnold Klapper; George Klein; Larry Klein; Eleanor Kluger; Robert Kolman; Dean Korlik; William Korn; Irina Kostesky; Howard Krant; Ephram Lahasky; Benjamin Landa; David Landa; Yechiel Landa; Nathan Landau; James Lapolla; Tibor Lebovich; Morty Lehasky; David Leifer; Barry Leistner; Chana Lerner; Michael Levitan; Rich Levitan; Teddy Lichtscein; Neuman Lj Partners; Isaac Madeb; Dovi Marc Faivish; Sam Mayerovitz; Girshas Minster; Neuman Mn Partners; Gavriel Mordechaev; Gabriel Mordechey; Sharyn Mukamal; Katherine Muller; Laurie Netzer; Leo Oberlander; Sander Oberlander; Milton Ostreicher; Susan Ostreicher; Irwin Peckman; Ben Philipson; Bent Philipson; Deborah Philipson; Robert Pines; Israel Pollak; Jacob Pollak; Natan Pollak; Renee Pollak; Sylvia Pollak; Theodore Pollak; Michael Pruzansky; Diana R. 3 FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 Case NYSCEF DOC. NO. 1:21-cv-01421 Document 1 Filed 03/17/21 Page 4 of 154RECEIVED 378 PageID #: 260 03/13/2023 NYSCEF: Koehler; Jonathan Redner; Lawrence Reichenberger; Mark Reisman; Mayer Rispler; Brian Rosenman; Kenneth Rozenberg; Berish Rubenstein; Dina Rubenstein; Rivkie Rubenstein; Ira Rubin; Malky Saffran; Boruch Schepps; Pamela Schepps; Nat Scherman; Richard Schildron; Samuel Schlesinger; Jacob Schoenberger; Michael Schwartz; Leslie Shafrank; Henry Shayovitz; Agnes Shemia; Jeff Shemia; Alexander Sherman; Israel Sherman; Leah Sherman; Nat Sherman; Samuel Sherman; Warren Sherman; Hindy Sirkis; Moshe Sirkis; Alexander Skoczlas; Joseph Skoczylas; Tali Skoczylas; Dominic Spira Md; Jonathan Steinberg; Miriam Steinberg; Ronald Stern; Mariam Sternberg; Lorraine Takesky; Mitch Teller; Kenneth Tesslar; Kenneth Tessler; Aaron Unger; Unknown; Eila Vinitzky; Yuliya Vinokurova; Jeffrey Vogel; Sherman Vogel; Peggy Weberman; Philip Weberman; Toby Weinberger; Zoltan Weinberger; Regina Weinstock; Ari Weiss; Berish Weiss; Berry Weiss; Micahel Weiss; Michael Weiss; Robyn Weiss; Shlomie Weiss; Chaya Willinger; Robert Wolf; Peyman Younesi; Mark Zaffrin; Ephraim Zagelbaum; Kenneth Zitter; David Zohler; Owner Operator Defendants Local 1199 of the Service Employees International Union Union Defendant, Oriska Insurance Company, Carrier Defendant, Rashbi Management, Inc., Trust Defendant. Oriska Corporation derivatively to the Carrier Defendant and by Subrogation to the Class, Derivative Defendant, 4 FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 Case NYSCEF DOC. NO. 1:21-cv-01421 Document 1 Filed 03/17/21 Page 5 of 154RECEIVED 378 PageID #: 261 03/13/2023 NYSCEF: TABLE OF CONTENTS COMPLAINT ............................................................................................................... 10 PRELUDE ............................................................................................................... 10 Lincoln ....................................................................................................................................10 Grant and Conkling ................................................................................................................ 11 Franklin Roosevelt..................................................................................................................12 Lyndon B. Johnson ................................................................................................................. 13 BASIS AND SUMMARY OF CAUSES FOR ACTION ...................................................... 14 PRIVATE ATTORNEY GENERAL ACTION.................................................................... 22 JURISDICTION ............................................................................................................... 23 VENUE and PRIOR PROCEEDINGS .............................................................................. 23 PARTIES ............................................................................................................... 24 PLAINTIFF: ........................................................................................................................... 24 DEFENDANTS: ..................................................................................................................... 25 The State Officer Defendants named in their official and individual capacities are as follows: ............................................................................................................................................... 26 The Party-in-Interest Defendants are as follows: ................................................................. 26 Owner Operator Defendants are the owners and operators of Employers referred to as the Employer Defendants identified in a related case EDNY 21-cv-01366 as follows: ............... 28 Carrier, Derivative, and Trust Defendants are as follows: ..................................................... 41 Union Defendant ................................................................................................................... 42 Parties previously named in Case SDNY 73-cv-04279 who are not named here because the Percy Class does not have a controversy with the following former defendants: ................. 42 FACTS COMMON TO ALL CAUSES OF ACTION .......................................................... 43 Precedent, Authority and Jurisdiction .................................................................................. 44 DEFENDANT GOVERNOR OF THE STATE OF NEW YORK presented Executive Order 45 in an effort toward affirmative action, but it failed and has never been corrected, Percy undertakes self-help with the PERCY PROGRAM but is Stymied. ....................................... 46 NUMEROSITY ............................................................................................................... 48 CLASS ACTION COMMON ISSUES OF LAW AND FACT ............................................. 48 JUDICIAL ECONOMY ..................................................................................................... 49 CLASS COUNSEL ............................................................................................................ 49 5 FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 Case NYSCEF DOC. NO. 1:21-cv-01421 Document 1 Filed 03/17/21 Page 6 of 154RECEIVED 378 PageID #: 262 03/13/2023 NYSCEF: CLASS REPRESENTATIVE ............................................................................................. 50 First Cause of Action against Defendant Government Agencies and State Officers for Injunctive Relief Prohibiting interference with the Alternative Employment Practice under 42 U.S.C. 1981 and 1985 in violation of 42 U.S.C. 1983 .............. 50 Focusing on the current spread of infection that has occurred in nursing homes as it affects members of the Plaintiff Class employed in nursing homes, the root cause of this disaster begins with the failure of Governors Executive Order 45. We draw here from the following as evidence of the consequence: .................................................................................................51 Findings of the New York Attorney General in Report of January 30, 2021, Attachment #1 hereto ...................................................................................................................................... 51 Second Cause of Action against Owner Operator Defendants OF Identified Employers for Breach of ERISA Fiduciary Duties in the Diversion of $53 Million in Plan Assets ............................................................................................................... 61 $53 Million- Embezzlement Admitted in Court Documents ................................................ 63 Third Cause of Action against Party-in-Interest Defendants to Recover Plan Assets Diverted by Parties-in-Interest in Prohibited Transactions ................................ 76 Parties-in-Interest ................................................................................................................. 76 Fourth Cause of Action against Identified Owner Operator Defendants for Breach of ERISA Fiduciary Duties in the Diversion of $68 million in Plan Assets ............. 77 Fifth Cause of Action under 42 U.S.C. 1983 invoking 42 U.S.C. 1981 and 1985 against the Party-in-Interest Defendants and Owner Operator Defendants in Complicity with State Officer Defendants Conspiring to deprive the Class of Rights and Privileges Denying Equal Protection of the Laws under the 14th Amendment .. 85 What Happened to the Monies Expensed in Cost Reports to Fund the ERISA Plan and Program? ............................................................................................................................... 86 Sixth Cause of Action under 42 U.S.C. 1983 invoking 42 U.S.C. 1981 and 1985 against the Party-in-Interest Defendants and Owner Operator Defendants conspiring with State Officers to Deprive the Class of Rights and Privileges Denying Equal Protection of the Laws under the 14th Amendment ............................................ 89 Damages for an illegal employment practice ........................................................................ 92 Seventh Cause of Action Against the Governor of the State of New York and the Defendant Government Agencies for failure of Governor’s Executive order 45 . 92 DEFENDANT GOVERNOR OF THE STATE OF NEW YORK OFFERED A SETTLEMENT OF PERCY V. BRENNAN IN CASE 73-CV-04279 THAT IS UNENFORCEABLE AND FAILED ............................................................................................................................................... 96 Defendant Governor and his Agencies Actively Undermine the Percy Program .................. 97 6 FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 Case NYSCEF DOC. NO. 1:21-cv-01421 Document 1 Filed 03/17/21 Page 7 of 154RECEIVED 378 PageID #: 263 03/13/2023 NYSCEF: Eighth Cause of Action against Owner Operator and the Union Defendants for Illegal Employment Practices in Violation of 42 U.S.C. § 2000e-2 ................................ 98 ALTERNATIVE EMPLOYMENT PRACTICE The Percy Program, referenced herein (Document #6, Attachment 21 in EDNY Case No. 21-cv-01366) ........................ 99 The Advocates........................................................................................................................ 99 The Percy Program Presented by the Advocates as an Alternative Employment Practice under 42 USC 2000 e-2(k)(1)(A)(ii) and (k)(1)(C) meets the burden of production and persuasion under Title VII of the Civil Rights Act. .................................................................................. 99 The Percy Program is a Less Discriminatory Alternative Method of Employment Practice Available to these Employers and Presented it the Defendant US Department of Labor and the Executive Branch Office of the President of the United States ......................................103 The Percy Program Presented to the NYS Empire State Development Corporation is an Available Less Discriminatory Alternative Method of Employment Practice..................... 104 The Percy Program Presented to the Port Authority of New York/New Jersey is an Available Less Discriminatory Alternative Method of Employment Practice .................................... 104 The Percy Program Presented to the Metropolitan Transportation Authority is an Available Less Discriminatory Alternative Method of Employment Practice .................................... 104 The Percy Program Presented to the New York Dormitory Authority is an Available Less Discriminatory Alternative Method of Employment Practice ............................................ 104 The Percy Program Presented to the School Construction Authority is an Available Less Discriminatory Alternative Method of Employment Practice .............................................105 The Percy Program Presented to the State University of New York is an Available Less Discriminatory Alternative Method of Employment Practice .............................................105 The Percy Program Presented to the City Of New York and its Agencies is an Available Less Discriminatory Alternative Method of Employment Practice .............................................105 Percy Class as Third-Party Beneficiaries of Contracts .........................................................105 Defendant Owner Operators have Violated and Continue to Violate 42 U.S.C. §2000e– 2(k)(1)(A)(ii) and 2(k)(1)(C) .................................................................................................107 Local 1199 of the National Health Care Workers' Union ......................................................111 Precedent and Jurisdiction to Enforce the Alternative Employment Practice .................... 112 Damages for an illegal employment practice ....................................................................... 113 Ninth Cause of Action under 42 U.S.C. §1983 for Damages under 42 U.S.C. §1981 and 1985 against State Officer Defendants Conspiring with Party-in-Interest Defendants to Violate 14th Amendment Equal Protection Constitutional Rights of the Class ........................................................................................................... 113 DFS State Actions under Color of Law in Support of the Scheme ....................................... 115 7 FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 Case NYSCEF DOC. NO. 1:21-cv-01421 Document 1 Filed 03/17/21 Page 8 of 154RECEIVED 378 PageID #: 264 03/13/2023 NYSCEF: NYCIRB as an Arm of Government Agency DFS ................................................................. 116 Tenth Cause of Action is brought under 42 U.S.C. §1983 to enjoin State Officers from Prohibiting Right to Assemble by the Class as Protected by the First Amendment to the United States Constitution ........................................................................ 118 State Officer Interference with Right of Assembly of the Percy Subclass at SUNY Maritime .............................................................................................................................................. 119 Replacement Training and Laboratory Facilities ................................................................ 120 Eleventh Cause of Action 42 U.S.C. §1981 for Racial, or otherwise Class-based Invidious Discriminatory Animus by the Party-in-Interest and Owner Operator Defendants .......................................................................................................... 124 Twelfth Cause of Action against the Party-in-Interest Defendants and Owner/Operator Defendants conspiring with State Officers to Aid and Abet Breaches of Fiduciary Duties and Obligations ....................................................................................... 125 Thirteenth Cause of Action against Employer Defendants and Parties in Interest Prohibited Transaction Defendants for Conversion .......................................... 125 Fourteenth Cause of Action against Owner Operator Defendants and Parties in Interest Prohibited Transaction Defendants for Unjust Enrichment ............................. 126 Fifteenth Cause of Action against Owner Operator and Parties-in-Interest Defendants for Conducting and Participating in the Affairs of an Enterprise Through a Pattern of Racketeering Activity under 18 U.S.C. § 1962 ................................... 126 The Enterprise ...................................................................................................................... 127 Embezzlement from an Employee Benefit Plan (18 U.S.C. § 664)....................................... 127 The Trust Fund Scheme .......................................................................................................128 In March 2013 the Trust Defendant took over as the settlor, became the administrator of a 114 Trust at IDB Bank of New York ......................................................................................128 The 2013 and Prior Theft of Plan Assets ..............................................................................129 Renunciation of Obligation to pay for Benefits Required by their Plan. .............................130 Investing Income from Racketeering Activity in the Enterprise ......................................... 131 S & P Insurance .................................................................................................................... 131 Judgment on this RICO Cause of Action .............................................................................. 132 THE PERCY PROGRAM ................................................................................................ 132 History of Apprenticeship in the Percy Program ................................................................. 132 Worker Assessment ..............................................................................................................133 Hazards in the Workplace OSHA Application ..................................................................... 133 8 FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 Case NYSCEF DOC. NO. 1:21-cv-01421 Document 1 Filed 03/17/21 Page 9 of 154RECEIVED 378 PageID #: 265 03/13/2023 NYSCEF: OSHA 10 and 30 Hour Courses ............................................................................................143 OSHA 10 Confined Space Entry ...........................................................................................143 OSHA Ergonomics................................................................................................................143 OSHA Excavation .................................................................................................................143 OSHA 7600 Disaster Site Worker ........................................................................................143 OSHA 2225 Respiratory Protection .....................................................................................144 OSHA 3110 Fall Arrest Systems ...........................................................................................144 Safety and Emergency Preparedness ...................................................................................144 American Heart Association First Aid, CPR with AED ........................................................144 Enforcement of smoking prohibitions .................................................................................144 Environmental Training Lead - Renovation, Repair and Painting Class ............................. 145 Mold and Bacteria Remediation........................................................................................... 145 Blood Borne Pathogens ........................................................................................................145 Lead Worker EPA ................................................................................................................. 145 Asbestos Handler.................................................................................................................. 145 COMPONENTS OF THE PERCY PROGRAM ............................................................... 146 REGULATORY APPROVALS OF PERCY PROGRAM .................................................. 149 EXIGENT CIRCUMSTANCES ....................................................................................... 152 RELIEF ............................................................................................................. 152 9 FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 Case NYSCEF DOC. NO. 1:21-cv-01421 Document 1 Filed 03/17/21 Page 10 of 154 378 PageID NYSCEF: RECEIVED #: 266 03/13/2023 COMPLAINT The Plaintiffs, Donna Hodge, Annette Hall, Karen Grant Williams, Alexi Arias, Albert E. Percy, and Percy Jobs and Careers Corporation an IRC 501(c)(3) non-profit, as Class Representatives, by their attorney James M. Kernan, ask the indulgence of the reader, as we try to add depth to historical events, events in which we are even now continuing to be engulfed, for all of the deficiencies by this Complaint on these flat pages, we dare to bring forth so great an urgency, we state as follows: PRELUDE Lincoln The relief sought from you, the reader, was first identified in the last speech President Abraham Lincoln, (“Lincoln”), ever made, three days before Lincoln’s assassination. It was two days after the surrender of Robert E. Lee's army to Grant, ending the Civil War, to a crowd gathered outside the White House calling for President Lincoln, reporter Noah Brooks wrote, "Outside was a vast sea of faces, illuminated by the lights that burned in the festal array of the White House, and stretching far out into the misty darkness. It was a silent, intent, and perhaps surprised, multitude." "Within stood the tall, gaunt figure of the President, deeply thoughtful, intent upon the elucidation of the generous policy which should be pursued toward the South. That this was not the sort of speech which the multitude had expected is tolerably certain." Lincoln stood at the window over the building's main north door while Brooks held a light so Lincoln could read his speech. The Lincoln speech of April 11, 1865: “We meet this evening, not in sorrow, but in gladness of heart . . . . . . . This plan was, in advance, submitted to the then Cabinet, and distinctly approved by every member of it. One of them suggested that I should then, and in that connection, apply the Emancipation Proclamation to the theretofore excepted parts of Virginia and Louisiana; that I should drop the suggestion about apprenticeship for freed-people, and that I should omit the protest against my own power, in regard to the admission of members to Congress; but even he approved every part and parcel of the plan which has since been employed or touched by the action of Louisiana. The new constitution of Louisiana, declaring emancipation for the whole State, practically applies the Proclamation to the part previously excepted. It does not adopt apprenticeship for freed-people ....... Again, if we reject Louisiana, we also reject one vote in favor of the proposed amendment to the national Constitution. . . . . . . . ” (emphasis added) 10 FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 Case NYSCEF DOC. NO. 1:21-cv-01421 Document 1 Filed 03/17/21 Page 11 of 154 378 PageID NYSCEF: RECEIVED #: 267 03/13/2023 The dilemma Lincoln was facing was how to gradually eliminate inequality. Lincoln envisioned using apprenticeship as the Union was reconstructed. Lincoln recognized that freedom without the opportunity to earn a living would be disastrous and only lead to and did lead to misery. Lincoln’s proposal occurred when Louisiana wanted to return to the Union. Lincoln identified apprenticeship for the freed-people as the tool to repair and bring the freed people into the mainstream of economic opportunity. Lincoln recognized that freed persons had to be provided skills as workers through apprenticeship to assimilate them into a working, earning and thriving class, without which there would be immense suffering and damages to the freed class. The 10-minute speech of only 1819 words introducing the complex topic of reconstruction, twice identified apprenticeship for freed-people as a means to survive and prosper, as it was viewed through the prism of the State of Louisiana. Incensed John Wilkes Booth, a member of the audience that evening on April 11, 1865, vowed, Brooks wrote "That is the last speech he will make." An acknowledged white supremacist according to Brooks, Booth made good on his threat. The assassination of Lincoln by Booth 3 days after this speech, frustrated the proposed reconstruction opportunities: “apprenticeship for freed-people”, a vision not spoken of again since April 11, 1865. Instead, Lincoln’s nightmare of disaster and misery came true with lynching, massacres, and the anarchy of Reconstruction followed by the Jim Crow laws of separation and discrimination. Out of this cauldron of a beginning the 14th amendment grew to ensure equal opportunity to freed-people, enter Roscoe Conkling. Grant and Conkling Roscoe Conkling, was a US Congressman, and later US Senator from Utica, New York, at a time when both US Senators from New York State were from Utica New York, the other Senator being Francis Kernan. Ulysses S. Grant and Conkling enter the story. In 1865 Vice President Andrew Johnson became President and reconstruction of the south began. Conkling had previously been Lincoln's collaborator and supporter in Congress for freeing the enslaved people, and later a staunch supporter of President Grant’s efforts. Conkling began work in earnest on the 13th, 14th and 15th amendments to the Constitution of the United States as a member of the Congressional drafting committee. Conkling’s focus was on the 14th Amendment. Conkling understood the phrase "apprenticeship for freed-people” as a fundamental natural right to work, earn, live, and pursue happiness, full equal opportunity that should be afforded to all, including those as freed-people, natural rights of life, liberty and pursuit of happiness. When Lincoln was assassinated, Conkling rose to the need to determine and assure that the Constitution protected these rights, which lead to the 14th amendment to 11 FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 Case NYSCEF DOC. NO. 1:21-cv-01421 Document 1 Filed 03/17/21 Page 12 of 154 378 PageID NYSCEF: RECEIVED #: 268 03/13/2023 the U.S. Constitution. Conkling was instrumental to not only implementing emancipation which was granted by the 13th Amendment, but also equal protection of the laws afforded to all persons by the 14th Amendment. The 14th Amendment, drafted by committee, was ratified in 1866. Conkling was a principal contributor on the Committee drafting the 14th Amendment and its equal protection and due process clauses. Conkling tried to pursue the Lincoln vision, but the 10 years after Lincoln’s assassination, the 10 years following Lincoln’s vision of apprenticeship for freed people, were 10 years of anarchy and lawlessness which brought President Ulysses S. Grant and his close friend Conkling to utter frustration. Reconstruction was failing. Conkling and Grant accomplished the Ku Klux Klan Act of 1871 which is now codified at 42 U.S.C. 1983 with its companion sections 42 U.S.C. 1981 and 42 U.S.C. 1985, to provide a remedy against abuse of government authority and to enforce the provisions of the United States Constitution. It was then that US Senator Francis Kernan, on an Electoral Commission to settle the Presidential Election of 1876, cast a deciding vote to accomplishing the compromise of 1877 to preserve the Union, end Reconstruction, and bring the southern states behind a compromise presidential candidate - Rutherford B. Hayes. Apprenticeship for freed people was lost, the apprenticeship plank of Reconstruction was abandoned in the compromise of 1877 which ended Reconstruction. Conkling had declined a seat on the committee knowing what the outcome was sure to be – there would be an abandonment of all efforts to provide equality. Conkling later became lost as a dark figure of graft and corruption at the New York City Customs House, finally dying in the blizzard of 1888 walking from his office at Wall Street to Union Square. A sorry end, Conkling lost the fervor of his moral compass. Frederick Douglas, one of the first emerging slave to civil rights leaders, an apprentice himself mentored by Conkling, eulogized Conkling: “the country’s loss is great, but let us hope that men will yet be found as true to the cause of justice, liberty and equality”. Apprenticeship did not again resurface for the benefit of freed persons until the Percy Class sued in 1973 to eliminate discrimination in economic opportunity, eliminate segregation and eliminate disparate opportunity. The Percy v. Brennan lawsuit followed as a result of the civil rights movements of the 1960s. Percy as a Class now complains that if the Class had gotten what was long ago a vision called apprenticeship, a vision not fulfilled even 154 years later, the world would be a much different place today. Franklin Roosevelt Apprenticeship was not formalized as a federally adopted structured program until the National Apprenticeship Act of 1937, and even then, was not used as an 12 FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 Case NYSCEF DOC. NO. 1:21-cv-01421 Document 1 Filed 03/17/21 Page 13 of 154 378 PageID NYSCEF: RECEIVED #: 269 03/13/2023 opportunity to teach skills to disadvantaged persons. In 1937, the Congress passed the National Apprenticeship Act (29 U.S.C. 50), also known as "the Fitzgerald Act." The Act established a national advisory committee whose task was to research and draft regulations to establish minimum standards for apprenticeship programs. The Act was later amended to permit the United States Department of Labor to issue regulations protecting the health, safety and general welfare of apprentices, and to encourage the use of contracts in the hiring and employment of them. Much like FDR’s Work Projects Administration (WPA), which put the unskilled to work building America’s airports, schools, and highways, apprenticeship programs can once again train the unskilled to build today’s infrastructure. The WPA maintained and increased working skills; and it enabled the unskilled to take their rightful places in public or in private employment. The Fitzgerald Act is administered by the Employment and Training Administration in the Department of Labor. Regulations banning racial, ethnic, religious, age and gender discrimination in apprenticeship programs are located at Title 29, CFR Part 30, but did little to foster affirmative action for equal employment. Unfortunately, even though apprenticeship was formalized as a federally adopted structured program under the National Apprenticeship Act of 1937, it was not used as an opportunity to teach skills to disadvantaged persons. Lyndon B. Johnson President Johnson is credited with the Civil Rights Act of 1964 and LBJ’s Executive Order 11246. The term affirmative action arose from Johnson’s 1965 commencement speech at predominantly black Howard University when speaking about the adoption of the Civil Rights Act of 1964, President Johnson declared that equality has to be actual equality, not equality in name, when he said: “You do not take a man who, for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying you are free to compete with all the others, and still justly believe you have been completely fair. Thus, it is not enough to open the gates of opportunity. All our citizens must have the ability to walk through those gates. This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity--not just legal equity but human ability--not just equality as a right and a theory, but equality as a fact and a result.” Equal opportunity at its core carries the simple mandate that opportunities should be open to all on the basis of competence alone. This complaint is that the Percy Class 13 FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 Case NYSCEF DOC. NO. 1:21-cv-01421 Document 1 Filed 03/17/21 Page 14 of 154 378 PageID NYSCEF: RECEIVED #: 270 03/13/2023 lacks the minimum training, skills and preparation needed to be eligible for the jobs that become available, and those who do secure work as a result of affirmative action mandates are often unable to keep their jobs and the dignity of work. Apprenticeship is the bedrock foundation upon which our country and freedom is based. Opportunity to gain basic work skills is necessary. But equal opportunity to gain skills doesn’t exist in many instances, exposing unskilled workers and the public to unmanaged risk, one example is the recent virus pandemic and its rapid spread. Apprenticeship, identified as affirmative action, is the natural right of all peoples because “The greatest wealth results from the greatest economic liberty, freedom of all individuals to work, save, buy, and earn at their pleasure, and economic life would settle into a natural order and productivity would thrive.”[ 1]. A natural right identified in the Declaration of Independence, the US Constitution and the 14th Amendment to the US Constitution mandating equal protection of laws that affect these rights, Apprenticeship envisioned in Abraham Lincoln's forgotten last speech, from the balcony of the White House to a crowd gathered on the White House Lawn at the end of the Civil War, twice envisioning apprenticeship for freed people to gradually reconstruct the nation, yet in the 155 years since, not only has it not occurred, it has been thwarted by the same State Government Agencies of the Governor charged with protecting equal opportunity. BASIS AND SUMMARY OF CAUSES FOR ACTION 1. The Class Plaintiff is a class of victims, first looted of their benefits by Owner Operator Defendants who had a fiduciary duty to protect and steward Employment Retirement Income Security Act (“ERISA”) Plan assets; and second, victimized by State Officer Defendants that received Cost Reports but neglected or intentionally ignored and never examined to see if accrued and expensed costs for employee benefits were in fact expended for the benefit of the Class Plaintiff. We now know that the costs reported as expensed for employee benefits, were not used for employee benefits amounting to tens of millions of dollars diverted, converted and embezzled for years while the State Officer Defendants failed to discover this defalcation because of either gross negligence or conscious disregard so that the per bed reimbursement rate remained elevated, even while human resource costs were gutted, the net difference going to the pockets of Party- and-Interest Defendants and Employer Operator Defendants. Is there a money trail to the State Officer Defendants? It is not unreasonable and within the authority of a trier of 1 The Wealth of Nations by Adam Smith, studied and emulated by Jefferson and the Franklin over two centuries ago 14 FILED: NASSAU COUNTY CLERK 03/13/2023 04:11 PM INDEX NO. 617709/2022 Case NYSCEF DOC. NO. 1:21-cv-01421 Document 1 Filed 03/17/21 Page 15 of 154 378 PageID NYSCEF: RECEIVED #: 271 03/13/2023 fact to make the connection between the Owner Operator Defendants and the State Officer Defendants as herein described. 2. In March 2020, the Owner Operator Defendants were losing a significant portion of their income with residents going to hospitals with Covid 19 sickness, leaving beds un- occupied. Unoccupied beds are not paid for by Medicaid/Medicare unde