To be argued by : Brian Burke
15 Minutes
Supreme Court of the State of New York
Appellate Division: Second Judicial Department
_______________________________
In the Matter of Brian Burke,
Plaintiff-Appellant, Appellate Division Docket No.
-against- 2021-00059
New York State Public Employment
Relations Board,
New York City Transit Authority,
Defendant(s)-Appellee(s)
___________________________________
Appellant’s Brief
_________________________________________________________________________________________________________
Brian Burke,
Appellant pro se
145 East 23rd St. #4R
New York, NY 10010
646-434-8513
briantburke@gmail.com
Ellen M. Mitchell, esq.
Assistant Counsel for PERB
P.O. Box 2074, ESP Agency Bld. 2 Fl. 20
Albany, NY 12220-0074
518-457-2678
NYCT General Counsel David Farber, esq.
130 Livingston Street Fl. 12
Brooklyn, NY 11201
Supreme Court, Kings County, Index No. 4081/2019
TABLE OF CONTENTS
1. Questions Involved page 1
2. Nature of Case 2
3. The Argument 4
4. Bad Faith 4
5. Perjury 6
6. Conclusion 9
TABLE OF AUTHORITIES
100585-2017 (NY County) 6
11-534 Burke v. NYCT, PERB, Cuomo 4
209-a. 1 (Taylor Law) 4
Article 78 3
Attorney General’s Independent Report 8
Complete Record 2
McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973 4
NY County Supreme Court case 100448-2018 6
PERB, case no. U-35278 4
REEVES v. SANDERSON PLUMBING PRODUCTS, INC. 4
St. Mary's Honor Center v. Hicks, 509 U. S. 502 (1993) 5
Zadroga Act 1
QUESTIONS INVOLVED
The questions involved in the instant appeal are simple, but important,
even vital to our existence. 1. Public Corruption 2. Fraud/Wage Theft, Fraud
Upon the Court (see also RICO, Enterprise Corruption) 3. Perjury/
Subornation of Perjury, False Instruments for Filing, Obstruction of Justice;
These ongoing crimes are all covered under the rubric/umbrella of
Retaliation, Unlawful Retaliation, Under Color of Law, by State
Actors/Officers of the Court. Appellant is a Whistle-Blower1. As a rookie
Train Operator, Plaintiff was assigned to Ground Zero in Sept. 2001.
Diagnosed with PTSD (and lung conditions) in 2014, but attributed to 9/11
(by the World Trade Center Health Program, under the Zadroga Act), as a
symptom of the then undiagnosed ailments, an admitted pattern of escalating
Whistle-Blowing ensued. New York City Transit Authority (hereon in
NYCT) had/has a problem with that. If it pleases the panel, may Appellant
point out that, on Information and Belief, over 99%+ of the Hourly Civil
Servants are Law Abiding and Rule Following. In the NYCT Department of
1 As an example of the ongoing Whistle-Blowing, Plaintiff has given Oral Testimony,
and other Evidence, to the NY Assembly Judiciary Committee, regarding our soon to be
former Head of (NY) State, and in an unrelated matter, to New York Count District
Attorney, in regard to Criminal Activity by ‘Individual-1’.
Law it appears to be the reverse. And then there is the New York State
Public Employee Relations Board (hereon in PERB).
NATURE OF THE CASE
As to the Nature of the Case, please see above, and the Complete Record
(apologies to the Court for the 1000+ pages of Evidence). It is simple, Right
versus Wrong, or Good versus Evil. In this life, we have to pick a side, pick
a lane. As a witness to mass murder of thousands of innocent Americans on
9/11, Appellant chose the former, good and right. In our adversarial system,
the Defendants adopted the obverse. This is why we are here. Public
Corruption/Retaliation, continuous, ongoing, unprecedented, contemptuous
of Court/Law, gas-lighting, fraudulent, perjurious, unjust, un-American.
Daniel Chiu, esq., with his colleague, Ellen Mitchell, esq., et al., have
conspired to Defraud (via massive 100k+, ongoing Wage Theft, Perjury,
etc.) going on since 2015. This is, of course, a vicious Felony, or Felonies.
What can we (Plaintiff and the Second Department) do about it? First,
sanction, or Disbar these New York State Public Attorneys, paid by Public
Funds and operating under Color of Law. Second reverse the Decision by
The Honorable Loren Baily-Schiffman, upholding the Arbitrary, Capricious,
Lacking Substantial Evidence Decision by PERB. The appealed Decision,
signed by Judge Baily-Schiffman and written by Ellen Mitchell, Defendant’s
Counsel, took place after a one minute hearing. On Information and Belief,
Judge Baily-Schiffman based her Decision on the undisputed fact that
Petitioner alleged the PERB Decision/Order Lacked Substantial Evidence, as
it does. Appellant is informed that only Appellate Division Panels can
decide if an appealable New York Government Decision (via Article 78)
Lacks Substantial Evidence, again, why we are here today. Plaintiff requests,
or will, that any reversal be assigned, de novo, to a different judge, for
Discovery and a Jury Trial, or alternatively, that the August Panel Order
NYCT to pay the wages/benefits2they have continuously claimed to have
paid (the Fraud/Perjury/Subornation/False Instruments/ Obstruction by Mr.
Chiu, aided and abetted by Ms. Mitchell, ongoing). Also, this Court could
Order the 6, 5, and 4 years pending Grievances dealing with this matter be
held before the Binding Contract Arbitrator.
THE ARGUMENT
2 To be determined, as to the exact figure, by the Metropolitan Transportation Authority
Business Services Center. The vast majority of monies owed is Contract Differential, the
difference between Workers Compensation payments and full salary. The rest is last two
weeks wages, overtime, sick and vacation pay. BSC, NYCT’s payee, sent Appellant a
document last year confirming NYCT has not paid as Mr. Chiu/Ms. Mitchell maintain.
1. BAD FAITH
Ms. Mitchell/Mr. Chiu, on behalf of their clients and/or The People of
New York, again, Under Color of Law, as State Actors/Officers of the
Court, engaged in continuous, criminal, injurious, intentional, with scienter,
Bad Faith acts/Frauds. As stated in all documents/pleadings, under oath, by
Petitioner, NYCT has, without Reason, Recourse or Remedy, engaged in
this perfectly (Publicly) Corrupt Criminal Activity/Wage/Benefit
Theft/Fraud since 2015. As a Whistle-Blower, Claimant has filed previous
PERB cases against NYCT. As can be seen by the Board Decision and
Order by PERB, case no. U-35278, dated November 6, 2019, signed by
PERB (also written by Ms. Mitchell?), pages 31-39 of the Complete Record,
PERB3 lacked/lacks Substantial Evidence, for their intentionally Bad Faith,
Arbitrary, Capricious ‘Decision’. PERB acknowledged under 209-a. 1 that
the first two prongs were established, only the ‘but for’ element remaining.
Please see REEVES v. SANDERSON PLUMBING PRODUCTS, INC. 4. ALJ
3 As to the instigation of Retaliation by PERB/Cuomo please see and or take Judicial
Notice of 11-534 (Cert. Denied) Burke v. NYCT, PERB, Cuomo challenging aspects of
the Taylor Law. They were both parties.
4 JUSTICE GINSBURG, concurring.
The Court today holds that an employment discrimination plaintiff may survive judgment
as a matter of law by submitting two categories of evidence: first, evidence establishing a
"prima facie case," as that term is used in McDonnell Douglas Corp. v. Green, 411 U. S.
792, 802 (1973); and second, evidence from which a rational factfinder could conclude
that the employer's proffered explanation for its actions was false. Because the Court of
Blassman, after deliberating for 28 months, decided Appellant did not hurdle
this element. While there were/are almost infinite digressions (caused by
Defendants somewhat successful attempts to obfuscate, gas-light and
Defraud the Courts) we can focus on one, the ongoing, criminal,
unexplained, unprecedented Wage Fraud/Theft. This, of course, also
constitutes Constructive Termination. The Definitive, Dispositive case.
Trees were felled defending their highly corrupt, lacking Due Process
“Termination from Probation”. The New York County Supreme Court has
found that unsigned opinions by the New York City Civil Service
Appeals in this case plainly, and erroneously, required the plaintiff to offer some
evidence beyond those two categories, no broader holding is necessary to support
reversal.
I write separately to note that it may be incumbent on the Court, in an appropriate case, to
define more precisely the circumstances in which plaintiffs will be required to submit
evidence beyond these two categories in order to survive a motion for judgment as a
matter of law. I anticipate that such circumstances will be uncommon. As the Court
notes, it is a principle of evidence law that the jury is entitled to treat a party's dishonesty
about a material fact as evidence of culpability. Ante, at 147. Under this commonsense
principle, evidence suggesting that a defendant accused of illegal discrimination has
chosen to give a false explanation for its actions gives rise to a rational inference that the
defendant could be masking its actual, illegal motivation. Ibid. Whether the defendant
was in fact motivated by discrimination is of course for the finder of fact to decide; that is
the lesson of St. Mary's Honor Center v. Hicks, 509 U. S. 502 (1993). But the inference
remains-unless it is conclusively demonstrated, by evidence the district court is required
to credit on a motion for judgment as a matter of law, see ante, at 151, that discrimination
could not have been the defendant's true motivation. If such conclusive demonstrations
are (as I suspect) atypical, it follows that the ultimate question of liability ordinarily
should not be taken from the jury once the plaintiff has introduced the two categories of
evidence described above. Because the Court's opinion leaves room for such further
elaboration in an appropriate case, I join it in full.
Commission5 were/are “Arbitrary, Capricious and Lacking Substantial
Evidence” in supporting this. After the second unsigned “Opinion” by NYC
CSC (also written by Ms. Mitchell?) was rejected by Judge Bluth in 2018,
nothing, no more ‘Arbitrary and Capricious’ “Decisions” by CSC/NYCT
and no complying. Bad Faith.
PERJURY
There were numerous erroneous findings of ‘fact’. On page 33 of the
Record paragraph 2, “Burke did not appeal Supreme Court’s decision.” This
is knowingly false, and no small matter. That Decision was in fact appealed
to the First Department. Ms. Mitchell stood by her friend/colleague in crime,
Mr. Chiu, while he Perjured himself away, as an Officer of the Court, upon
direct questioning by the Chief Judge. He was asked “Did you [NYCT] pay
Burke, and if not, why not?” Mr. Chiu, as NYCT Attorney and Chief
Architect of the ongoing Fraud/Theft, did not want to see his (and Ms.
Mitchell’s) Crimes end, thus, of course, brutally perjured
himself/NYCT6before an equally august, honorable Panel, The First
5 Appellant Requests the August Panel Take Judicial Notice of 100585-2017 and 100448-
2018, both before Judge Arlene Bluth.
6 In addition, to add to the criminal and civil complaint (and investigation?) against Mr.
Chiu, there is an online recording
http://wowza.nycourts.gov/vod/vod.php?source=ad1&video=AD1_Archive2019_Dec04_
Department, on December 4, 2019. Mr. Chiu works in Kings County, and
thus falls under the aegis/Jurisdiction of the Second Department, and must
be Disbarred for this repeated7Obstruction of Justice/Perjury/Fraud. If
NYCT/Chiu did as they claim, WE WOULD NOT BE HERE!!!!
Back to the PERB Decision, on the first page (page 33 of Record) PERB
states “The ALJ found that Burke failed to establish a prima facie case of
retaliatory motive because he failed to present evidence sufficient to give
rise to an inference that improper motive was the “but for” factor in
13-58-30.mp4 (please view from the one hour, ten minute mark (in the video time
stamped as 15:08 through 15:28) from an appeal before the First Judicial Department
wherein Mr. Chiu, on a direct question from the Chief Judge, again committed the Felony
of Knowing, Material Perjury, in order to Obstruct Justice and violate Plaintiff’s Civil
Rights, (to Due Process, Taking Clause, Equal Protection, Right to Petition Government
for Redress of Grievances, etc.), by stating simply, that Petitioner “was paid” (i.e. The
Fraud). Affiant reiterates to the Court, that as of, and through today, the last two weeks of
wages, ten hours of overtime, weeks of vacation and sick pay, and very significant
contract “differential” pay, well into six figures, remain unpaid.
7 Mr. Chiu also committed this same knowing, material Perjury, this time in writing in a
“Verified Answer” for NY County Supreme Court case 100448-2018, dated April 25,
2018 stating on page 2, enumerated paragraph 7. “Petitioner received Workers’
Compensation benefits and a differential that paid petitioner his full salary. Petitioner
obtained the benefits and differential because….”. In addition, Mr. Chiu had Ms. Bettina
Quintas, an Assistant Secretary for NYCT, perform a sworn “VERIFICATION”
(emphasis in the original) of same. This is Subornation. Another Felony for Disbarment.
In a recorded phone call, wherein Mr. Chiu demanded Appellant not inform the MTA
Board of his crimes, as his “excuse”/weasel for that Perjury he claimed it was not
“knowing” IN A VERIFIED ANSWER!!!!! Then he perjured himself again later before
the First Department. Appellant requests the Second Department consider this when
hearing testimony by Mr. Chiu. Ms. Mitchell was standing next to him, as the video
shows, and did not correct the record, as an Officer of the Court, which, again this Court
should consider.
NYCTA’s decision to terminate him.” This ridiculous ‘straw man8’
“argument” is quite wrong, intentionally, in so many ways. First, there
was/is no “Termination” or “Termination from Probation”, that was simply a
letter by NYCT with no actual consequences. PERB knows that their friends
at NYCT (Mr. Chiu, etc.) stopped paying Appellant in 2015. This
outrageous ‘Constructive Termination’ (also known as ‘Constructive
Discharge’ in New York) is, undisputed, the most egregious and/or criminal
in the body of law!!! PERB/NYCT has given absolutely no explanation
(other than Retaliation for filing PERB complaints) or any precedent
allowing same. To uphold this perfectly corrupt ‘decision’ by PERB will
start a field day against whistle-blowers in New York that would make Putin
blush! This is not the intent of the New York Legislators9, or any (previous)
New York, or Federal court rulings/case law.
8 https://en.wikipedia.org/wiki/Straw_man “A straw man (sometimes written as
strawman) is a form of argument and an informal fallacy of having the impression of
refuting an argument, whereas the real subject of the argument was not addressed or
refuted, but instead replaced with a false one. One who engages in this fallacy is said to
be "attacking a straw man".
The typical straw man argument creates the illusion of having completely refuted or
defeated an opponent's proposition through the covert replacement of it with a different
proposition (i.e., "stand up a straw man") and the subsequent refutation of that false
argument ("knock down a straw man") instead of the opponent's proposition.
9 Plaintiff will be giving a copy of instant brief to all New York Legislators, in the spirit
of the acknowledged cooperation in their and NY AG’s investigations into NY executive
branch corruption/Retaliation. Please see, and take Judicial Notice of the New York
Attorney General’s Independent Report into same
CONCLUSION
Upon the aforesaid and/or the Record, or Reply or Oral Testimony~
Appellant prays the Honorable Second Department Panel Reverse, and, if
necessary Remand Judge Baily-Schiffman and/or PERB's Decision(s), to a
de novo Judge, for detem1ination of Damages against NYCT, Disbar Mr.
Chiu and/or Ms. Mitchell, and/or for other and/or further proceedings, as
required and for all other relief the Panel deems Just and Necessary.
PRINTING SPECIFICATIONS STATEMENT
PURSUANT TO 22 NYCRR 1250.8(j)
The foregoing brief was prepared on a computer. A proportionally
spaced typeface was used, as follows:
Name of typeface: Times New Roman
Point size: 14
Line spacing: Double
The total number of words, inclusive of all, is 1,490
https://ag.ny.gov/sites/default/files/2021.08.03_nyag_-_investigative_report.pdf,
especially the criminal Retaliation against Lindsay Boylan.