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Complaint 4:21-cv-00096 Download

A | ALJ PERJURY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
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ELIAS MAKERE, FSA, MAAA
(Plaintiff)

- against-

HON. E. GARY EARLY, ALJ
(Defendant)

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VERIFIED CIVIL COMPLAINT


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42 USC §1983
January 31, 2021

JURY TRIAL DEMANDED





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Deep in the chambers of a state agency, a man cried foul of a corporation's conduct. With due speed, the agency transmitted both of his fundamental sounds to a nearby hearing officer.

An officer, however, with corrupted hearing. An officer, however, who insisted that only one sound was made; eschewing the second for the echoed, stereotyped tales of his fathers.

His perjurous actions were not sound. For they ran afoul of the man - and the grounds that constituted the land which his forefathers found.


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TABLE OF CONTENTS

Preface2
Table of Contents3


I.Nature of Claim4
II.Jurisdictional Amount4
III.Parties5
IV.Venue5
V.Statutory Prerequisites5
VI.Statement of Facts6
VII.Ultimate Facts10
VIII.Legal Application11


Certificates (Compliance, Service, Good Faith)16
Verified Oath17
Exhibits18


ABBREVIATIONS
ALJAdministrative Law Judge
DOAHDivision of Administrative Hearings (Florida)
FCHRFlorida Commission on Human Relations
FSFlorida Statute (2020)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA, TALLAHASSEE DIVISION

ELIAS MAKERE, FSA, MAAA
Plaintiff



vs.



HON. E. GARY EARLY, ALJ
Defendant
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Case No (LT): 4:21-cv-00096-MW-MAF

Division: (4) Tallahassee

Jury Trial Demanded
☒ Yes | ☐ No




VERIFIED COMPLAINT

COMES NOW, Plaintiff, Elias Makere on this 31st day of January 2021 and hereby sues Defendant, the Honorable E. Gary Early, and states the following:

I.    NATURE OF THE CLAIM

1. This action is brought under 42 USC §1983 - the Ku Klux Klan Act of 1871 (“§1983”) - to redress Defendant’s unlawful conduct towards Plaintiff (also see 28 USC §1331, §1343, and §1367). Unlawful conduct that infringed on Plaintiff’s constitutional rights (including but not limited to the 1st, 5th, and 14th amendments).

II.   JURISDICTION: AMOUNT

2. Pursuant to 28 USC §2201 and §2202, Plaintiff seeks declaratory relief, injunctive relief, and damages in excess of thirty thousand dollars ($30,000) - exclusive of interest, costs, and attorney fees (also see 42 USC §1985, 42 USC §1988, Rule 54 Fed. R. Civ. P.).

III.  JURISDICTION: PARTIES

3. At all times material hereto, Plaintiff was a resident of Jacksonville, FL (Duval County).
4. Upon information and belief, Defendant - at all times material hereto – worked and lived in-or-around Tallahassee, FL (Leon County). Furthermore, Defendant was an administrative law judge (see §120.65 FS) for Florida’s Division of Administrative Hearings. A state agency for the territory’s executive branch of government (see §20.22(2)(f) FS).

IV.   JURISDICTION: VENUE

5. Defendant’s unlawful conduct was committed within the jurisdiction of this Court. Thus, pursuant to 28 USC §1331 FS (and §1391), this venue is correct.

V.    STATUTORY PREREQUISITES

6. It appears that no administrative remedies need to be exhausted before initiating this lawsuit. Indeed, DOAH does not have a formal grievance procedure for addressing unlawful conduct of its officers. Thus, the matter before this Honorable Court is ripe for adjudication.

VI.   STATEMENT OF THE FACTS

7. Plaintiff fell into Defendant’s grasp by virtue of a lawsuit that he filed against a private corporation. A brief review of that case is important for contextualizing Defendant’s conduct.
Originating Lawsuit (State Agency, Makere v Allstate)
8. On June 30, 2017, Plaintiff filed an employment discrimination complaint with the FCHR. Pursuant to §760.11(1), he alleged that his former employer (Allstate Insurance Company) had violated his civil rights on the basis of race and sex (see Exhibit A).
9. On September 8, 2017, Allstate denied both allegations (see Exhibit B). Stating that it fired Plaintiff for a legitimate reason. Specifically, because he had failed an actuarial exam (see Exhibit C):
“Complainant was terminated solely because he failed his [FSA] exam.”
- Allstate Insurance Company, 9/8/17

10. On December 15, 2017, the FCHR concluded its investigation. Notably affirming that race and sex were the basis of Plaintiff’s complaint (see Exhibit D).
11. On January 19, 2018, Plaintiff filed his Petition for Relief with the FCHR. Just as in his original charge, he listed only race and sex as the protected characteristics for his complaint (see Exhibit E). Thus, pursuant to §760.11(7) FS and §120.569 FS, the FCHR transmitted it to DOAH.
12. After a series of irregularities (authority breaches, deposition sit-ins, recusals, etc.), Defendant became the administrative hearing officer over Plaintiff’s case (circa November 13, 2018).
13. Despite the procedural incongruities, the facts continued to develop in Plaintiff’s favor; heavily.
14. Allstate made it known that many of its other employees had also failed exams. Yet, Allstate never fired any of them. This was the ‘smoking gun’ for proving that Allstate’s reason for terminating Plaintiff’s employment was a pretext.
15. Moreover, at the hearing, three other revelations were cementing:
a. Allstate granted the work-from-home privilege to its other employees. An accommodation it denied to Plaintiff on countless occasions.
b. Allstate made Plaintiff pay $1,025 for an actuarial exam fee; a payment it never required any of its other employees to make.
c. Allstate paid Plaintiff an annual salary that was significantly lower than his similarly situated comparators.

16. These core facts rendered Plaintiff’s lawsuit (against Allstate) a textbook case of employment discrimination. One which – unfortunately – ran counter to widespread propaganda (as foretold by the Ku Klux Klan itself; and its progenies).
17. Faced with these probative facts, Defendant went on the attack.
Defendant’s Unlawful Conduct: (A) Evidence Suppression
18. On November 30, 2018, during the moments in which the payment disparity was being revealed (see ¶15b, supra), Defendant ordered Plaintiff to cease questioning.
19. After the hearing – around January 9, 2019 - Plaintiff asked Defendant for a redress of the cessation order (citing due process). He further detailed the importance of the requested testimony/revelation.
20. Two days later (January 11, 2019), Plaintiff received a copy of the hearing transcript. It was missing one page (and one page only). That crucial page was the one that contained testimony on the payment disparity (§15b) - and Defendant’s cessation order.
a. It is important to note that prior to this date, Plaintiff had never requested a hearing transcript on his case.
i. Plaintiff suspects that Defendant knew this, and was preying on Plaintiff’s novice (Plaintiff was pro se).


21. Given these circumstances – and upon Plaintiff’s information/belief - Defendant willfully and knowingly hid evidence.
Defendant’s Unlawful Conduct: (B) Perjury
22. Defendant took it one step further, though, by making a wholesale removal of Plaintiff’s sex discrimination charge.
23. On April 19, 2019, Defendant entered its Recommended Order (“RO”).
24. The first page of the document had a section titled “Statement of the Issue”. Where Defendant excluded Plaintiff’s sex discrimination charge (see Exhibit F).
25. The second page had a section titled “Preliminary Statement”. Where Defendant continued to exclude Plaintiff’s sex discrimination charge. This time, however, Defendant made the fateful declaration that Defendant never complained of sex discrimination prior to the DOAH proceedings (see ¶11, supra) (see Exhibit G).
“[Plaintiff], also for the first identifiable time, alleged that Allstate, and in particular [Plaintiff’s manager], engaged in sexually provocative and inappropriate behaviors, which [Plaintiff] alleged to be “sexual harassment and discrimination””
- The Honorable E. Gary Early, ALJ | 4/18/19 | Florida

26. Defendant repeated that highlighted line (ie, “for the first identifiable time”) several more times throughout his authored RO.
27. The statement, of course, was false.
28. Plaintiff did charge Allstate with sex discrimination.
a. He did so in his original charge (6/30/17, see ¶8);
b. Allstate acknowledged the sex basis (9/8/17, ¶9); and
c. The FCHR explicitly ruled on the basis of sex (12/15/17, ¶10)

29. Nevertheless, the force and effect of Defendant’s statement made the FCHR change its tune.
30. On June 27, 2019, the FCHR issued its Final Order (“FO”). In which it listed race as the only protected characteristic in Plaintiff’s complaint (see Exhibit H); and adopted Defendant’s ruling.
31. Defendant’s lie had its intended effect.
32. Now, it is important to recognize that Defendant knew he was lying.
Defendant’s Knowledge of the Truth
33. Prior to authoring his RO, Defendant deliberately acknowledged that the sex discrimination charge was in Plaintiff’s originating complaint.
34. On February 6, 2019, Allstate moved Defendant to take official recognition of the FCHR’s Determination (under §90.201 FS).1/
35. That state-issued Determination letter read, in pertinent part, as follows (highlights added):
“Complainant worked for Respondent as an Actuary. Complainant alleged that Respondent discriminated against him based on his race and sex.
- The FCHR | 12/15/17 | Florida

36. On February 18, 2019, Defendant granted the motion. Thereby cementing – unequivocally – that he knew that Plaintiff charged Allstate with sex discrimination. He said the following (highlights added).
“[Allstate’s] Motion for Official Recognition requests that official recognition be taken of the Notice of Determination: No Reasonable Cause, and of the Determination: No Reasonable Cause, both of which were issued by the Florida Commission on Human Relations on December 15, 2017. Those documents provided the point of entry to [Plaintiff] for this proceeding.”
- The Honorable E. Gary Early, ALJ | February 18, 2019 | Florida

37. Thus, Defendant’s repeated “statements” to the contrary were a known lie (a big lie – in fact).
38. A big lie that impacted the outcome of Plaintiff’s lawsuit against Allstate. A case which sought monetary damages (among other things).

VII.  ULTIMATE FACTS

39. Defendant broke the law in his quest to deny Plaintiff relief. Defendant:
a. hid evidence (see ¶18-21); and
b. committed perjury (see ¶22-38).


VIII. LEGAL APPLICATION

COUNT I: FIRST AMENDMENT RIGHT TO LEGAL PROTECTION | 42 USC §1983

40. Plaintiff hereby restates and realleges each and every factual allegation contained in Section VI (Paragraphs 7 through 38).
41. Defendant’s unlawful actions (individually and in total) abridged Plaintiff’s right to petition the State of Florida for a redress of his grievances against Allstate Insurance Company.
42. While acting under the color of state law (§120.569 FS, §120.65 FS), Defendant denied Plaintiff access to the state’s court system (see §760.11(7) FS). An act that violated Plaintiff’s First Amendment right (1st Amendment US Constitution).
43. Defendant did so via evidence suppression and perjury (§92.525 FS).

COUNT II: FIFTH AMENDMENT RIGHT TO DUE PROCESS | 42 USC §1983

44. Plaintiff hereby restates and realleges each and every factual allegation contained in Section VI (Paragraphs 7 through 38).
45. Defendant’s unlawful actions (individually and in total) abridged Plaintiff’s right to due process. It is well settled that a violation of due process occurs when an agency excludes/removes a legal basis from a claimant’s discrimination charge.
46. Thus, while acting as a state hearing officer (§120.569 FS, §120.65 FS), Defendant violated Plaintiff’s constitutional rights (5th Amendment US Constitution) by criminally removing the sex discrimination basis from his complaint.

COUNT III: FOURTEENTH AMENDMENT RIGHT TO EQUAL PROTECTION | 42 USC §1983

47. Plaintiff hereby restates and realleges each and every factual allegation contained in Section VI (Paragraphs 7 through 38).
48. Defendant’s unlawful actions (individually and in total) abridged Plaintiff’s right to a fair trial on the matters litigated.
49. While acting as the administrative law judge on Plaintiff’s case (ie, under the ‘color of state law’ – §120.569 FS, §120.65 FS) – Defendant discriminatorily prevented Plaintiff from attaining the legal protections that Florida afforded other similarly-situated people.
50. Defendant did so when he (a) suppressed crucial evidence (¶18-21); and (b) perjured himself (¶22-38).
51. As such, Defendant violated Plaintiff’s constitutional rights to the “equal protection of [§760.11 FS]” (14th Amendment US Constitution).

COUNT IV: SUPREMACY CLAUSE | 42 USC §1983

52. Plaintiff hereby restates and realleges each and every factual allegation contained in Section VI (Paragraphs 7 through 38).
53. Defendant’s unlawful actions (individually and in total) breached Article VI Section 2 of the US Constitution (ie, the “Supremacy Clause”). He did so when he usurped the federal government’s power to protect Plaintiff from 1st, 5th, and 14th amendment violations.

COUNT V: PERJURY

54. Plaintiff hereby restates and realleges each and every factual allegation contained in Section VI (Paragraphs 7 through 38.
55. Defendant – infused with the power bestowed upon him by statute – broke the law (§92.525 FS) by making a false statement of material fact. He sold his falsehood to another state agency – which was acting in its official capacity (¶22-30).
56. That agency (the FCHR) bought his lie; and thereby cemented Defendant’s violation of Plaintiff’s constitutional rights (1st Amendment – access to the court; 5th Amendment – due process; 14th Amendment – equal protection; Art. VI §2supremacy clause).

JUDICIAL IMMUNITY

57. The Doctrine of Judicial Immunity does not attach to this case for two fundamental reasons.
58. First, Defendant is not a judicial officer. Although he is a judge per se, he is an administrative judge. A designation that does not afford him the immunities reserved for judicial officers.
59. Secondly, and perhaps more importantly, Defendant broke the law (§92.525 FS – perjury). Judicial Immunity does not cover legal violations.

DAMAGES

60. As a direct and proximate result of said acts, Plaintiff has suffered – and continues to suffer – financial loss and loss of earning capacity. Plus, he has suffered (and continues to suffer) mental anguish, distress, pain, great expense, inconvenience, professional damage and other pecuniary and nonpecuniary losses.
61. As a further result of Defendant’s constitutional breaches, Plaintiff has incurred legal fees and will continue to incur legal fees.

RESERVATION OF RIGHTS

62. Defendant’s unlawful acts and discriminatory patterns demonstrate a callous disregard and reckless indifference to Plaintiff; that justifies an award of punitive damages at trial. Upon an evidentiary showing and hearing, Plaintiff reserves the right to amend his pleadings to assert a claim for punitive damages against Defendant.
63. Plaintiff may retain an attorney to represent him in prosecuting this action and if so will be obligated to pay them a reasonable fee for their services.
a. Pursuant to 42 USC §1988, Plaintiff is entitled to request that the Court allow him to recover his reasonable attorney’s fees incurred in successfully prosecuting this cause, should he retain an attorney.


REQUEST FOR JURY TRIAL

64. Pursuant to Amendment 7 of the United States Constitution (and Rule 38(b) Fed. R. Civ. P., Rule 81(c) Fed. R. Civ. P.), Plaintiff respectfully requests that this honorable Court grant him a trial by jury on all issues so triable.

REQUEST FOR RELIEF

65. WHEREFORE Plaintiff respectfully requests that this Court enter judgment in favor of Plaintiff and against Defendant on all claims herein, and enter an Order providing the following relief:
b. Declaring that Defendant violated §1983;
c. Enjoining Defendant from committing further violations of §1983;
d. Awarding Plaintiff compensatory damages (back pay, front pay, including interest, lost fringe benefits, etc.) which Defendant’s unlawful acts precluded him from obtaining.
e. Awarding Plaintiff the cost of this action, together with reasonable attorney’s fees (if any).
f. Awarding Plaintiff pre-judgment interest.
g. Awarding Plaintiff punitive damages; and
h. Awarding such other and further relief as is just, equitable, and proper.




Dated this 31st day of January 2021.
Respectfully submitted,
/s/ Elias Makere
ELIAS MAKERE, FSA, MAAA, Plaintiff
3709 San Pablo Rd. S # 701
Jacksonville, FL 32224
P: (904) 294-0026
E: justice.actuarial@gmail.com
W: TextBookDiscrimination.com
   Get Booked Up on Justice!



CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 31st day of January 2021, I filed the foregoing with the Clerk of Courts by mailing it to United States Courthouse; 111 N. Adams St, Ste 322; Tallahassee, FL; 32301.

CERTIFICATE OF GOOD FAITH

I HEREBY CERTIFY that pursuant to Rule 11 Fed. R. Civ. P. the foregoing (1) has been submitted in good faith; (2) is supported by existing law; (3) is supported by indisputable evidence (and will likely be compounded with further evidence); and (4) the complaint otherwise complies with the requirements of Rule 11.
/s/ Elias Makere



Verification Under Oath Pursuant to 28 USC §1746

I declare under penalty of perjury that the foregoing is true and correct. Moreover, the ultimate, material facts laid out above come from publicly available sources. Thus, they are not subject to dispute because “they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned”. Some of the other facts are based on information and belief. These two elements come from my own personal observation, knowledge, and experience – coupled with circumstantial evidence of the matter.
Executed on this 31st day of January 2021.


UNITED STATES OF AMERICA



    1/31/2021
Elias Makere, Plaintiff/Affiant



Endnotes

1/ in the administrative realm, “official recognition” = “judicial notice”




Note: an electronic copy of this document can be downloaded from:
    www.TextBookDiscrimination.com/Pages/Misc/ALJPerjury/

EXHIBITS





EXHIBIT A
Charge of Discrimination

From: Plaintiff
To: State Agency (FCHR)
6/30/2017



[marked]

(first page only)














EXHIBIT B
Position Statement

From: Allstate
To: State Agency (FCHR)
9/8/2017


(note: Allstate = Plaintiff’s former employer)


[marked]


(first page only)














EXHIBIT C
Allstate’s Termination Rationale
(ie, Allstate fired Plaintiff “solely” for failing an exam)
From: Allstate
To: State Agency (FCHR)
9/8/2017





[marked]
















EXHIBIT D
Notice of Determination

From: State Agency (FCHR)
To: Plaintiff/Allstate/Defendant’s Agency
12/15/2017





[marked]
















EXHIBIT E
Petition for Relief

From: Plaintiff
To: State Agencies (FCHR/DOAH)
1/19/2018





[marked]


(first page only)














EXHIBIT F
Recommended Order


From: Defendant
To: State Agency (FCHR)
4/19/2019





[marked]


(Pages 1 and 2 only)


{Defendant’s removal of sex discrimination charge}


















EXHIBIT G
Recommended Order


From: Defendant
To: State Agency (FCHR)
4/19/2019





[marked]


(2nd page only)


{defendant’s perjury}














EXHIBIT H
FCHR Final Order
Exclusion of Sex Discrimination Complaint

From: State Agency (FCHR)
To: Defendant/Plaintiff/Allstate
6/27/2019





[marked]


(first page only)


{end result of Defendant’s ‘big lie’}










You can sue the powerful when they retaliate against you.

Please get the justice you deserve.

Sincerely,



www.TextBookDiscrimination.com
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