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Asher Cooper
Asher Cooper

Pretty Foot She Males _TOP_

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It was around five o'clock when I walked in noticed the place was pretty much empty. It was a dark but a clean bar with a lot of tables along the sides of the club surrounding a huge dance floor. I sat at the bar and ordered a burger and a draft beer. After working all day moving in the beer tasted real good and went down smooth. So smooth in fact, I finished two beers before my burger arrived and two more beers by time I finished my burger.

I was feeling pretty good by this point when a beautiful girl sat down next to me. We started to talk and laugh about the movie. Feeling pretty buzzed I mentioned that a bondage camp sounded fun. I realized that was a pretty bold thing to say since I didn't even know her name. I started to blush at what I had just said but was happy she actually agreed with my statement.

Now I am thinking what a town, I never walked into a bar at home and had a beautiful girl hit on me. Don't get me wrong, I am not an ugly guy but I am not the manliest looking man. I am 21, 5' 7'', 105 lbs, long brown hair, with kind of a pretty face and only a little body hair. I tried to hide how excited I was but I think by her smile she could see right through me. We paid our tabs and we left to go to her place.

She told me how I now had to work for her and be her bitch or the video would end up on the Internet. She let me stay on the platform for a while alone to think. I couldn't believe what I got myself into. I move to a new town and before I get a chance to get on my feet I have been tricked into becoming a she-males bitch.

We review the facts found by the judge on the motion to suppress to the extent necessary to our disposition of this appeal. On February 20, 1976, about 1:57 P.M. the branch office of The First National Bank of Boston, at Government Center, was the subject of an attempted armed robbery by two white males wearing wigs and sunglasses. One of the robbers accosted the bank guard and shot him twice in the chest. The other robber, also armed and carrying a shopping bag, vaulted over the counter into the tellers' area, dropped his gun, retrieved it, and after a few seconds jumped back over the counter without taking any money. Both robbers fled on foot. A shopping bag containing gold-rimmed eyeglasses was found behind a column a short distance from the bank.

She subsequently described the person to a different F.B.I. agent as a "white male, early twenties, approximately five foot six inches to five foot seven inches, husky but not fat, light complexion, light brown curly hair, might have worn a wig, sunglasses, blue jacket and blue pants, good teeth, needed a shave."

The first lineup consisted of six males, including Ulatowski and persons who resembled him. The second lineup, also of six males, included the defendant as standee number five (a position requested by defendant's counsel), and five others more or less resembling him. The standees could not see the witnesses, who were separated from them by a two-way mirror.

case. The judge made careful and detailed findings of fact based on the six days of testimony at the hearing on the motions to suppress. During the hearing defense counsel was allowed great latitude in questioning the witnesses concerning the circumstances of their identifications. The judge, after carefully summarizing the evidence, arrived at the conclusions that the Mark and Fischman identifications were admissible, but that the testimony of a third person, not an eyewitness, should be excluded. The judge's findings and conclusions take up thirty-eight pages, plus two pages of footnotes, and are an outstanding example of thoroughness. We shall accept his findings of fact as binding in the absence of clear error, see Commonwealth v. Moon, 380 Mass. 751, 755-756 (1980), and view with particular respect the conclusions of law which are based on them. See Commonwealth v. Cincotta, 379 Mass. 391, 392 (1979). We shall not go behind the facts found by the judge on the motion except to the extent that it is alleged that the evidence was not sufficient to support the findings made. As to evidence which was introduced at the hearing, whether or not contradicted, concerning which the judge made no findings, we have no way to tell whether, or to what extent, he believed it to be true. We shall therefore consider such evidence only where it is alleged that a failure to make findings with respect to that evidence was clearly erroneous. The defendant here does not make such a claim, but challenges the legal standards applied and conclusions reached by the motion judge.

The suggestive procedures alleged with respect to the Fischman identification are the same as the above, with the exceptions that he was shown pictures of the defendant three times during the week after the robbery attempt, not seven, and was not shown the suggestive array prepared by the bank security officer, and with the addition that to show Fischman a lineup of only males may be considered suggestive because he originally had expressed some doubt whether the person he saw was male or female.

Age? Date of birth? Why both? She's already made copies of my driver's license and insurance card. Normal weight? 200. Weight gain/loss in past year? Plus 10 pounds. Height? At my best, I was 6 foot 3/4 inches; now I barely measure five eleven and a half. I hate to admit I'm not 6 foot anymore so I write "6'0." Maybe they won't catch it.

Then the biggie. I like the way the Blood Bank asks it: Have you had sex with a male, or someone who's had sex with a male who has sex with other males, since 1976? (Something like that anyhow.) I'm always tempted to ask which month.

2. In November of 1974, Eastern maintained a height and weight requirement for male and female attendants. The height requirement for males was from 5 feet 7 inches to 6 feet 2 inches and the height requirement for females was from 5 feet 2 inches to 5 feet 9 inches. Pursuant to that policy Eastern rejected applicants who were outside the height range for employment as flight attendants.

7. Eastern's practice of using height requirements was instituted in late 1950 or early 1960. A brochure from that period reflects that the height requirement for females was from 5 feet 2 inches to 5 feet 9 inches (Defendant's Exhibit Number 7). In mid 1973, Eastern began actively recruiting male applicants. The height requirement for the male candidates was from 5 feet 6 inches to 6 feet. In 1974, the male height requirement changed and males were required to be from 5 feet 7 inches to 6 feet 2 inches. Eastern instituted the height requirements allegedly in order to employ flight attendants of average height. Eastern derived its figures from a report of the United States Department of Health, Education and Welfare, Summary Docket Vitals and Health Statistics. That summary showed that out of all persons between the ages of 18 years and 24 years, the percentage of males between 5 feet 7 inches and 6 feet 2 inches was proportionally equal to the percentage of females between 5 feet 2 inches and 5 feet 9 inches (Defendant's Exhibit Number 11).

8. Based upon the above findings the Court finds that the Plaintiff has not sufficiently demonstrated a prima facie case that Eastern was engaged in a facially neutral practice which impacts more severely on females as opposed to males. The Court does not find a disparate impact on females as a group resulting from Eastern's height requirement policy.

9. The Court finds Plaintiff has established a prima facie case of disparity in the treatment of females as opposed to males resulting from Eastern's height requirement. Males of height 5 feet 10 inches to 6 feet 2 inches are able to make application for employment while females of the same height are not able to apply for the same employment.

3. In Title VII actions there are two theories of recovery: the Plaintiff may recover by demonstrating an adverse impact on the group of protected persons to which she is a member (females), or she may recover by showing disparate treatment between male applicants and female applicants. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-336 n. 15, 97 S. Ct. 1843, 1854-1855 n. 15, 52 L. Ed. 2d 396 (1977). Either theory may be applicable to the same set of facts. Wheeler v. City of Columbus, Miss., 686 F.2d 1144 (5th Cir. 1982).

5. The plaintiff may use statistics to establish a prima facie case. Pouncy v. Prudential Insurance Company of America, 668 F.2d 795, 800 (5th Cir.1982). In a disparate impact case, plaintiff's statistics need only show a "marked disproportion" between the representation of females in the employer's workforce and female representation in the labor pool from which the employees are selected. Rivera v. City of Wichita Falls, 665 F.2d 531, 535 n. 5 (5th Cir.1982). In other words, statistics which demonstrate a significant disparity in an employer's workforce or labor pool raise an inference that employment decisions are tainted by intrusion of illegitimate concerns. Pouncy, 668 F.2d at 800. Where the statistical evidence is insufficient proof, the plaintiff may buttress her case by combining statistics with historical, individual, or circumstantial evidence. Payne v. Travenol Laboratories, Inc., 673 F.2d 798 (5th Cir.1982), reh'g denied, 683 F.2d 417 (5th Cir.1982), cert. denied, 459 U.S. 1038, 103 S. Ct. 451, 74 L. Ed. 2d 605 (1982). 041b061a72


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