EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
NEW
ORLEANS FIELD OFFICE
_________________________________________
)
MONA
CHU, )
)
Complainant, ) Docket No.
0120132436 ) Agency No. 11-56-85
v. )
) EEOC No. 570-2012-00801X
TERESA
STANEK REA, ACTING )
DIRECTOR OF THE UNITED STATES )
PATENT AND TRADEMARK OFFICE,1 )
)
Agency. ) Date: July 1, 2013
__________________________________________ )
COMPLAINANT’S
BRIEF IN SUPPORT OF APPEAL
Complainant, Mona
Chu2,
submits this Brief in Support of Appeal. This is an appeal of the
Final Order received by Complainant on May 7, 2013, which accepted
the Administrative Judge’s Decision finding of no discrimination.
Complainant asserts that the Administrative Judge’s was in error of
fact and law and wrongful termination. The
Agency discriminated against the Complainant when wrongfully
terminated the Complainant. Therefore,
Complainant moves the Office of Federal Operations to REVERSE
the Administrative Judge’s Decision and FIND
that the agency
discriminated against Complainant.
I. STATEMENT OF THE CASE
A. Jurisdiction
Complainant’s right to appeal is
explicit in 29 C.F.R. 1614.401 (a). The Office of Federal Operations
(hereinafter “OFO”) properly exercises jurisdiction over such
appeals pursuant to 29 C.F.R. 1614.404 (a).
B. Proceedings and Disposition Below
Complainant (Mona Chu, Ms. Chu, I, me, my) filed a
formal complaint of discrimination against the United States Patent
and Trademark Office (Agency/USPTO) alleging discrimination based on
race (Asian), sex (female), and National Origin (American-Chinese).
The AJ issued a decision (hereinafter “AJD”) dated April 15,
2013, finding that there was no discrimination based on race (Asian),
sex (female), and National Origin (American-Chinese), also sexual
harassment and hostile work environment. The Agency adopted the AJD
in their Final Order (hereinafter “Final Order”). Complainant
timely filed his Notice of Appeal on June 4, 2013, pursuant to 29
C.F.R. 1614.402 (a), and offers this brief within the 30-day limit
set out in 29 C.F.R. 1614.403 (d).
C. Legal Standard Of Appellate Review
According to C.F.R.
1614.405(a), conclusions of law to be made on appeal from an AJ
“shall be based on de
novo review,”
and the review of factual conclusions shall be based on a
“substantial evidence” standard. Substantial evidence is defined
as "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 477 (1951) (internal citation omitted).
D.
Statement from the Complainant
Let
me start by apologizing that I had to Appeal as I have no choice, my
reputition is ruined by the Agency and the Agency's emplyees, no one
is willing to hire me. This is the only way I can clear my name.
Otherwise, I will be a welfare queen and a burden to society with a
a
Master’s degree in Electrical Engineering(ROI page 000025), was
pursuing a PhD while at the same time pursuing a second Master’s in
Computer Science, as an adjunct in college, did research in Applied
Physics and published paper (ROI page 000028). I was aspired to be a
scientist/Professor/researcher in college, to change the world and
make the world a better place to live.
Furthermore,
I have extensive industry experiences and outstanding accomplishments
in the same field as the patent class 703 – Simulation, Emulation
and Modeling (see resume (chu production 1.pdf page 29-30)) where I
led projects. I had a history of outstanding accomplishments in a
male dominated Engineering field and academia which Ms. Chu had to
work nearly 24/7 to achieve such result. Unfortunetely,
I've been discriminated the same way in the Tech industry as I've
been by the Agency (United States Patent and Trademark Office).
This
is the only way I can regained my reputition and find a job again
such to be a contributing memeber of society.
II. ARGUMENTS
The Administrative Judge did not read the Complainant's arguments.
The Administrative Judge erred in finding that the Complainant resigned when ample material facts stated she was terminated, including from AJ.
The Administrative Judge erred in finding that there was no discrimination.
The Administrative Judge erred in finding that there were no sexual harassment and hostile work envirnoment. The Complainant had been a target of an attempted abduction and rape that resulted in a stabbed and a slashed on the neck on June 1, 2013.
The EEO mishandled the case from the get-go.
The Administrative Judge did not read the Complainant's arguments.
It
does not seem AJ had read any of my disputes to the Agency's Motion
Decision without a Hearing,
the AJ basically copy and paste the Agency's Motion
Decision without a Hearing
to make her case, which I disputed fully without doubt in Response
to Agency's Motion to Decision without a Hearing.
Yet the decision went against me nevertheless, in favor of the
Agency.
Also,
the AJ had not read any of the submitted documents as is required.
AJ is reqired to read all materials submitted for the case.
AJ
hastened into making such unjusted decide without much consideration
before the Hearing as if she was just simply annoyed as indicative on
page 4 and bias in favor of the Agency.
“Complainant
also personally responded to the Agency’s
Motion by filing email attachments on March 14, 2013, which
opposition primarily reproduced the original complaint and supporting
materials already produced in the record”
Then,
“The
Complainant personally filed her own response to the Agency’s reply
causing the Administrative Judge to issue her a Notice to Cease
Filings. (Id.)”
The
reason I had to rebut with the same material already produced because
the Agency repeated the same misleading arguments in the Agency's
Motion. I was merely responding to the Agency.
Please
Note that I not only respectful toward the AJ throughout, also the
The judicial process by adhering to telling the truth, nothing but
the truth. But the Agency did not show the same respect and
continually provided specious information, that's why I had to file a
response to the Agency and explained in an email as to why I had to
do so. AJ instead ruled against me simply because I rebutted the
Agency's misleading filing that makes the mockery of the judicial
process as well a kangaroo court.
.2 The Administrative Judge erred in finding that the Complainant resigned when ample material facts support that the complainant was terminated.
AJ
ruled in the AJD
that
the Complainant resigned from the job when the Complainant was
terminated with a termination letter in the ROI
(page 000020) clearly stated the Complainant was terminated.
Also,
the AJ specifically requested the Agency to provide details of my
termination during the First Conference, which the Agency did as a
Supplemental
to ROI
where all parties involved in my termination stated in their
affidavit they did not receive a resignation from me (Supplemental
Report of Investigation (ROI)
page 001190, page 001194, page 001196, page page 001202
-001204).
Additionally, in AJ's Order of Status page 1, AJ hereself stated with undisputed material facts it was a “forced resignation”.
Additionally, in AJ's Order of Status page 1, AJ hereself stated with undisputed material facts it was a “forced resignation”.
"given
the second amendment, the fact that Complainant’s “forced
resignation” claim, which is already embodied in her complaint, is
deemed sufficient as an effort on her part to state a “constructive
discharge” claim; and the legal effect of her voluntary, “forced
resignation” in the context of the undisputed material facts
regarding her proposed termination.)"
Then
in her AJD
acknowledge on #21 - #23 that I was terminated with a “Notification
of Termination during Trial Period,”
Furthermore,
in the Agency's Final Order, it said
“Complainant
was terminated from Federal service.”
Moreover,
I received Unemployment Insurance, which means my termination is
recognized by a government entity.
Finally, AJ contradicted herself in the AJD cited I was terminated due to low performance, when in fact, I was one of the top producers.
In conclusion, with
such overwhelming material facts, including from the AJ herself to
support that the Complainant was terminated by the Agency. There is
absolutely no reason for the AJ to rule that the Complainant
resigned. Complainant was terminated by the Agency with absolute
certainty. The AJ's credibility is in question.
.3 The Administrative Judge erred in finding that there was no discrimination.
The
response below is from: Response
to Supplemental Report of Investigation
page 15-19, filed in 1/2013 to AJ.
Paul Rodriguez set Mona Chu up to be
terminated from the get-go since the Training Academy Dec, 2010 as
Ms. Chu is Chinese and female (ROI
page 000139 ). When Ms. Chu show she could do the 3 cases per biweek
(ROI
page 000116) on
June 7 and June 22, 2011,
Mr. Rodriguez hastens Ms. Chu’s termination (chu
production 1.pdf
page 555) before her 1 year
probationary period is over on Nov, 9, 2011, by making every effort
to make her job difficult ( Response to
Supplemental ROI #8 page 8- 19) from confined
to use only Agency’s EAST tool (aka USPTO's search engine ROI
page000145) to not allowed helps from Simon Ke (chu
production 1.pdf page
497, Response
to chu eeoc or Chu-Agency's Discovery Responses
(1-9-13) #1 page 5), and put
difficult COPA cases on Ms. Chu’s docket (chu
production 1.pdf page 366).
When that didn’t work, in July, 2011
(Response to Supplemental ROI,
page 10-11, 7/17
-7/28), Mr. Rodriguez asked Ms. Chu to
re-do a case that’s already accepted for credit and refused to
accept anything from Ms. Chu (chu production 1.pdf page 520) to
justify his termination as indicated in their July 27-28 email (chu
production 1.pdf page 555-556, 610) which already decided to
terminate Ms. Chu.
Director Wendy Garber, Zachary Clifton and
other management agreed to terminate Mona Chu partially due to the
defamation of Mona Chu by Dwin Craig, Nathan Hillery – a Union Rep,
Hung Havan, Michele Choi, Susanne Lo and her AU2128 Indian friends as
the result of discrimination toward Ms. Chu as stated in the Formal
Complaint in no less than 20 pages (ROI page 000032 - 000054); also
resulted in sexual harassment and a hostile working environment for
Ms. Chu which she had to take frequent sick leaves in late June and
July of 2011 that resulted in productivity drop from 103% to 50% (ROI
page 000024) or less (Response
to Agency's Motion to Decision without a Hearing.doc
page 8 #19).
It is also partially due to discrimination toward Ms.
Chu by Director Wendy Garber and Zachary Clifton that they terminated
Ms. Chu in such haste; even though Ms. Garber knew Ms. Chu was
perfectly capable of doing her job as indicated in one of Ms.
Garber’s email acknowledged Ms. Chu is “smart” (chu production
1.pdf page 621).
Sister Unit AU2128 was predominately Asians and women
(Response to Supplemental ROI page 17) during the time (March, 2011)
when Mona Chu was there, many were originally transferred from
AU2123; while AU2123 had only one woman Mary Jacob and one Asian male
who was an Engineering Professor when Ms. Chu was there. At least 2
women transferred out of AU2123 into AU2122 (chu production 1.pdf
page page 510) when Ms. Chu transferred into AU2123. Then a new
hired woman Sheela Rao when Ms. Chu was in AU2123, she’s also
transferred out of AU2123 by Paul Rodriguez in 2012. A supervisor QZ
Wang of AU2629 wanted Ms. Chu to transfer into his Unit before her
termination, yet Mr. Rodriguez talked him out of transferring Ms. Chu
into his Unit (chu production 1.pdf page 621). Howard Locker, a
Union VP also tried to make Ms. Chu’s case to Wendy Garber and
asked for an extension until Ms. Chu’s 1 year probationary period
(chu production 1.pdf page 636) to no avail.
Mona
Chu met every stringent requirements. “The first pay period you
fail to meet this requirement will likely be your last pay period”
(ROI page 000139) that stated by Ms. Garber in her affidavit for the
June, 2nd, 2011 of the 6th month evaluation meeting with Mr.
Rodriguez, which Ms. Chu did meet 3 cases-per-bi-week on the first
pay period -June7 and again the following pay period June 22,
according to Mr. Rodriguez’s Affidavit (ROI
page 0000116).
Mr. Rodriguez already putted COPA cases (chu
production 1.pdf page 366)
in Ms. Chu's docket soon after the meeting. There is no production
requirement for probationary employees as stated in both Paul
Rodriguez (ROI
page000114)
and Ms. Garber's affidavits (ROI
page000125 #31).
Ms.
Chu had to work nearly 24/7 to meet the 2 consecutive 3 COPA
cases-per-bi-week (ROI
page 0000116)
right after the 6th month evaluation, 93% Productivity (ROI,
page 23, #11)
and a total of 19 cases including COPA cases soon after the 8th month
evaluation. Ms. Chu also had an airtight first case that is known to
many SPE and Mr. David Kappo – Director of the Agency/Patent and
Trademark Office. In addition to Ms. Chu's qualifications: a
Master’s degree in Electrical Engineering(ROI page 000025), was
pursuing a PhD while at the same time pursuing a second Master’s in
Computer Science, as an adjunct in college, did research in Applied
Physics and published paper (ROI page 000028). Ms. Chu aspired to be
a scientist/Professor/researcher in college, to change the world and
make the world a better place to live. Most Ms. Chu's co-workers
would've been Ms. Chu's student had Ms. Chu's research funding wasn't
cut.
Furthermore, Ms. Chu
has extensive industry experiences and outstanding accomplishments in
the same field as the patent class 703 – Simulation, Emulation and
Modeling (see resume (chu production 1.pdf page 29-30)) where Ms. Chu
led projects. Ms. Chu had a history of outstanding accomplishments
in a male dominated Engineering field and academia which Ms. Chu had
to work nearly 24/7 to achieve such result. Yet, Mona Chu is
terminated as the resulted of discriminations toward her as a Chinese
and female when Mr. Rodrigues realized Ms. Chu was perfectly capable
of doing 3 COPA cases per biweek without any help and under extreme
condition put on by Mr. Rodrigues and Ms. Garber.
The
fact that key people Mona Chu named in her Formal Complaint such as
Paul Rodrigues and Zachary Clifton were demoted, Nathan Hillery-a
Union Rep is out of the GUI 715 and TC2100 all together, and Jason
Procter is fired and Wendy Garber no longer the Director of 2140/2170
Graphical User Interface and Document Processing since Ms. Chu’s
termination (Response to Supplemental ROI page 17-18) speak volumes.
Legal
Standard Of Appellate Review
As with any combined
direct-indirect evidence discrimination case, there exists a burden
of proof with the Complainant to establish a prima facie case, and
demonstrate that the Agency's well crafted excuses by the Agency's
legal department with an army of legal professionals are in fact
pretext for discrimination. See McDonnell
Douglas v. Green,
411 U.S. 792, 802 (1973); Texas
Dep’t of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981); St.
Mary’s Honor Center v. Hicks,
509 U.S. 502, 505 (1993).
Under the McDonnell
Douglas
framework, Complainant needs establish a prima
facie case by
showing that: (1) she is a member of a protected group; (2) she was
subjected to an adverse employment action; and (3) she was treated
less favorably than other similarly-situated individuals outside her
protected group. Packard
v. Dep’t of Health & Human Servs.,
Appeal No. 01985494, 2001 WL 309387, at *5 (E.E.O.C. Mar. 22, 2001).
Moreover, the EEOC has described a prima
facie case as
“presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse
employment action.” Davis
v. Dep’t of Veterans Affairs,
Petition No. 03980006, 1998 WL 849957, at *2 (E.E.O.C. Nov. 25,
1998). Absent comparative data, Complainant may establish a prima
facie case of
discrimination by setting forth sufficient evidence to create an
inference of discrimination. Burdine,
450 U.S. at 254; McDonnell
Douglas, 411
U.S. At 802-03.
If Complainant
establishes a prima
facie case, the
burden of production shifts to the Agency to articulate a legitimate,
non-discriminatory reason for its actions. Burdine,
450 U.S. at 254-56.
The
Agency had never able to articulate a legitimate, non-discriminatory
reason for wrongfully terminated the Complainant.
The
Complainant had establish a prima facie case throughout this EEOC
process over and over again since the Formal Complaint that the
Agency in fact discriminated against Mona Chu by wrongfully
teriminated the Complainant. Therefore,
Complainant
respectfully moves the Office of Federal Operations to find the
Agency wrongfully terminated the Complainant due to discrimination.
.4 The Administrative Judge erred in finding that there were no sexual harassment and hostile work environment. The Complainant had been a target of a failed rape that resulted in a stabbed and a slashed on the neck on June 1, 2013. The police report and photo are attached as Exhibit 150.
Below is a summary of the Formal
Complaint (ROI page 000032-55).
Tuan Nguyen and his
countrymen started defaming Mona Chu “no one liked her; no one
wanted her; etc.” the first month on the job in the Training
Academy because Mr. Nguyen perceived Ms. Chu as an Americanized
Chinese. Ms. Chu had never met Tuan Nguyen or his countrymen in her
life. Ms. Chu had just moved to the DC metro for the job from NYC
and only know one person here. During this time, Ms. Chu spent most
of her time in her cube.
As time progresses,
defamation such as Paul Rodriguez, the SPE Trainer played favoritism
toward women, and only liked to talk and help women; or that good
looking woman had it easy because guys like to help them, etc.,
beginning to promulgate the class; in reference to Ms. Chu talked to
Mr. Rodriguez about patent cases; to which Ms. Chu had to keep a
distance such not to create resentment toward either one of them. If
Ms. Chu didn’t stop talking to Mr. Rodriguez, the next slander
would be to accuse Mr. Rodriguez and Ms. Chu of having an affair.
Ms. Chu knew this because similar accusations had been made toward
Ms. Chu when Ms. Chu worked in the Silicon Valley as she was often
the only female in the whole engineering Dept, by people-from-Asia;
just like America in the Dark Age when witch-hunt was practiced.
You cannot possibly imagine the kinds of sexual harassments and
abuses Ms. Chu had to endure working in the Silicon Valley being the
only woman working with 90+% of people from Asia where women are a
second class citizen. Ms. Chu had to abscond from the San Francisco
Bay Area due to physical harm threats by people from Asia/Asian
gangs.
Typical slanders to
incite resentment and abuses toward Ms. Chu is: "she is too
smart, she is going to take your job away". If you are Chinese,
Vietnamese, Indian or any nationality, they would say "Ms. Chu
doesn't like Chinese/Vietnamese/Indian/any nationality". If you
are an American, "Ms. Chu is a racist". If you hated
Japanese, Korean, etc., they would say "Ms. Chu is Japanese,
Korean, etc." If you hated American , "she thinks she is
an American". To incite sexual harassment and rape, "she
needs a man; she likes to check men out; etc.". Basically,
people Ms. Chu had never met in her life such as Tuan Nguyen and his
countrymen would do and say insidious things to incite hatred, sexual
harassment, abuse, termination, physical harm and rape toward Ms.
Chu.
If you hated
homosexual, they would say “she is a lesbian; she is a dyke.” In
some cultures and for some Americans, this is enough to provoke
killing.
Does this reminds
you of how educated women are treated in the Third World? A la Malala
Yousufzai, gang rape of a woman medical student in Delhi, etc. A
classmate from that part of the world said it best, "women
smarter then them is the equivalent of slapping them on the face."
One must understand what it means to be slapped on the face in other
parts of the world.
The likes of Tuan
Nguyen and his countrymen set a bad precedent of defaming Ms. Chu
that incited and followed by other classmates such as Randy Shaffer.
No one noticed Ms.Chu prior to Tuan Nguyen and his countrymen's
defamations. Classmate Shawn Joseph spread to other Training classes
in the Training Academy, the Training classes spread to their Art
Unit and the rest of the Agency, where they spread to their friends,
family, neighbors and neighborhoods like Arlington Va. As the
result, Ms. Chu can't get a job while being sexually harassed,
abused, under the threat of physical harms and rape, and will be
homeless soon; while large number of Tuan Nguyen's countrymen have
been hired and promoted in the Patent and Trademark Office. Women
are such an easy target to be ruined and fired.
Ms. Chu was an
abduction and rape target on June 1, 2013, she was stabbed in the
neck and slashed on the throat with massive lost of blood and was
hospitalized for 5 days. The police report and photo are attached as
Exhibit 150.
Shawn Joseph had
shunned Ms. Chu from participating in group discussions in the
Training class.
Defamation by Hung
Havan such as Ms. Chu and Susanne Lo’s boyfriend Bill (in charge of
COPA event) will be married soon (against Agency policy), whom Ms.
Chu has only spoken to a few times as she worked nearly 24/7 and
didn’t even know his last name. It is well known Bill and Susanne
Lo has been dating for a long time, Ms. Chu and everyone around the
area saw them going home together all the time. Ms. Chu also told
Hung Havan and a few others she has a boyfriend in NYC soon after Ms.
Chu moved into the office. Additionally, Hung Havan and Michele Choi
used their smartphones to set Ms. Chu up such she would come across
as if she was checking him out to incite sexual harassment, abuse,
termination and rape.
It seems Hung Havan
and his cabal misled people and management into thinking Ms. Chu is
either Susanne Lo or Michele Choi since they are all Asians.
Furthermore, Hung
Havan defamed Ms. Chu says she is just like Michele Choi who is hated
everywhere, especially by Dwin Craig; which Mr. Craig then told Ms.
Garber and other management; and Mr. Rodriguez very much willing to
use this to terminate Ms. Chu. Hung Havan aware that Mr. Rodriguez
was setting Ms. Chu up to be terminated as Ms. Chu told Hung Havan
during the 6th month evaluation in hopes of finding remedies.
Ms. Chu received her
termination news on Aug. 10, 2011. On Aug. 11, 2011, a day before
Ms. Chu's last day, hours after she received her termination letter;
Ms. Chu walked into her office and saw Nathan Hillery sitting there
looking dismal. Ms. Chu requested Union helps from Nathan Hillery
from termination and help to transfer to another TC/AU. Nathan
Hillery gave Hung Havan a look to see what is going on. Hung Havan
had a smile on his face. Soon after Ms. Chu disclosed the Art Unit,
Nathan Hillery asked Ms. Chu who the Director was. Ms. Chu said she
didn’t know. Hung Havan searched the computer, and both left the
office right away in a conspicuous way without helping Ms. Chu, while
Nathan Hillery suddenly became alive and happy as if he got his life
back. On their way out, Nathan Hillery said in a whisper to Hung
Havan, “she didn't know I got her fired?”. Hung Havan gave him a
smirk. Hours later, this SPE from the new Art Unit called Ms. Chu
and said he couldn’t help Ms. Chu because he received a call from
HR of some sort and warned him not to get involved, he can’t afford
to lose this job. Nathan Hillery and Hung Havan gone to extensive
length to ensure Ms. Chu is terminated.
Nathan Hillery
abused his Union Representative position by using his position to
terminate Ms. Chu through defamation of Ms. Chu everywhere and access
to management. Ms. Chu suspected he is one of the few that pushed
this termination agenda with the USPTO management, using his Union
Rep. position. Ms. Chu had also requested helps from other TC2100
Union Representatives to no avail.
Days before Ms.
Chu's termination, she ran into Nathan Hillery, Susanne Lo and her
AU2128 Indian friends in the pantry, on their way out, Nathan Hillery
said to them “she is his Kryptonite”. Also, Susanne Lo suddenly
said good-bye to Ms. Chu with a smirk during one of AU2128's meetings
where Ms. Chu talked to Kamini Shah, 2 days before Ms. Chu's
termination notification on 8/10/2011. Ms. Chu had an ominous
feeling. Susanne Lo had been cold and ignoring Ms. Chu whenever Ms.
Chu greeted her. Susanne Lo knew Ms. Chu was going to be terminated
2 days before Ms. Chu's terimination notification by her Supervisor.
“So
my Union Rep. is a Teflon shield, they can’t touch me or fired me
as long I am a Union Rep?” Nathan Hillery said this at least twice
to Hung Havan in Mr. Havan and Ms. Chu's office at different time, he
knew nothing can be done to him no matter what he did as long he is a
Union Rep, included set Ms. Chu up to be terminated. Ms. Chu is so
disgusted with Union.
Nathan Hillery had
elbowed Ms. Chu on the chest outside of her office on his way home
one night. Michele Choi had elbowed Ms. Chu on the chest to push Ms.
Chu out of her way after she looted Ms. Chu's office supply on Ms.
Chu's last day. Hung Havan used force to stop Ms. Chu from saying
goodbye to Erica, a Chinese-American woman down the hall from Ms.
Chu's office. On Ms. Chu last day, when she went to say goodbye to
Erica, Hung Havan was talking to Erica outside of her doorway. Hung
Havan looked happy. Ms. Chu attempted to walk inside to Erica's
office, Hung suddenly stretched his arm out such Ms. Chu's
chest/breast hit his arm. Ms. Chu had to push his arm out of her
way. Erica asked him why he did this, he smirked and shrugs his
shoulder as if to say "she is fired, what is she going to do?"
Then Hung Havan stood in the middle of the hallway to block Ms. Chu
from going to say goodbye to other coworkers, which left only one way
of the hallway for Ms. Chu to go, and that is back to her office.
Ms. Chu went back to her office, packed up and left the Agency for
good.
Hung Havan, Nathan
Hillery, Michele Choi and Susanne Lo are known to be “argumentative”
and did not have any of the accomplishments Ms. Chu had in their
probationary period, yet they are NOT terminated. Hung Havan been
at the verge of termination since Ms. Chu first met him, his friend
Bill (Susanne Lo 's boyfriend) and Nathan Hillery has been helping
him and Michele Choi from termination. They all referred to Bill as
their frienemy. Hung Havan and his cabal often congregated in
Susanne Lo's AU2128 (Indian) friends' office in RND 5th floor near
Dwin Craig's office and the pantry. Ms. Chu often sees Mr. Craig
stood outside of their office when they gathered, which means Mr.
Craig had heard defamations of Ms. Chu by Hung Havan and his cabal.
Due
to sexual harassment and a hostile working environment, Ms. Chu had
to take frequent sick leaves in late June and July of 2011 that
resulted in productivity drop from 103% to 50% (ROI
page 000024)
or less (Response
to Agency's Motion to Decision without a Hearing.doc
page 8 #19).
The USPTO has been
known as the pinnacle of intellectual, yet the Agency is behaving as
if is a sweatshop of FoxConn, why?
Legal Standard
Of Appellate Review
In Chu-Agency's
Identification of Dismissed Claims (11-30-12)
page 2, the Agency stated:
“a
complaint should not be dismissed for failure to state a claim unless
it appears beyond a doubt that the complainant cannot prove a set of
facts in support of the claim that would entitle the complainant to
relief. See
Cormier
v. Dep’t of Veterans Affairs,
EEOC Appeal No. 0120112730, at *2 (Oct. 7, 2011); Cobb
v. Dep’t of Treasury,
EEOC Request No. 05970077, at *6 (Mar. 13, 1997). When making this
determination, all allegations must be considered and construed in
the light most favorable to the complainant.”
The Complainant had listed some 20+ sexual harassment and hostile working environment incidents in the Formal Complainant (ROI page 000032-55) during the 9 months employement. Also in Exhibit 1 – Complainant's Deposition, page 167 -218.
To
establish a prima
facie
case of harassment based on hostile work environment, a complainant
must show the existence of five elements: (1) she is a member of a
statutorily protected class; (2) she was subjected to harassment in
the form of unwelcome verbal or physical conduct involving the
protected class; (3) the harassment complained of was based on the
statutorily protected class; (4) the harassment had the purpose or
effect of unreasonably interfering with her work environment and/or
creating an intimidating, hostile, or offensive work environment; and
(5) that there is a basis for imputing liability to the agency (i.e.,
the agency knew or should have known of the conduct and failed to
take appropriate action). See
Henson
v. City of Dundee,
682 F.2d 897, 903 (11th Cir. 1982); Fletcher
v. Dep’t of Veterans Affairs,
EEOC
Appeal No. 0120102630, at *7 (Oct. 4, 2012).
To state a claim of harassment based on
hostile work environment under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq.,
a complainant must include the fourth prong of the above test by
asserting that the harassment was “sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an
abusive environment.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 116
(2002) (citing Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993)). An objectively hostile or abusive work
environment is created when a reasonable person would find it hostile
or abusive and a complainant subjectively perceives it as such. See
Harris, 510 U.S. at
21-22. Whether the environment is hostile or abusive can be
determined by considering the entirety of circumstances, including
the frequency of discriminatory conduct, its severity, whether it is
physically threatening or merely an offensive utterance, and whether
it unreasonably interferes with an employee’s work performance.
Complainant
fully meet all five elements as indicated in the Response
to Chu-Agency's Identification of
Dismissed Claims (11-30-12) (Exhibit 102). Therefore,
Complainant
respectfully moves the Office of Federal Operations to find the
Agency did create a hostile working environment and sexual
harassement toward the Complainant.
The
Complainant has been subjected to sexual harassment, abuses,
termination, physical harm and rape threats that resulted in a
stabbed on the neck and a cut across the throat in a failed attempted
of rape and abduction that could've killed the Complainant (Exhibit
150- Police Report and Photo of malicious wounding).
.5 The EEO mishandled the Complainant's case from the get-go.
The EEO calculatingly dismissed the Complainant's Hostile Working Envirnoment and Sexual Harassment Due to Discrimination claim (ROI page 000074) even though I had written a 17 pages Formal Complaint (ROI page 000002-18) where I devoted half of the Formal Complaint - 8 pages (ROI page 000009-17) on the topic, and then re-emphazised in the amended Formal Complaint (ROI page 000032-55) on Hostile Working Environment and Sexual harassment (ROI page 000043-54) with some 20+ sexual harassment and hostile working environment incidents during the employement of 9 months.
During
the ROI investigation, instead of comparing my performance with my
AU2123 Unit, the ROI
compared me with the Training Academy Probationary employees which
were mostly from other patent class - GUI patent class. As I stated
over and over in the Formal Complaint and throughout the EEO
process, as well complained to Mr. Bismarch Myrick – Director of
EEO (Exh. 103 - Letter to Bismarch Myrick Director of EEO.pdf), that
is the equivalent of comparing apples and oranges.
III. CONCLUSION
Complainant has shown that most AJ cited
material facts in AJD
are disputed in Response
to Agency's Motion to Decision without a Hearing; and
just to be thorough and without any doubt, the Complainant had
attached a dispute to the AJD
– Response
to the AJD. There are
issues regarding the credibility of the AJ ruled that the Complainant
resigned, when AJ
hereself stated with undisputed material facts it was a “forced
resignation” with termination letter as well all parties involved
in my termination stated in their affidavit that they did not receive
a resignation from me. Complainant
has also demonstrated that the Agency’s articulated reasons for her
wrongful termination were pretext for discrimination.
The AJ erred in merely taking the Agency’s
self-serving proclamations as true. The record in this case supports
the Complainant was wrongfully terminated due to discrimination.
Therefore,
for all the forgoing reasons, Complainant respectfully moves the
Office of Federal Operations to REVERSE the AJD, and FIND that the
Complainant is wrongfully terminated due to discrimination, which
also resulted in sexual harassment and hostile working environment.
And for an appropiate remedy in the settlement to
compensate for the lost of wage and career track, all the pain and
suffering of this whole ordeal of sexual harassment, abuses, the
humiliation of termination, PTSD; the fear of Asians, Hispanic (the
attacker) and going out in the public; the ruined of professional
reputation that the Complaiant still couldn't secure a job with such
outstanding academic and professional accomplishments which the
Complainant worked 24/7 to achieve; an attempted abduction and rape
that resulted in a stabbing on the neck and a slashed across the
throat that could very well killed the Complainant. The Complainant
asked for $25,000,000, reinstate of employment and time lost in the
career track.
How much do a life, a career and a peace of mind worth?
The answer is priceless.
Respectfully Submitted,
CERTIFICATE OF SERVICE
I certify that the foregoing Brief in Support of Appeal
was served upon the following in the manner described on July 1,
2013:
FIRST CLASS MAIL
Director
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, DC 20013
FIRST CLASS MAIL
Mail Stop EEO
Director, Office of EEO and Diversity
U.S. Patent and Trademark Office
P.O. Box 1450
Alexandria, VA 22313-1450
David Kappos resigned from his position as Under Secretary of
Commerce for Intellectual Property and Director of the USPTO on
January 31, 2013. Teresa Stanek Rea became the Acting Under
Secretary of Commerce for Intellectual Property and Director of the
USPTO on February 1, 2013.
2Complainant
been unemployed for nearly 2 years and can't afford a lawyer at this
time.
