Petition for Writ of Certiorari — Wen Liu, Petitioner v. University of Miami School of Medicine
Supreme Court briefApr 12, 2018
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No.
IN THE
SUPREME COURT OF THE UNITED STATES
WEN LIU, Petitioner,
V.
UNIVERSITY OF MIAMI, Respondent.
On Petition for Writ of Certiorari
To the United States Court of Appeals for the
Eleventh Circuit
PETITION FOR WRIT OF CERTIORARI
WEN LIU, MD., PhD., MS
Pro Se
7682 SW 169th St.
Miami, FL 33157
2O8
QUESTIONS PRESENTED
Which was the terminate date University of Miami
terminated me? October 12, 2012 with a failed attempt of
termination letter dated October 7, 2011 or April 9, 2013
with the termination letter dated March 7, 2013 when I
was an employee of University of Miami receiving salaries
and taking medical leave from October 11, 2012 to April
11, 2013?
I filed the discriminations, retaliation and violations of
Family and Medical Leave Act (FMLA) charges at the U.S.
Equal Employment Opportunity Commission (EEOC) on
March 21, 2013, fourteen (14) days after the termination
letter dated March 7, 2013. Under Title VII, a petitioner
seeking to bring suit for employment discrimination must
first file a charge of discrimination with the EEOC within
300 days after the unlawful employment practice
occurred. Where an employer adopts an employment
practice that discriminates against Asian Americans in
violation of Title Vii's disparate impact provision, must a
petitioner file an EEOC charge within 300 days after the
attempted but reversed announcement of the practice on
October 7, 2011, or may a petitioner file a charge within
300 days after the employer's use of the discriminatory
practice dated on March 7, 2013?
Whether accidently not checking the box of "retaliation"
at EEOC charges by the EEOC officer makes the claim of
retaliation barred or not?
Whether the FMLA claims filed on March 21, 2013 at
EEOC for the violations that University of Miami denied
my request to take a family and medical leave on March
22, 2011 within the two year statute of FMLA claims, and
within the three statute of willful violations?
II
PARTIES TO THE PROCEEDINGS
The petitioner is Dr. Wen Liu, who was the plaintiff and
appellee in the courts below.
The respondent is University of Miami, which was the
defendant and appellant in the courts below.
111
TABLE OF CONTENTS
QUESTION PRESENTED
.
i
PARTIES TO THE PROCEEDINGS.....................................ii
TABLE OF CONTENTS..........................................................iii
TABLE OF APPENDIX............................................................iv
TABLE OF AUTHORITIES....................................................vi
OPINIONS BELOW...................................................................1
JURISDICTION...........................................................................1
STATUTORY PROVISIONS INVOLVED ...........................2
STATEMENT OF THE CASE.................................................4
The Statutory Framework......................................9
Proceedings in the District Court and
Proceedings in the Court of Appeals..............10
REASONS FOR GRANTING THE WRIT........................21
There is an Acknowledged Division
Among the Courts of Appeals Regarding
the Question Presented.............................................22
The Questions Presented are of Significant
Importance to the Administration of
Title VII Claims, Retaliation Claim and
FMLAClaims...................................................................29
The Court Below Erred..............................................31
CONCLUSION..........................................................................39
iv
APPENDIX
Opinion of the United States Court of
Appeals for the Eleventh Circuit, issued
May 19, 2 017 .................................................................. la
Report and Recommendation of the
United States District Court for the
Southern District of Florida, entered
July 2 l, 2015 ................................................................. 17a
Opinion of the United States District
Court for the Southern District of
Florida, entered August 28, 2015.......................38a
Order of the United States Court of
Appeals for the Eleventh Circuit
Denying Petition for Rehearing en
banc, issued November 14,2017 ........................ 40a
Order of the United States Court of
Appeals for the Eleventh Circuit
Denying Petition for Reconsideration of
Rehearing en banc, issued
December 11, 2017...................................................42a
Birnbach's Attempted but Reversed
Announcement of Termination to
Terminate Me on October 12, 2012 in a
Letter dated October 7, 2011 ...............................43a
FMLA Form to Take a Family and Medical
Leave of Treating Cancer from October 11,
2012 to April 11, 2013 as an Employee ............44a
Keitz' Termination Letter to Terminate Me
on April 9, 2013 as an Employee Taking
Medical Leave in the Termination
Letter dated March 7, 2013 ...................................48a
V
EEOC Charges filed on March 21, 2013 ...............49a
My Request to Take a Family and
Medical Leave dated March 21, 2011................51a
My March 21, 2011 Request to Take a Family
and Medical Leave Was Denied the Next Day
by Defendant on March 22, 2011........................52a
The Order of the Honorable Judge Zloch
Resetting Pre-trial Conference as October 9,
2015; However, the Final Judgement Was
Entered Prior to October 9, 2015 without a
Trial, without any Testimonies of the 49
Witnesses......................................................................53a
V1
TABLE OF AUTHORITIES
Cases
Alexander v. Gardner-Denver Co., 415 U.S. 36
(1974)...................................................................................31
Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir.
1999)..............................................................................23,26
Beavers v. American Cast Iron Pipe Co., 975
F.2d 792 (11th Cir. 1992).....................................23, 26
Bishop v. New Jersey, 144 F. App'x 236 (3d
Cir. 2005) (unpublished) .............................................25
Bishop v. New Jersey, 84 F. App'x 220 (3d Cir.
2004) (unpublished) .....................................................25
Bouman v. Block, 940 F.2d 1211 (9th Cir.
1991) ....................................................................... 23-25, 28
Bronze Shields, Inc. v. New Jersey
Department of Civil Service, 667 F.2d 1074
(3d Cir. 1981).............................................................26-28
Burlington Industries, Inc. v. Ellerth, 524 U.S.
742(1998) .............................. ........................................... 30
Christiansburg Garment Co. v. EEOC, 434 U.S.
412 (1978) .........................................................................31
Cox v. City of Memphis, 230 F.3d 199 (6th
Cir. 2000) .....................................................................25-28
Gonzalez v. Firestone Tire & Rubber Co., 610
F.2d 241 (5th Cir. 1980)........................................23, 28
Griggs v. Duke Power Co., 401 U.S. 424
(1971)..............................................................................9,30
Guardians Association v. Civil Service
Commission, 633 F.2d 232
(2dCir. 1980) ..................................................... 23-26, 28
Ledbetter v. Goodyear Tire & Rubber Co., 127
S. Ct. 2162 (2007).....................................................37-38
Lewis v. City of Chicago 130 S. Ct. 2191
(2010) ........................................................ 6, 16, 23, 28, 31
Lorance v. AT&T Technologies, Inc., 490 U.S.
900(1989) .........................................................................38
Morton v. Mancari, 417 U.S. 535 (1974)....................30
National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002) .......................................................37
New York Gaslight Club, Inc. v. Carey, 447
U.S. 54 (1980) ...................................................................31
Tatreau v. City of Los Angeles, No. 03-56638,
138 F. App'x 959 (9th Cir. 2005)
(unpublished) ...................................................................28
United Air Lines, Inc. v. Evans, 431 U.S. 553
(1977)...................................................................................37
Federal Statutes
28 U.S.C. § 1254(1)..................................................................2
29U.S.C.2601 ........................................................................ 3
29 U.S.C. § 2611........................................................................3
29 U.S.C. § 2612(a) (2) ...........................................................3
29 U.S.C. § 2612(b) (2) ...........................................................3
29 U.S.C. § 2612(f)...................................................................3
29 U.S.C. § 2614(b)..................................................................3
29 U.S.C. § 2614(c) ..................................................................3
29 U.S.C. § 2617........................................................................4
viii
29 U.S.C. § 2617(a)(1)(A)(iii)
.4
42 U.S.C. § 2000e-2(a) ......................................................2, 9
42 U.S.C. § 2000e-2(k) ............................................... 3,9,38
42 U.S.C. § 2000e-5(e)(1) ............................................. 3, 10
42 U.S.C. § 2000e-5(f)(1) ..................................................10
Other Authorities
Lex K. Larson, 4 Employment Discrimination
(2d ed. 1994 & Supp. 2008)........................................28
Barbara T. Lindemann & Paul Grossman,
Employment Discrimination Law (4th ed.
2007)..............................................................................27,38
Barbara T. Lindemann & Paul Grossman,
Employment Discrimination Law (Supp.
2008)..............................................................................27,38
H.R. Rep. No. 88-914 (1963), reprinted in
1964 U.S.C.C.A.N. 2391...........................................29-30
H.R. Rep. No. 92-238 (1971), reprinted in
1972 U.S.C.C.A.N. 2137...........................................29-30
1
To the Honorable Chief Justice John G. Roberts Jr., and
to the Honorable Associate Justices Anthony Kennedy,
Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer,
Samuel Auto, Sonia Sotomayor, Elena Kagan, and Neil
Gorsuch of the United States, and to the Honorable Circuit
Justice For The United States Court Of Appeals for the
Eleventh Circuit:
I, Dr. Wen Liu, Pro Se, respectfully petition for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Eleventh Circuit in this case.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Eleventh Circuit, drawing a judgement that "Liu failed
to exhaust administrative remedies because the EEOC
charge was not timely filed" is unreported and is
reproduced at App. A.. The report and recommendation,
and the opinion of the United States District Court for the
Southern District of Florida, drawing a judgement that
petitioner's EEOC charges were not timely, is unreported
and is reproduced at App. B. and App. C..
There is an established split between the District Court
for the Southern District of Florida, and the United States
Court of Appeals for the Eleventh Circuit regarding my
claims of retaliation, and FMLA claims.
JURISDICTION
The Court of Appeals for the Eleventh Circuit issued its
opinion on May 19, 2017 (see App. A., infra). On November
14, 2017, the Court of Appeals for the Eleventh Circuit
denied Petition for Rehearing en banc (see App. D., infra).
On December 11, 2017, the Court of Appeals issued an
order (see App. E., infra) in which the timely filed petition
for reconsideration for the panel rehearing was not
granted. The Court of Appeals issued "Petition for
Reconsideration for the Panel Rehearing" is unfiled on
2
January 11, 2018, and the Court of Appeals provided the
instruction for filing a Writ of Certiorari with the United
States Supreme Court within 90 days from the Court order
on December 11, 2017.
On February 16, 2018, this Court extended the time for
filing a petition for a writ of certiorari. Order on
Application No. 17A862. This Court has jurisdiction over
the judgment under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Section 703(a) of Title VII of the Civil Rights Act of 1964
provides:
(a) It shall be an unlawful employment practice for
an employer
to fail or refuse to hire or to discharge any
individual
because of such individual's race,
color, religion, sex, or national origin; or
to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of
employment opportunities or otherwise adversely
affect his status as an employee, because of such
individual's race, color, religion, sex, or national
origin.
42 U.S.C. § 2000e-2(a).
Section 703(k)(1)(A) of Title VII provides:
(1<) Burden of proof in disparate impact cases (1) (A)
An unlawful employment practice based on
disparate impact is established under this
subchapter only if
(i) a complaining party demonstrates that a
respondent uses a particular employment practice
that causes a disparate impact on the basis of race,
color, religion, sex, or national origin and the
-
.
.
.
-
3
defendant fails to demonstrate that the challenged
practice is job related for the position in question
and consistent with business necessity....
42 U.S.C. § 2000e-2(k).
Section 706(e)(1) of Title VII provides in pertinent
part provides: "A charge under this section shall be
filed. within three hundred days after the alleged
unlawful employment practice occurred."
42 U.S.C. § 2000e-5(e)(1).
. .
The Family and Medical Leave Act (FMLA) provides
employees with job-protected and unpaid leave for
qualified medical and family reasons.
29 U.S.C. § 2601, 29 U.S.C. § 2611,
29 U.S.C. § 2612(b)(2), 29 U.S.C. § 2612(f).
Rights of FMLA during leave provide:
Employees can have up to 12 weeks of unpaid
leave for child birth, adoption, to care for a close
relative in poor health, or because of an employee's
own poor health;
Employers must provide benefits during the
unpaid leave. Under §2652(b) states are
empowered to provide greater family or medical
leave rights.
29 U.S.C. § 2612(a)(2), 29 U.S.C. § 2614(c).
Right to return to job provides:
After unpaid leave, an employee generally has the
right to return to his or her job....
29 U.S.C. § 2614(b).
The FMLA Enforcement provides:
Employees can seek damages for lost wages and
benefits, or the cost of child care, plus an equal
amount of liquidated damages
There is a two.
.
.
.
4
year limit on bringing claims, or three years for
willful violations.
29 U.S.C. § 2617,
29 U.S.C. § 2617(a)(1)(A)(iii).
STATEMENT OF THE CASE
April 9. 2013 was the termination date
Defendant University of Miami Birnbach's attempted
but reversed announcement of the practice to terminate
me on October 12, 2012 was in a letter dated on October
7, 2011 (see App. F., infra); In September, 2012, eleven
months after announcing its plan to terminate me, with
the help of Faculty Senators to represent me on my behalf
for the claims of retaliation, violations of family and
medical leave, and unequal treatments, University of
Miami's attempted announcement of termination dated
October 7, 2011 was reversed.
As a result, the request of Medical Leave was suggested
to me to reverse the defendant's attempted wrongful
termination. Medical Leave form was provided to me and
the completed medical leave document was sent to Dr.
Green and Birnbach as suggested. Birnbach initiated and
instructed the department to process and approve my
medical leave. I took the approved medical leave as an
employee of university of Miami from October 11, 2012 to
April 11, 2013 (see App. G., infra).
The termination letter from defendant University of
Miami Keitz to terminate me on April 9, 2013 was dated
March 7, 2013 during my medical leave (see App. H., infra).
Defendant stated in the March 7, 2013 termination
letter: "between January 10, 2013 and April 9, 2013","your
health benefits will be continued and you will continue to
be responsible for the employee portion of the health
insurance premiums." to concede that I continued to be an
employee after "October 12, 2012".
Defendant University of Miami concede that I was an
employee of University of Miami from October 11, 2012
through April 11, 2013 taking medical leave as an
employee of University of Miami. I was not terminated on
October 12, 2012.
In defendant's own words in the March 7, 2013
termination letter, defendant stated:
"Your faculty appointment will terminate at close of
business on April 9. 2013" to concede that I was an
employee after October 12, 2012, and I was not
terminated at "close of business on October 12, 2012" in
the attempted but reversed announcement in a letter
dated October 7, 2011; and I took the approved medical
leave from October 11 2012 to April 11 2013 as an
employee of University of Miami.
The explicit facts and defendant's own statements
confirm and establish the termination date was "April 9,
2013" in the termination letter dated March 7, 2013. The
defendant's adverse action date to be used to file the EEOC
charges within 300 days is March 7, 2013. Thus, filing of
the EEOC charges on March 21, 2013 is within the statute
of 300 days for discrimination and retaliation claims, and
within two year and three year statues of FMLA claims.
The explicit fact that I was receiving salaries after
October 12, 2012 from University of Miami reveals that I
was an employee of University of Miami after October 12,
2012 and I was not terminated on October 12, 2012;
The explicit fact that I was taking medical leave of
treating cancer from October 11, 2012 to April 11, 2013
initiated and approved by University of Miami reveals that
I was an employee of University of Miami after October 12,
2012 and I was not terminated on October 12, 2012.
In conclusion, the termination date was "April 9, 2013"
conceded and stated in defendant's own words in the
termination letter dated March 7, 2013.
EEOC Charges filed on March 21, 2013
The District Court and the Court of Appeals adopted
defendant's false statement that the date of the adverse
action by University of Miami was October 7, 2011 instead
of March 7, 2013, holding contrary to the law of five
circuits, and contrary to the ruling of the Supreme Court
that an EEOC charge for disparate impact discrimination
must be filed within 300 days of the announcement of the
practice. Under this theory, any subsequent challenge to
an employer's use of the practice as the basis for
employment decisions is time-barred.
In the case Lewis v. City of Chicago, the Honorable
Justice Scalia at the Supreme Court delivered the opinion
for a unanimous Court to rule that Lewis' EEOC charges
were filed timely within 300 days after the employer's use
of the discriminatory practice; the 300 days were not
counting from the employer's announcement of the
discriminatory practice.
The Supreme Court reversed the decision of the lower
court and remanded the case for further proceedings.
According to the fact that the termination date was
"April 9, 2013" conceded in the termination letter dated
March 7, 2013, the defendant's adverse action date to be
used to file the EEOC charges within the statues is March
7, 2013.
In conclusion, the EEOC charges filed on March 21,
2013, fourteen (14) days after the adverse action date of
-
-
7
March 7, 2013 were filed within the statutes (see App. I.,
infra).
Retaliation Claim
The District Court and the Eleventh Circuit had split
opinions on whether accidently not checking the box of
"retaliation" at EEOC charges by the EEOC officer makes
the claim of retaliation barred or not.
In the report and recommendation below, the District
Court stated: "She further stated that she relied on the
EEOC officer, who allegedly told her that she was
retaliated against, to put whatever was necessary on the
form. However, the Eleventh Circuit has rejected this
argument. Rodriguez v. Sec. of the Dept. of Veteran Affairs,
No. 14-13505, slip op. (11th Cir. June 1, 2015)."
"that the box for retaliation was not checked on the
form."
On the contrary, in the Opinion below, the Eleventh
Circuit stated:
"The failure of a party to check a box marked "retaliation"
on the charge form does not administratively foreclose a
party from bring suit based on that theory, if the facts
alleged in the charge could reasonably have extended to
cover a retaliation charge. Id.", and "to give the agency the
information it needs to investigate and resolve the dispute
between the employee and the employer." Brown. 440
F.3d at 1263 (quotations omitted)."
The split opinion between the District Court and the
Eleventh Circuit, and the split opinion between the
precedents of Eleventh Circuit and the current opinion of
the Eleventh Circuit regarding the retaliation claim are
established.
However, the Eleventh Circuit did not rule to affirm the
retaliation claim; the District Court did not address and
rule for my retaliation claim because the District Court
adopted defendant's words that the box of "Retaliation"
was not checked at EEOC even with the fact that I reported
the retaliation to the EEOC Officer.
FMLA claims filed at EEOC on March 21, 2013
The District Court and the Eleventh Circuit had split
opinions on the date of filing the FMLA claims.
The District Court adopted defendant's false date of
"March 23, 2013", which making it two years and 1 day
from the adverse action date of March 22, 2011 of denial
my request to take a family and medical leave (see App. J.,
and App. K., infra).; by contrast, the Eleventh Circuit found
and confirmed that FMLA claims were filed on March 21,
2013 at EEOC, making it one year, 364 days, within the two
year statute of filing FMLA claims, and within the three
year statute of filing willful violations (see App. I., and App.
J., App. K., infra).
The split opinion on Filing of EEOC charges between the
District Court/Eleventh Circuit, and the decisions on
precedents in Eleventh Circuit is recognized and
supported under precedents in the Eleventh Circuit. The
split opinions between the District Court and the Eleventh
Circuit on the crucial facts of filing Retaliation claim, and
the FMLA claims are clear and well-established.
This Court should grant this petition for a Writ of
Certiorari to resolve the difference in the judgement of
two termination dates October 12, 2012, and April 9, 2013
contradicting to each other; and in the judgement of
whether EEOC charges filed on March 21, 2013 timely;
and in the judgement whether not checking the box of
"retaliation" at EEOC charges should bar the claim; and to
resolve the split opinions between the District Court and
the Eleventh Circuit to establish uniformity among the
lower courts on these important questions affecting
millions of employees and employers nationwide, and
specifically affecting junior faculty on the tenure track in
over 5000 universities and colleges nationwide.
A. The Statutory Framework.
Title VII of the Civil Rights Act of 1964 makes it an
"unlawful employment practice" for an employer:
to fail or refuse to hire or to discharge any individual
because of such individual's race, color, religion,
sex, or national origin; or
to limit, segregate, or classify his employees or
applicants for employment in any way which
would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely
affect his status as an employee, because of such
individual's race, color, religion, sex, or national
origin. 42 U.S.C. § 2000e-2(a).
Both "disparate treatment" claims (which challenge
intentionally discriminatory employment practices)
and "disparate impact" claims (which challenge
employment practices that have an adverse effect on
protected classes regardless of intent) are cognizable
under Title VII. See Griggs v. Duke Power Co., 401 U.S.
424,431 (1971) ("[Title VII] proscribes not only overt
discrimination but also practices that are fair in form,
but discriminatory in operation."); see also 42 U.S.C. §
2000 e-2 (k).
Disparate impact discrimination is established if a
"complaining party demonstrates that a defendant
uses a particular employment practice that causes a
and the
disparate impact on the basis of race
respondent fails to demonstrate that the challenged
practice is job related. and consistent with business
necessity." 42 U.S.C. § 2000e2(k)(1)(A).
.
..
.
.
WC
Any person subject to such a practice must file a charge
of discrimination with the EEOC "within three hundred
days after the alleged unlawful employment practice
If after
occurred."
42 U.S.C. § 2000e-5(e)(1).1
investigating the charge, the EEOC cannot secure
voluntary compliance from the employer and the EEOC
elects not to file suit on behalf of the employee, the
employee can receive a "right-to-sue" letter and institute a
civil action against the employer. 42 U.S.C. § 2000e5(f)(1). The employee has ninety days from receipt of a
right-to sue letter to file suit. Id.
B. Proceedings in the District Court and Proceedings
in the Court of Appeals.
In 2007, I accepted the Offer Letter of Appointment as
an Assistant Professor on the tenure track of University of
Miami, School of Medicine, and started my faculty term in
year 2008. The protected eight year probationary period
before being reviewed to be tenured on the ninth year for
me as a faculty on the tenure track at School of Medicine
started September, 2008.
During the term of my Assistant Professor position,
I was the only Asian, female faculty on the tenure
track in the division of Epidemiology of the
Department of Epidemiology and Public Health at
School of Medicine; I was treated differently; All
other faculty on the tenure track in the division are
the comparators of the claims of the protected
constitutional rights violated by University of
Miami;
In 2009 and 2010, I reported an unethical issue of
removing my name as a co-author of a manuscript
to department chair Szapocznik and to the
committee reviewing this unethical issue
consisting of three senior faculty outside of the
department;
11
As a result, I had been suffering retaliation,
discriminations, and maltreatments since my
reporting the unethical issue;
The department chair Szapocznik gave me
unachievable goals of "five first authored
publications" submitted/accepted in one year,
which could not be achieved by a junior faculty on
the tenure track; however, no junior faculty on the
tenure track except me was threatened and forced
to change to a faculty on a research track at 2 year
7 months; no junior faculty on the tenure track
except me received an announcement of
termination letter at 3 year 1 month;
(5)In March, 2011, defendant Jose Szapocznik, Hilda
Pantin and Sheri Keitz forced and threatened me to
change from a faculty on the tenure track with no
fewer than 9 year protected employment enforced
by the Faculty Manual to a faculty on the research
track with only one year employment;
(6) On March 21, 2011, I requested a family and leave
entitled by the Family and Medical Leave Act
(FMLA) (see App. J., infra). My request was denied
by Jose Szapocznik the next day immediately on
March 22, 2011 without addressing my request,
without communicating with me to prepare the
required documents to process and move forward
my request (see App. K., infra). Szapocznik did not
follow the University rules and regulations
governed and protected by the Faculty Manual to
process my request, and defendant Szapocznik did
not forward my FMLArequest to the dean, then to
the Executive Vice President and Provost for
approval as required and enforced by the Faculty
Manual. To my knowledge, the family medical leave
of absence requested by other faculty with
12
different race, originality of nation had been
granted;
On March 21, 2013, I filed the FMLA claim timely at
EEOC charges within the two year statute from
defendant's denial of my request on March 22,
2011, and within the three year statute for filing
willful violations;
In October, 2011, an attempted but reversed
announcement of wrongful termination letter from
David Birnbach was dated October 7, 2011. Faculty
Manual does NOT state that Birnbach as Vice
Provost of Faculty Affairs has the authority to write
a termination letter to a faculty on the tenure track
at 3 years 1 month of probationary period without
following the required procedures, without
providing the required documentations and appeal
rights to me, without the review and evaluation
processes of the committees, and the advisory
boards, without counseling with me as the faculty
on the tenure track, without the required written
communications and actions from the Dean, the
Provost, and the President protected and enforced
by the Faculty Manual. In the letter, Birnbach
announced to terminate me on October 12, 2012
without giving any reason, without providing any
rights entitled and enforced by the Faculty Manual;
In September, 2012, eleven months after
announcing its plan to terminate me, with the help
of Faculty Senators to represent me on my behalf
for the claims of retaliation, violations of family and
medical leave, and unequal treatments, University
of Miami's attempted announcement of
termination dated October 7, 2011 was reversed;
As a result, the request of Medical Leave was
suggested to me to reverse the defendant's
attempted wrongful termination. Medical Leave
13
form was provided to me and the completed
medical leave document was sent to Dr. Green and
Birnbach as suggested. Birnbach initiated and
instructed the department to process and approve
my medical leave. I took the approved medical
leave as an employee of University of Miami from
October 11, 2012 to April 11, 2013;
The termination letter from defendant Keitz of
University of Miami to terminate me on April 9,
2013 was dated March 7, 2013 during my medical
leave;
I met the EEOC officers and the EEOC officer filed
the charges on March 21, 2013;
On June 18, 2013, I filed the claims of retaliation,
discriminations, and the claims for violations of
FMLA to the Federal Court.
I, Petitioner, Dr. Wen Liu, brought this civil action
alleging five claims against the University of Miami School
of Medicine. In Counts I, II, and III of Petitioner's
Complaint, Petitioner alleges gender, racial and national
origin discrimination, in violation of the Florida Civil
Rights Act (FCRA), 42 U.S.C. §1981 and Title VII of the Civil
Rights Act (Title VII). In Count IV, Petitioner alleges
retaliation in violation of Title VII and, finally, in Count V,
Petitioner alleges a violation of her rights under the
Family and Medical Leave Act (FMLA).
EEOC Charges filed on March 21, 2013
In the report and recommendation below, the district
court adopted defendant's October 7, 2011 announcement
date to terminate me on October 12, 2012 as the adverse
action date; and the District Court stated incorrectly that
March 7, 2013 termination letter "clearly states that
Defendant was simply allowing Plaintiff to stay on leave
for purposes of extending Plaintiffs health insurance
coverage through April 9, 2013". By contrast, in
14
defendant's March 7, 2013 termination letter, defendant
clearly acknowledged that Plaintiff was an "employee"
through April 9, 2013, and the "faculty appointment will
terminate at close business of April 9, 2013".
In the report and recommendation below, the district
court stated, "the undersigned finds that Petitioner's EEOC
Charge was not timely filed.", and "the undersigned finds
that Petitioner failed to timely bring her claims in Counts I
and III and that no claim for retaliation was presented in
the EEOC Charge. Counts I, III and IV are therefore
procedurally barred.
Accordingly, the undersigned
recommends GRANTING Defendant's Motion for Final
Summary Judgment on Counts I, III and IV."
The decision of the, District Court was contrary to
Eleventh Circuit precedents, making employment-related
decisions from a tainted system is an act of discrimination
distinct from the original implementation of the system,
such that new claims accrue each time the tainted system
is used to make those decisions.
Defendant University of Miami's attempted but
reversed announcement of the practice to terminate me
on October 12, 2012 was dated on October 7, 2011; With
the help of Faculty Senators to represent me on my behalf
for the claims of retaliation, violations of family and
medical leave, and unequal treatments, University of
Miami's attempted announcement of termination dated
October 7, 2011 was reversed.
As a result, the request of Medical Leave was suggested
to me to reverse the defendant's attempted wrongful
termination. Medical Leave form was provided to me and
the completed medical leave document was sent to Dr.
Green and Birnbach as suggested. Birnbach initiated and
instructed the department to process and approve my
15
medical leave. I took the approved medical leave as an
employee of University of Miami from October 11, 2012 to
April 11, 2013.
The termination letter from defendant University of
Miami to terminate me on April 9, 2013 was dated March
7, 2013 during my medical leave.
Defendant stated in the March 7, 2013 termination
letter: "between January 10, 2013 and April 9, 2013","your
health benefits will be continued and you will continue to
be responsible for the employee portion of the health
insurance premiums." to concede that I continued to be an
employee after "October 12, 2012".
Defendant University of Miami concede that I was an
employee of University of Miami from October 11, 2012
through April 11, 2013 taking medical leave as an
employee of University of Miami. I was not terminated on
October 12, 2012.
In defendant's own words in the March 7, 2013
termination letter, defendant state:
"Your faculty appointment will terminate at close of
business on April 9. 2013" to concede that I was an
employee after October 12, 2012, and I was not
terminated at "close of business on October 12, 2012" in
the attempted but reversed termination in a letter dated
October 7, 2011; and I took the approved medical leave
from October 112012 to April 112013 as an employee of
University of Miami.
The explicit fact that I was receiving salaries after
October 12, 2012 from University of Miami reveals that I
was an employee of University of Miami after October 12,
2012 and I was not terminated on October 12, 2012;
The explicit fact that I was taking medical leave of
treating cancer from October 11, 2012 to April 11, 2013
16
initiated and approved by University of Miami reveals that
I was an employee of University of Miami after October 12,
2012 and I was not terminated on October 12, 2012.
In conclusion, the termination date was "April 9, 2013"
conceded and stated in defendant's own words in the
termination letter dated March 7, 2013.
The District Court and the Court of Appeals adopted
defendant's false statement that the date of the adverse
action by University of Miami was October 7, 2011 instead
of March 7, 2013, holding contrary to the law of five
circuits, and contrary to the ruling of the Supreme Court
that an EEOC charge for disparate impact discrimination
must be filed within 300 days of the announcement of the
practice. Under this theory, any subsequent challenge to
an employer's use of the practice as the basis for
employment decisions is time-barred.
In the case Lewis v. City of Chicago, the Honorable
Justice Scalia at the Supreme Court delivered the opinion
for a unanimous Court to rule that Lewis' EEOC charges
were filed timely within 300 days after the employer's use
of the discriminatory practice; the 300 days were not
counting from the employer's announcement of the
discriminatory practice.
The Supreme Court reversed the decision of the lower
court and remanded the case for further proceedings.
The explicit facts and defendant's own statements
confirm and establish the termination date was "April 9,
2013" in the termination letter dated March 7, 2013. The
defendant's adverse action date to be used to file the EEOC
charges within statutes is March 7, 2013.
In conclusion, the EEOC charges filed on March 21,
2013, fourteen (14) days after the adverse action date of
March 7, 2013 were filed within the statutes.
-
-
17
Retaliation Claim
The District Court and the Eleventh Circuit had split
opinion on whether accidently not checking the box of
"retaliation" at EEOC charges by the EEOC officer makes
the claim of retaliation barred or not.
In the report and recommendation below, the district
court stated "that no claim for retaliation was presented in
the EEOC Charge. Counts I, III and IV are therefore
procedurally barred".
On the Contrary, in the Opinion below, the Eleventh
Circuit stated:
"The failure of a party to check a box marked "retaliation"
on the charge form does not administratively foreclose a
party from bring suit based on that theory, if the facts
alleged in the charge could reasonably have extended to
cover a retaliation charge. Id." "to give the agency the
information it needs to investigate and resolve the dispute
between the employee and the employer." Brown. 440
F.3d at 1263 (quotations omitted)."
The split opinion between the District Court and the
Eleventh Circuit, and the split opinion between the
precedents of Eleventh Circuit and the current opinion of
the Eleventh Circuit regarding the retaliation claim are
well-established.
The Eleventh Circuit did not rule to affirm the
retaliation claim; the District Court did not address and
rule for my retaliation claim because the District Court
adopted defendant's words that the box of "Retaliation"
was not checked at EEOC even with the fact that I reported
the retaliation to the EEOC Officer.
FMLA claims filed at EEOC on March 21. 2013
The District Court and the Eleventh Circuit had split
opinions on the date of filing the FMLA claims.
The District Court adopted defendant's false
statement that "On March 23, 2013", I filed charges
including FMLA claims with EEOC. The fact is I filed
the charges with EEOC on March 21, 2013.
The District Court adopted defendant's false date of
"March 23, 2013", which making it two years and 1 day
from the adverse action date of March 22, 2011 of denial
my request to take a family and medical leave; by contrast,
the Eleventh Circuit found and confirmed that FMLA
claims were filed on March 21, 2013 at EEOC, making it
one year, 364 days, within the two year statute of filing
FMLA claims, and within the three year statute of filing
willful violations.
Based on this false date, the District Court concluded
that "Court need not address the merits of this claim since
it is barred by the applicable two year statute of
limitations".
The District Court was deceived by defendant's
false statements on the two family and medical
leaves I requested.
Defendant University of Miami violate my
constitutional rights protected by FMLA twice: one was on
March 22. 2011 with denying my request to take a family
and medical leave to take care of my ailing parent; the
other one was to terminate me on April 9, 2013 with
termination letter dated March 7. 2013 during my medical
leave of treating cancer during October 11, 2012 to April
11,2013.
Using the March 7, 2013 violation date, the District
Court thought "her termination almost one year before
she asked for and took her FMLA leave in October 2012.
An FMLA claim for retaliation requires a causal connection
19
between the protected activity and the adverse
employment decision."
For defendant's March 22, 2011 violation date to deny
my family and medical leave requested on March 21, 2011,
the District Court adopted defendant's false statements
that it was not a "FMLA", because "unlike the FMLA leave
request Plaintiff submitted in September 2012. Plaintiff
never submitted an FMLA form signed by a doctor", the
family and medical leave request was "just a request for
extension of her Mid-Point Review."
As presented to this Court, and already to the lower
courts, on March 21, 2011,1 requested to take a family and
medical leave to take care of my ailing parent (see App. J.,
infra). Defendant denied immediately the next day on
March 22, 2011, without communicating with me for any
document of "an FMLA form signed by a doctor" for my 75
years old, retired mom (see App. K., infra). My request to
take a family and medical leave on March 21, 2011, and
defendant's denial on March 22, 2011 are presented in the
Appendix for this Court to review.
The District Court erred in conclusion that "no FMLA
violation has been demonstrated".
FMLA claims were filed on March 21, 2013 at EEOC for
the violation that University of Miami denied my request
to take a family and medical leave on March 22, 2011
within the two year statute of FMLA claims, and within the
three year statute for willful violations.
It was found inconsistencies and contradictions
between the conclusions at the District Court for the
statements: "two year statute of limitations is applied her
FMLA claims are barred", vs. "An FMLA claim for
retaliation requires a causal connection between the
protected activity and the adverse employment decision."
20
In the Opinion below, Eleventh Circuit stated regarding
my FMLA claim based on the March 21, 2011 FMLA
request to take care of my ailing parent:
"the district court addressed and rejected the merits of
Lui's FMLA retaliation and interference claims based on
the University's denial on her March 2011 request";
--
-
"Liu raises no claims based on the March 21 request";
"she has abandoned these claims. Sapuppo, 739 F.3d. at
680."
District Court erred in overlooking the FMLA claims
filed at EEOC on March 21, 2013. I have Not "abandoned"
the FMLA claims.
In the Opinion below, regarding my FMLA claim based
on my medical leave from October 11, 2012 to April 11,
2013 for treating breast cancer, the Eleventh Circuit
classified it only in the category as "FMLA retaliation"
instead of both categories of "FMLA retaliation and
interference claims":
"And for her claim raised in the district court and in this
Court that the University retaliated against her for taking
FMLA leave in October 2012, she has failed to show a
prima facie showing of retaliation on this basis." "Because
she has not shown a causal relationship, the district court
did not err in granting summary judgement on this claim."
--
-
The Eleventh Circuit thought the FMLA claim on March
22, 2011 denial was a "FMLA retaliation" claim even
though the Eleventh Circuit clearly indicated "The FMLA
allows two types of claims: (1) interference claims, in
which an employee asserts that an employer denied or
otherwise interfered with her substantive rights under the
FMLA, and (2) retaliation claims, in which an employee
asserts that an employer discriminated against her
because she engaged in activity protected by the FMLA.
21
O'Connor v. PCA Family Health Plan, Inc., 200 F.3d. at
1349,13S2 (11th Cir. 2000)."
My FMLA claims belong to the two types of FMLA claims
described above by the Eleventh Circuit.
Eleventh Circuit did not address my FMLA claims
belonging to both these two types of FMLA claims on my
two FMLA requests, one in March 2011 for taking care of
my ailing parent; the other one in September, 2012 for
treating breast cancer. I was terminated on April 9, 2013
during my medical leave of cancer.
In the Opinion below, Eleventh Circuit stated:
"We also reject Liu's claim that the district court erred by
granting summary judgement as to her FMLA claims."
The District Court adopted defendant's false date of
"March 23, 2013", which making it two years and 1 day
from the adverse action date of March 22, 2011 of denial
my request to take family and medical leave; by contrast,
the Eleventh Circuit found that FMLA claims were filed on
March 21, 2013 at EEOC, making it one year, 364 days,
within the two year statute of filing FMLA claims, and
within the three year statute of filing willful violations.
The split opinion on Filing of EEOC charges between the
District Court/Eleventh Circuit, and the decisions on
precedents in Eleventh Circuit is recognized and
supported under precedents in the Eleventh Circuit. The
split opinions between the District Court and the Eleventh
Circuit on the crucial facts of filing Retaliation claim, and
the FMLA claims are clear and well-established.
REASONS FOR GRANTING THE WRIT
The courts of appeals are intractably divided over the
proper analysis and resolution of claim-accrual questions
in disparate impact cases. Some courts hold that a
22
challenge to an employment practice with a
discriminatory adverse impact is timely if filed within the
charge-filing period after any use of the practice that
adversely affects the charging party. Other decisions hold
that a challenge is timely only if charges are filed within
the charge filing period after the charging party learns of
the adoption of the employment practice in question, even
if the practice is not immediately used to make
employment decisions and is then used repeatedly for this
purpose over a lengthy period of time.
This legal distinction is of enormous practical
importance, effectively determining whether an employer
may indefinitely follow a discriminatory employment
practice if affected employees or applicants fail to object
to the initial promulgation of the procedure within the
brief Title VII limitations period. The use of employment
practices such as the hiring procedure at issue here is
widespread and is in fact required by state or local law
for many public employers across the country making
the need for a nationally uniform claim-accrual rule
paramount.
-
-
I. There is an Acknowledged Division Among the
Courts of Appeals Regarding the Question
Presented.
This Court should grant the petition for a writ of
certiorari to resolve an important question that has long
divided the courts of appeals. The division of authority on
the question presented whether an EEOC charge for
disparate impact discrimination must be filed within the
charge-filing period after the adverse impact of an
employment practice is first announced, or whether
charges are timely if filed within the time period after any
-
23
subsequent use of that practice was raised and
acknowledged in the case Lewis v. City of Chicago.
In the case Lewis v. City of Chicago, the Honorable
Justice Scalia at the Supreme Court delivered the opinion
for a unanimous Court to rule that Lewis' EEOC charges
were filed timely within 300 days after the employer's use
of the discriminatory practice; the 300 days were not
counting from the employer's announcement of the
discriminatory practice. The Supreme Court reversed the
decision of the lower court and remanded the case for
further proceedings.
This division of authority has previously been noted by
the Third, Fifth, and Sixth Circuits, and leading
commentators likewise agree that the courts of appeals
are in conflict.
Five circuits the Second, Fifth, Ninth, Eleventh, and
D.C. Circuits have held that each instance of a repeated
refusal to hire, promote, or provide employment benefits,
based on a facially neutral policy that has a disparate
impact on a protected group and that is not job related and
consistent with business necessity, constitutes an
independent violation of Title VII. See Guardians Ass'n v.
Civil Serv. Comm'n, 633 F.2d 232, 248-50 (2d Cir. 1980),
affd on other grounds, 463 U.S. 582 (1983); Gonzalez v.
Firestone Tire & Rubber Co., 610 F.2d 241, 249 (5th Cir.
1980); Bouman v. Block, 940 F.2d 1211, 1220-21 (9th Cir.
1991); Beavers v. Am. Cast Iron Pipe Co., 975 F.2d 792,
797-800 (11th Cir. 1992); Anderson v. Zubieta, 180 F.3d
329, 335-37 (D.C. Cir. 1999). This rule provides plaintiffs
with a new limitations period that commences with each
subsequent refusal to hire (or other adverse employment
action) caused by the application of the policy.
1. The majority position in the courts of appeals is to
treat EEOC charges regarding disparate impact
discrimination in an employer's selection, pay, or benefits
-
-
24
practices as timely if filed within the limitations period
after any use of that practice.
In Bouman, the Ninth Circuit considered a Title VII
challenge to a promotional exam that allegedly had a
disparate impact on women. Bouman, 940 F.2d at 121718. Much like the instant case, the plaintiff was told when
the eligibility list was created that she was not likely to be
reached for promotion. See id. at 1217. Noting that "[t]he
crucial issue in this case is whether [the plaintiffs]
nonappointment from the eligible list was a separate
injury from the allegedly discriminatory examination
itself," the Ninth Circuit concluded that it was, and that the
plaintiffs EEOC charge filed within 300 days of the
expiration of the eligibility list was timely. Id. at 122021. The Seventh Circuit below recognized that "[t]he
Ninth Circuit reached a contrary result in Bouman v.
Block," but declared Bouman's rationale mistaken.
The Second Circuit is in agreement with the position of
the Ninth Circuit. In Guardians, the Second Circuit
addressed the timeliness of the plaintiffs' charges alleging
that an exam for police hiring had a disparate impact on
black and Hispanic applicants. Guardians, 633 F.2d at 23536. The plaintiffs filed EEOC charges several years after
creation of the eligibility list but within 300 days of the
defendant's last use of that list.
The Second Circuit held that the charges were timely
because "the results of the test were in effect being 'used
to discriminate" in violation of Title VII "each time a
member of the plaintiff class was denied a chance to fill a
vacancy." Id. at 249; see also id. at 250 ("[A]n unjustified
refusal to hire is in itself a violation which cannot be
dismissed as a mere effect of an earlier wrong.").
The Sixth and Third Circuits (which the Seventh Circuit
viewed as being in accord with it) themselves recognize a
-
-
conflict between their potion. See id. at 1217. Noting that
"[t]he crucial issue in this case is whether [the plaintiffs]
nonappointment from the eligible list was a separate
injury from the allegedly discriminatory examination
itself," the Ninth Circuit concluded that it was, and that the
plaintiffs EEOC charge filed within 300 days of the
expiration of the eligibility list was timely. Id. at 122021.
• The Seventh Circuit below recognized that "[t]he Ninth
Circuit reached a contrary result in Bouman v. Block," but
declared Bouman's rationale mistaken. The Second Circuit
is in agreement with the position of the Ninth Circuit. In
Guardians, the Second Circuit addressed the timeliness of
the plaintiffs' charges alleging that an exam for police
hiring had a disparate impact on black and Hispanic
applicants. Guardians, 633 F.2d at 235-36. The plaintiffs
filed EEOC charges several years after creation of the
eligibility list but within 300 days of the defendant's last
use of that list. The Second Circuit held that the charges
were timely because "the results of the test were in effect
being 'used to discriminate" in violation of Title VII "each
time a member of the plaintiff class was denied a chance
to fill a vacancy." Id. at 249; see also id. at 250 ("[A]
unjustified refusal to hire is in itself a violation which
cannot be dismissed as a mere effect of an earlier wrong.").
The Sixth and Third Circuits (which the Seventh Circuit
viewed as being in accord with it) themselves recognize a
conflict between their positions and the Second Circuit's
holding in Guardians. See Cox, 230 F.3d at 204 ("In
contrast to the Third Circuit, the Second Circuit treats
hiring from an allegedly tainted roster as an act of
discrimination distinct from the original acts of
discrimination."); see also Bishop v. New Jersey, 144 F.
App'x 236, 239 (3d Cir. 2005) (unpublished) (relying on
-
-
Bronze Shields and Cox, and noting that the Second
Circuit's decision in Guardians is to the contrary).
Two other circuits have addressed the same question in
the context of disparate impact claims arising from the
adoption and repeated application of employment benefit
policies.
The Eleventh and D.C. Circuits have each held that every
instance of a repeated refusal to provide employment
benefits, based on a facially neutral policy that violates
Title VII, constitutes an independent act of discrimination
and restarts the clock for filing an EEOC charge. See
Beavers, 975 F.2d at 794, 797-800 (upholding the
timeliness of a plaintiffs challenge to his employer's policy
of refusing health care coverage for children who did not
reside with the parent-employee, where the plaintiff filed
his EEOC charge eight years after his children's benefits
were first denied, because the employer had continued to
apply the policy within the filing period preceding the
plaintiffs EEOC charge); Anderson, 180 F.3d at 333, 33537 (holding that the plaintiffs' discrimination challenge to
the adverse impact of their employer's pay and benefits
policies was timely, even though the plaintiffs did not file
EEOC charges within the charge-filing period after notice
that the policies would apply to them, because each
application of the benefits policies was an actionable Title
VII violation).
2. The Seventh Circuit departed from the rule applied
in the five courts of appeals cited above, holding here that
disparate impact charges must be filed within the
limitations period after the initial announcement of the
challenged practice. The court recognized the split of
authority on this point, citing the Third Circuit's decision
in Bronze Shields and the Sixth Circuit's decision in Cox in
support of its holding.
27
In Bronze Shields, a disparate impact challenge to a civil
service test, the Third Circuit indicated that only the initial
administration of the test, and not its subsequent use to
refuse to hire minority applicants, could be a disparate
impact violation. See Bronze Shields, 667 F.2d at 1081-84.
Similarly, in Cox, the Sixth Circuit held that EEOC charges
alleging intentional racial discrimination associated with
the use of a police department promotional exam were not
timely because they were filed outside the charge-filing
period after the promulgation of the eligibility list. See
Cox, 230 F.3d at 201-04.
In sum, eight courts of appeals have weighed in on the
question presented. Five have held that EEOC charges
regarding disparate impact discrimination in an
employer's selection, pay, or benefits practices are timely
if filed within the limitations period after any use of that
practice. Three have disagreed, holding that EEOC charges
must be filed within the limitations period after the
challenged practice is initially adopted and results
showing an adverse impact first become known.
Leading employment discrimination commentators
have noted the long-established split in the circuits on this
point. A prominent treatise notes:
[W]hen an employer uses the results of a
discriminatory test over a period of time as the basis for
employment decisions,... [m]ust an aggrieved party file
a charge within the statutory period running from the
date of administration of the test, or is a charge timely
if filed while the results are still being used as a basis for
employment decisions? The courts are divided on this
issue.
Barbara T. Lindemann & Paul Grossman, 2 Employment
Discrimination Law 1775 & n.134 (4th ed. 2007)
WF
(comparing Guardians and Gonzalez with Bronze Shields);
see also Lex K. Larson, 4 Employment Discrimination §
72.07[7][c] & nn.109-11 (2d ed. 1994 & Supp. 2008) ("If
an employee chooses not to bring a timely challenge to the
methods used in compiling [an allegedly tainted]
eligibility list, should that employee subsequently be able
to challenge the failure to grant him or her a promotion?
The courts are not of one mind on this question." (citing
Cox, Bronze Shields, Guardians, Gonzalez, and Bouman)).
3. There is nothing to suggest that this widely
recognized split among the circuits will resolve itself
without this Court's intervention. The Second Circuit, for
example, has maintained its position since the Guardians
decision in 1980, and has reaffirmed its holding
repeatedly since then. The Ninth Circuit, likewise, has
recently reaffirmed its Bouman ruling. See Tatreau v. City
of Los Angeles, No. 0356638, 138 F. App'x 959, 961 (9th
Cir. 2005) (unpublished). And the Seventh Circuit was
aware of, and explicitly acknowledged, contrary and longstanding authority from other circuits in concluding that
petitioners' claims were time-barred.
This case presents an ideal vehicle for this Court to
resolve the entrenched circuit split, and affirm the ruling
in the precedent case Lewis v. City of Chicago. The
question presented is a pure question of law
unencumbered by any factual disagreement between the
parties.
In addition, the split opinion between the District Court
and the Eleventh Circuit of the timeline to file FMLA claims
within two year statute and within three year statute for
willful violations are presented here for this Court to rule.
Wal
II. The Questions Presented are of Significant
Importance to the Administration of Title VII
Claims, Retaliation Claim and FMLA Claims
This conflict requires resolution by this Court not only
because of the intractable split among the courts of
appeals, but also because clarity and uniformity regarding
the charge-filing deadline are of significant importance to
the administration of Title VII claims, retaliation claim,
and FMLA claims in the lower courts.
As a result, adverse impact lawsuits that challenge
alleged disparities caused by these employment practices
have been regularly filed for decades. This is an ongoing
feature of Title VII litigation.
Other employment criteria including, for example,
education requirements, physical standards, and noconviction policies are in common use and are frequently
challenged because of alleged adverse impact on
protected groups, including racial and ethnic minorities,
women, and older employees.
The disarray among the courts of appeals in
adjudicating the timeliness of these frequent disparate
impact challenges is contrary to Congress's determination
to establish nationally uniform protection against
employment discrimination. As the House Judiciary
Committee report on the Civil Rights Act of 1964
explained, Title VII was enacted to provide a uniform,
national solution to a national problem: "[N]ational
legislation is required to meet a national need which
becomes ever more obvious.... [The Act] is designed as a
step toward eradicating significant areas of discrimination
on a nationwide basis. It is general in application and
national in scope."
H.R. Rep. No. 88-914 (1963), reprinted in 1964
U.S.C.C.A.N. 2391, 2393. Indeed, this Court has long
-
-
30
recognized that in passing legislation to eliminate
pervasive discrimination in employment, Congress sought
to ensure "the effective application of uniform, fair and
strongly enforced policies." Morton v. Mancari, 417 U.S.
535, 547 (1974) (discussing the legislative history of the
1972 amendments to Title VII) (quoting H.R. Rep. No. 92238, at 24-25 (1971), reprinted in 1972 U.S.C.C.A.N. 2137,
2159); cf. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
754 (1998) (noting that Title VII requires a "uniform and
predictable standard").
The split among the courts of appeals also threatens to
undermine Congress's broad remedial purpose in
enacting Title VII. The Congress enacted Title VII to
eliminate systems that perpetuate workplace
discrimination:
The objective of Congress in the enactment of Title VII.
was to achieve equality of employment opportunities
and remove barriers that have operated in the past to
favor an identifiable group of white employees over
other employees. Under the Act, practices, procedures,
or tests neutral on their face, and even neutral in terms
of intent, cannot be maintained if they operate to
"freeze" the status quo of prior discriminatory
employment practices. Griggs, 401 U.S. at 429-30.
Under the District Court and the Eleventh Circuit's
ruling, a discriminatory employment practice that is not
challenged within the short charge-filing period after its
initial announcement of termination (even this
announcement of termination was failed and reversed,
even the initial announcement of termination date was
not valid), the employers may be immunized from
subsequent challenge by applicants or employees. This
outcome would undermine Congress's intent to authorize
civil actions by private litigants as an important means of
31
eradicating employment discrimination: "Congress has
cast the Title VII plaintiff in the role of 'a private attorney
general,' vindicating a policy 'of the highest priority."
New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63
(1980) (quoting Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 416 (1978)); see also Alexander v. GardnerDenver Co., 415 U.S. 36, 45 (1974) ("Congress gave
private individuals a significant role in the enforcement
process of Title VII.... [T]he private litigant not only
redresses his own injury but also vindicates the
important congressional policy against discriminatory
employment practices." (citations omitted)).
The ununiformed opinions on the so central question
as when Title VII disparate impact claims, together with
the similar essential questions regarding retaliation claim
and FMLA claims, and accrue is untenable, especially in
light of the frequency with which disparate impact
challenges to employment practices arise and the clear
Congressional mandate for nationally uniform
application of the law.
III. The Court Below Erred.
The clear and acknowledged conflict among the circuits
on this important question of employment law is
sufficient, without more, to justify this Court's review.
Certiorari is also warranted, however, because the
Eleventh Circuit's decision departs from this Court's
precedents on the timeliness of employment
discrimination claims, FMLA claims and is inconsistent
with the language of Title VII.
First, regarding timelines of filing EEOC charges, in the
case of Lewis v. City of Chicago, the Honorable Justice
Scalia at the Supreme Court delivered the opinion for a
unanimous Court to rule that Lewis' EEOC charges were
32
filed timely within 300 days after the employer's use of the
discriminatory practice; the 300 days were not counting
from the employer's announcement of the discriminatory
practice. The Supreme Court reversed the decision of the
lower court and remanded the case for further
proceedings;
Secondly, regarding the filing and timelines of
retaliation claim, this is a case with significant public
importance for this Court to rule that accidently not
checking the box of "retaliation" at EEOC charges by the
EEOC officer makes the claim of retaliation barred or not;
Thirdly, regarding the filing and timelines of FMLA
claims, this is a case with significant public importance for
this Court to rule that a request to take a family and
medical leave for an ailing parent should be considered to
be protected by the FMLA; and the filing of the FMLA
claims at EEOC was within both the two year statute, and
within the three year statute for willful violations should
be barred or not;
Fourthly, regarding evaluation on performance of a
faculty on the tenure track during the eight year
probationary period, this is a significant and
unprecedented case for this Court to rule whether not
first
authored
publications"
having
"five
submitted/accepted in one year" should be classified as
"poor performance" or not:
(1) The department chair Szapocznik gave me
unachievable goals of "five first authored
Publications" submitted/accepted in one year,
which could not be achieved by a junior faculty on
the tenure track; however, no junior faculty on the
tenure track except me was threatened to change
to a research track at 2 year 7 months; no junior
33
faculty on the tenure track except me received a
termination letter at 3 year 1 month;
The explicit evidences of publications of junior
faculty on the tenure track of the same division as
me had been presented to the lower courts none
of the junior faculty on the tenure track as me had
published five first authored publications in one
year;
The lower courts did not address and rule for my
claim of discrimination in the section that I was
given unachievable goals of "five first authored
publications" submitted/accepted in one year,
which could not be achieved by a junior faculty on
the tenure track; however, None of the junior
faculty on the tenure track was labelled by the
defendant as "poor performance" as me and none of
these junior faculty received a termination letter
discriminately at the probationary period of 2
years 7 months as me)The defendant's self-manufactured, untruthful so
called "faculty iW' as the evidence of a "poor
performance", had been presented to the lower
courts;
The defendant's hand-manufactured, self-altered
numbers of so called. "vote" as an evidence of "poor
performance" violates the Faculty Manual and is an
insult to the required documents with required
signatures and written recommendations and
actions of the dean, provost, president and the
board of trustees to comply the significant
procedure of promotion and tenure to objectively
and thoroughly evaluate a faculty on the tenure
track;
--
V
.
34
(6) If so called "failure to produce five first authored
publications" in one year is defendant's definition
of "poor performance", then all junior faculty on the
tenure track as me in the department are in the
category of a "poor performance":
None of the junior faculty on the tenure track as me
published five first authored publications in one year;
none of these junior faculty is in the same race, and
originality of the nation as me;
none of these junior faculty on the tenure track was
forced and threatened to be terminated to force them to
change to a research track during their probationary
period of 2 years 7 months as me;
none of these junior faculty on the tenure track
received an announcement of termination at 3 year 1
month during an entire eight year protected
probationary period as me; and
none of these junior faculty on the tenure track was
terminated during the medical leave as me.
Yes, indeed, "performance" is the pretext of defendant
University of Miami's practice of discriminations.
I have presented the evidences to the lower courts that
I was given unachievable goal of "five first authored
publications to be submitted/accepted" in one year; to
stage and set me to be failed since none of the junior
faculty achieve this goal; defendant Szapocznik himself did
not publish five first authored publications in one year.
It warrants for this Court to review the significant
questions regarding evaluations on junior faculty on the
tenure track, which affecting us junior faculty nationwide.
Finally, I respectfully request this Court to review the
unprovided opportunity of the lower courts for me to
present Petitioner's discoveries including the affidavits,
testimonies of 49 witnesses submitted to the counsels and
then to the lower courts; and the lower courts' ruling of
35
the summary judgement based on only two defendant'
affidavits of Szapocznik and Keitz without the affidavits,
depositions, and the testimonies from the 49 witnesses
from me. The facts warrant this Court to remand the case
for further proceedings:
The lower courts' ruling for the summary
judgement was based on the defendant's so called
"poor performance" made by defendant's handmanufactured, hand-altered one piece of paper of
so called "faculty vote" without the required
written documents, without the required actions
from the Dean, the Provost and the President of the
university stated and enforced by the Faculty
Manual;
The lower court erred in overlooking the facts that
defendant did not give any reason to terminate me
in the letters of two attempted wrongful
terminations;
According to the Federal Rules, District Court erred
in granting the defendant's summary judgment
based on only two affidavits from defendant
Szapocznik and Keitz who are the ones to threaten
and force me to change from a faculty on the tenure
track to a faculty on a research track for
defendant's staged violation to wrongfully
terminate me; and defendant Keitz is the one who
terminated me wrongfully during my medical
leave;
According to the Federal Rules Fed. R. Civ. P.
56(e)(1)(A), and Fed. R. Civ. P. 56(c)(4), the district
court erred in drawing conclusions based upon
only two defendant Szapocznik and Keitz' affidavits
with non-evidentiary, non-factual materials, and in
lack of testimonies of the witnesses;
36
The district court erred in deliberating defendant's
summary judgment prematurely without the key
testimonies of the witnesses; without the
defendant including Szapocznik and Keitz to testify
on the matters stated at the court. According to the
Federal Law, defendant Szapocznik and Keitz'
affidavits are legally insufficient to deliberate the
defendant's summary judgment;
"A discovery ruling will not be overturned unless it
resulted in substantial harm to the appellant's case.
Id. at 1307." "Fed. R. Civ. P. 16(b)(3)(A). The
schedule set forth by the court "may be modified
only for good cause and with the judge's consent."
Id. 16(b)(4).";
The Honorable Judge Zloch ordered and granted the
Pre-trial date as October 9, 2015. However,
defendant deceived the District Court to rule the
summary judgment without a trial, without any
testimonies of the 49 witnesses prior to the ruled
pre-trial date of October 9, 2015. Defendant
deliberately attempted to kill the appeal in infancy
before the granted and ruled pre-trial on October
9, 2015. The Report and Recommendation dated
July 21, 2015, and the opinion of the district court
dated August 28, 2015, were entered prior to the
Honorable Judge Zloch's ruled Pre-trial Conference
on October 9, 2015 (see App. L., infra).
Indeed, the District Court and the Eleventh Circuit's
ruling the defendant's summary judgment based on only
two defendant's affidavits, without the key discoveries of
the witnesses, resulted in substantial harm to the case, and
departed from the Federal rules to allow adequate
debates, presentations of the testimonies, and evidences
to the courts.
All junior faculty on the tenure track, including me, we
need this Court to rule this case could be an unprecedent
-
37
one, for this Court to provide a precedent and guidelines
for the practice of laws at educational institutes affecting
us faculty in over 5000 universities and colleges
nationwide.
This Court has established two clear principles
governing claim accrual in Title VII disparate treatment
cases.
A Title VII violation exists, and a new charge-filing
period consequently begins, each time an employer's
actions satisfy at the time of those actions all elements
of a violation. See Ledbetter v. Goodyear Tire & Rubber
Co., 127 S. Ct. 2162, 2167-68 (2007) (emphasizing that the
"critical question" in determining timeliness is "whether
any present violation exist[ed]" within 300 days of the
filing of the charge (quoting United Air Lines, Inc. v. Evans,
431 U.S. 553, 558 (1977))); see also Del. State Coll. v. Ricks,
449 U.S. 250, 2S2-S4,258 (1980);
Where there are recurring present violations of the
statute, that those violations may be related to an earlier
act of discrimination does not prevent new claims from
accruing (and a new charge filing period from
commencing) with each subsequent act that satisfies all
elements of a Title VII violation. This Court explained in
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101
(2002), that:
[e]ach discrete discriminatory act starts a new clock for
filing charges alleging that act. The charge, therefore,
must be filed within the 180- or 300-day time period
after the discrete discriminatory act occurred. The
existence of past acts and the employee's prior
knowledge of their occurrence, however, does not bar
employees from filing charges about related discrete
acts so long as the acts are independently
-
-
discriminatory and charges addressing those acts are
themselves timely filed.
Id. at 113; see also Ledbetter, 127 S. Ct. at 2174 ("[A]
freestanding violation may always be charged within its
own charging period regardless of its connection to other
violations.").
Applying these principles to claims of disparate impact
discrimination, an EEOC charge should be considered
timely if filed within the charge-filing period after any use
or application of a selection process that adversely affects
protected groups. Cf. Lorance v. AT&T Techs., Inc., 490 U.S.
900, 908 (1989) (noting that a claim for disparate impact
discrimination would accrue at the time the adverse effect
of an employment practice is felt by an individual
plaintiff); see also 42 U.S.C. § 2000e-2(k)(1) (A) (providing
that a disparate impact violation is established when an
employer "uses a particular employment practice that
causes a disparate impact on the basis of race" and "fails
to demonstrate that the challenged practice is job related
and consistent with business necessity").
The Eleventh Circuit's holding to the contrary results in
different claim-accrual rules for disparate treatment and
disparate impact cases, despite this Court's recognition
that the same set of facts can be the subject of both
disparate treatment and disparate impact analysis. See
Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 33536 n.15 (1977) (describing the disparate treatment and
disparate impact theories, and noting that "[e] ither theory
may, of course, be applied to a particular set of facts"); see
also Barbara T. Lindemann & Paul Grossman, Employment
Discrimination Law 3-2 (Supp. 2008) ("Courts
permit
plaintiffs to assert both disparate treatment and disparate
impact theories in a single case..
• . .
. . .
.
Accordingly, the Eleventh Circuit's holding that
petitioners' right to challenge defendant University of
Miami's discriminations, retaliation, and FMLA violations
expired 300 days after the adverse action was first made
and announced on October 7, 2011- no matter that
announcement was reversed, and that University
subsequently used its discriminatory classification, and
performed the adverse action on March 7, 2013 to
terminate me as an employee taking medical leave is
wrongly decided under this Court's precedents, and
should be reviewed.
-
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
I appeal to this Supreme Court of the United States to
move the case to a trial before the Court and before the
jury to allow all evidences including depositions,
affidavits, and testimonies by the witnesses to be
presented to the Court;
I appeal to this Supreme Court of the United States to
remand the case to a trial for receiving full, fair, impartial
hearings before the Court, and before the jury, and for
justice to be administered and served.
WHEREFORE, I, Pro Se, Dr. Wen Liu, respectfully request
this Supreme Court of the United States grant this Petition.
Respectfully submitted,
By:
Wen Liu
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