Petition for Writ of Certiorari — Lisa Washington, Petitioner v. Alex M. Azar, II, Secretary of Health and Human Services

No.

3n Tbe

'upreme Court of the Guiteb 6tateo

4

LISA WASHINGTON,

Petitioner,

V.

ALEX MICHAEL AZAR II,

Respondent.

4

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

4

PETITION FOR A WRIT OF CERTIORARI

4

LISA WASHINGTON

Pro Se Petitioner

14311 Bowsprit Lane, #21

Laurel, MD 20707

livirowarren@yahoo.com

240-370-0910

QUESTION PRESENTED FOR REVIEW

Lisa Washington, the Petitioner, seeks that this

Honorable Court grants this Petition for Writ of Certiorari. The Petitioner presents issues herein that have

a great impact upon public policy, that is the burden of

proof necessary to overcome summary judgment for a

complaint alleging unfair equal pay and discrimination based on race as well as workplace retaliation, in

violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000(e) et seq.

WHETHER THIS COURT MUST APPLY

STRICT SCRUTINY IN REVIEWING THE

LOWER COURTS' DECISIONS AFTER DEVIATING FROM APPLICABLE CASE AND

STATUTORY LAW AND DISMISSING A TITLE VII COMPLAINT AT THE SUMMARY

JUDGMENT STAGE AGAINST AN EMPLOYER AFTER THE PETITIONER PRESENTED SUBSTANTIAL EVIDENCE THAT

SHE WAS DISCRIMINATED AGAINST,

SUCCUMBED TO UNFAIR HIRING PRACTICES, DID NOT RECEIVE EQUAL AND

FAIR PAY DUE TO HER RACE, AND THEN

RETALIATED AGAINST RESULTING IN

VIOLATION OF HER CONSTITUTIONAL

RIGHTS?

11

PARTIES TO THE PRESENT MATTER

Lisa Washington

-

Petitioner

Alex Michael Azar II,* Secretary, Department of

Health and Human Services Respondent

-

* Alex Michael Azar II, was substituted for his predecessor,

Sylvia Mathews Burwell, as Secretary, Department of Health and

Human Services, per Rule 35 of Rules of the Supreme Court.

111

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ..........i

PARTIES TO THE PRESENT MATTER.............ii

TABLE OF CONTENTS ......................................iii

TABLE OF AUTHORITIES.................................v

OPINIONS BELOW .............................................

STATEMENT OF THE BASIS OF JURISDICTION OF THE SUPREME COURT .................1

CONSTITUTIONAL, STATUTORY AND ORDINANCE PROVISIONS INVOLVED IN THIS

CASE................................................................2

STATEMENT OF THE CASE..............................3

ARGUMENT IN SUPPORT OF PETITIONER'S

WRIT OF CERTIORARI ..................................7

I. THIS COURT MUST APPLY STRICT

SCRUTINY IN REVIEWING THE LOWER

COURTS' DECISIONS AFTER DEVIATING

FROM APPLICABLE CASE AND STATUTORY LAW AND DISMISSING A TITLE

VII COMPLAINT AT THE SUMMARY

JUDGMENT STAGE AGAINST AN EMPLOYER AFTER THE PETITIONER PRESENTED SUBSTANTIAL EVIDENCE THAT

SHE WAS DISCRIMINATED AGAINST,

SUCCUMBED TO UNFAIR HIRING PRACTICES, DID NOT RECEIVE EQUAL AND

FAIR PAY DUE TO HER RACE, AND

THEN RETALIATED AGAINST RESULTING IN VIOLATION OF HER CONSTITUTIONAL RIGHTS.......................................7

lv

TABLE OF CONTENTS

-

Continued

Page

The Petitioner's complaint should not

have been dismissed at the summary

judgment stage thereby usurping the

role of the jury.....................................12

The lower courts erred in failing to

deem that the pattern, acts and retaliatory hostile work environment constituted violations of Title VII and the

U.S. Constitution .................................15

C) The lower courts erred by dismissing

the pay disparate as a windfall for the

similarly situated white employee in a

Civil Rights discrimination case .........24

CONCLUSION.....................................................24

United States Court of Appeals for the Fourth

Circuit, Opinion, April 2, 2018.........................App. 1

United States Court of Appeals for the Fourth

Circuit, Judgement, April 2, 2018 ...................App. 3

United States District Court for the District of

Maryland, Southern Division, Memorandum

Opinion, November 9, 2017 .............................App. 4

United States District Court for the District of

Maryland, Southern Division, Order, November9, 2017 ......................................................App. 21

TABLE OF AUTHORITIES

Page

CASES:

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986).............................................................9, 10, 14

Bazemore v. Friday, 478 U.S. 385 (1986).......................24

Beard v. Annis, 730 F.2d 741 (11th Cir. 1984)............21

Bouchat v. Bait. Ravens Football Club, Inc., 346

F.3d 514 (4th Cir. 2003).......................................9, 10

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d

264 (4th Cir. 2015).....................................................9

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)..........9, 12

Collins v. City of Harker Heights, 503 U.S. 115

(1992).......................................................................23

Daniels v. Williams, 474 U.S. 327 (1986)....................23

DeMasters v. Carilion Clinic, 796 F.3d 409 (4th

Cir. 2015) ...........................................................15, 16

Dennis v. Columbia Colieton Med. Ctr., Inc., 290

F.3d 639 (4th Cir. 2002)...........................................10

EEOC v. Abercrombie & Fitch Stores, Inc., 135

S. Ct. 2028 (2015)......................................................9

Felty v. Graves-Humphreys Co., 818 F.2d 1126

(4th Cir. 1987)..........................................................14

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)............9

Haulbrook v. Michelin North America., Inc., 252

F.3d 696 (4th Cir. 2001)...........................................13

Vi

TABLE OF AUTHORITIES

-.

-

Continued

Page

Haywood v. Locke, 387 F. App'x 355 (4th Cir.

2010) ........................................................................20

Hill v. Lockheed Martin Logistics Mgmt., Inc.,

354 F.3d 277 (4th Cir. 2004)....................................16

Hoyle v. Freightliner, LLC, 650 F.3d 321 (4th Cir.

2011) ........................................................................18

James v. Booz-Allen & Hamilton, inc., 368 F.3d

371 (4th Cir. 2004)...................................................18

King v. Rumsfeld, 328 F.3d 145 (4th Cir. 2003) ...........8

Lettieri v. Equant, Inc., 478 F.3d 640 (4th Cir.

2007). .................................................................. 16,17

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574 (1986).........................................9

McDonnell Douglas Corp. v. Green, 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).... 8, 16, 18, 19

Mennonite Bd. of Missions v. Adams, 462 U.S.

791, 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983) 22,23

....

Miller v. Leathers, 913 F.2d 1085 (4th Cir. 1990).......14

Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950) .....22, 23

National Railroad Passenger Corp. v. Morgan,

536 U.S. 101, 122 S. Ct. 2061 (2002).................17, 20

Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201

(1998).........................................................................20

Price Waterhouse v. Hopkins, 490 U.S. 228, 109

S. Ct. 1775, 104 L. Ed. 2d 268 (1989) .....................19

Vii

TABLE OF AUTHORITIES

-

Continued

Page

Pryor v. United Air Lines, Inc., 791 F.3d 488 -(4th

Cir. 2015) .................................................................17

Rigg v. Urana, 113 F. Supp. 3d 825 (M.D.N.C.

2015) ........................................................................16

Smith v. First Union Nat'l Bank, 202 F.3d 234

(4th Cir. 2000)..........................................................18

Sylvia Dev. Corp. v. Calvert County Md., 48 F.3d

810 (4th Cir. 1995)...................................................14

Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) ........................................21

University of Texas Southwestern Med. Ctr. v.

Nassar, 133 S. Ct. 2517, 570 U.S. 338, 186

L. Ed. 2d 503 (2013) ................................................16

Villa v. Cava Mezze Grill, LLC, 858 F.3d 896 (4th

Cir. 2017) .................................................................15

Woollard v. Gallagher, 712 F.3d 865 (4th Cir.

2013) ........................................................................13

CONSTITUTION

U.S. Const. amend. XIV ................................................2

STATUTES AND RULES

28 U.S.C. § 1254 ............................................................1

42 U.S.C. H 2000(e) et seq..................................passim

42 U.S.C. § 2000e-2(m) .................................................. 9

42 U.S.C. § 2000e-5(e) .................................................17

vii'

TABLE OF AUTHORITIES

-

Continued

Page

42 U.S.C. § 2000e-5(e)(3)(A) ........................................ 21

42 U.S.C. § 2000e-5(e)(3)(B) .................................. 21, 22

Federal Rule of Civil Procedure 56(a)....................9, 12

OTHER AUTHORITIES

Black's Law Dictionary 1631 (8th Ed. 2004) .............24

I-I

OPINIONS BELOW

The case is presented to this Honorable Court

from an appeal from a decision of the Fourth Circuit

Court of Appeals, which decision is dated April 2, 2018.

(App. 1-3).

The Petitioner filed an original appeal from a decision of the United States District Court for the District of Maryland dated November 9, 2017 granting

summary judgment in favor of the Respondent. (App.

4-21).

This Writ for Certiorari is timely filed.

STATEMENT OF THE BASIS OF

JURISDICTION OF THE SUPREME COURT

The statutory provision for this Court's jurisdiction is 28 U.S.C. Section 1254. The Fourth Circuit

Court of Appeals rendered a final decision on April 2,

2018. (App. 1-3). This Petition in the Nature of a Writ

of Certiorari has been timely filed.

PA

CONSTITUTIONAL, STATUTORY

AND ORDINANCE PROVISIONS

INVOLVED IN THIS CASE

a) Fourteenth Amendment, United States Constitution:

The Due Process Clause of the Fourteenth Amendment provides that no State "shall. deprive any person of life, liberty, or property, without due process of

law...

.

.

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 (Pub. L.

88-352) (Title VII), as amended, as it appears in volume 42 of the United States Code, beginning at section

2000e.

It shall be an unlawful employment practice for an

employer

-

to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate

against any individual with respect to his

compensation, terms, conditions, or privileges of employment, 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

3

such individual's race, color, religion, sex,

or national origin.

(b) Employment agency practices

It shall be an unlawful employment practice

for an employment agency to fail or refuse to

refer for employment, or otherwise to discriminate against, any individual...

STATEMENT OF THE CASE

Procedural History

-

The Petitioner alleged that the Employer engaged

in acts of discrimination based on race and retaliation

claims in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000(e) et seq.

The Petitioner filed a Complaint in the United

States District Court for the District of Maryland on

November 4, 2016 against the Respondent, Sylvia

Mathews Burwell, Secretary Department of Health

and Human Services (the "Respondent"). On April 10,

2017, the Respondent filed a Motion for Summary

Judgment. The Petitioner filed an Opposition on April

26, 2017.

The District Court rendered a decision on November 9, 2017, granting summary judgment stating that

the Petitioner alleged no genuine issue to any material

fact, and thus, the Respondent was entitled to judgment as a matter of law. (App. 4-21).

On November 30, 2017, the Petitioner timely filed

a Notice of Appeal to the Fourth Circuit Court of Appeals. On April 2, 2018, the Fourth Circuit affirmed the

District Court's decision finding no reversible error.

(App. 1-3). The Fourth Circuit also denied the Petitioner's motion for appointment of counsel, to file a formal brief, and for oral argument.

Therefore, the Petitioner seeks relief from this

Honorable Court.

Factual Background

Lisa Washington, the Plaintiff-Petitioner, a black

female nurse (hereinafter referred to as the "Petitioner"), was hired under Title 42, by the National Institutes of Health (the "Employer") as a perioperative

nurse in the Clinical Center.

The Petitioner was hired on the same day as Karen Holcomb, a white female, for the same position.

Michael Borostovik, the Operating Room Nurse Coordinator, was the hiring manager.

The Petitioner had two years' experience as a registered nurse in the operating room plus seventeen

years of scrub technician experience in the operating

room. The job announcement specifically stated that

an applicant needed scrub experience for the position.

The Employer offered the Petitioner a starting salary

of $67,700.00, and no sign on bonus (which was $6.00

less per hour than previous employer).

5

Ms. Holcomb had four years' experience as a registered nurse, but none as a scrub nurse. Her starting

salary with the Employer was $78,000.00, plus a

$10,000.00 sign on bonus, which salary was allegedly

based on paystubs.

According to Title 42, an employer needs to examine the paystub and the benefit package from the

previous employer as well as the market rate. The Petitioner had more total experience than Ms. Holcomb.

However, Ms. Holcomb had a higher salary than

the Petitioner and was given special tasks and was

later internally promoted. When the Petitioner objected to the disparate wages and treatment, the Employer retaliated against her. In fact, the Employer

unjustifiably downgraded the Petitioner's evaluation

from a favorable 4.6 to zero. The Petitioner resigned in

2013.

The Petitioner filed a claim against the Employer

with the U.S. Equal Employment Opportunity Commission. During discovery, the following evidence was

gathered:

1) The supervisor, Mr. Borostovik alleged

that during the hiring process, Ms. Holcomb informed him during a phone conversation that she was allegedly not

receiving health benefits from her previous employer. Further,the Petitioner presented evidence that in 2009 Theresa

Granitto was hired as a registered nurse;

she had four years' experience and her

starting salary was $60,500.00. Another

registered nurse, Ada Rivera, a Hispanic

woman, had 35 years' experience and her

salary was $74,000.00.

The discovery also showed that the most

the Petitioner received in salary with the

Employer was $74,000.00, after five years

of registered nurse experience.

Due to her experience and impeccable

work ethic, the Petitioner sought a promotion. The Employer denied the promotion. In fact, the Employer gave Ms.

Holcomb a Neuro-Ortho Coordinator position three months before anyone could

even apply for the position.

Thereafter, once the Petitioner objected to

the unfair acts within the department,

the Employer retaliated against the Petitioner by creating a hostile work environment and downgraded the Petitioner's

evaluation from 4.6 to zero without justification or cause. The unfair evaluation

caused the Petitioner difficulty in obtaining a registered nurse position within the

government, thereby affecting her reputation and profession.'

The EEOC dismissed the Petitioner's claim.

On November 4, 2016, the Petitioner then filed a

Complaint in the United States District Court for the

1

In fact, the District Court's Opinion admitted that the Peti-

tioner's June 2013 "performance evaluation could be construed to

be an adverse action." (Opinion, App. 19).

7

District of Maryland against the Respondent, Sylvia

Mathews Burwell, Secretary Department of Health

and Human Services, alleging discrimination based on

race and retaliation. (See procedural history above).

ARGUMENT IN SUPPORT OF

PETITIONER'S WRIT OF CERTIORARI

I.

THIS COURT MUST APPLY STRICT SCRUTINY IN REVIEWING THE LOWER COURTS'

DECISIONS AFTER DEVIATING FROM APPLICABLE CASE AND STATUTORY LAW

AND DISMISSING A TITLE VII COMPLAINT

AT THE SUMMARY JUDGMENT STAGE

AGAINST AN EMPLOYER AFTER THE PETITIONER PRESENTED SUBSTANTIAL EVIDENCE THAT SHE WAS DISCRIMINATED

AGAINST, SUCCUMBED TO UNFAIR HIRING PRACTICES, DID NOT RECEIVE EQUAL

AND FAIR PAY DUE TO HER RACE, AND

THEN RETALIATED AGAINST RESULTING

IN VIOLATION OF HER CONSTITUTIONAL

RIGHTS.

The Petitioner provided substantial evidence at

the summary judgment stage of acts that constituted

discrimination resulting in unfair pay, failure to promote, and retaliation thereby creating a hostile work

environment. At the summary judgment stage, the Petitioner met her burden of proof for a jury to review

the merits of the case. Not only did the Petitioner provide substantial credible evidence, but she submitted

genuine material disputed facts that there were no

safeguards used during the hiring process to protect

against discriminatory hiring and payroll decisions.

Title VII prohibits discrimination against any

employee on the basis of national origin. 42 U.S.C.

§ 2000e-2(a)(1). To make out a prima facie case of discrimination, a plaintiff must show (1) that she is a

member of a protected class; (2) that she suffered from

an adverse employment action; (3) that at the time her

employer took the adverse employment action, she was

performing at a level that met the employer's legitimate expectations; and (4) that the position was filled

by a similarly qualified applicant outside of the plaintiff's protected class. King v. Rumsfeld, 328 F.3d 145,

149 (4th Cir. 2003). If the plaintiff establishes a prima

facie case, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason for

the employee's" decision. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973). If the employer can

articulate such a reason, the burden shifts back to the

plaintiff to prove that the proffered legitimate reason

is mere pretext for discrimination. Id.

The Employer violated the provisions of Title VII.

At minimum, the Employer failed to provide any legitimate reason as to why a white nurse with significant

less experience had a higher salary, received a signing

bonus, and was promoted. Further, the Petitioner presented evidence that there were other minority nurses

with more experience with a lower salary than the

white nurse. At minimum such material facts overcame summary judgment.

'a,

An employer will be held liable for racial or

national origin discrimination if "a protected characteristic [is] a 'motivating factor' in an employment

decision." E.E.O.C. v. Abercrombie & Fitch Stores,

Inc., 135 S. Ct. 2028, 2032 (2015) (quoting 42 U.S.C.

§ 2000e-2(m)). In addition, "[a] hostile [work] environment exists 'when the workplace is permeated with

discriminatory intimidation, ridicule, and insult that

is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive

working environment."' Boyer-Liberto v. Fontainebleau

Corp., 786 F.3d 264 (4th Cir. 2015) (quoting Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

The Petitioner provided evidence that suggested

that race was a factor in wages, bonuses, and promotions. Under Federal Rule of Civil Procedure 56(a), the

Court grants summary judgment if the moving party

demonstrates that there is no genuine issue as to any

material fact, and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In assessing the Motion, the Court views the facts in the

light most favorable to the nonmoving party, with all

justifiable inferences drawn in its favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court

may rely only on facts supported in the record, not

simply assertions in the pleadings. Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.

2003). The nonmoving party has the burden to show a

genuine dispute on a material fact. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87

(1986). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson,

477 U.S. at 248. A dispute of material fact is only "genuine" if sufficient evidence favoring the nonmoving

party exists for the trier of fact to return a verdict for

that party. Id. at 248-49.

"The party opposing a properly supported motion

for summary judgment 'may not rest upon the mere allegations or denials of [his] pleadings,' but rather must

'set forth specific facts showing that there is a genuine

issue for trial." Bouchat v. Baltimore Ravens Football

Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003). The court

should "view the evidence in the light most favorable

the nonmovant, and draw all inferences in her

to

favor without weighing the evidence or assessing the

witnesses' credibility." Dennis v. Columbia Colleton

Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).

...

In Anderson, the Supreme Court explained that

in considering a motion for summary judgment, the

"judge's function is not himself to weigh the evidence

and determine the truth of the matter but to determine

whether there is a genuine issue for trial." A dispute

about a material fact is genuine "if the evidence is such

that a reasonable jury could return a verdict for the

nonmoving party." Id., 477 U.S. at 248. "The judge must

ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a

fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252.

11

In our facts, the Petitioner presented such evidence that there was a disparity of pay between herself

and Ms. Holcomb as well as other minority employees

that she was not offered a hiring bonus, that she was

denied a promotion, and that she was retaliated

against. The Petitioner did not receive equal pay for

equal work while the Employer employed them. In

fact, since the Petitioner had more experience than

Ms. Holcomb, she should have had a higher salary. A

trier of facts did not review these genuine material

facts, and summary judgment was erroneously granted.

In the totality of the facts and circumstances, the

Petitioner met her burden of proof that the Employer

used bias or discriminatory acts that are prohibited by

statutory law and the Constitution. Given the applicable standard, the Petitioner met her burden of proof at

the summary judgment stage, and she was denied a

trial on the merits. Public policy mandates that the Petitioner's complaint contained sufficient facts to overcome summary judgment.

The seriousness of the Petitioner's constitutional

rights and the violation thereof must be considered circumstances to warrant a grant of the Petition/Writ. Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as

amended, 42 U.S.C. § 2000e et seq., prohibits employers from discriminating on the basis of race, color,religion, sex, or national origin, or retaliating against their

employees for opposing or seeking relief from such discrimination.

12

In 1991, Congress amended Title VII to further

specify that, -"[e]xcept as otherwise provided in this

subchapter, an unlawful employment practice is established when the complaining party demonstrates that

race, color, religion, sex, or national origin was a motivating factor for any employment practice, even

though other factors also motivated the practice." 42

U.S.C. § 2000e-2(m).

Given the nature and purpose of the Title VII statute and the constitutional requirements embedded

therein, the Petitioner's complaint was wrongfully dismissed.

a) The Petitioner's complaint should not

have been dismissed at the summary

judgment stage thereby usurping the

role of the jury.

A court will grant summary judgment if "there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.

Civ. P. 56(a). "A dispute is genuine if the evidence about

the fact.is such that a reasonable jury could resolve

the point in the favor of the non-moving party. A fact

is material if it has the potential of determining the

outcome of the litigation." Celotex, 477 U.S. at 323. The

party moving for summary judgment has the initial

burden of "demonstrat[ing] the absence of a genuine

issue of material fact" with definite and competent

evidence. Id.

13

In our facts, the District Court and Fourth Circuit

failed to apply the proper analysis since the Respondent did not meet the required burden of proof. In the

District Court's opinion, the court accepted the Employer's vague explanation of experience and pre-hire

salaries. Still there was nowhere in the pay scale to invite signing bonuses. The Petitioner,with more overall

experience, was never offered such money. Also, the

Employer used monetary worth of benefits of previous

employment for the white nurse, but not the Petitioner.

The Petitioner was not given opportunities to be promoted even though her review was marked high. In

contrast, the Petitioner provided substantial material

disputed facts detailing acts that violated federal and

state statutes as well as case law. An extraordinary

and arbitrary standard was imposed upon the Petitioner. The Employer's explanation was merely a pretext when the Petitioner submitted genuine material

facts of the disparate treatment for white v. non-white

employees.

"Summary judgment is appropriate only if the record shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment

as a matter of law." Woollard v. Gallagher, 712 F.3d

865, 873 (4th Cir. 2013). Summary judgment properly

is granted when, construing the evidence in the record

and drawing all reasonable inferences in favor of the

non-moving party, it nevertheless is "perfectly clear"

that no genuine dispute of fact exists. Haul brook v.

Michelin N Am., 252 F.3d 696, 702 (4th Cir. 2001).

14

A court views the evidence and reasonable inferences drawn therefrom in the light most favorable

to the nonmoving party. Anderson, 477 U.S. at 255.

Whether an inference is reasonable must be considered in conjunction with competing inferences to the

contrary. Sylvia Dev. Corp. v. Calvert Cty., 48 F.3d

810, 818 (4th Cir. 1995). Nonetheless, the nonmoving

"party is entitled 'to have the credibility of his evidence

as forecast assumed." Miller v. Leathers, 913 F.2d

1085, 1087 (4th Cir. 1990). Ultimately, the court must

adhere to the affirmative obligation to bar factually

unsupportable claims from proceeding to trial. Felty

v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.

1987).

In our facts, the lower courts placed an impermissible burden of proof upon the Petitioner at the summary judgment stage of litigation to establish the

disparate treatment of wages, salary and promotion

derived from a discriminatory environment that the

Petitioner was subject to. When she complained, the

Employer retaliated, demoted her, wrote an unwarranted review, and destroyed her professionalism. The

Petitioner submitted sufficient facts that the Employer's intent was based upon her race, given that a

white nurse hired at the same time as the Petitioner

with less experience was given a higher salary, a bonus

and a promotion. The Employer failed to comply with

the salary guidelines established under the statute. If

there was any vagueness, public policy mandates an

opportunity to amend the complaint, conduct further

15

discovery, and allow a trier of facts to review the merits

of the case.

b) The lower courts erred in failing to

deem that the pattern, acts and retaliatory hostile work environment constituted violations of Title VII and the

U.S. Constitution.

Title VII prohibits an employer from taking discriminatory action against an employee for availing

himself of Title VII rights or remedies. See Villa v.

Cava Mezze Grill, LLC, 858 F.3d 896, 900 (4th Cir.

2017). To prove retaliation, a plaintiff must demonstrate (1) that he engaged in a protected activity;

(2) that the employer took an adverse employment action against him, and (3) a causal link exists between

the two actions. Id.

The District Court failed to analyze the genuine

material disputed facts that the Petitioner was retaliated against and was subject to a hostile work environment after she raised the issues of disparate treatment

of salary, promotion, bonuses, and fair reviews.

A plaintiff asserting a retaliation claim under Title 'VII must establish: (1) engagement in a protected

activity; (2) adverse employment action; and (3) a causal

link between the protected activity and the employment action. DeMasters v. Carilion Clinic, 796 F.3d

409, 416-17 (4th Cir. 2015) ("Title VII forbids employment discrimination based on 'race, color, religion,

sex, or national origin,' 42 U.S.C. § 2000e-2(a), and its

16

anti-retaliation provision serves to prevent an employer from interfering (through retaliation) with an

employee's efforts to secure or advance enforcement of

the Act's basic guarantees." Id. Title VII retaliation

claims involve traditional principles of "but-for causation," requiring "proof that the unlawful retaliation

would not have occurred in the absence of the alleged

wrongful action or actions of the employer." University

of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S.

338, 360 (2013). However, as noted above, "[a] plaintiff

is not required to plead facts that constitute a prima

facie case in order to survive a motion to dismiss

[but] factual allegations must be enough to raise a

right to relief above the speculative level." Rigg v.

Urana, 113 F. Supp. 3d 825, 829 (M.D.N.C. 2015).

.

To preclude summary judgment on a Title VII disparate treatment claim, a plaintiff must establish intentional discrimination through one of two methods.

The plaintiff may either demonstrate through direct or

circumstantial evidence that sex discrimination "motivated the employer's adverse employment decision,"

Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d

277, 284 (4th Cir. 2004), or proceed through the approach espoused in McDonnell Douglas v. Green, 411

U.S. 792 (1973). Under that framework, "the plaintiff

has the burden to establish a prima facie case" of discrimination. Lettieri v. Equant, Inc., 478 F.3d 640, 646

(4th Cir. 2007). If the plaintiff does so, "the burden

shifts to the employer at the second step 'to articulate

a legitimate, nondiscriminatory reason for the adverse

employment action." Id. at 646. Upon such a showing,

17

the burden then returns to the plaintiff at the third

step to show, by a preponderance of the evidence, that

the proffered nondiscriminatory reason "is actually a

pretext for discrimination." Id.

The Employer's continuous acts caused a hostile

work environment. The U.S. Supreme Court addressed

the applicability and scope of the "continuing violations" doctrine in National Railroad Passenger Corp.

v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002). The

Court held that "consideration of the entire scope of a

hostile work environment claim, including behavior alleged outside the statutory time period [defined in 42

U.S.C. § 2000e-5(e)], is permissible for purposes of assessing liability, so long as any act contributing to that

hostile environment takes place within the statutory

time period." Id. at 2068.

To prove a hostile work environment claim, a

plaintiff must show that the complained-of conduct

was (1) unwelcome; (2) based on a protected characteristic; (3) sufficiently severe or pervasive to alter the

conditions of employment and to create an abusive

work environment; and (4) imputable to his employer.

See Pryor v. United Air Lines, Inc., 791 F.3d 488, 49596 (4th Cir. 2015).

Whether the plaintiff has established the existence of a hostile work environment depends on "(1) the

frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it

unreasonably interferes with [the] employee's work

performance." Smith v. First Union Nat'l Bank, 202

F.3d 234, 242 (4th Cir. 2000).

In order to prevail under Title VII, "the existence

of some adverse employment action is required."

James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371,

375 (4th Cir. 2004). An "adverse employment action" is

one that "constitutes a significant change in employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Hoyle v. Freightliner, LLC, 650 F.3d 321, 337

(4th Cir. 2011). Obviously in our facts, the Petitioner

had a significant change in wages and promotion and

the Employer's retaliatory measures significantly impacted her professionalism and future job opportunities since the Employer changed a high marked review

to one of complete erroneous comments that would prevent her from future government work.

Given the facts as stated above, the Employer

created a hostile work environment based on retaliation. The courts placed an unconstitutional and impermissible burden of proof upon the Petitioner to meet

that Employer's acts constituted a hostile work environment based on her race and retaliation in violation

of Title VII. For claims such as the Petitioner, which

lack direct evidence of intent to discriminate, the wellestablished McDonnell Douglas/Burdine2 burden-shifting

In McDonnell Douglas Corp. v. Green, 411 U.S. 792,93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973), the Supreme Court established the

standard necessary for a claimant to establish a prima facie case

of discriminatory treatment under the evidentiary framework in

2

19

framework applies to claims of discrimination brought

under Title VII.

A Title VII plaintiff may make a claim for discrimination "under either the pretext theory set forth in

McDonnell, or the mixed-motive theory set forth in

Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct.

1775, 104 L. Ed. 2d268 (1989).

The "pretext" and "mixed-motive" labels can be

misleading because, even in a case that does not qualify for a burden-shifting instruction, the employer's

challenged conduct may nevertheless result from two

or more motives, and the plaintiff "need not necessarily

show 'pretext' but may prevail simply by showing,

through direct or circumstantial evidence, that the

challenged action resulted from discrimination." Id.

Under either theory of discrimination, the plaintiff

must establish that his protected status was a factor

in the employer's challenged action. The difference

is in the degree of causation that must be shown: in

a "mixed-motive" case, the plaintiff must ultimately

Title VII of the Civil Rights Act of 1964 cases, the plaintiff must

prove that: (1) he/she belongs to a racial minority; (2) he/she

applied and was qualified for a job for which the employer was

seeking applicants; (3) despite the plaintiff's qualifications, the

plaintiff was rejected; and (4) after such rejection, the position remained open and the employer continued to seek applicants from

persons of the plaintiff's qualifications. Once the plaintiff has met

this initial burden, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for

the plaintiff's rejection; if the trier of facts finds that the elements

of the prima facie case are supported by a preponderance of the

evidence and the employer remains silent, then the court must

enter judgment for the plaintiff. Id.

WE

prove that her protected status was a "motivating" factor, whereas in a non-mixed-motive or "pretext" case,

the plaintiff must ultimately prove that her status was

a "determinative" factor.

Where a plaintiff relies on comparators to establish his prima facie claim, those comparators must be

"similar in all relevant respects," including "evidence

that the employees dealt with the same supervisor"

and 'engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of

them for it." Haywood v. Locke, 387 F. App'x 355, 359

(4th Cir. 2010). Obviously, the underlying facts evidence relate to same supervisor, same position, and

similar opportunities. At minimum, the facts were sufficient to overcome summary judgment.

It is against public policy for a claimant who was

subject to a hostile work environment to be punished

again by the courts with misapplied rules. "A hostile

work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice." Morgan, 536 U.S. at 117, 122 S. Ct.

2061. The workplace becomes "hostile" for purposes of

a Title VII claim only when it is "permeated with discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions

of the victim's employment and create an abusive

working environment." Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 78, 118 S. Ct. 998, 140 L. Ed. 2d

201 (1998).

21

If given the opportunity, the Petitioner would

submit additional evidence to discredit any proffered

reason that discrimination and retaliation were more

likely than not a motivating or substantial cause of the

adverse action.

Employment discrimination cases should be disposed of at summary judgment only with "extreme

caution." See Beard v. Annis, 730 F.2d 741, 743 (11th

Cir. 1984). The Employer's explanation of its legitimate

reasons must be clear and reasonably specific. Texas

Department of Community Affairs v. Burdine, 450 U.S.

248, 250 (1981). In our case, the reasons are boilerplate.

Given this high standard of proof, the Petitioner

should have been given the opportunity to present her

case before the jury no jury has had the opportunity

to weigh the evidence of her allegations since the complaint was dismissed.

Furthermore, the Lilly Ledbetter Fair Pay Act

of 2009 amended Title VII. See Lilly Ledbetter Fair

Pay Act of 2009, § 3(A), § 3(B), codified at 42 U.S.C.

§§ 2000e-5(e)(3)(A), (B). Under 42 U.S.C. § 2000e5(e)(3)(A), each paycheck that arises from a discriminatory compensation practice is regarded as a separate

violation of Title VII. And, discrimination based on

race may form the basis of a claim under §§ 2000e5(e)(3)(A), (B). See § 1981a. Moreover, a claimant "may

where the unlawful employment

obtain relief

practices that have occurred during the charge filing

period are similar or related to unlawful employment

.

.

.

22

practices with regard to discrimination in compensation that occurred outside the time for filing a charge."

§ 2000e-5(e)(3)(B).

The Petitioner's case must fall to the jury in order

to preserve her substantive right of the opportunity to

be heard due to the allegations of violation of discrimination by her employer. Mennonite Bd. of Missions v.

Adams, 462 U.S. 791, 195, 103 S. Ct. 2706, 2709, 77

L. Ed. 2d 180 (1983); Mullane, supra, at 657. The Petitioner's claims have such significance her lost benefits,

wages, status, reputation and professional- well-being.

-

The fundamental requisite of due process is the

opportunity to be heard. Applying the fundamental

principles of due process, it is readily apparent that the

lower court misapplied the basic constitutional concept

the Petitioner was not given a reasonable opportunity to present her case from an arbitrary or unjust

appropriation and defend her interest in her property

of her reputation.

-

Therefore, the lower courts' decisions must be reversed and the case remanded to the docket and a trial

scheduled as to the merits. At the summary judgment

stage, the Petitioner submitted sufficient facts to develop the discriminatory practices, the unfair and disparate treatment of workers' salaries and promotions

based on race. When the Petitioner objected to the Employer's acts, then she was retaliated against and was

subject to a hostile working environment all which

violated Title VII.

-

23

In our facts, there was no justified reason proffered by the Employer, so the burden never shifted

back to Petitioner. The Employer's acts violated public

policy. If given the opportunity, Petitioner would submit substantial evidence to discredit any proffered reason that discrimination was more likely than not a

motivating or substantial cause of the adverse action.

The Petitioner was denied the opportunity to have her

professional status and loss income swiped away without due process.

The Due Process Clause provides that a state shall

not "deprive any person of life, liberty, or property

without due process of law." U.S. Const. Amend. XIV,

§ 1; Mennonite Bd. of Missions v. Adams, 462 U.S. 791,

795, 103 S. Ct. 2706, 2709, 77 L. Ed. 2d 180 (1983);

Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950).

The Petitioner invokes the substantive component of

due process, which "protects individual liberty against

'certain government actions regardless of the fairness

of the procedures used to implement them." Collins

v. City of Harker Heights, 503 U.S. 115, 125 (1992)

(quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).

Specifically, the Petitioner alleges that the Employer

violated her liberty and property interests by ruining

her personal reputation and livelihood.

The Petitioner pleads with this Court to grant the

Writ given salient public policy issues and that the

Fourth Circuit and District Court deviated from this

Honorable Court's holdings and statutory law.

24

c) The lower courts erred by dismissing

the pay disparate as a windfall for the

similarly situated white employee in a

Civil Rights discrimination case.

Black's Law Dictionary defines a "Windfall" as "an

unanticipated benefit, usually in the form of a profit

and not caused by the recipient." A windfall is not

based off of years of experience, it is not earned but

given to someone as a benefit. A windfall ruling disre.gards and contradicts Title VII.

This Honorable Court has held that "each week's

pay check that delivers less to a black than a similarly

situated white is a wrong actionable under Title VII."

Bazemore v. Friday, 478 U.S. 385, 395-96 (1986). A

windfall ruling leaves us with more questions than answers, it means that something happened where a

white employee received a profit that was not earned

or deserved for a job that a similarly situated black

employee with more experience was paid much less.

CONCLUSION

For the foregoing reasons, LISA WASHINGTON,

the Petitioner, respectfully requests that this Honorable Court grant this Petition for Writ of Certiorari or

in the alternative, vacate the dismissal, remand the

case to the trial court, and allow the underlying matter

to be reviewed by a trier of facts.

Respectfully submitted,

LISA WASHINGTON

Pro Se Petitioner

App. 1

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-2388

LISA WASHINGTON,

Plaintiff-Appellant,

V.

SYLVIA MATHEWS BURWELL, Secretary,

Department of Health and Human Services,

Defendant-Appellee.

Appeal from the United States District Court for the

District of Maryland, at Greenbelt. George Jarrod Hazel, District Judge. (8: 16-cv-03638-GJH)

Submitted: March 29, 2018

Decided: April 2, 2018

Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.