Petition for Rehearing — Qihui Huang, Applicant v. Ajit Varadaraj Pai, Chairman of Federal Communications Commission, et al.
Supreme Court briefNov 15, 2019
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No. 19-344
In The
Supreme Court of the United States
Ms. QIHUI HUANG
Petitioner,
v.
Mr. AJIT VARADARAJ PAI
Chair, Federal Communication Commission,
Respondent
On Petition for Writ of Certiorari
to United States Court of Appeals
for the District of Columbia Circuit
Motion For Enlargement Of Word Limits And
To Treat Motion For Reconsideration
As Amended Petition For Writ Of Certiorari
Qihui Huang, M.S.
P.0. Box 34014
Bethesda, MD 20827
(240) 423-0406
ahli@hotmail.com
Petitioner, Pro Se
November 15, 2019
MOTION FOR ENLARGEMENT OF
WORD LIMITS AND TO TREAT MOTION
FOR RECONSIDERATION AS AMENDED
PETITION FOR WRIT OF CERTIORARI
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The Appellant (Plaintiff below) Ms. Qihui Huang
respectfully requests that the Court enlarge the
number of words in this motion for reconsideration
and approve the additional proffered section of the
petition which follows that would otherwise be
excluded and which provides an additional 507 words
of countable material to the total. The brief itself is
currently 2,649 words of countable material, together
with 351 words of the Questions Presented.
The Appellant further respectfully requests that
the Court treat her motion for reconsideration upon
her Petition for-Writ of Certioriari as an amended or
renewed Petition for Writ of Certiorari.
Appellant filed her Complaint, Amended
Complaint, appeal to the D.C. Circuit, and Petition for
Writ of Certiorari to the U.S. Supreme Court without
the assistance of counsel.
As a senior electronics engineer with two master's
degrees, Appellant Huang is clearly very diligent,
hard-working, and technically-oriented.
However, Huang does not have Working
experience in the legal system in terms of
conventions, methods, approaches, procedures, etc.
And as an Asian-American electronics engineer her
descriptions in English require some unraveling in
the legal context.
Then, Appellant sought the assistance of an
appellate attorney who has digested the record and
presented it more clearly.
As a result, with the
assistance of an attorney, Appellant's case on appeal
is being presented completely differently in a format
and language suitable to the legal system.
As a result, to properly present the Appellant's
case Appellant's attorney must completely rewrite
(and has rewritten) Appellant's Petition for Writ of
Certiorari.
WHEREFORE, Appellant requests that this
Court grant the Appellant's request to enlarge the
word limits on this motion for reconsideration,
consider and include the following additional material
which is proffered in .excess of the word limits, and
allow the Appellant's petition to be treated as an
amended Petition for Writ of Certiorari.
Respectfully submitted
7
\
_/s/ Qihui Huang. Petitioner ProSe
Qihui Huang, M.S.
PO Box 34014, Bethesda, MD 20827
(240) 423-0406 qhh@hotmail.com
No. 19-344
In The
Supreme Court of the United States
Ms. QIHUI HUANG
Petitioner,
v.
Mr. AJIT VARADARAJ PAI
Chair, Federal Communication Commission,
Respondent
Petition for Rehearing on Petition for Writ of
Certiorari to United States Court of Appeals
for the District of Columbia Circuit
Additional Section Proposed
in Excess of Word Limits
Qihui Huang, M.S.
P.0. Box 34014
Bethesda, MD 20827
(240) 423-0406
qhh@hotmail.com
Petitioner, Pro Se
November 15, 2019
OPINIONS AND ORDERS ENTERED BELOW
On April 16,‘ 2019, in Appeal No. 17-5290, the
U.S. Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) issued its Opinion (App. 1)
ordering summary affirmance of the dismissal of Ms.
Huang's causes of action by the U.S. District Court for
the District of Columbia (“District Court”). The short
opinion merely adopted' the analyses of the District
Court because "The merits of the parties are so clear
as to warrant summary, action." App. at 3a.
In the District Court, the Honorable James E.
Boasberg’s October 19, 2016 Memorandum Opinion
(App. at 7) dismissed individual Defendants and
Plaintiffs claims for failure to state a claim, except for
Ms. Huang's Title VII claim of denial of a within
grade step increase. Boasberg's September 15, 2017
Memorandum Opinion (App. at 38a) granted
summary judgment on the step increase for failure to
exhaust administrative remedies but in the
alternative for not alleging workplace discrimination.
JURISDICTION
The District (Court had jurisdiction by 28
U.S.C. §1331. The D.C*. Circuit had jurisdiction by 28
U.S.C. § 1291. The notice of ^appeal was timely filed
pursuant to 28 U.S.C. § 2107 and Federal Rules of
Appellate Procedure Rule 4(a)(1)(A). This appeal is
from a final order that disposed of all claims.
STATUTES (PROVISIONS) INVOLVED
Ms. Huang asserts violations-of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”), the Age Discrimination in Employment Act of
1967, 29 U.S.C.S. § 621 et seq. (“ADEA”), and the
Rehabilitation Act of 1973, 29JJ.S.C. § 794."
PARTIES TO THE PROCEEDING
1.
Appellant / Plaintiff Qihui Huang
Ms. Qihui Huang was employed by the Federal
Election Commission (FCC) for 23 years as a GS-15
senior electronics engineer. She filed pro se.
2.
Appellee / Defendant FCC
FCC is a federal agency in the District of Columbia.
At the time that Ms. Huang filed her Complaint, the
Chair of the FCC was Tom Wheeler. The new FCC
Chair was Ajit Varadaraj Pai was substituted for Tom
Wheeler. Ms. Huang also sued Division Chief Walter
Johnson and Branch Chief Martin Doczkat.
The Decision of the D.C. Circuit Below
The D.C. Circuit upheld the District Court on
summary affirmance primarily on failure to exhaust
administrative remedies. App. at 3a. The D.C.
Circuit's opinion did not materially depart from the
District Court's explanations. App. at 3a-5a.
Incredibly, the D.C. Circuit accepted the FCC's
assertion that Huang had "abandoned" her claim of
discrimination in denying an in-grade step increase.
App. at 5a. The D.C. Circuit accepted the District
Court's decision to apply only the Rehabilitation Act
to Huang's claim of discrimination in the refusal to
transfer her to a less-stressful ^supervisor to avoid
severe health reasons, but ultimately argued that
Huang did not allege discriminatory treatment. App.
at 3a-5a. Incredibly the D.C. Circuit upheld the
District Court's analysis "that appellant failed to raise
a material issue of disputed facts that appellee's
legitimate, non-discriminatory reasons for denying
appeallant's pay step increase were pretextual and
that appellee's discriminated against her."
/
CERTIFICATE OF COMPLIANCE
I certify that this petition for rehearing of the petition for writ
of certiorari is formatted and printed'in typeface Century
Schoolbook, 12 point font size, and contains 2, 649 words, plus 351
words offhe Questions Presented, totaling 3,000 words, excluding
the parts of the petition that are exempted by Supreme Court Rule
33.1(d). The Petitioner has provided an additional section totaling
507 words as an overflow section, while requesting the Court to
enlarge the word limits to allow these additional sections totaling
an additional 507 words. 1
STATEMENT OF SERVICE
The Petitioner, hereby certifies that a copy of the foregoing
Petition was served
in regular paper format on or about November 15, 2019, upon the
attorney of record for the Respondents by first class U.S. mail,
postage prepaid, upon:
Noel FranciscoSolicitor General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Room ,5614
Washington, D.C 20530-0001
(202) 514-2217
supremectbriefs@usdoj_.gov
_/s/ Qihui Huangl
Ms. Huang has undertaken her litigation Pro Se at every stage, but has asked at this last
point in her lawsuit's long Pro Se history for advice on writing this brief with as much
clarity as possible. Disclosure of an attorney's assistance to, a-Pro Se litigant is often
considered appropriate.
No.19-344 IN THE
SUPREME COURT OF THE UNITED STATES
QIHUI HUANG, Petitioner,
v.
AJIT VARADARAJ PAI, Respondent
PETITION FOR REHEARING on Petition for
WRIT OF CERTIORARI
Certificate
Petitioner Qihui Huang certificates that,
the grounds are limited to intervening
circumstances of substantial or controlling effect
or to other substantial grounds not previously
presented, based on her best knowledge and
understanding. This petition were assisted or
conducted by different persons, (a lawyer).
Petitioner also certifies that the petition for
rehearing is presented in good faith and not for
delay. Rule 44.2. All stated facts will have
evidences.
Qihui Huang, M.S.
O. Box 34014
etnesda, MD 20827
(240) 423-040
No. 19-344
In The
Supreme Court of the United States
Ms. QIHUI HUANG
Petitioner,
v.
Mr. AJIT VARADARAJ PAI
Chair, Federal Communication Commission,
Respondent
Petition for Rehearing on Petition for Writ of
Certiorari to United States Court of Appeals
for the District of Columbia Circuit
REQUEST FOR RECONSIDERATION OF
PETITION FOR A WRIT OF CERTIORARI
Qihui Huang, M.S.
P.O. Box 34014
Bethesda, MD 20827
(240) 423-0406
qhh@hotmail.com
Petitioner, Pro Se
November 15, 2019
RECEIVED
NOV 2 0 2019
OFFICE OF THE CLERK
SUPREME COURT, U S
QUESTIONS PRESENTED FOR REVIEW
1. Whether the District Court -- whose analyses
the Circuit Court opinion adopted -- erred as a
matter of law by analyzing that Ms. Huang
failed to exhaust administrative remedies
against her concerning denial of her "step
increase," where all concede that Huang
already had two complaints with the FCC's
Office of Workplace Discrimination.
Where OWD knew that denial of a step
increase was part of the same events, may one's
complaint be dismissed because the employer
narrowly interprets the administrative
complaint as not already including the FCC's
denial of a step increase.
2. Whether the lower courts erred as an abuse of
discretion, against the weight of evidence,
where they concede that Ms. Huang sent
emails to OWD, but the District Court ignored
from the record that Ms. Huang's emails were
about her request for assignment of an OWD
counselor to initiate a third administrative
complaint. The District Court found fatal that
Ms. Huang did not amend her two (2) prior
complaints but ignored that Ms. Huang was
attempting to file a third.
3. Whether the lower courts erred as a matter of
law in not treating exhaustion of
administrative remedies as futile where Huang
requested the initiation of a third
administrative complaint, but the OWD never
responded.
4. Whether the lower courts erred as a matter.of
law where the District Court dismissed
Huang's claims of workplace discrimination in
denying her request to be transferred to
another position to avoid the stress and severe
high blood pressure from interacting with the
new Branch Chief who had discriminated
against her.
5. Whether the lower courts erred where the
District Court dismissed Huang's claims of a
hostile working environment by refusing to
transfer her to another position to avoid the
stress of reporting to a new Branch Chief who
insulted her as unqualified.
6. Whether the lower courts erred in determining
that Huang did not make out a prima face case
of Title VII discrimination shifting the burden
to the employer to demonstrate ,a nonpretextual explanation. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802*5 (1973).
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ...,,
1
TABLE OF AUTHORITIES...
5
OPINIONS AND ORDERS ENTERED
BELOW................ !........................ Overflow
Section
JURISDICTION
Overflow
Section
STATUTES (PROVISIONS) INVOLVED
Overflow
Section
PARTIES TO THE PROCEEDING ... Overflow
Section
DECISION OF THE D.C. CIRCUIT
BELOW.................................
Section
Overflow
REASONS FOR GRANTING THE WRIT
I.
Huang's Two Administrative Complaints
Were Adequate to Cover Discrimination
in Her In-Grade Step Increase (Error l)_.
II. Courts Below Abused Discretion Mis
representing Unspecified "Emails"
(Error 2) ..................................................
III. OWD's Failure to Assign an EEO
iii
8
8
10
Counselor, a Prequisite to a
Discrimination Complaint, Constitutes
Exhaustion of Remedies (Error 3) ..........
IV. Refusal to Transfer Huang to
Accommodate Health Risks and Dangers
(Error 4)....... .............. ..............................
V. Hostile Working Environment of Hostile
Supervisor (Error 5) ................................
VI. Prima Facie Case of Discrimination
Shifting Burden to Employer to
Prove explanation that is not a
Pretext (Error 6) ....................................
CONCLUSION
11
12
13
15
15
APPENDIX
previously filed
iv
TABLE OF AUTHORITIES
Cases
Page(s)
Anderson v. Liberty Lobby, Inc., 477 U.S.
242 (1986)
1
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
1
Baloch v. Kempthorne, 550 F.3d 1191, 1201
(D.C. Cir. 2008)
14
George v. Leavitt, 407 F.3d 405, 416 (D.C.
Cir. 2005)
14
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)
14
Natl R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 113 (2002)
12
McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-5 (1973)
15
Park v. Howard Uniy., 71 F.3d 904, 907
(D.C.Cir. 1995)
10
Payne v. Salazar, 619 F.3d 5,6 (D.C,. Cir.,
10
v
2010
Statutes
Rehabilitation Act of 1973
8,
13,
Overflow
2nd page
28 U.S.C. §1331
Overflow
1st page
28 U.S.C. § 1291
Overflow
1st page
28 U.S.C. § 2107
Overflow
1st page
13
29 U.S.C. §§ 701-7967
29 U.S.C. § 794
Overflow
2nd page
42 U.S.C. § 2000e et seq.
Overflow
2nd page
Age Discrimination in Employment
Act of 1967 (“ADEA”)
Overflow
2nd page
vi
Rules
Federal Rules of Appellate Procedure Rule
4(a)(1)(A)
Overflow
2nd page
Federal Rules of Civil Procedure Rule
12(b)(6)
1, 13,
Overflow
1st page
Federal Rules of Civil Procedure Rule 56
Title VII of the Civil Rights Act of
1964 (“Title YII”)
vii
1
5, 9, 10,
12
Overflow
2nd page
PETITION FOR WRIT OF CERTIORARI
STATEMENT OF THE CASE
Course of Proceedings
Allegations in Ms. Huang's Complaint are taken
as true relating to the dismissal of her claims under
Federal Rules of Civil Procedure Rule 12(b)(6),
including all implied facts and inferences in favor of
Plaintiff reasonably drawn from the allegations.
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
v
Ms. Huang's claim of discrimination in the denial
of a within-grade step increase was dismissed on
summary judgment, which requires no material facts
genuinely in dispute. FRCP Rule 56; Anderson v.
Liberty Lobby, Inc., All U.S. 242 (1986). Huang's
material allegations, unless retracted or clearly
disproven, must be considered true or there would be
a genuine dispute of a material fact.
Stating much of the facts and procedural history
as conceded by and uncontested by Appellee FCC -"Huang filed her complaint in this action on
February 29, 2016, and amended it on June 28, 2016."
Appellees’ Combined Opposition To Motion For
1
Summary Reversal And Motion For Summary
Affirmance ("Opp. Reversal"), Page 2 (Docket
#1748557, USCA Case #17-5290, August 31, 2018).
"Huang alleged that she had been employed at the
FCC for 23 years, had been im the same branch and
division as a GS 15 for ten and; a half years, held two
masters degrees, and had been recognized for her
work on a Nobel Prizewinning project."
Opp.
Reversal at 4.
"Before November of 2014, Plaintiff never
recieved a 'fail' in her performance evaluations, in her
about 23 years worked at the FCC, and more than 10
years worked at the same Branch and Division, before
Doczkat became the branch chief."
Huang's
Complaint at 6 (Docket #1, District Court Case 1:16cv-00398-JEB, February 29, 2016).
"Plaintiff is an Asian-American sexagenarian with
two advanced degrees in electrical engineering and
physics. See ECF No. 17 (Opposition) at 24. Her
work has even contributed to a Nobel Prize in physics.
Id. at 19. During her long and successful career at
the agency, she amassed several performance awards
and was repeatedly promoted through competitive job
postings. Huang eventually reached the GS-15 level
as a senior electronics engineer in the FCC's Office of
Engineering in 2004 and, over the next decade,
2
continued to receive praise in that role from two
different supervisors as she rose to a GS-15, Step 7
pay agrade. Id. at 19-20; ECF No. 1 (Complaint) at
9." Memorandum Opinion, District Court, Judge
Boasberg, App. at 9a-10a.
"She alleged that she “was in [a] GS-15 Step 7
[position] for about 3 years and should [have]
receive[d] [a] step increase to Step 8 around the end of
February of 2015, absent discrimination or
retaliation. [She] should [have] receive [d] a few
thousand dollars more in her salary if there was no
discrimination or retaliation.” " Opp. Reversal at 6
Prior to the departure of Branch Chief, Robert
Weller, around April 1, 2014, Weller assigned Ms.
Huang to conduct a study and report of wireless
microphone technologies. Complaint a.t 2-4.
During the course of this project, Huang worked
closely with Weller, and "modified her drafts report
according to Weller's instructions," yet "Plaintiff did
not receive negative comment from former branch
chief Weller...." Complaint at 2. Huang submitted
her final report to Weller at the beginning of July
2014 and "Plaintiff did not receive any negative
comment on the final report .... until Weller left
FCC...." Complaint at 2.
3
However, departing Branch Chief Weller was
replaced by Acting Branch Chief Martin Doczkat,
Cqmplaint at 3, who himself had been a grade GS-15
only for 5 months compared ito Huang's 10.5 years.
Complaint at 5. Doczkat had been Acting Branch
Chief for only about one month when Doczkat
concluded that Plaintiffs bad-performance meant she
was disqualified for a GS-15 level position. Id.
Doczkat singled put the wireless microphone
study for adverse personnel action against Huang.
Complaint at 2-3. Huang implies that his focus only
on that study, atypical of her FCC career,
demonstrates a pretext.
Huang alleged that when she was sick with
hypertension and high blood pressure for 7 months,
no one else was assigned to the project, Complaint at
4, confirming that the project was not a Congressional
or FCC priority. Id.
"Specifically, Mr. Doczkat made suggestions
regarding the formatting of the report’s table of
contents, to comments about whether Huang had
actually followed her former supervisor, Mr. Weller’s,
suggestions about the utility of the wireless
technology, to Mr. Doczkat’s own specific concerns
about whether Huang’s calculations were correct."
Opp. Reversal at 5.
4
"Huang alleged that “none of Doczkat’[s] about 83
comments on [her] and Weller’s report could support
his conclusions” that she “disqualified for a GS-15
position; and [her] bad performance.”" Opp. Reversal
at 5. See ECF Document # 28-3, District Court case
l:16-cv-00398-«JEB, email Qihui Huang to Martin
Doczkat, October 3, 2014.
The actual content of Dpczkat's 83 comments
reveals unmistakably that the negative review is a
pretext and reveals the discrimination. Id.; ECF
Document ## 28-5, 28-2.
Huang alleged in her Complaint that Doczkat
consented by silence.. Her Complaint implies amplified by hpr exhibits which state it explicitly that Doczkat gave no answer to Huang's responses to
each of Doczkat's 83 comments. Huang argues that
Doczkat's failure to respond indicates, that Doczkat's
objections were without merit. Complaint at 3, ECF
Document # 28-4, District Cojurt case l:16-cv-00398JEB, email from Huang to Doczkat, October 7, 2014.
Doczkat quickly gave Huang a b.ad performance
appraisal, declared her unqualified for work at the
GS-15 level, and denied her a step increase "solely
based on the study report." Complaint at 2.
5
The core of Huang's ,prima facie case of
discrimination in violation of Title VII pursuant to
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 8025 (1973) is that for .23 years she received positive
performance appraisals, including from Branch Chief
Weller, but suddenly when Doczkat became Acting
Branch Chief in Weller's place, within' one (1) month
she was given a failed performance appraisal and
declared by Doczkat to not be qualified for her job as a
GS-15 electronics engineer.
"Plaintiff showed and told Defendants the
McDonnell Douglas burden shift framework: (1)
Plaintiff is a member of statutes protected group.
Plaintiff is an Asian American, foreign-born, old
woman." Complaint at 10.
"Defendants failed to provide a legitimate and
non-discriminatory reason for Q they disparately and
adversely treated Plaintiff.
Wherefore, under the
McDonnell Douglas burden shift framework, Plaintiff
has established the prima facie ,of Defendant's
intentional discriminations and retaliations, based on
she is the member of statutes protected group."
Complaint at 10.
Huang further alleged extensively that after
Doczkat declared that she was not qualified for her
6
job the stress of being around him triggered her high
blopd pressure. Complaint at 6,-7.
"Plaintiff requested to transfer to working with
other supervisors, but was denied." Complaint at 7.
Huang submitted medical orders from her doctors and
nurses that being in such stressful situations created
a significant risk of harm or death. Complaint 6-10.
See letters at ECF # 51-1, District Court.
The District Court Decision Below
"By Memorandum Opinion issued on October 19,
2016, the District Court dismissed all but one of
Huang’s claims and allowed discovery on the
remaining claim of whether Huang had exhausted her
administrative remedies concerning the denial of a
step increase in February 2015. R. 24." Opp. Reversal
at 3.
"Appellees moved for summary judgment on the
remaining claim (R.63), and Huang opposed (R.68).
Ultimately, the District Court granted Appellees’
motion, finding that Huang had failed to exhaust her
administrative remedies and, even if that were not a
basis for summary judgment, which it is, the District
Court also found in the alternative that Huang failed
to show that Appellees, intentionally discriminated or
retaliated against her on account of any protected
7
characteristic pr prior EEO activity when it denied
her a within grade salary increase based on her
recent lackluster performance. R. 87." Opp. Reversal
at 3
"Appellees moved for summary judgment on the
remaining claim (R.63), and Huang opposed (R.68).
Ultimately, the District Court granted Appellees’
motion, finding that Huang had failed to exhaust her
administrative remedies and, -even if that were not a
basis for summary judgment, which it is, the District
Court also found in the alternative that Huang failed
to show that Appellees intentionally discriminated or
retaliated against her on account of any protected
characteristic or prior EEO activity when it denied
her a within grade salary increase based on her
recent lackluster performance. R. 87." Opp. Reversal
at 4.
REASONS FOR GRANTING THE WRIT
I.
Huang's Two Administrative Complaints
Were Adequate to Cover Discrimination in
Her In-Grade Step Increase (Error 1)
The core of the District Court's dismissal of
Huang's Title VII discrimination complaint
concerning denial of her in-grade step increase is the
FCC's strained attempt to interpret a single, unitary
8
sequence of discrimination as totally unrelated
individual actions. The District Court and D.C.
Cirpuit erred by adopting this strained legal concept
While conceding that Huang filed her
administrative discrimination-complaint with OWD
concerning the discriminatory-events, the courts
below quibbled over whether Huang explicitly
included the denial of her step increase. For purposes
of exhaustion of administrative remedies, Huang's
administrative complaint necessarily included all of
the events directly involved. Individual aspects could
not be irrationally separated into different slices.
Payne v. Salazar, 619 F.3d 56 (D.C. Cir., 2010)
clarified that an administrative complaint includes a
charge "“reasonably related” to a filed .charge under
that doctrine, it must “ ‘[a]t a minimum ... arise from
the administrative investigation that can reasonably
be expected to follow the charge, of discrimination.’ ” "
And "unfiled “Title VII claims must arise from the
administrative investigation that can reasonably be
expected to follow the charge of discrimination.”
Park v. Howard Univ., 71 F.3d 904, 907
(D.C.Cir.1995)) (quotation marks omitted).
Here, if investigation of Huang's administrative
complaints of a negative performance report would
naturally lead to examining the denial of her step
9
increase, the latter is legally included for exhaustion
analysis. Id.
In Payne, the D.C. Circuit considered the idea
that exhaustion is required for "each discrete
element" of discrimination but instead applied the
"reasonably related" test. This has been
As a matter of law, the counts below erred in
allowing an arbitrary and irrational subdivision of the
discriminatory conduct. Thus, Huang did not fail to
exhaust her administrative remedies and certainly
did not "abandon" her claim. Huang's complaint of
discrimination includes the step-increase denial.
II.
Courts Below Abused Discretion Mis
representing Unspecified "Emails" (Error 2)
After Huang filed two administrative complaints
with OWD, Huang requested that OWD assign a
counselor for her to open a third explicitly about the
step increase. See dispositive emails collectively at
ECF Docket# 78-1, District Court, particularly email
March 2, 2015 ("I asked for EEO counsel several
times already. I send EEO manager an email this
morning. I did not receive her response." and "I
requested EEO counsels, for about 3 issues. Please
give me EEO Counsels as soon as possible (ASAP).")
10
On summary judgment, thecourts below erred as
abuse of discretion by merely noting that Huang sent
"emails" without considering the actual substance of
those emails as being Huang's attempt to pursue
administrative remedies concerning the step increase,
which was frustrated by FCC's failure to respond.
Thus, the courts below abused their discretion by
suggesting that Huang "abandoned" her discrimin
ation claim with regard to the step increase. The
courts below noted that Huang declined to amend her
previous administrative complaints, but failed to note
that Huang was attempting to file a new
administrative complaint on the step increase, but
was prevented from doing so. This was abuse of
discretion and against the weight of the evidence.
III. OWD's Failure to Assign an EEO Counselor, a
Prequisite to a Discrimination Complaint,
Constitutes Exhaustion of Remedies (Error 3)
Concerning Title VII claims, federal law requires
a plaintiff to exhaust his administrative remedies so
long as resort to the agency is not obviously futile.
Sohm v. Fowler, 124 U.S.App.D.C. 382, 365 F.2d 915
(1966)
Assignment of an assigned counselor to a case by
OWD is a necessary prerequisite for filing an EEO
11
discrimination complaint. Thus, the OWD's failure to
assign a counselor prevented Huang from pursuing a
third, new complaint about the step increase,
exhaustion of administrative remedies futile. Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002)
In emails in, the record, the OWD did inform
Huang in her first two complaints that the FCC had
180 days to complete administrative review, after
which Huang could file suit. ECF Document #78-1,
Email from Linda Miller to Qihui Huang, March 2,
2015, "FCC have 180 days to complete processing
your complaints." Thus, on the expiration of 180
days without the FCC meeting its deadline, any
exhaustion of administrative remedies would be
futile, as FCC's deadline had expired.
IV. Refusal to Transfer Huang to Accommodate
Health Risks and Dangers (Error 4)
The District Court dismissed Huang's claim under
the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796Z,
that she was denied a transfer for health reasons to a
less stressful office then the supervisor who declared
her unqualified, under FRCP Rule 12(b)(6), for failure
to allege exhaustion of administrative remedies.
12
However, the District Courf; erred in mis-applying
the law under Spinelli v. Goss, 446 F.3d 159, 162
(D.C. Cir. 2006)'' The sDistrict Court analyzed that
"she readily admits that she failed to pursue any
formal complaint with the EEOC or MSPB in regard
to her request for a transfer."
However, there is no requirement that a "formal"
complaint be filed directly with the EEOC rather than
with an agency's own EEO office, here FCC's OWD.
Neither is there any requirement to plead allegations
of exhaustion of remedies if it actually occurred.
V.
Hostile Working Environment of Hostile
Supervisor (Error 5)
Federal antidiscrimination laws make it unlawful
to “requir[e] people to work in a discriminatorily
hostile or abusive environment.” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993). “[A] plaintiff must
show that his employer subjected him to
discriminatory conditions ‘sufficiently severe or
pervasive to alter the conditions of the victim’s
employment and create an abusive working
enyironment.’” Baloch v. Kempthorne, .550 F.3d 1191,
1201 (D.C. Cir. 2008).
13
Here, Huang alleged severe and pervasive lifethreatening high blood pressure and hypertension
triggered by working with a supervisor who
insulted and ridiculed her qualifications,
She
submitted in the record medical warnings that the
stress might actually kill her.
VI. Prima Facie Case of Discrimination Shifting
Burden to Employer to Prove explanation that
is not a Pretext^Error 6)
Huang clearly established a prima facie case of
workplace discrimination. She worked 23 years with
all positive job performance appraisals. On her final
project on wireless microphones she received positive
feedback from her then supervisor Weller. But
suddenly she was given a negative job performance on
the exact same project when Weller was replaced by
Doczkat, after only one month of Doczkat's
supervision.
Courts below mis-interpreted Huang's lawsuit as
depending upon prior supervisor Weller being part of
the discrimination, when in fact it is the sharp
contrast between Huang's successful job performance
under Weller to Doczkat then replacing Weller which
proves discrimination.
14
Under McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-5 (1973), Huang pled a prima facie
case. The problem was obviously not with Huang's
work for 23 years with positive performance
appraisals. What changed was that Doczkat replaced
Weller, who had approved Huang's interim work on
the study. Doczkat claimed the exact same study was
so incompetent that Huang was not qualified to be at
a GS-15 grade level and her performance appraisal
was a failure. When Huang responded to the 83
items, Doczkat offered no follow-up or direction. See
ECF Documents ## 28-2, 28-3, 28-5, District Court
case l:16-cv-00398-JEB, email Qihui Huang to Martin
Doczkat, October 3, 2014.
CONCLUSION
A writ of certiorari should be granted or the case
remanded for proceedings consistent with precedent.
Respectfully submitted.
_/s/ Qihui Huang
Qihui Huang, M.S.
P.O. Box 34014
Bethesda, MD 20827
(240) 423-0406
qhh@hotmail.com
Petitioner, Pro Se
\
Pro Se receiving assistance
of Jonathon Moseley, Esq.
3823 Wagon Wheel Lane
Woodbridge, VA 22192
(703) 656-1230
Contact@JonMoseley.cqm
15
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.