Petition for Writ of Certiorari — Ming Wei, Petitioner v. Pennsylvania, et al.

Supreme Court briefAug 12, 2020

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Supreme Court, U.S.

FILED

No.

AUG 1 2 2020

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

MING WEI,

Petitioner,

COMMONWEALTH OF PENNSYLVANIA, et al.,

Respondent,

On Petition for a \Vrit of Certiorari

to the United States dourt of Appeals for

the Third Circuit

36:>7

PETITION FOR A WRIT 0-E-CERTIORARI

315. •

Ming Wei, Pro Se

3910 Silver Brook Dr

Mechanicsburg, PA 17050

Phone: (717)732-2040

Email: mingweiebct@hotmail.com

rECEW&D

m)6 \ 9

QUESTION PRESENTED

(1) Whether It is unconstitutional to use a case in

deciding a different issue, forbidding reopening, and

disallowing interpreter to preclude the new issues?

Wei is a naturized Asian American dismissed by

PADOH. PADOH had about 50 staffers to collect,

convert and correct the HIV data, Wei’s duty was to

check their accuracy and completeness. After Wei

reported the discrimination and many errors in the

converted HARS data, PADOH deterred Wei by

increasing his workload, blocking his access the

database and forbiting his pay leave and dismissed

him. The Commission disallowed Wei to have an

interpreter in its hearing. PADOH insists the

dismissal cause was Wei failed to convert HARS data

solely. A state court affirmed. PADOH has admitted

that it assigned others rather than Wei to convert

HARS data in this case, but the Defendants insist the

Commission case couldn’t be reopened. However, they

falsified that the state tribunals decided something

else rather than converting the HARS data. It misled

the lower courts to preclude Wei’s major claims.

(2) Whether it is unconstitutional that—theDefendants used the false statements to hurt Wei but

claimed the government employees’ immunity?

The Defendants repeatedly claimed that they did the

government’s duty in response to that Wei accused

them making the false statements, defamation, and

fraud. These false statements misled the lower courts.

(3) Whether it is unconstitutional to define that an

employee continued to complain the discrimination as

the evidence of “no deter” and “no retaliation”?

The lower courts erred in using that Wei continued

to make his complaints as an evidence of that

Defendants didn’t deter and retaliate against Wei.

PARTIES TO THE PROCEEDING

Petitioner (Plaintiff) is Ming Wei.

Respondents (Defendants) are the Commonwealth of

Pennsylvania and its two agencies: the Pennsylvania

Department of Health(“PADOH”) and Pennsylvania

State Civil Service Commission (“Commission”)! and

its employees: Veronica Urdaneta (“Urdaneta”), in

her individual and official capacity! Stephen Ostroff

(“Ostrofi”) in his individual and official capacity!

Tiffany Burnhauser (“Burnhauser”) in her individual

and official capacity! Godwin Obiri (“Obiri”) in his

individual and official capacity! Robert Giallo

(“Giallo”) in his individual and official capacity! Kim

Strizzi (“Strizzi”) in her individual and official

capacity! John Does 1-5 in their individual capacities

RELATED PROCEEDINGS

■H

The Supreme Court of the United States

Wei v. State Civil Service CommissionNar-19--1323_

The Commonwealth Court of Pennsylvania

Wei v. State Civil Service Commission,

961 A.2d 254 (Pa. Commw. Ct. 2008)

Wei v. State Civil Service Commission

No. 263 C.D. 2015). (Pa. Cmwlth, 2016)

Wei v. State Civil Service Commission.

No. 1902 C.D. 2016 (Pa. Cmwlth, 2017)

Wei v. State Civil Service Commission,

No 1321 CD 2018 (Pa. Cmwlth, 2019)

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES...................................... vi

PETITION FOR WRIT OF CERTIORARI............... 1

OPINIONS BELOW.................................................... 1

JURISDICTION.......................................................... 1

STATUTORY AND REGULATORY PROVISIONS

INVOLVEED................................................................ 2

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

REASONS FOR GRANTING THE PETITION....... 11

CONCLUSION

APPENDIX

Appendix A. Court of appeals opinion on Wei’s

application for rehearing

(March 31, 2020)................................................

Appendix B. Court of appeals opinion

(January 7, 2020)

.. 3a

Appendix C. District court final opinion and order

(March 28, 2019)..................................................... 16a

Appendix D. District court order

(March 27,2017)................................................. 26a

Appendix E. District court order

(September 23, 2015) ....................................... 29a

Appendix F. District court opinion and order

(June 6, 2012) ................................................. 33a

•a*

Appendix G. Wei’s Application for Rehearing

Wei’s Petition for Rehearing in the third Circuit

Appendix for rehearing in the third Circuit

the Commission decided it didn’t consider Wei’s leave

issue

A few variables in a raw format of HIV lab reports

A few variables in a HARS Format

A sample of the layout of2007 draft format from Giallo

#63 of Wei’s material facts. Defendants’ Response, and

Wei’s Reply (PCD 235)

Pages 26 to 32, DCD 407 for Wei’s Submission in

Opposition to Defendants’ Renewed Objections

Page 7 from a Brief of PADOH to the Commonwealth

Court of Pennsylvania dated Jan 2, 2019

Wei found the converted HARS data with errors

43a

65a

68a

70a

71a

72a

74a

76a

84a

86a

Appendix H. Reproduced Records

Pages 1-4 from Defendants’ answer to

Plaintiffs first request for admissions in 2012

Strizzi admitted she wasn’t in 08/24/2007 PDC

Selected pages from Obiri’s deposition, 2014

Obiri’s declaration in 2015

Selected pages from Defendants’ response to

Plaintiffs second set of interrogatories

Wei’s appeal his termination to the

Commission

Urdaneta’s April 9 2007 email to order Wei

used Giallo’s 2007 draft format to convert 2005

HIV reports

Timelines of that BIT developed 2007 draft

CSV format

Urdaneta’s name in the PADOH’s cc list

sending a duplicate of a letter that PADOH

approved Wei’s FMLA____________________

87a

91a

92a

98a

101a

102a

103a

104a

TABLE OF AUTHORITIES

Cases

Page

Afyeska Pipeline Serv. Co. v. Wilderness Society,

421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612(1975)

Blonder-Tongue Laboratories, Inc. v. University of

Illinois Foundation,

402 U. S. 313, 328-329 (1971)................................ 15

Bradley v. Pittsburgh Bd. ofEduc.,

913 F.2d 1064, 1073 (3d Cir. 1990)..................... 11

Burlington N. & S. F. R. Co. v. White,

548 U.S. 53 (2006) ................................................ 38

CSX Transp., Inc. v. Bhd. ofMaint. ofWayEmps.,

321 F.3d 1309, 1317 (llth Cir. 2003)................... 23

Commissioner v. Sunnen

333 U.S. 591, 599-600, 68 S.Ct. 715, 92 L.Ed. 898

(1948)...................................................................... 23

Eastway Constr. Co. v. City ofNew York,

762 F.2d 243, 253 (2d Cir. 1985)...................... 34

Fields v. Wharrie.,

740 F.3d 1107 (7th Cir. 2014)................... ........ 24

Hazel-Atlas Glass Co. v. Hartford -Empire Co.,

15,33

322 U.S. 238, 246 (1944).......................

Hernandez v. Wells,

2003 WL 22771982, *5 (S.D.N.Y. 2003)

In re McCarthy,

623 N.E.2d 473, 477 (Mass. 1993)......

Kenner v. C.I.R., 387 F.2d 689

(7th Cir. 1968)......................

Kremer v. Chem. Const. Corp.,

456 U.S. 461, 478(1982)........

Kupferman v. Consolidated Research & Manufactu

ring Corp

459 F.2d 1072 (2d Cir. 1972)........

Lieb v. Topstone Indus.,

788 F.2d 151, 157 (3d Cir. 1986)..

Lockwood v. Bowles,

46 F.R.D. 625, 634 (D.D.C. 1969).

Merck & Co., Inc. v. Reynolds et al.,

130 S. Ct. 1784 (2010)..................

Montana v. United States,

12,15,32

440 U. S. 147, 153 (1979).............

Napue v. Illinois,

360 U.S. 264, 269 (1959).............

NC-DSH, INC. v. Garner

218 P.3d 853 (2009)......................

Pyle v. Kansas,

42, 317 U.S. 213, 215-16 (1942)...

Roadway Express, Inc. v. Piper,

447 U.S. 752, 65 L. Ed. 2d 488, 100 S. Ct. 2455

(1980)........................................................

Salia da v. Mock,

121 A.2d 54, 55 (Pa. 1923)..... ...............

Taylor v. Sturgell,

553 U.S. 880, 128 S. Ct. 2161 (2008)....

United States v. Dunn,

577 F.2d 119 (10th Cir. 1978)..............

Wei v. State Civil Service Commission,

No. 1902 C.D. 2016 (Pa. Cmwlth, 2017)

13,22

vii

Wei v. State Civil Service Commission,

961 A.2d 254 (Pa. Commw. Ct. 2008)

9,12,13,16,19-24

Wood v. Department ofPublic Welfare,

411 A.2d 281 (Pa. Cmwlth. 1980)....

Wood v. Strickland,

420 U.S.308, 95 S.Ct. 992,43 L.Ed.2d 214 (1975)..23

Constitution & Statute

18 U.S.C. § 1623 .............

Pa. Code § 204. Rules 3.3

US. Const. Amend. I......

U.S. Const, amend. XIV .

2,17

2,15,37

viii

PETITION FOR WRIT OF CERTIORARI

JUDGMENT FOR WHICH REVIEW IS SOUGHT

The judgment for which review is sought to be

the decision of the United States Court of Appeals

for the Third Circuit for Wei v. Commonwealth of

Pennsylvania et al, No. 19-1715 (3rd Cir, 2020)

(Appendix B).

Special notice is while PADOH insists that the

removal cause was Wei’s failing to convert the

HARS data in the state court, it falsified that the

state court’s decision wasn’t for converting the

HARS data to the federal court.

JURISDICTION

The Third Circuit denied Wei’s petition for

rehearing on'March 31, 2020 (Appendix A), the

jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The first amendment provides “Congress shall

make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and

to petition the Government for a redress of

grievances”.

The fourteenth amendment provides “All

persons born or naturalized in the United States

and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they

reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law! nor deny to any person

within its jurisdiction the equal protection of the

laws”.

Statement of the Case

The petitioner Ming Wei (“Wei”) is a naturalized

Asian American of Chinese origin with a

pulmonary lobectomy (now at age 62) and worked

in the PADOH from Feb 2001 until August 2007.

He worked on the HIV team as an epidemiologist

and data manager at PADOH headquarter in

Harrisburg, Pennsylvania. A part of facts has been

presented in the case No. 19-1373.

During his employment, the Defendants

subjected him to a hostile work environment.

PADOH had a double standard and stereotypical

view that Wei should work harder than others, and

other staff mocked Wei’s national origin. PADOH

retaliated against Wei after he described the

instances of discrimination in connection with a

complaint filed by an Asian American who later left

the HIV team! then Wei became the lone Asian

American in the team. Wei was told that if he

complained more, he would receive more work. He

was told that he was different from other staff

members who were not Asian American.

PADOH denied Wei annual leave and using paid

leave in. lieu of FMLA leave, suspended his access

to the PA-NEDSS that he needed to complete his

work, overloaded him with work, and denied him

training opportunity. In comparison, other staffers

could enjoy those leave rights, access PA-NEDSS,

get the paying training. PADOH even loaded their

unfurnishing 2005 lab reports to Wei to do, and

loaded their cleaning work to Wei to do. PADOH

disciplined Wei unreasonably, PADOH admitted

no other staff was disciplined for missing a meeting

but Wei though his supervisor never notified him

to attend the meeting,

Other staffers didn’t

complete their converting HIV lab data for a few

years but PADOH ordered Wei set aside 2 hours

daily to complete them within a few weeks. The

PADOH told Wei that, if others could do his job, it

would terminate him. The Defendants suspended

Wei and then terminated his employment without

just cause. In this regard, they concealed

documents from him and they falsified the reasons

for his termination. They also failed to return all of

his personal belongings to him after he was

terminated.

The major task of the whole HIV team which had

15 positions in 2007, together with the Bureau of

Information Technology (“BIT”), was cleaning and

converting HIV reports, deduplicating them into

the potential cases (pre-HARS cases) to the field

offices; then 16 field offices investigated them and

sent the confirmed cases back to HIV team; Then

Wei received Deloitte’s (BIT’s contractor) extracts

of the confirmed cases, reviewing the completeness

and accuracy of data in PA-NEDSS. He wasn’t

allowed to collect and correct the cases by himself,

“his job is to analyze the data and point-out errors

he finds”. HIV team or BIT, cooperated with the

field offices in it was necessary, should fix the

inaccuracies and incompleteness.

In April 2004, PADOH decided to use BIT’s

PA-NEDSS replacing CDC HARS as the active

database for Pennsylvania HIV/AIDS cases. In the

initial Charter: BIT should convert all existing HIV

reports and future HIV lab reports timely and

convert about 44,000 HARS cases into PA-NEDSS

by July 1, 2005. PADOH invested multi-million

dollars for BIT to complete them. Unfortunately,

BIT didn’t complete either tasks on time.

On Oct. 28, 2005, PADOH stopped all other HIV

functions to concentrate converting both the

backlog HIV lab reports and HARS data in 2

months, it assigned other staffers to clearing and

converting 2005 reports by Dec 19, 2005. It also

assigned Wei spending 2 months exclusively to

clean 16 HARS databases from the field offices

because cleaning is a precondition for conversion.

Up Wei completed cleaning, he returned to

check the completeness and accuracy of the cases

weekly! Wei identified many errors in the

converted HARS data, thereby saving the

Commonwealth millions of dollars in funding. Still

he was harassed by revoking the password to

access PA-NEDSS. However, he still worked

extremely hard to push the PADOH to fix the

errors.

Wei wrote to Obiri that he didn’t see any 2005

reports in PA-NEDSS yet on Dec 22, 2005. He

indicated the incompleteness in processing HIV

reports to BIT’s lab report manager Giallo and

Obiri several times. BIT was responsible to

upgrade its 2005 HIV lab format to convert those

reports.

Giallo responded that they fell behind in

processing both 2005 and 2006 reports. And he,

discussed with Obiri, was drafting an updated

Charter for the 2005 reports [since Dec 2005] but

“the project was bigger than originally anticipated,

it required a complete PA-NEDSS team effort for

the project”. Because the methods of reporting were

different, about 600,000 raw records reported in

2005 are about 14 times more than about 40,000

raw records reported in 2006.

Finally, PADOH held a Dec. 2006 BIT meeting to

accept the updated Charter, it wanted HIV team

got an estimated number based on an upcoming

BIT draft format first, the next step was holding a

meeting to decide the variables of the formal

format. Based on the experiences of that

PA-NEDSS team converted up to 330,000 reports

yearly. The work was expected to complete in the

end of 2008.

Although PADOH claimed others were in charge

of cleaning, no one cleaned the reports for the draft

format when it arrived. Wei worked days and

nights, cleaned, converted and de-duplicated and

got 158 potential cases (about 8% total cases) for

estimate. Then Giallo updated the draft format for

"more detail" and required to do deeper, Wei redid

and resent.

However, Giallo changed his tone, blamed that

Wei did too deep, they defined the draft format was

for an estimated number only, it was still useless

for the formal conversion. Urdaneta 100% agreed

with him.

Wei gave his estimated number to be about 2,000

real potential cases to Urdaneta and Giallo in

March 2007. They didn’t give Wei the feedback but

Urdaneta blamed Wei of missing a morning

meeting with the alibi of her un-exist email to ask

his attending.

Wei reported the discrimination and defamation

to the Division of Equal Employment Office

(“DEEO”). He contacted DEEO previously, while

PAD OH defined the data management as having

"severe staffing shortfalls" when 2.75 staffers

worked for the function, it expanded the staff

members in other functions from 5.25 to 14, but cut

the staff members in the data management into

only one in 2007. Wei needed to use his spare time

to complete his routine work. Wei reported that

PADOH decided Wei couldn’t get the compensatory

time for the. task since Nov 2006. In contrast,

Urdaneta and other staffers still received their

compensatory time.

However, in April 2007, Urdaneta gave Wei a

reprimand for the meeting and ordered Wei to use

the 2007 BIT draft format to convert all 2005 HR7

lab data. Because of huge workload, Wei asked

PADOH arranging others doing their jobs and

giving him an assistant, it rejected both requests

but ordered him to extract 2 hours daily to do the

“extra work”.

Therefore, Wei did others’ cleaning job first, he

worked extremely hard and got sick and hearing

problem. The excessive work and groundless

harassment by the Defendants caused Wei severe

ill. Wei became depressed and his health began to

deteriorate. His medical providers advised him to

work only intermittently in FMLA.

By July 2007, Wei completed about 400,000

reports, but he was very ill. Aware that the Wei’s

niv-

illness could be exacerbated thereby, the PADOH

harassed and abused him. It denied him annual

leave even though he had accumulated 100 hours of

vacation time. It also disallowed Wei using his pay

leave in lieu of FMLA leaves.

On July 23, 2007, Wei filed a complaint with the

Pennsylvania Human Relations Commission and

the EEOC. By the time that PADOH suspended

Wei to investigate on August 24, 2007, Wei did his

“extra work” exceptionally by processing 550,000

reports! and did his routine excellently, PADOH

admitted that Wei correctly identified the data

errors.. However, PADOH fired him on September

4, 2007.

The Commission oversees hiring, promotions,

and holds a hearing to decide the appeal from the

government employees for the discipline with a

status of limitation of 20 days (101a). On Dec. 3,

2007, the Commission held a hearing after Wei

appeared.

Pennsylvania law requires the provision of

interpreters for proceedings before administrative

agencies for the persons with limited English

proficiency. Wei requested to allow an interpreter

for the hearing, but the Commission denied his

request. Thus, he couldn’t fully address his issues

in the hearing.

Wei subpoenaed PADOH’s key documents such

as its updated Charter. PADOH refused releasing

the documents. It didn’t start returning Wei’s

belongings in PADOH’s office that contained some

key documents until June 2009 but never returned

his notebooks. Many key documents that Wei filed

rr- '

to reopen couldn’t be presented in the hearing.

PADOH insists “the uncompleting assignment

from Dr. Urdaneta and which resulted in his

discharge was not given to him until December of

2006 [BIT meeting]”. “In December 2006, Veronica

Urdaneta, Wei's supervisor, assigned Wei the task

of converting the [HARS] data files” “The task was

solely Wei's responsibility” Wei v. State Civil

Service Commission, 961 A.2d 254 (Pa. Commw.

Ct. 2008 Wei I. But “Wei claims that it was not his

responsibility to convert the 2005 [HARS] data

files” Weil.

The Commonwealth of Pennsylvania requires

..the agencies to document their business records,

and preserve the records for the anticipating

litigation. However, during hearing, PADOH

didn’t present the key records relevant to the just

cause, but used the oral testimony to make up the

facts. Wei claimed PADOH’s employees lied under

oath.

The Commission decided that since PADOH

provided Wei sufficient time and tasked him

converting HARS data solely, the incompleteness

of HARS data constitutes his “insubordination and

unsatisfied work performance” (“IUWP”).

:. Wei appeared the Commission’s decision to the

Commonwealth Court of Pennsylvania, Wei

claimed that PADOH never assigned him to

convert HARS data. PADOH insisted that it

assigned Wei, and only Wei, to convert HARS data.

The Commonwealth court noticed that both sides

were different in every key fact, but it affirmed.

In May of 2009, Wei went to the Commission

office to discuss his case and get the job opening

information. When he asked to review his file, he

was told to come back another day. When he went

back, the Commission called the police to stop, and

arrest Wei. Although the Commonwealth finally

withdraw the case, the Defendants defamed Wei

that the case was ended with plea bargain.

Defendants embarked on a campaign to defame

Wei and to destroy his career and reputation. They

distributed that Wei engaged in IUWP in failing to

convert HARS data to block Wei’s employment

opportunity. Because Defendants’ defamation, Wei

tolerated hard torture in mind, without weekends

and holidays, and was always on the nightmare.

Procedural History of This Case

Wei commenced this action by filing a complaint

in April, 2011. Wei made multiple claims against

the Commonwealth, its agencies PADOH and the

Commission, and its employees^ Urdaneta, Ostroff,

Burnhauser, Obiri, Giallo, Strizzi and John Does

1-5 for defamation, discrimination and retaliation

based on race, national origin and disability. As

relief, Wei seeks compensatory and punitive

damages as well as reinstatement.

The Defendants filed their dismissed motions,'

their motions were partially granted but largely

denied. Then the Defendants filed their motion for

Summary Judgment with the doctrine of collateral

estoppel as the major weapon, and Wei filed his

motion for partial summary judgment on

defamation only, the District Court denied Wei’s

motion, granted Defendant’s motion partially and

denied it partially, but it allowed the Defendants to

file their second motion (Appendix E). Then the

District Court in March 2017 granted Defendants’

second motion partially, even accepting the

Defendants’ claims of the Commission’s findings to

preclude Wei’s claims, the District Court found

that four counts of Wei’s claims still could go to a

trial (Appendix D). However, in June, 2018, the

District Court changed mind and asked the

Defendants to file another motion to object R&R. In

March 2019, the District Court accepted the

Defendants’ motion for Summary Judgment fully

(Appendix C). Then Wei appealed to the Third

Circuit, Defendants passed the due dates to enter

Appearance Form and file their response brief. The

Third Circuit affirmed (Appendix B).

REASONS FOR GRANTING THE PETITION

I. The Third Circuit erred in affirming the issue

preclusion. It is unconstitutional to use a case in

deciding a different issue, forbidding reopening,

and disallowing interpreter to preclude the new

issues

The requirements of issue preclusion have been

satisfied ifi (l) the issue is identical; (2) the

judgment was final and on the merits; and (3) there

was a full and fair opportunity to litigate. See

Bradley v. Pittsburgh Bd. ofEduc., 913 F.2d 1064,

1073 (3d Cir. 1990). A party asserting issue

preclusion bears the burden of proving each of

these elements. Taylor v. Sturgell, 553 U.S. 880,

128 S. Ct. 2161 (2008). Wei indicated that the .

Defendants failed to meet its burden to prove (l) or

(3). Wei also indicated that changes in the

controlling facts which render issue preclusion

inapplicable Montana v. United States, 440 U. S.

147, 153 (1979).

(a) Erred in the issue is identical

The Third Circuit erred in agreement with the

Defendants’ fraudulent statement that the state

court affirmed a just cause for Wei's removal from

his job due to [IUWP] other than failing to convert

HARS data.

However, As the Third Circuit wrote "In 2008,

the Commission decided that [PADOH] had the

just cause for the firing because Wei had failed to

complete an assignment" (Appendix B, 4a). The

assignment was converting HARS data in both the

Commission’s decision and the Commonwealth

Court’s affirmation. The Commonwealth Court

agreed with PADOH’s claim: because Wei failed to

convert HARS data solely, this constituted the

IUWP. Weil.

According to the Pennsylvania law, a civil

. servant hasn’t been given adequate notice of the

reasons for dismissal if the only reason given is

“continued unsatisfactory work performance.”

Wood v. Department of Public Welfare, 411 A.2d

281 (Pa. Cmwlth. 1980).

The just cause that PADOH gave was “In

December 2006, [Urdaneta], Wei's supervisor,

assigned Wei the task of converting the [HARS

v*,

data]” Wei I. “Wei was terminated for not

completing the [HARS data] assignment by July 31,

2007. While the Department maintains that Wei

was given ample resources and time within which

to complete the assignment” but “Wei claims that it

was not his responsibility to convert the 2005

[HARS data] files” Weil.

“In a letter dated September 4, 2007, [PADOH]

notified Wei that he was being removed from his

position because of [IUWP], Specifically, [PADOH]

maintained that Wei ‘failed to complete the 2005

backlog data work assignment as directed by July

,31s 2007.’" Wei I. PADOH later clarified that the

assignment was converting. HARS data (84a). •

In the state proceedings, the Defendants claimed

that the incompleteness of converting HARS data

constituted Wei’s IUWP. Since the Defendants

have admitted that PADOH never assigned Wei to

convert the HARS data, his IUWP must never

exist.

PADOH insists that the incomplete converting

HARS data by Wei was well established in the

state case, and it had stronger reason than

incompleteness to fire Wei if Wei did the

unassigned HARS task by himself. See Wei v.

State- Civil Service Commission. No. 1902 C.D.

• 2016 (Pa. Cm with, 2017) {Wei IIP) Based on the

Defendants' just cause in the state case, Wei-must

be dismissed because he didn’t complete converting

HARS data. Based on the Defendants’ facts in this

case, Wei must be fifed if he converted HARS data.

Evidently, the issue decided by the Commonwealth

Court and the issue in the federal court are not

•» .

it ■

■

■,

identical because banning the conversion of HARS

data and ordering to convert HARS data are not

only unidentical but also totally contradictory.

Clearly, the Defendants didn’t meet their burden

to prove the issue of that they tasked Wei

converting HARS data in the state tribunals is

identical to the issue based on that they never

assigned Wei to convert HARS data in this case.

While PADOH admitted that it assigned BIT

and others rather than Wei to convert HARS data,

it claimed that it assigned Wei to unify HIV lab

data into the BIT CSV format so they could be

“uploaded into PA-NEDSS with the rest of HARS

data” but Wei failed (casel9_1373, 151a-152a1).

This is fraud too, because PADOH in 2007 banned

electronically converting any HARS data though

the incompleteness and inaccuracies of previous

conversions needed to fix. Wei addresses the issue

in details in this filing later.

(b) Erred in Wei had Full and Fair Opportunity

In this case, the Defendants claimed that because

the Commission provided Wei the same full and

fair opportunity as the court, they could use its

. decision to preclude the federal court hearing,

Unfortunately, the Third Circuit erred in agreeing

the Defendants’ argument. However, the facts

1 In addition to cite the appendixes as “la-104a”, Wei also

cited some documents with prefix “casel9-1373” for

Appendixes filed with the case 19-1373, “AX” for those filed to

the Circuit Court and “DCD” for those filed to the District

Court.

T*.

show that Wei hadn’t full and fair opportunity:

(l)Barred to reopen the Commission case

i' •'

l:'

In the state case, PADOH insists that the

Commission isn’t a court, so the Commission’s case

was disallowed to be reopened as the court does.

[So, its full and fair opportunity is less than the

court]. In this case, however, PADOH and the

Commission claimed that they could use the

Commission’s decision to preclude the federal court

hearing because the Commission has provided Wei

full and fair opportunity as the court.

The Court held the judicially created doctrine of

collateral estoppel doesn’t apply when the party

against whom the earlier decision is asserted didn’t

have a "full and fair opportunity" to litigate the

claim. See Montana, Blonder-Tongue Laboratories,

Inc. v. University ofIllinois Foundation, 402 U. S.

313, 328‘329 (1971). Indeed, “offer a full and fair

opportunity to litigate the merits, and thus are

sufficient under the Due Process Clause of the

Fourteenth Amendment” was a prerequisite for the

issue preclusion Kremer v. Chem. Const. Corp., 456

U.S. 461, 478 (1982).

If the Commission. case couldn’t be reopened

when a fraud was committed, the decision must be

banned to preclude later court hearing because the

applicant didn’t have full and fair opportunity in

reopening as that in the court case.

There is no time limit on setting aside a

judgment obtained by fraud, nor can laches bar

consideration of the matter Hazel-Atlas Glass Co.

v. HartfordEmpire Co., 322 U.S. 238, 246 (1944).

NC-DSH, INC. v. Garner 218 P.3d 853 (2009). The

logic is clear: “[T]he law favors discovery and

correction of corruption of the judicial process even

more than it requires an end to lawsuits Lockwood

v. Bowles, 46 F.R.D. 625, 634 (D.D.C. 1969). In

Pennsylvania, the Court must not tolerate the

fraud “where a judgment has been obligated by

fraud, no court will permit its records and

processes to be the instruments of infamy.”

Sallada v. Mock, 121 A.2d 54, 55 (Pa. 1923).

'••w-

(2) Disallowing an interpreter

Wei was denied an interpreter during the

Commission hearing though he requested one

(case 19-1373, 136a) and he had the hmited

competency of English. Commonwealth has

documented “Wei is Asian and his Enghsh is very

broken” (AX250) and the District Court required

Wei to hire an interpreter when he wanted to

deposit the Defendants.

In the state case, PADOH insists that the

Commission isn’t a court, its hearing didn’t require

the same standard of the interpreter as the court,

the Commission could disallow Wei to have an

interpreter Wei I. [So, its full and fair opportunity

is less than the court]. In this case, however, they

claimed that because the Commission provided Wei

the same full and fair opportunity as the court,

they could use its decision to preclude the federal

court hearing, Unfortunately, the Third Circuit

erred in agreement with the preclusion.

Furthermore, depriving Wei’s right to be heard

undermined the integrity of the American legal

system, Asian Americans should be treated

equally. In addition, millions of Americans work

oversea and many of them mayn’t be fluent in the

native language. They would get the unfair trial

when the countries that they reside denied their

request for the interpreter.

Wei also was denied the opportunity to correct

the hearing records. Misled by the Defendants, the

Third Circuit misunderstood that Wei wanted to

make the correction twice, as Wei wrote in the

petition of rehearing (Appendix G), Wei actually

wanted to correct his own testimony located as the

second part of the transcript (Wei testified after

PADOH finished testifying).

Therefore, Wei’s meanings weren’t documented

correctly, it violated Wei’s free speech right to

express what he wanted under U. S. Constitution’s

first amendment and prejudiced Wei. Although the

Commission discredit Wei and rarely cited what

Wei testified. But the Commission claimed Wei

agreed that all documents would be concluded by

the end of the hearing day, it struck Wei’s

additional evidence (casel9‘1373, 150a) for

impeaching and rehearing. However, Wei's

understanding and agreeing was that the day's

testimony - in the Commission hearing was

concluded. In addition, Wei has been deprived

from citing what he really testified in the appeal or

other cases.

(3). Suppressing the key evidence

As Wei stated in the petition for rehearing

(Appendix G), PADOH suppressed the key

evidence in the state proceeding.

PADOH rejected Wei’s request (AX419), for the

updated Charter, in which PADOH required that

BIT developed the format first, then HIV team

converted the “raw” reports into the [formal]

format (case 19-1373, 72a). It means converting

HIV reports into the draft format was banned and

useless, Giallo and Urdaneta also wrote so in

March 2007 (casel9-1373, 91a). Therefore, that.

Urdaneta in April 2007 ordered Wei to convert

600,000 records into the BIT 2007 draft format was

totally for the retaliation and harassment.

PADOH in the updated Charter required “If

there is not enough information to meet the

PA-NEDSS required fields [of BIT format], the

data should not be converted” (casel9-1373, 74a,

para. l). It consists with PADOH routine that the

cleaning up must be done before the conversion.

Because others were in charge of cleaning but they

didn’t clean, it should terminate them rather than

Wei.

PADOH also suppressed the evidence that it

received Wei’s Aug 27, 2007 report of converting

550,000 reports (casel9-1373,119a). It testified

that Wei didn’t send the email, then it decided

terminating Wei (casel9-1373,

137a;16-25).

therefore, the outcome must be reversed based on

the newly confirmed fact.

PADOH falsified it tasked converting HARS

data to Wei in Dec. 2006 BIT meeting. However,

the Defendants have admitted that the task was an

estimated number (case 19-1373, 91a), and they

received Wei’s estimated number of 2,000 potential

cases (case 19-1373, 97a). Therefore, Wei completed

the task of Dec. 2006 BIT meeting.

The Defendants in their material facts didn’t

dispute that Wei didn’t know many facts until the

discovery of this case (casel9-1373, 155a). “If

significant new evidence has been uncovered since

the parole revocation hearing, [the court] cannot

find that Hernandez had a full and fair opportunity

to present his case at the hearing without that

evidence” Hernandez v. Wells, 2003 WL 22771982,

*5 (S.D.N.Y. 2003).

■t-

The Third Circuit erred in agreeing the

Defendants’ argument “Wei also argues that an

exception to preclusion applies: that there have

been changes in the controlhng facts which render

issue preclusion inapplicable. However, he simply

repeats his previous argument that he was not

assigned to convert the HARS data”.

However, as the Third Circuit recognized: "the

firing because Wei had failed to complete an

assignment" (4a). In the state case, both PADOH

claimed (84a) and the state tribunal decided that

the incomplete assignment was converting HARS

data Wei I. Since the Defendants admitted that

PADOH never assigned Wei to convert HARS data

in this case (casel9-1373, 151a), the control facts

have been completely changed. However, Wei has

•i.

provided many other key changes in the facts.

For example, in the state case, PADOH claimed

that it provided Wei several weeks of sufficient

times to complete converting HARS data, but Wei

failed to complete the task, this constituted IUWP

and deserved to be terminated. So, the termination

had nothing related to the discrimination and

retaliation. In this case, the Defendants admitted

converting HARS data was a huge project, it

assigned BIT and many other staffers to do the

work since 2004. Indeed, PADOH’s documents

show that it assigned Wei to check the errors after

the others converted HARS data (case 19* 1373, 51a,

54a, 55a). Therefore, the discrimination and

retaliation emerge as the probable cause.

In the state case, PADOH claimed “Wei was

charged with collecting and reporting HIV/AIDS

data accurately” Weil. In this case, its documents

show Wei was charged with reviewing the

completeness and accuracy of the collected data

while about 50 staffers from the HIV team, BIT

and 16 field offices were charged with collecting

and correct the data completely and accurately

(casel9‘1373, 50a-51a, 54a-55a).

In the state case, PADOH stated that Wei didn’t

send the email about his performance by Aug 29,

2007, then it decided to dismiss him (case 19'1373,

137a;16'25). In this case, its documents show that

it forwarded Wei’s Aug 27, 2007 email about his

performance (casel9*1373, 119a).

In the state case, PADOH claimed “Urdaneta

transferred some of Wei’s job responsibilities to

other staff members” Wei I. In this case, no her

.rv

T‘

email transferring Wei’s duty to others was found.

Instead, she emailed to assign more tasks to Wei

(AX343-9) and Wei completed all of them. For

example, Wei trained Obiri three times until Aug.

2007 (DCD 207-4, pp63-67).

In the state tribunals, PAD OH claimed “the

employer could not continue to wait for [Wei] to

make excuse and to stall the progress of the

project”, so it terminated Wei to accelerate the

progress (casel9-1373, 138a). In this case,

however, PADOH has admitted that it didn’t

complete its priority of 2005 HIV reports by Sept. ,

2010 (74a); it had no record that the work was

completed.

In this case, PADOH had the records that the

HIV team or BIT processed up to 480,000 HIV

reports or 330,000 reports yearly (case 19-1373,

147a, 58a). PADOH also claimed that it destroyed

all hardware of 2007 computers (case 19-1373,

150a).

In the state case, Urdaneta testified that

PADOH ordered Wei to show the data in PDC but

he didn't do that. In this case, PADOH denied her

story (casel9'1373, 141a). Neither PADOH’s PDC

minute nor any records documented her story or

PADOH’s order. Instead, PADOH documented that

Wei had completed 400,000 records (casel9-1373,

112a).

In the state case, PADOH claimed when Wei

sent Giallo 158 potential cases, “In a response,

Giallo informed Wei that he was getting too deep

into the process” to portray Wei’s insubordination

Wei I. In this case, the records show that Giallo

responded Wei with an updated draft format to ask

Wei getting deeper and "more detail", “[The

message constructions rules] must be carefully

adhered to in order for messages to be interpreted

correctly” (case 19-1373, 156a); However, Giallo

changed the tone after Wei redid deeper.

In the state case, PADOH claimed that Wei could

bring the data out of HIV secured area freely. In

this case, based on Pennsylvania law and CDC HIV

guidelines, HIV policy and requests must be in

writing, and the papers with identities couldn’t be

brought out of the HIV secured area (casel9'1373,

153a-154a).

In the state case, PADOH claims that e-mails

show that Wei was insubordinate in refusing for six

months to accept the duty of converting HARS data.

In this case, neither email nor record show Wei

refused to do so.

In the state case, PADOH has insisted that “the

uncomplete assignment which resulted in Wei’s

discharge was not assigned to him until Dec. 2006

[Meeting with BIT] (DCD 343-1, p3)”. In this case,

it admitted the Dec 2006 task was an estimated

number and it archived “Estimate gave by Dr. Wei”

with the estimated 2,000 cases (case 19-1373, 83a,

97a).

In the state case, PADOH insists it assigned Wei

converting HARS data solely even in 2019 (84a)

and the Commonwealth Court still disbelieves that

PADOH never assigned Wei to convert HARS data.

Wei III. In this case, Defendants claimed they

never assigned Wei to convert HARS data hut to

unify 2005 lab data (casel9-1373, 151a-152a), they

■

also assigned Allen and. Lehman continued the

task since 2006 (93a:5-6).

The Court held “The doctrines of collateral

estoppel and res judicata, however, apply only in

cases where controlling facts and law remain

unchanged” Commissioner v. Sunnen 333 U.S. 591,

599-600, 68 S.Ct. 715, 92 L.Ed. 898 (1948). A party

“need only point to one material differentiating fact

that would alter the legal inquiry” CSX Transp.,

Inc. v. Bhd. ofMaint. ofWayEmps., 327 F.3d 1309,

1317 (11th Cir. 2003).”

In addition, under the status of limitations of 20

days and the initial plan of 2*hour hearing

(AX431), the Commission case limited to hear

termination only though other events might be

mentioned, but they were not planned to litigate

there. It is inappropriate to use them to preclude.

II o It is unconstitutional that Defendants used the

false statements to hurt Wei but claimed the

government employees’ immunity. The Third

Circuit erred in affirming the district court’s

decision to deny Wei’s relevant claims and sanction

motions.

Regarding. Defendants’ false statements, they

argued the statements were related to their

employment and were within the scope of their

duties. For example, for Wei’s defamation claims,

the Defendants didn’t dispute the facts but claimed

that they enjoyed the immunity.

However, this Court in Wood v. Strickland, 420

U.S. 308, 95 S.Ct. 992, 43'L.Ed.2d 214 (1975)

defined the scope of immunity available to officials

23-

■ ,r

of the executive branch, the common law immunity

of public officials had been limited to "good-faith,

nonmalicious action taken to fulfill their official

duties". So, the immunity certainly didn’t include

the intentionally false statements that the

Defendants committed in this case. As Discussed

above, the Defendants made the false statements

to construct the just cause to dismiss Wei. In

addition to those false statements, Defendants also

committed the new ones in the federal court

proceedings.

It was established law that a Government

employees’ fabricating evidence was a violation of

due process. See Fields v. Wharrie., 740 F.3d 1107

(7th Cir. 2014), Napue v. Illinois, 360 U.S. 264, 269

(1959),' Pyle v. Kansas, 42, 317 U.S. 213, 215-16

(1942).

However, the Defendants used the false

statements to win this case. For example; the

Defendants stated that the Commonwealth Court

affirmed the just cause for Wei's removal due to

IUWP rather than failing to convert HARS data. In

fact, the Commonwealth Court affirmed that

falling to convert HARS data constituted IUWP.

Wei I. PADOH has insisted so in the state case

(84a).

Another example: Strizzi in 2012 wrote, under

oath, that PADOH in an Aug 24, 2007 PDC

reviewed the termination charge to Wei (89a, Tf4).

However, she committed perjury because she never

presented to the PDC as she admitted (91a!

casel9-1373, 131a).

In addition, PADOH documented that it orally

suspended Wei to investigate his performance after

[Dr U] Urdaneta accused Wei of failing to complete

the task decided in the 2006 BIT meeting, no

termination notice was recorded (case 19-1373,

131a- 133a), Strizzi in her Aug 27, 2007 letter to

Wei’s home wrote “This is written confirmation of

your suspension pending investigation...You will

be notified of any action taken” (case 19" 1373,

144a), Clearly, the termination wasn’t notified Wei

by that time. Strizzi made a false statement in

here.

In the state case, PADOH has insisted “the

uncompleting assignment from Dr. Urdaneta and

which resulted in his discharge was not given to

[Wei] until December of 2006 [BIT meeting]” (DCD

343*1, p3). Since PADOH archived and admitted

that the task to be an estimate only and Wei have

given the estimate, it obviously would loss the case.

To win the case, PADOH used Obiri’s false

statements to this case that Wei must continue

converting 2005 lab reports since fall 2005.

However, PADOH’s records show both Obiri and

his supervisor Urdaneta in writing to move Wei to

other “extra work” of cleaning the HARS databases

of 16.field offices a month later (DCD 139-1, pp7*9).

PADOH had no record to order Wei converting the

lab data from Oct 28, 2005 to April 8, 2007.

Instead, it had the record to order Wei reviewing

the completeness-after others converted them into

PA-NEDSS (casel9*1373, 51a).

U.S. Code § 1623 held Perjury is committed

when “the defendant under oath has knowingly

made two or more declarations, which are

inconsistent to the degree that one of them is

necessarily false, need not specify which declara

tion is false" United States v. Dunn, 577 F.2d 119

(10th Cir. 1978). The Defendants’ contradictory

statements must be considered as the perjury, it at

least should be considered as the fraud in the Civil

lawsuit.

In addition, putting those Obiri’s under-oath

statements together, we could find they

contradicted each other in key issues. First, we

could extract three key facts from them:

Obiri confirmed that he assigned converting

2005 lab reports as Wei’s “extra work” in fall 2005

(93a:24) based on Wei’s knowledge [rather than

responsibility]. He also assigned Allen and Lehman

to convert 2005 lab reports (89a, f 5).

Obiri stated, from Oct to Dec 2005, the whole

HIV team and Deloitte (BIT) concentrated on both

converting 2005 HIV lab data by Dec 19, 2005 (90a,

TJ6) and converting HARS data later. However, by

Nov 22, 2005, they realized the deadline of

completing the lab data was unrealistic (DCD 70-1,

p7). So, the task was incomplete.

Obiri stated that he [on Oct 28 2005] moved Wei

to “clean up the main [HARS] databases [of 16 field

offices] for conversion” (94a: 2-3) exclusively and

“solely” (90a, If7) “in November and December

2005” (96a, f9). Since PADOH started converting

HARS data in April 2004 (AX220), the data

couldn’t be converted because of uncleaning yet.

Since other staffers didn’t join Wei to clean up the

*■

HARS data, they must continue converting HIV lab

reports.

Obiri defamed Wei in several aspects: First,

Obiri stated “When Dr. Wei failed to complete his

assignment [of converting 2005 reports], PADOH

failed to meet the Dec 19, 2005 deadline” to bring

them into PA-NEDSS (90a, 1f6). However, he

testified that he assigned Wei this “extra work” in

fall, 2005 (93a;24) but banned Wei doing the work

in Nov and Dec 2005 though he used a word

“postpone” (96a If9). Clearly Obiri made the false

statement.

V»

Second, Obiri listed many emails (98a*99a, If3

■&f4) that he allegedly directed Wei developing a

CSV format to convert 2005 lab reports. So. Wei

must use his format to complete 2005 reports later.

However, under questions, Defendants couldn’t

identify any email [or record] for this purpose (See

92a). The list was false. Indeed, Wei was

impossible to develop any format for PA-NEDSS

because he couldn’t fully access PA-BEDSS and

didn’t know what PA- NEDSS required.

Furthermore, PADOH’s Oct 2005 documented

that Obiri favored using HARS format for the

conversion (casel9-1373, 145a), but opposed using

CSV format (AX521-2). Moreover, in the updated

charter developed since Dec 2005 (casel9-1373, 70a)

with Obiri (casel9-1373, 78a), PADOH clearly

required to convert the “raw” reports into the

upcoming BIT format (casel9-1373, 72a). It means

to ban converting the raw reports into any other

formats.

•V-

Third, Obirie claimed that he assigned Wei to

convert 2005 lab data solely. Nevertheless, this

contradicts his statements of assigning 3 staffers,

others worked to Nov 22 [without Wei]; and he

asked Allen and Lehman return to the 2005 lab

reports in 2006 (94a;5‘6).

Obiri also wrote “Once the conversion of the

[HARS] data systems were complete, I instructed

Ming Wei to return to “convert the 2005 lab

reports. However, the Defendants have admitted

that no record to instruct Wei to convert the lab

data in 2006 (99a Tf5). Instead, PADOH ordered

Wei to review the completeness and accuracy in

PA-NEDSS (casel9'1373, 51a) after others conver

ted HIV lab data.

Obiri stated that he ordered Wei to postpone

2005 lab data for 2 months only. No record

supports his claim. Indeed, some records didn’t

support his claim: Obiri in Oct 2005 wrote to

Urdaneta and told Wei that Allen and Lehman

could complete the lab data without Wei in 2 or 3

weeks (AX534, AX248), and he also stated that he

didn’t realize the deadline of Dec 19 was unrealistic

until Nov 22, 2005 (DCD 70, p7).

♦

While PADOH has 'admitted that it assigned

the BIT and other staffers rather than Wei to

convert HARS data in this case, it changed its

story to “Wei failed to complete the assignment

given to him of [converting] into a single format

file the backlog of HIV laboratory data so that it

could be evaluated, cleaned, and uploaded into

[PA-NEDSS] with the rest of the HARS data”

(casel9-1373, 151a).

However, PADOH routinely and in its updated

Charter required cleaning the reports as perfect

as possible must be done prior to the conversion.

“If there is not enough information to meet the

PA-NEDSS required fields [of BIT format], the

data should not be converted” (casel9-1373, 74a).

Indeed, once the reports converted into BIT’s

draft format, it couldn’t clean anymore.

PADOH claimed that the other staffers were in

charge of cleaning up but they didn’t clean the lab

data yet. Although PADOH in April 2007 assigned

Wei to “set aside 2 hours” daily to convert 2005

reports into BIT 2007 draft format (case 19" 1373,

107a), if Wei waited for their cleaning, he

- shouldn’t convert any reports. Therefore, PADOH

committed the new fraud.

Defendants also falsified that Urdaneta’s April

9, 2007 order (102a) wasn’t a new assignment but

an old task. However, Urdaneta’s task was “I’m

directing you to complete the processing of HIV

laboratory data backing using the template

provided by Bob Giallo...” (102a). This was the

first time that PADOH ordered using the BIT

draft format (template) to convert. It is completely

new. It is a shock U-turn new. Although BIT

started working the format from 2005 to Feb 2007

(103a), both Urdaneta and Giallo wrote this

' format was a draft format for getting an

estimated number only, but banned it for the

overall conversion in their March 2007 email

(casel9_1373, 91a).

Since PADOH defined the draft format was

useless for the conversion, and it require

converting “raw” lab reports into BIT formal

format (casel9-1373, 72a), PADOH asked Wei to

convert 600,000 raw reports into a useless draft

format was both wasting and harassing.

PADOH banned converting the HARS data into

PA-NEDSS in 2007 though the incompletes of

previous conversion needed to fix. So, PADOH

committed the new fraud by stating the

conversion with the HARS data to be uploaded

into PA-NEDSS.

Nevertheless, Wei worked extremely hard and

processed (cleaned and converted) 550,000 reports

(casel9-1373, 119a). Based on PADOH’s records,

the BIT or HIV team could process up to 330,000 or

480,000 records yearly (casel9_1373, 58a, 147a).

Clearly, the Defendants committed the new fraud

by stating that they provide Wei the sufficient time

to do this “extra work”.

PADOH in July 2007 told Wei that he was no

long a part but let the other parts to solve the

backlog lab data issue (case 19-1373, 111a), and he

should focus on his job of checking errors. However,

while Wei enhanced his working on checking the

accuracy and completeness, he continuously

processed HIV lab data to 550,000 reports until

PADOH suspended Wei for investigation on Aug

24, 2007 (casel9-1373, 133a).

The Defendants blamed Wei “The project never

began because Ming Wei never completed the

unification of the backlog data”. However, the

Defendants claimed they terminated Wei to

accelerate completing this priority (case 19-1373,

138a) too. But, many years after Wei left, they

still blamed Wei for their failure in converting

ri k

S’

2005 lab data. Therefore, ’this must be defined as

the defamation.

Another example, when Wei went to the

Commission to get the case and job information in

2009, the Commission falsely claimed Wei was

trespass and the Commonwealth charged Wei.

Although the Commonwealth withdrew the charge

later, the Defendants defamed Wei to resolve the

charge by the plea bargain (DCD. 207-4, pp 20-21).

A company called Wei and stated that he was

dishonor in his criminal history based on a website

Truthfinder, then Wei asked Truthfinder why it

' spread the false information to hurt his reputation

(DCD 416-2), Truthfinder stated its information

from the Government.

Because of the space limit, no all of Defendants’

defamation, fraud and contradiction is listed in

here. For the reason, Wei’s claims against these

fraud and defamation must be allowed, and his

motions to sanction the Defendants must be moved

forward.

In addition to the new fraud, the Defendants

argued the old false facts accredited by the

Commission and the state court; therefore, they

could reuse them as the undisputed material facts

.to preclude Wei’s claims. Indeed, most of Wei’s

claims were precluded in this way.

For example, Defendants cited the false

statement in (casel9-1373, 137a;16*25) and stated

“Wei never supplied Burnhauser with an email or

any other evidence that any of the files had been

entered or unified. Id. at 28; 16-25)” in their

material facts. Although they have released the

■*g.

■

•»:

Aug 27, 2007 email that Burnhauser received from

Wei (casel9-1373, 119a).

Another example, though PADOH admitted that

it documented that BIT or HIV team could

complete up to 330,000 or 480,000 reports yearly

(case 19-1373, 58a, 147a,). Since 2007 draft

format added some variables into 2005 format

(103a) and had the same strict requirement

(casel9-1373, 156a), converting a raw report into

2007 draft format requires the similar workload as

converting it into 2005 CSV format. Defendants

clearly knew that Wei completed converting

550,000 reports into the BIT’s 2007 draft format

was an excellent job.

According to the Defendants’ logic, if Defendants

successfully falsified a man died in the Commission,

they could continue to claim his death even the

man actually is alive. However, this is in violation

of the Pa. Code § 204. Rules 3.3.: (a) A lawyer shall

not knowingly: (3) offer evidence that the lawyer

knows to be false.

However, this Court held changes in controlling

facts essential to a judgment render collateral

estoppel inapplicable Montana. Even if the

collateral estoppel is applicable, it just precludes

the identical issue in the new lawsuit, it never

gives a green light to reuse the knowing false

statements to-preclude the new claims. Based on

the status of limitation of 20 days in the

Commission of appeal Wei only appear the

termination in the Commission, (10la), many of

claims that Wei filed in this case was expired and

«*»•

didn’t prepare to litigate in the Commission. These

claims certainly should not be precluded.

The success of using a previous fraud to interfere with a

justice couldn’t serve as an alibi to continue using the fraud

to the Court. In Atlas Glass, the defendants had used a false

story to defend and prevailed previously, but the Court

didn’t state this fraud should continue because they were

previously accredited by the courts, instead, but declared

“[f]rom the beginning there has existed ... a rule of equity

to the effect that under certain circumstances, one of which

is after-discovered fraud, relief will be granted- against

judgments regardless of the term of their entry.”

Jn Kenner v. C.I.R., 387 F.2d 689 (7th Cir. 1968),

when an officer of the Court including lawyers is

found to have fraudulently presented facts to court

so that the court is impaired in the impartial .

performance of its legal task, the act is considered

as "fraud upon the court". The court held “a

decision produced by fraud on the court is not in

essence a decision at all and never becomes final.”

While an attorney “should represent his client

with singular loyalty that loyalty obviously does

not demand that he act dishonestly or

fraudulently! on the contrary his loyalty to the

court, as an officer thereof, demands integrity and

honest dealing with the court.” And when he

departs from that standard in the conduct of a case

he perpetrates a fraud upon the court. Kupferman

v. Consolidated Research & Manufacturing Corp

459 F.2d 1072 (2d Cir. 1972).

Furthermore, when an officer of the court fails to

correct a misrepresentation or retract the false

evidence submitted to the court, it may also

.v;

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TZ-

■i5

A’.

constitute fraud on the court. In re McCarthy, 623

N.E.2d 473, 477 (Mass. 1993).

Even considering all the Commission’s writings

could be used to preclude, the District Court in

2017 still found Wei’s 4 claims could move forward.

The Defendants tried to use’ the false statements to

get rid of them. For example, because the

Defendants claimed that Urdaneta wasn’t aware of

the decision to approve Wei’s FMLA, then the

District Judge used “no evidence that Dr. Urdaneta

was aware that Wei had been approved for FMLA

leave by human resources” as one of the reasons to

dismiss Wei’s claim (23a). However, the evidence

shows that Urdaneta knew the decision (104a).

Rule 11 sanction doesn’t require proving “Bad

faith”. See Lieb v. Topstone Indus., 788 F.2d 151,

157 (3d Cir. 1986); because window period was

provided, “subjective good faith no longer provides

the safe harbor it once did." for rule 11 sanction.

Eastway Constr. Co. v. City ofNew York, 762 F. 2d

243, 253 (2d Cir. 1985). Since the Defendants didn’t

correct within 21 days, the sanction should be

applied.

What Defendants have done to use the false

statements to win the case is not the legal art but

far cross the red line. This was especially true that

making false statement is a very common criminal

charge in the USA. Their prevails undermine the

integrity of the functioning legal system.

The Court held “if the limitations period began to

run regardless of whether a plaintiff had

discovered any facts suggesting scienter. So long as

a defendant concealed for two years that he made a

•m

misstatement with an intent to deceive, the

limitations period would expire before the plaintiff

had actually " discovered]" the fraud.” Merck & Co.,

Inc. v. Reynolds et al., 130 S. Ct. 1784 (2010). In

this case, Defendants have continued using their

power and public authority status making the false

statement to deceive the tribunals after Wei

indicated they were false,

A Court could sanction the party’s misconducts

even the misconducts did not occur within this

court. The power of the federal courts to sanction

misconduct, be it vexatious litigation or contemp

tuous behavior, is beyond doubt. See, e.g.. Roadway

Express, Inc. v.. Piper, .447 U.S. 752, 65 L. Ed. 2d

' 488, 100 S. Ct. 2455 (1980), Afyeska Pipeline Serv.

Co. v. Wilderness Society, 421 U.S. 240, 44 L. Ed.

2d 141, 95 S. Ct.l612(l975); In addition to the goal

of deterrence, the exercise of the inherent power

can also be based on the goals of compensation and

punishment.

In the initial complaint, Wei claimed that

Defendants committed for intentional emotional

distress but was dismissed by the District Court

(Appendix F). Based on that the Defendants

repeatedly and intentionally falsified the fact to

harm Wei, and they have continuously caused Wei

severe stress. Wei requests to add the claim

against the Defendants.

III. It is unconstitutional to define that Wei

continued to complain the discrimination as the

evidence of “no deter” and “no retaliation”. The

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•■4

lower courts erred in siding with the Defendants’

this claim

In the district court, the Chief Magistrate Judge

decided

that

Defendants

made

some

misstatements but didn’t reach the sanction level.

She pointed out that Defendants listed Wei’s

admission that he missed a mandatory meeting

was a misstatement.

Wei actually stated this wasn’t a mandatory

meeting and he never received Urdaneta’s order to

go to the meeting. In addition, no word

“mandatory” was presented in the notice of this

meeting. In contrast, the notices of the real

mandatory meetings from Urdaneta and others

had the word “mandatory” (AX421-2) but some

staffers still missed the meetings.

Soon after Wei reported DEEO that Urdaneta

falsified that Wei missed a mandatory meeting,

Urdaneta gave Wei a reprimand though PADOH

admitted it never disciplined any employee for

missing a meeting (AX536) and Urdaneta admitted

that she missed some meetings.

Urdaneta also assigned Wei to complete

processing 600,000 HIV reports into 2007 BIT draft

format solely in a few Weeks (2 hours daily), though

PADOH documented that whole BIT or HIV team

needed at least a year to complete them

(casel9-1373, 58a, 147a). PADOH also banned Wei

to have the compensatiorial hours in his overtime

though others could get it.

Urdaneta wrote “Because of your deadline of

your work assignment [of 2005 reports], I am not

approving any annual and personal leave” and

«r«'

preclude Wei’s pay leave in lieu of FMLA. Then

Wei complained that he must get the pay for his

sick. However, PADOH on July 2, 2007 to issue a

reprimand to deter Wei’s complaint (AX540) and

insisted that Wei couldn’t get any pay leave until

he complete 2005 reports. This is a clearly

retaliation: PADOH claimed that it ordered several

other staffers to convert about 4,000 Philadelphia

records in 2006, they converted 362 records only in

4 months (case 19-1373, 64a); but they could enjoy

the pay leave. PADOH also claimed that it

assigned Allen and Lehman to convert the 2005 lab

- data since 2006 (94a:5'6), they could get the pay

leave. PADOH admitted it unfinished the 2005 lab

data by Sept 2010 (74a), its staffers could enjoy the

pay leaves.

However, the District Court erred in siding with

the Defendants: “it is evident that Wei was not

dissuaded from making or supporting a charge of

discrimination by virtue of these two written

reprimands. To the contrary, Wei made almost

weekly complaints to the DEEO, which were in

addition to his many more formal complaints to the

EEOC, PHRC and the courts.” as a reason to judge

that Wei wasn’t retaliated (Appendix C, 22a) as the

evidence of no retaliation. The Third Circuit erred

in affirmation.

Nevertheless, defining unstopping complains to

authorities as the “non-deter” is unconstitutional.

If we stop complaint, how could we stop the

discrimination? How could the court get the case?

This definition is in violation of the Fourteenth

Amendment to the United States Constitution.

Nevertheless, the Court addressed the “deter” are

■ w

.!'

for that the employer’s acts deterred the employee.

In Burlington N. & S. F. R. Co. v. White, 548 U.S.

53 (2006), White never stopped her complaints

after the employer used reassignment and

discipline to deter her and she also complained to

EEOC several times. The Court held that the

employer’s acts deterred her complaint, therefore,

it constituted the retaliatory discrimination.

In Burlington, the Court gave good examples to

explain “deter” was the employer’s action^

“A schedule change in an employee’s work

schedule may make little difference to many

workers, but may matter enormously to a young

mother with school age children. Cf., e.g.,

Washington, supra, at 662 (finding flex-time

schedule critical to employee with disabled

child). A supervisor’s refusal to invite an

employee to lunch is normally trivial, a

nonactionable petty slight. But to retaliate by

excluding an employee from a weekly training

lunch that contributes significantly to the

employee’s professional advancement might well

deter a reasonable employee from complaining

about discrimination. See 2 EEOC 1998 Manual

§8, p. 8-14. Hence, a legal standard that speaks

in general terms rather than specific prohibited

acts is preferable, for an “act that would be

immaterial in some situations is material in

others.” Obviously, the Court defined deterrence

from the behavior of employers rather than

employees.

In Wei’s case, the “deter” was more obvious,

other staffers could take their sick leave, enjoy

Si?

•fef.

f Hv

their annual leave, get the paying training, access

PA-NEDSS, but Wei could not. men PADOH

failed to finish converting 2005 lab reports by the

deadline of December 19, 2005 and later, then it in

2007 wanted Wei to do that with minimum time,

when other staffers didn’t fulfill their cleaning

duty, Wei had to help them to finish. In contrast,

Wei helped them to process (clean and convert) a

majority of 2005 lab data with an exceptional pace,

but he was discriminated, retaliated, defamed and

terminated.

Conclusion

The petition for a writ of certiorari should be

granted.

Respectfully Submitted:

Ming Wei

3910 Silver Brook Dr.

Meehanicsburg, PA 17050

Phone (717) 732-2040

mingweiebct@hotmail.com

08/12/2020

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.