Petition for Writ of Certiorari — Rosemary Garity, Petitioner v. Louis DeJoy, Postmaster General

Supreme Court briefAug 17, 2021

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Supreme Court, U.S.

FILED

J/-3J.9

AUG 1 7 2021

OFFICE OF THE CLERK

In The

SUPREME COURT OF THE UNITED STATES

ROSEMARY GARITY

Petitioner

USPS PMG Brennan/DeJoy

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROSEMARY GARITY

3231 Florenza St.

Pahrump, NV 89060

geritzl@outlook.com

775-253-6127

f r"'. fy

i n i-n'A *

LTUL^]

PETITION FOR WRIT OF CERTIORARI

QUESTIONS PRESENTED FOR REVIEW

The questions presented show conflict with Precedent of this Court and all Circuit

Courts. The significant practical consequence is promotion of discrimination

without remedy and encouragement of Courts to rule contrary to law.

1. Did the Ninth Circuit err in upholding sanctions against pro se, denial of

damages and right to a jury trial, when admitting not supported by the record,

contrary to the Supreme Court and other Circuit Courts?

2. Did the Ninth Circuit err, in contrast to all Circuit Courts and the Supreme

Court, when subtracting a contract grievance settlement from the discrimination

award and denying make whole remedy, including front pay/restoration, costs,

expenses, promotion, benefits and back pay, for found discrimination?

3. Did the Ninth Circuit err in determining constructive discharge contrary to the

undisputed record evidence and the Supreme Court and the other Circuit Courts?

4. Did the Ninth Circuit err in denying expert witness fees to pro se because not an

attorney, with expert approved by the Judge? Is this contrary to Fourteenth

Amendment, make whole remedy and in conflict with Circuit and Supreme Courts?

5. Did the Ninth Circuit err in upholding order requiring pencil documents in a

legal proceeding without copy to petitioner contrary to law and legal practice?

6. Was the denial of recusal, when becoming part of the accusatory process and

upon multiple declarations of appearance of bias, contrary to Supreme Court and

Circuit Court law?

7. Did the Ninth Circuit err in upholding summary judgment, while prima facie,

pretext, disputed material facts and credibility issues all evidenced, against all

Circuit Court and Supreme Court law? Is summary judgment eliminating

meritorious claims?

8. Did the Ninth Circuit err in “But For” ruling contrary to the Rehab Act and

Supreme Court precedent?

9. Is denial of representation by EEOC and DOJ, solely to Federal employees,

against the Constitution and is the DOJ action in representing the Agency and

coworkers, without providing representation to petitioner, contrary to the law and

DOJ regulations?

10. Is the denial of Punitive Damages against the government contrary to the

Fourteenth Amendment of the Constitution and is it promoting discrimination?

11. Did the Ninth Circuit err in the treatment of a pro se and discrimination claims,

as outlined in all the questions, contrary to this Court and all Circuit Courts?

12. Did the Ninth Circuit err in refusing to address critical trial errors, contrary to

precedent, affecting outcome?

13. Did the Ninth Circuit err in refusing to address denied Race Claim, when

evidenced, contrary to Supreme Court and Circuit Court established law?

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Vl-XVl

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

2-4

REASONS FOR GRANTING THE WRIT

4-29

QUESTION 1

5-9

QUESTION 2

9-11

QUESTION 3

11-13

QUESTION 4

13-14

QUESTION 5

14-15

QUESTION 6

15-16

QUESTION 7

16-22

A. ACCOMMODATION

17-18

B. HOSTILE WORK ENVIRONMENT.

18-19

C. RETALIATION

19-21

QUESTION 8

22-23

QUESTION 9

23-25

QUESTION 10

QUESTION 11

26-27

QUESTION 12

27-28

QUESTION 13

28-29

CONCLUSION

29-30

INDEX TO APPENDICES

APPENDIX A NINTH CIRCUIT DECISION,

1-6

APPENDIX B DISTRICT COURT DECISION

7-25

APPENDIX C NINTH CIRCUIT REHEARING DECISION

26-27

APPENDIX D SANCTIONS

28-31

APPENDIX E SUMMARY JUDGMENT. . .

32-47

APPENDIX F RECUSAL

48-50

APPENDIX G PENCIL DOCUMENTS

51-53

APPENDIX H DOJ REPRESENTATION

54-56

TABLE OF AUTHORITIES

Cases

14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S. Ct. 1456, 173 L. Ed. 2d 398 (2009)

10, 21

Adduono v. World Hockey Ass'n,824 F.2d 617, 621 (8th Cir.1987)

Agravante v. Potter Dist. Court, ND Illinois, 2015

Agster v. Maricopa County, 422 F.3d 836, 838-39 (9th Cir. 2005)

Ahmed v. Johnson, 752 F.3d 490 (1st Cir. 2014)

Akhtar v. Mesa, 698 F. 3d 1202 (9th Cir. 2012)

Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 45 L.Ed.2.d 280 (1975).... 10

Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974)

Alexander v. Primeriea Holdings, Inc., 10 F.3d 155, 163, 166 (3d Cir. 1993)

Allen v. Sakai, 40 F. 3d 1001, 1005, 1006 (9th Cir. 1994)

Amarel v. Connell, 102 F. 3d 1494 (9th Cir. 1996)

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 255 106 S. Ct. 2505, 91 L. Ed. 2d 202

(1986)

Animal Legal Def. Fund v. FDA, 836 F.3d 987, 988 (9th Cir. 2016) (en banc) (per curiam); 21

Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884 (9th Cir. 2019)

Aubrey v. Koppes, 975 F.3d 995 (10th Cir. 2020)

Avail Shipping Inc. v. DHL Express (USA) Inc., 2015 N.Y. Slip Op 30348 (Sup. Ct. 2015).... 6

Ayinola V. Lajaunie, No. 19-2705-cv (L) (2d Cir. May 13, 2021)

Babb v. Wilkie, 140 S. Ct. 1168, 206 L. Ed. 2d 432 (2020)

Beacon Theatres, Inc. v Westover, 359 U.S. 500, 511 (1959) ....

Biestek v. Berryhill, 139 S. Ct. 1148, 587 U.S., 203 L. Ed. 2d 504 (2019)

Bogan v. MTD Consumer Group, Inc., 919 F.3d 332 (5th Cir. 2019)

Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954)

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015)

Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269 (4th Cir. 1985)

Braley v. Campbell, 832 F.2d 1504, 1510 n. 5 (10th Cir. 1987) (en banc);

Bretz v. Kelman, 773 F.2d 1026, 1027 n.l (9th Cir. 1985) (en banc)

Brosseau v. Haugen, 543 U.S. 194, 195 n.2 [125 S.Ct. 596, 160 L.Ed.2d 583] (2004) (per

curiam)

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763, 765 118 S.Ct. 2257, 141 L.Ed.2d 633

12,21

(1998)

Burlington N. & Sfr Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006).... 19

Burrage v. US, 134 S. Ct. 881, 571 U.S. 204, 187 L. Ed. 2d 715 (2014)

Burt v. Hennessey, 929 F.2d 457, 459 (9th Cir. 1991)

Bushfield, v. Donahoe, No. l:ll-cv-00251-CWD U.S. District Court, D. Idaho. December 6,

2012

Butt v. United Brotherhood of Carpenters & Joiners of America, No. 12-1331 (3d Cir. Jan.

31, 2013)

Cerros v. Steel Technologies, Inc., 398 F.3d 944 (7th Cir. 2005)

Chandler v. Roudebush, 425 U.S. 840, 841, 96 S.Ct. 1949, 1950, 48 L.Ed.2d 416 (1977)..9, 23

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418 (1978)

Clark County School Dist. v. Breeden, 532 U.S. 268, 121 S. Ct. 1508, 149 L. Ed. 2d 509

(2001)

Clarkson v. I.R.S., 678 F.2d 1368, 1371 (11th Cir. 1982)

Clements v. Airport Authority of Washoe County, 69 F.3d 321 (9th Cir.1995)

Vll

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S. Ct. 1487, 84 L.Ed.2d 494

(1985)

Cleveland v. Policy Mgmt. Sys., Corp., 119 S. Ct. 1597, 1600 (1999)

Climent-Garcia v. Autoridad De Transporte, 754 F.3d 17 (1st Cir. 2014)

Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007)

Cooper v. Brown, 565, 596 F.3d 581 (9th Cir. 2009)... .

Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)

Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998)

Cruz v. Maverick County, 957 F.3d 563 (5th Cir. 2020)

Cuneo v. Rumsfeld, 553 F.2d 1360,1364 (DC Cir 1977)

Cunningham v. F.B.I., 664 F.2d 383, 387 n.4 (3rd Cir.1981)

Curtis v. Loether. 415 U.S. 189. 194. 94 S.Ct. 1005. 39 L.Ed.2d 260 (1974Y

Daubert v. Merrell Dow Pharmaceuticals,

DeBold v. Stimson, 735 F.2d 1037, 1043 (7th Cir. 1984) .

Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003)... 22

Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879 114 S. Ct. 1992, 128 L.

Ed. 2d 842 (1994).

Donny F. v. Dep't of Homeland Sec., EEOC Appeal No. 0720130035 (October 20, 2015)..... 23

Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998)

Dupont deNemours & United Steel Workers Local 6992, 362 NLRB No. 98 (May 29, 2015). .4

Eddy v. Virgin Islands Water and Power Authority, 256 F.3d 204, 209-10 (3d Cir.2001)

(Alito, J.)

Vlll

EEOC and Savage v. Department of the Army (Docket Nos. AT-0752-11-0634-1-2, AT-122112-0591-W-l MSPB September 3, 2015)

EEOC v. AutoZone, Inc., 707 F.3d 824 (7th Cir. 2013)

EEOC v. KarenKim, Inc., 698 F.3d 92 (2d Cir. 2012)

Erickson v. Pardus, 551 U.S. 89, 94 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007)

Eshelman u. Agere Systems, Inc., 554 F.3d 426 (3d Cir 2009)

Faragher v. Boca Raton, 524 U.S. 775, 806, 808 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) 12,

Federal Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008).

FHA, Region 4 v. Burr 309 U.S. 242 (1940)

Foster u. University of Maryland-Eastern Shore, 787 F.3d 243 (4th Cir. 2015)

Garity v USPS US District Court of Nevada 2:ll-cv-01805-RFB-CWH

GARITY v. Brennan, No. 20-15588 (9th Cir. Apr. 27, 2021)

Ghailani v. Sessions, 859 F.3d 1295, 1300 (10th Cir. 2017)

Gomez-Perez v. Potter, 553 U.S. 474, 487-88, 488 n.4 (2008)

Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014)

Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 581 U.S., 197 L. Ed. 2d 585 (2017). 5

Gowski v. Peake, 682 F.3d 1299 (11th Cir. June 4, 2012)

Greenhorn v. Marriott Int'l, Inc., 216 FRD 649, 652 (D. Kan. 2003)

Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S. Ct. 2343, 174 L. Ed. 2d 119

(2009)

Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir. 1998)

Head v. Glacier Northwest Inc., 413 F.3d 1053, 1058-59 (9th Cir. 2005)

Holley v. Department of Veteran Affairs, 165 F.3d 244, 247-48 (3rd Circuit 1999)

Hunt v. Cromartie, 526 U.S. 541, 119 S. Ct. 1545, 143 L. Ed. 2d 731 (1999)

IN RE Bayer Healthcare And Merial Ltd. Flea Control, 752 F.3d 1065 (6th Cir. 2014).......22

In re Cty. of Orange, 784 F.3d 520, 528-29 (9th Cir. 2015)..

IN RE ERIC WATKINS LITIGATION, No. 20-10408, Non-Argument Calendar (11th Cir.

Oct. 1, 2020)

IN RE Garity, No. 17-72805 (9th Cir. Dec. 19, 2017)

In re Howe, 800 F.2d 1251-52 (4th Cir. 1986).

In re Murchison, 349 U.S. 133, 137, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

International Bhd. of Teamsters v. United States, 431 U.S. 324, 362 (1977)

Johns v. Brennan, No. 17-16340 (9th Cir. Feb. 13, 2019)

Jones v. Blanas, 393 F.3d 935 (9th Cir.2004)

7, 26

Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193, 1209 (11th Cir. 1985)

Klune u. Palo Verde Health Care District, No. 15-56918 (9th Cir. Feb. 14, 2019)

Knox v. Service Employees Intern. Union, 567 U.S. 298, 132 S. Ct. 2277, 183 L. Ed. 2d 281

(2012)

Kokoszka v. Belford, 417 U.S. 642, 650 (1974)

Leone v. Owsley, 810 F,3d 1149 (10th Cir. 2015)

Lindstedt v. City of Granby, 238 F.3d 933, 937 (8th Cir. 2000)

Loeffler v. Frank, 486 U.S. 549, 108 S. Ct. 1965, 100 L. Ed. 2d 549 (1988)...

Lopez v. Donahoe 94 F. Supp. 3d 845 - Dist, Court, SD Texas, 2015

Love v. Pullman Co., 404 U.S. 522, 527(1972)

Maracich v. Spears, 675 F.3d 281 (4th Cir. 2012)

Markowicz v. Nielsen, 316 F. Supp. 3d 178 (D.C. 2018)

Martel u. Clair, 565 U.S. 648, 132 S. Ct. 1276, 182 L. Ed. 2d 135 (2012)..

Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L.

Ed. 2d 538 (1986)

McClellan v. Midwest Machining, Inc., 900 F.3d 297 (6th Cir. 2018)...

McLane Co., Inc. v. EEOC, 137 S. Ct. 1159, 581 U.S., 197 L. Ed. 2d 500 (2017)

Montana v. United States, 440 U.S. 147, 164 n.ll. 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) .4, 28,

National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 115-121, 122 S.Ct. 2061,

153 L.Ed. 2d 106 (2002)

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S. Ct. 964, 19 L. Ed. 2d 1263

(1968)

Nigro v. Sears, Roebuck and Co., 784 F.3d 495 (9th Cir. 2015)

Parts and Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228 (7th Cir. 1989)

Phillips v. Hust, 477 F.3d 1070, 1084 (9th Cir. 2007)

Pirkl v. Wilkie, 906 F.3d 1371 (Fed. Cir. 2018)

Pollard v. El du Pont de Nemours & Co., 532 U.S. 843, 121 S. Ct. 1946, 150 L. Ed. 2d 62

(2001)

Postal Service v. Flamingo Industries (USA) Ltd., 540 U.S. 736, 124 S. Ct. 1321, 158 L. Ed.

2d 19 (2004)

R & R Sails v. Insurance Co. of Pa., 673 F.3d 1240 (9th Cir. 2012)

Rand v. Rowland, 154 F.3d 952, 957-58 (9th Cir. 1998)

Randolph v. Ind. Reg'l Council of Carpenters, 453 F.3d 413 (7th Cir. 2006)

Ray A. Scharer and Co., Inc. v. Plabell Rubber Products, Inc., 858 F.2d 317, 321 (6th

Cir.1988)

Ray v. Henderson, 217 F.3d 1234, 1240 n.3 (9th Cir. 2000)...

Re Tech. Licensing Corp., 423 F. 3d 1286, 1288 (Fed. Cir. 2005)

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 147 L. Ed. 2d 105, 120 S. Ct.

20,21

(2000)

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 387-90 (1978) (opinion of Marshall,

J.)

Rental, Ltd. v. Hendrix, 565 F.2d 255, 258 (2d Cir. 1977)

Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2nd Cir. 1999)

Ridgell-Boltz v. Colvin, No. 15-1361(10th Cir. Aug. 10, 2016)

Rivera v. NIBCO, Inc., 364 F.3d 1057, 1069 (9th Cir. 2004)

Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1980) 5,

Salazar-Limon v. City of constructive Houston, Tex., 137 S. Ct. 1277, 197 L. Ed. 2d 751, 581

U.S.(2017)

Schiano v. Quality Payroll Sys., Inc., 445F.3d 597, 603 (2d Cir. 2006)

Scudder v. Dolgencorp, LLC, 900 F.3d 1000 (8th Cir. 2018)

Siring v. STATE BD. OF HIGHER EDUC. EXREL. EOU, 977 F. Supp. 2d 1058 (D. Or.

2013)

Smith v. Clark County School Dist., 727 F.3d 950 (9th Cir. 2013).... .

Smith v. Xerox Corp., 371 F. App'x 514, 520 (5th Cir. 2010)

Solomon u. Dept, of Agriculture, No. l:07-cv-01590, (D.C. Cir. 12/21/10)

Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 128 S. Ct. 1140, 170 L. Ed. 2d

1 (2008)

Spulak v. KMart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990J

Xll

Strong v. Univ. Healthcare Sys., LLC, 482 F.3d 802, 808 (5th Cir. 2007)

Summerlin v. Stewart, 341 F.3d 1082, 1084 (9th Cir. 2003).

Teutscher v, Woodson, 835 F.3d 936, 954 (9th Cir. 2016)

Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248,256, 258 101 S. Ct. 1089, 67 L.

Ed. 2d 207 (1981);

Thomas v. Warded, 951 F.3d 854 (7th Cir. 2020)

Thompson v. Foley, No. 3: 18-ev-117 (S.D. Ohio Aug. 31, 2020)

Tiffany and Company v. Costco Wholesale Corp., 971 F. 3d 74 (2d Cir. 2020)

Timbs v. Indiana, 139 S. Ct. 682, 586 U.S., 203 L. Ed. 2d 11 (2019)(excessive fine)

Tolan v. Cotton, 134 S. Ct. 1861, 1866. 572 U.S. 650, 188 L. Ed. 2d 895 (2014)

Townsend v. Bayer Corp.,774 F.3.d 446 (8th Cir. 2014)

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)

Trump v. Vance, 140 S. Ct. 2412, 591 U. S., 207 L. Ed.2d 907 (2020)

United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S. Ct. 1478,

1482, 75 L.Ed.2d 403(1983)

United States v. City of Torrance, 164 F.R.D. 493 (C. D. Cal. 1995)

United States v. Diebold, Inc., 369 U. S. 654, 655 (1962) (per curiam)

United States v. Feldman, 788 F.2d 625 (9th Cir. 1986)

United States v. Hinkson. 585 F.3d 1247. 1251. 1262 (9th Cir.20091 (en banc)

United States v. White, 984 F.3d 76 (D.C. Cir. 2020)

Univ. of Tex. Southwestern Med. v. Nassar, 133 S. Ct. 2517, 570 U.S. 338, 186 L. Ed. 2d 503

21, 23

(2013)

US v. Gila Valley Irr. 859 F.3d 789 (9th Cir. 2017)

Valdez v. United States, 244 U.S. 432, 450 37 S. Ct. 725, 61 L. Ed. 1242 (1917)

Vaughan v. Department of Agriculture, 2011 MSPB 61 (June 13, 2011)

Walls v. Central Contra Costa Transit Authority 653 F. 3d 963 -9th Cir. 2011

Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989).

Warner-Lambert Co. v. Apotex Corp., 316 F.3d 1348, 1355 (Fed. Cir. 2003)

Weatherly v. Alabama State University, 728 F.3d 1263 (11th Cir. 2013)

Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1528 (11th Cir. 1991)

Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 252 (Fla. 1st DCA 2012)

Williams v. Dart, 967 F.3d 625 (7th Cir. 2020)

Wright v. Universal Maritime Service Corp., 525 U.S. 70, 119 S. Ct. 391, 142 L. Ed. 2d 361

(1998)

Zisumbo v. Ogden Regional Medical Center, 801 F.3d 1185 (10th Cir. 2015)

Statutes

18 U.S. Code §1505, §1506 §1512

28 U.S.C. § 1254(1).

28 U.S.C. § 1291

28 U.S.C. §1331, 1339, 1343, 1367

28 U.S.C. 516, 517, 518, 519

28 U.S.C.§ 530D

28 USC § 2412(d)(1)(A), (B)(2)

39 U.S. Code § 409

42 U.S.C. § 2000e-3(a)

42 USC §2000e-16(a

EEO Act of 1972. Pub. L. No. 92-261. 42 U.S.C. § 2000e(a), (f) (1994)

XIV

Rehab Act 29 U.S.C. § 701 et seq

,. iii, 1, 2,23

Title VII 42 U.S.C. §§2000e et seq.

U.S. Code > Title 18 > Part I > Chapter 73

Other Authorities

. The University of Chicago Law Review Julie M. Bradlow B.A. 1985, Yale University; J.D.

Candidate 1988, University of Chicago.

76 Wash. & Lee L. Rev. 1567(2019) (UnlConscious Judging

ABA Journal By Debra Cassens Weiss Posted September 11, 2017

Cynthia Gray. Reaching out or Overreaching: Judicial Ethics and Self-Renresented

Litigants. 27J. Nat’l Ass’n Admin. L. Judiciary Iss.l (2007)

Eric Schnapper, Lesal Ethics and the Government Lawyer, 32 REC. A.B.N.Y. 650 (1977)... 24

House Report on the ADA Amendments Act of 2008, H.R. Rep. 110-730(1) "Discrimination

on the Basis of Disability" (2008). Congressional notes on ADA

James R. Harvey III, Loyalty in Government Litigation: Department of Justice

Representation of Agency Clients, 37 Wm. & Mary L. Rev. 1569 (1996), http://scholarship.

law.wm.edu/wmlr/vol37/iss4/7

Judicial Disqualification: An Analysis of Federal Law Second Edition Federal Judicial

Center 2010

Laurence H. Tribe, American Constitutional Law § 10-18 at 753-54 (2d ed. 1988)

Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, Syracuse L.

Rev. 641-2 (197 D

McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 358-359 (1995)

Summary Judgment in Employment Discrimination Cases: A Judge’s Perspective 57 N.Y.L.

Sch. L. Rev. 671 (2012-2013) Hon. Denny Chin

.... 22

The Leadership Conference on Civil and Human Rights/The Leadership Conference

Education Fund 2015

Rules

FRCP 15(b)(2)

FRE 804(b)(1).

FRE: 801(a)(2)(B),(D); 803(1); 804(a), (b); 801(d)(2)

Rule 32(a)(1)(C)

Rule 32(a)(2)(8)..

Treatises

3 Federal Procedure, Lawyers Ed. § 3:212 (2010)

Restatement (Second) of Judgments § 68.1 (c) (Tent. Draft No. 4, Apr. 15, 1977)

Schwarzer et al., Federal Procedure Before Trial, at § 14:27.1

Regulations

28 C.F.R. 50.15

29 CFR § 1614.203 Rehab Act of 1973 as amended, P.L. 114-95

Constitutional Provisions

Amendment V to U.S. Constitution

Amendment VII to U.S. Constitution.

Amendment XIV to U.S. Constitution

XVI

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment.

LIST OF ALL PROCEEDINGS IN TRIAL AND APPELLATE COURTS

GARITY v. Brennan, No. 20-15588 (9th Cir. Apr. 27, 2021).

Order affirming: 04/27/2021 at Appendix A

Order denying rehearing: 06/07/2021 at Appendix C

Garity v USPS US District of Nevada 2:ll-cv-01805-RFB-CWH

Trial Orders: ECF1478, 4/1/2019 at Appendix B

Order pro se sanction 418, 11/27/2017 at Appendix D

Order Summary Judgment: ECF 316, 9/14/2016 at Appendix E

Order Recusal: ECF 428, 01/16/2018 at Appendix F

Order Pencil Documents: ECF 230, 9/25/2014 at Appendix G

Order allowing DOJ Representation at Appendix H

BASIS OF JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1).

Date of Judgment: April 27, 2021

Order denying Rehearing: June 7, 2021.

Jurisdiction in Federal District Court is pursuant to Title VII 42 U.S.C. §§2000e et

seq., Rehab Act 29 U.S.C. § 701 et seq., and 28 U.S.C. §1331, 1339, 1343, 1367

Jurisdiction at Ninth Circuit was as of right from dismissal 28 U.S.C. § 1291.

CONSTITUTIONAL PROVISIONS, STATUTES AND REGULATIONS

Amendment V to U.S. Constitution: Denial of Property Interest in career without

due process and Equal Protection

Amendment VII to U.S. Constitution: Right to jury trial

Amendment XIV to U.S. Constitution: Equal Protection

29 CFR § 1614.203 Rehab Act of 1973 as amended, P.L. 114-95

House Report on the ADA Amendments Act of 2008, H.R. Rep. 110-730(1)

"Discrimination on the Basis of Disability" (2008). Congressional notes on ADA

CONCISE STATEMENT OF THE CASE WITH MATERIAL FACTS

Courts ruled contrary to law/facts, as cited in their decisions. (Parts and Elec.

Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228 (7th Cir. 1989) (wrong with the

force of a five-week-old, unrefrigerated dead fish) Due process denied by lack of

representation by EEOC and DOJ, while provided to managers/coworkers. 28

extensions, disregarded scheduling order, most all opposed. Garity was sanctioned

for trying to get evidence/depose only defendant. Summary judgment granted on

failure to accommodate, retaliation and hostile environment while material facts

disputed and evidenced and credibility issues abounded. Prima facie and pretext

were shown. Law on Retaliation was error. Court required psychiatric exam without

adequate protection, ordered sole copy of alterable pencil documents to USPS.

Garity was sanctioned, contrary to law, eliminating emotional damages and jury

trial. Judge recusal was denied, at bench trial, despite false accusations, multiple

declarations on appearance of bias and former associate representing Agency.

Witnesses/testimony/evidence on claims were denied and testimony prevented

unless based on grievances. Time limits imposed during trial prevented critical

testimony and use of 30(b)(6) during trial was denied. Back pay denied based on

grievances. Out of pocket expert fees were denied. Garity was denied make whole

remedy and reinstatement and left $30,000 plus in the hole and loss of career,

retirement and front pay despite finding of discrimination. Case facts are included.

Garity was demoted and treated disparately based on race, as was each similarly

situated Caucasian, subjected to retaliation in direct relation to protected activity

and in extremely hostile environment, including seven unwarranted personnel

actions, including suspensions and firing, unilaterally reduced, and seven false

accusations of harm/inclination to murder, including a forced psychiatric exam

when already cleared as no risk, a planned in advance lockdown-no threat made or

implied, false stalking charges, an unsubstantiated letter signed and passed in

workplace by management/workers calling Garity mentally unstable and falsely

accusing of inclination to murder and finally constructive discharge due to actions.

Management hijacked the union, eliminating rights to grievance process and

poisoned environment by talking about Garity with coworkers. Work hours, days

and duties were continually eliminated while Garity was closely scrutinized.

Management gave false reports to unemployment and OPM, furthering harm.

Constructive discharge occurred to prevent death from aggravation to heart

condition, cancer and further harm from USPS caused depression and anxiety. At

least 63 adverse actions were taken after disabilities evidenced in 2010 thru

constructive discharge on 12/1/11. Garity continually reported actions against her

and almost all reports were ignored and remedial mechanisms were blocked,

including threat assessment. Weingarten rights were denied (“make-whole relief’)

Dupont deNemours & United Steel Workers Local 6992, 362 NLRB No. 98 (May 29,

2015). Due process rights, “neutral counselor” completing management affidavits,

and property interest in career were denied. All violated policy and caused harm to

character and reputation. The cumulative effect of the above prevented justice.

REASONS FOR GRANTING PETITION/CONTENTIONS IN SUPPORT

Courts below "so far departed from the accepted and usual course of judicial

proceedings, ‘and’ sanctioned such a departure by a lower court, as to call for an

exercise of this Court's supervisory power." All questions intertwine to show

redetermination is warranted as quality, extensiveness and fairness of procedures

followed are in question. (Montana v. United States, 440 U.S. 147, 164 n.ll 99 S.Ct.

970, 59 L.Ed.2d 210 (1979)) All questions show treatment of discrimination claims,

particularly against “the government”, summary judgment elimination of claims,

pro se treatment, effect of accusatory Judge and extensive rulings contrary to

Supreme and Circuit Court law. Arguments are not mooted by partial award of back

pay as emotional damages and medical costs were prevented by sanction. Mootness

review is de novo. Ghailani v. Sessions. 859 F.3d 1295. 1300 (10th Cir. 2017).

The idea... court’s ruling, even if wrong, will not be overturned—“offends a

deep sense of fitness in our view of the administration of justice.” Maurice

Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above,

Syracuse L. Rev. 641-2 (1971). See also McLane Co., Inc. v. EEOC, 137 S. Ct.

1159, 581 U.S., 197 L. Ed. 2d 500 (2017) ('...abuse its discretion if it based its

ruling on an erroneous view of the~law?)

QUESTION 1 Panel decision at p.3 states “The district court’s exclusion of Garity’s

emotional distress evidence as a sanction for violating the Rule 35 order lacks

support in the record.” Error was not harmless because disability retirement was

not voluntary, emotional damage compensable, evidence critical and jury trial

prevented. “Probative value” could not be outweighed by prejudice or confusion, as

this was a bench trial. This was not Court’s ground for excluding evidence. Extreme

exclusion of emotional damages is contrary to the following:

Dismissal...for disobedience of...order is an exceedingly harsh sanction...

imposed only in extreme cases...only after exploration of lesser sanctions.

Applied Underwriters, Ine. v. Lichtenegger, 913 F.3d 884 (9th Cir. 2019).

See 3 Federal Procedure, Lawyers Ed. § 3:212 (2010)); R&R Sails v.

Insurance Co. of Pa., 673 F.3d 1240 (9th Cir. 2012) (...particularly harsh...

dealt a fatal blow....in practical terms, the sanction amounted to dismissal of

a claim.... availability of lesser sanctions.); Cruz v. Maverick County, 957 F.3d

563 (5th Cir. 2020); Ayinola V. Lajaunie, No. 19-2705-cv (L) (2d Cir. May 13,

2021); Thomas v. Wardell, 951 F.3d 854 (7th Cir. 2020); Timbs v. Indiana,

139 S. Ct. 682, 586 U.S., 203 L. Ed. 2d 11 (2019)(excessive fine)

This is clearly erroneous as a matter of law and fact. Law was not analyzed.

Bad Faith was required and none found. (ECF 298 20:4-5. 19-21. 24*25)

Because "inherent powers are shielded from direct democratic controls...must

be exercised with restraint and discretion." Roadway Express, Inc. v. Piper,

447 U.S. 752, 764 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1980). Bad faith Id. at

765-66; see Ray A. Scharer and Co., Inc. v. Plabell Rubber Products, Inc., 858

F.2d 317, 321 (6th Cir.1988); Braley v. Campbell, 832 F.2d 1504, 1510 n.5

(10th Cir.1987) (en banc); Adduono v. World Hockey Ass’n,824 F.2d 617, 621

(8th Cir.1987); In re Howe, 800 F.2d 1251-52 (4th Cir. 1986); Kleiner v. First

Nat’l Bank of Atlanta, 751 F.2d 1193, 1209 (11th Cir. 1985); Goodyear Tire &

Rubber Co. u. Haeger, 137 S. Ct. 1178, 581 U.S., 197 L. Ed. 2d 585 (2017).

Lesser sanctions, pro se status and mental state were not considered and sanction

affected ultimate outcome. (ECF 280, 286, 287)

(whether...court explicitly discussed alternative sanctions, (2) whether it

tried them and (3) whether it warned the party about the possibility of

dismissal.) Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d

1091, 1096 (9th Cir. 2007)

USPS agreed dismissal of psychological claims not allowed: “Yet, the Motion only

addresses the Court’s Order that Federal Defendant may seek additional sanctions.

less drastic than dismissal of Plaintiffs psychological claims” (ECF 286 3:15-17).

Garity showed prejudice as ruling was after Judge’s associate entered case and

record states no dismissal or monetary action would be taken. (ECF 298 19:5-8)

expert report when it moved for summary judgment two years prior “..cannot

allow...second...over 700 days after...” Granting ... functional equivalent of...

dismissing... insofar as it sought damages ...” Avail Shipping Inc. v. DHL

Express (USA) Inc., 2015 N.Y. Slip Op 30348 (Sup. Ct. 2015).

Docket shows ECF 338, 348, 418 identified as Motion in Limine. Summary

judgment was 2/23/2015, reply 5/20/15 yet this was filed 8/30/2017, over two years

later. The above laws should have precluded sanction motion. Independent medical

exam was not disputed, but this was defendant medical exam (DME) without

adequate protection and refusal of simple request for copy of pencil exams. Why the

hiding? All exams and medical providers, over 7, reached exact same conclusion

with exception of USPS untruthful examiner. Intentional altering of the record by

examiners remains undisputed. (ECF 287) Expert had Garity take one test, MMPI2. Court determined, without rule or law, expert could not conduct an exam during

discovery without permission. This denies treatment and due process.

"Vigorous cross-examination, presentation of contrary evidence... instruction

on the burden of proof are the traditional and appropriate means of attacking

shaky but admissible evidence." Daubert v. Merrell Dow Pharmaceuticals,

7^509r596'U:Sr5797T13 SrCt72786ri25~L. Ed. 2d 469 (1993).

USPS made no objection to MMPI-2 testing report, 9/27/14, almost three weeks

prior to DME, 10/16/14. 20 year experienced Psychologist did not find invalid and

tested. As it turns out both MMPI-2’s and PAI confirmed same results. (ECF: 259-2

p.10-11, 265-1 and 11, 375-2 p.4, 348-1) MMPI by Garity’s expert could just as well

be used is undisputed. (ECF 286) ECF 375-1, 2 shows validity. Court related who

gives test determines outcome, making test invalid. Court stated, ECF 418, 420, no

lesser sanctions available when clearly false as ECF 298 p.6-10 verifies further

testing appropriate as stated by Court and defendant. Garity readily agreed to

further testing yet none scheduled. (ECF 280, 287) Judge stated this was severe

sanction and would take testimony from examiner and expert on validation, yet did

not. (ECF 504 15:10-16:24) Court two and a half years later removed emotional

damages and jury trial. Court ordered data from testing could not be provided.

(ECF 230. 238. 258. 348-case history on issue) USPS never requested data from

Court and Garity agreed to exchange data, USPS refused. Exclusion of evidence is

extreme sanction unwarranted by the facts and prevents frill airing of truth of the

matter. (Roadway Express) Court ordered pro se to know intentions of Judge. (ECF

298 19:13-16. 22:3-13). (failure to consider...status as a pro se...ground for

concluding... district court abused discretion.) Jones v. Blanas, 393 F.3d 935 (9th

Cir.2004); "... pro se, particularly in civil rights cases, to construe...liberally...afford

...benefit of any doubt." Bretz v. Kelman, 773 F.2d 1026, 1027 n.l (9th Cir. 1985) (en

banc). Court's leniency with respect to pro se litigants extends to consideration of

appropriate discovery sanctions. See Lindstedt v. City of Granby, 238 F.3d 933, 937

(8th Cir. 2000). Garity requested harm regarding actions by USPS regarding ability

to trust and way anxiety affects her be considered. Court found to have abused

discretion by failing to consider these circumstances Akhtar v. Mesa, 698 F. 3d 1202

(9th Cir. 2012). USPS has no Rule 26 expert. (ECF 238 45:18-25, 46, 49, 55) Testing

is moot as examiner can only discuss his exam. Jury can easily determine defense

hired examiner was up to no good with pencil documents, refusing raw data, upheld

by Court, and lies about what occurred. ECF 375 shows other compensatory

damages including a myriad of denied rights, e.g. collusion with union preventing

ability to expeditiously ascertain rights under CBA and denial of right to call threat

assessment when being physically harmed. These damages are jury determinations.

United States v. Hinkson. 585 F.3d 1247. 1251. 1262 (9th Cir.2009) (en band

(district court abuses its discretion if it applies an incorrect legal standard)

Seventh Amendment provides "[ijn Suits at common law, where the value in

controversy shall exceed twenty dollars, the right of trial by jury shall be

preserved ...” U.S. Const. Amendment VII. This..."appl[ies] to actions

enforcing statutory rights ..." Curtis v. Loether. 415 U.S. 189. 194. 94 S.Ct.

1005. 39 L.Ed.2d 260 (19741

a jury can offset or minimize the chances of individual biases... Like any...

judge is susceptible...may cause unintended prejudice... Jurors...limited

access to information...due to their likely lack of involvement in the legal

field....possess... independence as fact-finders Judicial Disqualification: An

Analysis of Federal Law Second Edition Federal Judicial Center 2010

Judge authorized testing or adverse inference, ECF 279. for non-actions. Two years

and seven months later, about six weeks before Trial, statutory right to emotional

damages and Constitutional right to jury trial were eliminated without basis in law/

fact. See Re Tech. Licensing Corp., 423 F. 3d 1286, 1288 (Fed. Cir. 2005) (quoting

Beacon Theatres, Inc. v Westover, 359 U.S. 500, 511 (1959) (right to grant

mandamus to require jury trial where...improperly denied is settled)

(“Where statutory and constitutional rights are concerned, ‘irretrievably]

los[s]’ can hardly be trivial... “significant strategic decisions turn on [the

decision’s] validity and review after final judgment may therefore come too

late.” Agster v. Maricopa County, 422 F.3d 836, 838-39 (9th Cir. 2005). See

Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879 114 S. Ct.

1992, 128 L. Ed. 2d 842 (1994).

Garity was denied this review. (IN RE Garity, No. 17-72805 (9th Cir. Dec. 19, 2017))

Rental, Ltd. v. Hendrix, 565 F.2d 255, 258 (2d Cir. 1977). ("It is elementary

that the Seventh Amendment right to a jury is fundamental...its protections

can only be relinquished knowingly and intentionally." In re Cty. of Orange,

784 F.3d 520, 528-29 (9th Cir. 2015)

USPS applied for attorney fees, over $8,000-half of Garity’s now yearly income,

while Order ECF 159 struck motion to be heard. Relevant evidence and deposition

of sole defendant should have been allowed. Trump v. Vance, 140 S. Ct. 2412, 591

U. S., 207 L. Ed.2d 907 (2020)

...goal of extending... to...federal employees was to eradicate " 'entrenched

discrimination in the Federal service,' " ... Chandler v. Roudebush, 425 U.S.

840, 841, 96 S.Ct. 1949, 1950, 48 L.Ed.2d 416 (1977) Copeland v. Marshall,

641 F.2d 880, 891 (D.C. Cir. 1980). See Newman v. Piggie Park Enterprises,

Inc., 390 U.S. 400, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968).

Garity explained case was chilled as could not afford to risk ten thousands of

dollars for attempting to acquire needed evidence that was inexplicably denied.

QUESTION 2 The point of the law is to put petitioner in same place would have

been absent discrimination. Law cited by Ninth Circuit is error because Alexander

v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974) did not

prevent back pay award for discrimination. Reference was to discrimination award

in contract forum and under Title VII. Garity did not have a discrimination contract

award. Alexander v Gardner stands for exact opposite that both contract and

discrimination awards are fully compensable. Grievance violations were subtracted

from the award in amount of $16,622.87. (ECF 478 and 513) Compensation for

contract violation is distinct from discrimination and pay from one does not negate

pay from another. (Ninth Cir. Reply Brief p.19-20) See (Ridgell-Boltz v. Colvin, No.

15-1361 (10th Cir. Aug. 10, 2016); Wright v. Universal Maritime Service Corp., 525

U.S. 70, 119 S. Ct. 391, 142 L. Ed. 2d 361 (1998); 14 Penn Plaza LLC v. Pyett, 556

U.S. 247, 129 S. Ct. 1456, 173 L. Ed. 2d 398 (2009). Grievances did not pay for lost

benefits, front pay or discrimination. (Trial EX 1 #140 front pay unavailable)

Discriminatory conduct had a multitude of issues and lost hours not fully remedied.

Both are allowed in the USPS. (Trial EX 87; ECF 282 EX 2 Albertini 1 at 13:10,

17:9-17; Id. Albertini 2 11:1 tol3:3) ECF 488:78:18-22 EX 86 paid for EEO and

grievance. Decision relates no clear error in compensation but clear error was

exactly shown. Benefits, including annual leave, sick leave and Thrift savings plan

$21,000-ECF 501 p.7, expert expense, $11,500, return to work or front pay, and tax

liability -$3200 were denied. Calculations not supported by Record. (ECF 467-1;

Trial EX 114) Loss of promotion, social security, retirement and medical were

ignored. Garity is substantially in the red (ECF 467-1) and denied career and

retirement. Decision conflicts with the following, and many more laws:

Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 45 L.Ed.2.d

280 (1975) “purpose..."to make persons whole for injuries suffered on account

of unlawful employment discrimination”, and to place... "as near as may be,

in the situation... would have occupied if the wrong had not been committed.";

accord, Climent-Garcia v. Autoridad De Transporte, 754 F.3d 17 (1st Cir.

2014); KEOCUTKarenKim, Inc., 698 F.3d 92 (2d Cir. 2012); Eshelman v.

Agere Systems, Inc., 554 F.3d 426 (3d Cir 2009); Brady v. Thurston Motor

Lines, Inc., 753 F.2d 1269 (4th Cir. 1985); Bogan v. MTD Consumer Group,

Inc., 919 F.3d 332 (5th Cir. 2019); McClellan v. Midwest Machining, Inc., 900

F.3d 297 (6th Cir. 2018); EEOC v. AutoZone, Inc., 707 F.3d 824 (7th Cir.

2013); Townsend v. Bayer Corp.,114 F.3.d 446 (8th Cir. 2014); Rivera v.

NIBCO, Inc., 364 F.3d 1057, 1069 (9th Cir. 2004) (reiterated... historic

purpose...to secure complete justice,"); Zisumbo v. Ogden Regional Medical

Center, 801 F.3d 1185 (10th Cir. 2015); Weaver v. Casa Gallardo. Inc.. 922

F.2d 1515. 1528 (11th Cir. 1991) ("[P] revailing ...plaintiffs are presumptively

entitled to either reinstatement or front pay."); accord Weatherly v. Alabama

State University, 728 F.3d 1263 (11th Cir. 2013); United States v. White, 984

F.3d 76 (D.C. Cir. 2020); Pirkl v. Wilkie, 906 F.3d 1371 (Fed. Cir. 2018)

(“...most complete relief possible.” Quoting Albemarle); Pollard v. El du Pont

de Nemours & Co., 532 U.S. 843, 121 S. Ct. 1946, 150 L. Ed. 2d 62 (2001).

Request for fees and costs are not moot. Cuneo v. Rumsfeld, 553 F.2d 1360, 1364

(DC Cir. 1977). Expert fees and constructive discharge are outlined below.

QUESTION 3 Garity showed beyond question that she did not voluntarily withdraw

from the workplace. Constructive Discharge evidence and testimony were denied as

outlined in Reply Brief at p.5-7, OB2 36-38, 43-45), e.g. ECF 420 p.7 (No damage

testimony); ECF 507 66:6 to 67:1 (letter accusing of inclination to murder right

before constructive discharge); ECF 282 EX 2 Reynosa Exhibit 2 p.l, 2-3, 11-13

(bullied chest pain going to die life threatened, bullied for over a year can’t continue,

bullied off work without pav because the environment too toxic, can’t feel safe.

constant fear and terror and denied accommodation). Then decision is evidence and

testimony not shown. How could it be shown when denied? This is contrary to:

Solomon v. Dept, of Agriculture, No. l:07-cv-01590, (D.C. Cir. 12/21/10); Vaughan v.

Department of Agriculture, 2011 MSPB 61 (June 13, 2011) (...deference when

defendant has directly caused or exacerbated the medical conditions that led to the

2 Ninth Circuit Opening Brief abbreviated OB

seeking of disability retirement); Cleveland v. Policy Mgmt. Sys., Corp., 119 S. Ct.

1597, 1600 (1999); Smith v. Clark County School Dist., 727 F.3d 950 (9th Cir. 2013);

Scudder v. Dolgencorp, LLC, 900 F.3d 1000 (8th Cir. 2018); Aubrey v. Koppes, 975

F.3d 995 (10th Cir. 2020); Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S.

Ct. 2342, 159 L. Ed. 2d 204 (2004). December 1, 2011 was the culmination of prior

year and a half of actions against Garity. Although hostile environment was

wrongly eliminated, see below, it is error to preclude testimony on constructive

discharge. Limited undisputed record evidence showed environment became so

intolerable, due to continual accusations of inclination to murder and aggravation of

medical conditions, that Garity could not stay and no effective policy existed for

reporting/investigating her multiple complaints. Burlington Indus., Inc. v. Ellerth,

524 U.S. 742, 763, 765 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) accord Faragher v.

Boca Raton, 524 U.S. 775, 806, 808 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998). She

applied for disability retirement because of danger of dying from heart condition

and cancer due to found discriminatory actions and aggravation to depression/

anxiety caused by USPS. (Reply Brief p.7-9, OB p.143-45, ECF 501 p.8, e.g. ECF:

507 195:7-12 (DR. Jonak report: Garitv heart and cancer particular concern in

environment. Trial EX 11 p.791 off to 1-16-12 then only if markedly improved, EX

79 p.99-102 doctor and psychologist removing Garity from work from 11/16/11 to

1/16/12) Garity did not voluntarily retire and record is clear. This is a stipulated

trial fact. (ECF 494 5:25 to 6:1) Garity stopped working December 1, 2011 at the

advice of psychologist. (EX 35A p.297-298)) The only disability retirement

application and declaration show denied accommodation. (ECF 445-14 p.1-11) Most

all accommodation was denied and used to cut hours. All jobs could be done with

minimal accommodation so no prohibition to reinstatement yet USPS refused

despite finding. (ECF 478 p.5):

“17.... not medically restricted from performing any clerk duties except for

collections...18. Collections was not an essential function...

19. ...qualified for, and physically capable of performing, every other duty

available...with minimal accommodations.

20....consistently was able to perform all of the essential functions of her job

with minimal accommodation at all times, including throughout 2011.”

See Teutscher v. Woodson, 835 F.3d 936, 954 (9th Cir. 2016) Reinstatement was

legally permissible but denied by USPS. Johns v. Brennan, No. 17-16340 (9th Cir.

Feb. 13, 2019) contradicts. Panel decision, stating removal of emotional damages

was moot, is incorrect because there is remedy for those damages, voluntary

retirement incorrect, and removed jury trial and make whole remedy refused. See

Knox v. Service Employees Intern. Union, 567 U.S. 298, 132 S. Ct. 2277, 183 L. Ed.

2d 281 (2012). Jury can award monetary remedy for physical harm.

QUESTION 4 Expert fees/expenses remain unaddressed. This is an issue of first

impression. Decision stated not entitled to attorney fees. Attorney fee by definition

is not expert fee. They are two distinct expenses. Garity actually incurred the expert

fee and must be reimbursed to be made whole. This denies equal protection under

the law. Judge explicitly allowed expert witness as necessary. This sets precedent

limiting access to court, discourages discrimination claims and slants trial against

party without expert. This is contrary to Congressional intent, make whole remedy

and~contradicts'28~USC"§'2412(d)(l)(A), (B)(2)'For the purposes of this subsection—

(A) “fees and other expenses” includes the reasonable expenses of expert

witnesses... See DeBold u. Stimson, 735 F.2d 1037, 1043 (7th Cir.1984) (held pro se

litigant may, as a prevailing party, recover all costs reasonably incurred); Clarkson

v. I.R.S., 678 F.2d 1368, 1371 (11th Cir. 1982); Cunningham v. F.B.I., 664 F.2d 383,

387 n.4 (3rd Cir. 1981); Kokoszka v. Belford, 417 U.S. 642, 650 (1974)); WarnerLambert Co. v. Apotex Corp., 316 F.3d 1348, 1355 (Fed. Cir. 2003);

In United States v. Feldman, 788 F.2d 625 (9th Cir. 1986),...entitled to the

same reimbursement for costs...attorney representing him would have

received: "To deny this same right to pro se defendants would contradict the

spirit of the Act... to bar... from recovering costs would be tantamount to

placing an impediment on...right to proceed pro se." Burt v. Hennessey, 929

F.2d 457, 459 (9th Cir. 1991).

Ability to obtain an expert can be decisive factor. Attorneys are not willing to take

these claims against the government. (OB p.21) Attorney consults and expert fees

were costs incurred and part of make whole remedy. This further prevents ability

for pro se to properly present civil rights claims. (ECF 483, 484, 499, 503)

QUESTION 5 Pencil documents without copy, forced by Court in a legal proceeding,

is error and affected the whole case. (Orders. ECF 169, 185. 196. 257. 230. 238.

250. 340. 258. 270. 279. 298. 313. 314. 391. 504. 418. 420) ("black ink" required by

Rule 3 of Circuit Court...returned...for correction) Allen v. Sakai, 40 F. 3d 1001,

1005, 1006 (9th Cir. 1994) see Phillips v. Hust, 477 F.3d 1070, 1084 (9th Cir. 2007);

Thompson v. Foley, No. 3:18-cv-117 (S.D. Ohio Aug. 31, 2020). Court failed to

protect Garity in very adverse (DME), even denying faxing/sending alterable papers

to Garity’s psychologist. (ECF 257 12:20-25; 17:10-12; 26:14-15) Exam is not valid as

‘it was taken under undue influence, coercion, and duress. Unly case law provided

alterable documents immediately at testing. Greenhorn v. Marriott Int’l, Inc., 216

FRD 649, 652 (D. Kan. 2003) see ECF 169 22:9-21.

“..court refused to permit...attorneys to see...raw data or notes...preventing

an inquiry into whether...had been contamination, and...significance of....”

Cooper u. Brown, 565, 596 F.3d 581 (9th Cir. 2009).

“It is the raw material from which legal fiction is forged” Summerlin v. Stewart, 341

F.3d 1082, 1084 (9th Cir. 2003). As it turns out Garity was justified in needing

protection as Dr. Hall falsified her report, undisputed by Hall (ECF 267-1) and still

on record. (ECF 265-1, 277-278-recording denied as moot, in ECF 279. should be

reversed. This was used to try to dismiss case. (ECF 259) Garity requested

protection. (ECF 153, 169, 171, 196, 203, 220, 229, 230, 233, 236) Pencil documents

are order from which denial of damages, jury trial, back and front pay ensued. This

illegal order and all stemming from it should be reversed.

QUESTION 6 Refusing recusal when part of accusatory process contrary to:

“We cannot overlook the fact that this is a non-jury case... [the judge] will be

deciding each and every substantive issue at trial... disposition may not have

been based exclusively upon the evidence presented at trial... Underscoring

...matters...earlier ruling...not entitled to a jury...the need to preserve the

appearance of impartiality is especially pronounced.” Alexanderv. Primerica

Holdings, Inc., 10 F.3d 155, 163, 166 (3d Cir. 1993).

even if...include de novo review, cannot ‘cure’ bias in the underlying

adjudication...Obtaining full relief on... substantive claim does not remedy

the initial procedural injury. The right to due process is absolute, and the law

recognizes the importance...that those rights be scrupulously observed.”

Clements v. Airport Authority of Washoe County, 69 F.3d 321 (9th Cir. 1995)

Judge slandered Garity as “sabotaging” DME, using exact untruthful wording (ECF

259-1, p.6-11, 259-2, p.3-5). This did not occur as verified by record and Ninth Panel

decision. (ECF 88.125. 279. 403. 403-1. 2) DME recording evidenced this exact lie.

Due process requires recusal if judge acts as "part of the accusatory process." In re

Murchison. 349 U.S. 133. 137. 75 S.Ct. 623. 99 L.Ed. 942 (1955). Magistrate

Hoffman brought up Costs for defendant “There something I want to do” “How soon

can you get that in?” (ECF 84, 110, 126 5:20-22) He accused Garity of targeting the

perpetrator (ECF 87, 204, 214 and 252, 329), blamed Garity for defendant’s failure

to follow Order (ECF 185,196), called Garity names and ruled contrary to Main

Judge. (ECF 200, 214). Jurors function as safeguard against potential judicial bias.

Judge should not ask whether he believes he is capable of impartially presiding but

whether impartiality might be questioned from perspective of a reasonable person.

Here reasonable people perceived partiality in sworn declarations. (ECF 403-1)

QUESTION 7: (Order ECF 315. 316. 418) Ninth Circuit Order did not really

address error at summary judgment. De novo review did not occur, Nigro v. Sears,

Roebuck and Co., 784 F.3d 495 (9th Cir. 2015). ECF 317, 320, 282 and exhibits

extensively verify summary judgment was granted in direct contradiction to

Supreme and Circuit Court law. Each dismissed claim had a multitude of disputed

facts/credibility issues and prima facie and pretext were shown. Evidence denied

(ECF 123, 358, 362, 371) and then denied to support summary judgment (ECF 262,

262-1, 272, 279). Examples of denied evidence included: manager’s prior EEO

activity and promotions contrary to Sprint /United Management Co. v. Mendelsohn,

552 U.S. 379, 128 S. Ct. 1140, 170 L. Ed. 2d 1 (2008); United States Postal Serv. Bd.

of Governors v. Aikens, 460 U.S. 711, 716, 103 S. Ct. 1478, 1482,75 L.Ed.2d

403(1983); discrimination complaints of other employees —normally provided as

noted by Judge Du (ECF 142 6:11-13) and Judge Boulware (ECF 298 p.28) and

contrary to Spulak v. KMart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990); Emails

through July, 2012 related to constructive discharge, back pay and arbitration see

United States v. City of Torrance, 164 F.R.D. 493 (C. D. Cal. 1995); culture and

pattern and practice evidence, pattern or practice "supports an inference that any

particular employment decision, during the period in which the discriminatory

policy was in force, was made in pursuit of that policy." International Bhd. of

Teamsters v. United States, 431 U.S. 324, 362 (1977). Garity was not allowed to ask

at trial. (ECF 488, 507); and depositions. (ECF 78, 79, 83, 86, 147, 150-152, 258,

262, 272, 279, 349, and 367) contrary to FRE 804(b)(1), Rule 32(a)(1)(C), Rule 32(a)

(2)(8), FRE: 801(a)(2)(B),(D); 803(1); 804(a), (b); 801(d)(2). When denied relevant

discovery it prevents review of necessary evidence. Texas Dept, of Community

Affairs u. Burdine, 450 U.S. 248,256, 258 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981);

...held that Federal courts are to construe civil discovery rules liberally in

Title VII cases to provide the plaintiff with “broad access to employers’

records.” Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115,

104 L. Ed. 2d 733 (1989).

A. ACCOMMODATION

Documentation not attached was reason for denial of Failure to Accommodate,

(Order ECF 316 p. 12-no law), even though listed as a material disputed fact by

Judge, Id. 316 4:19-26. Documentation is in the record and admitted, (ECF 282 EX

2 Davey 30(b)(6) 287:22 to 289:2 and 293:5-11) and date stamped by the USPS.

(ECF 282 EX 2 Davey exhibit 40 pages 20-36 date stamped, (p.25 on 2/1/11 at

DRAC diagnosis of heel spur, stress, muscle spasms, labial cancer and heart pain).

Order ECF 478 verifies disability and shows failure to accommodate. Refusal to

conform to the evidence was contrary to law. (ECF 456, 462, 474) Head v. Glacier

Northwest Inc., 413 F,3d 1053, 1058-59 (9th Cir. 2005).Undisputed testimony at

trial was massive. (Reply Brief p.13-15)

B. HOSTILE WORK ENVIRONMENT

Hostile work environment based on disability and retaliation was ignored. ECF 316

9:8-10 is error of law because hostile environment was based on retaliation and

disability and included the sex and race. (Ray v. Henderson, 217 F.3d 1234, 1240

n.3 (9th Cir. 2000) This denial is contrary to National Railroad Passenger

Corporation v. Morgan, 536 U.S. 101,115-121,122 S.Ct. 2061, 153 L.Ed. 2d 106

(2002); United States v. Diebold, Inc., 369 U. S. 654, 655 (1962) (per curiam) Ellerth;

Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir.

1999); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998)

("retaliation can take the form of a hostile work environment"); Gunnell v. Utah

Valley State College, 152 F.3d 1253, 1264 (10th Cir.1998) ("co-worker hostility ...

may constitute 'adverse employment action’ for purposes of a retaliation claim");

Gowski v. Peake, 682 F.3d 1299 (11th Cir. June 4, 2012); Boyer-Liberto v.

Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015). Seven false accusations of

harm/murder without threat or finding including planned lockdown and letter,

signed without reading, accusing of inclination to murder, calling mentally unstable

and 7 personnel actions, including wrongful termination and multiple wrongful

suspensions, based on retaliation and disability show hostile environment. See

Bushfield, v. Donahoe, No. l:ll-cv-00251-CWD U.S. District Court, D. Idaho.

(December 6, 2012) Jury could easily find environment was hostile. This precluded

front/back pay evidence which does not moot finding as it supports eliminated

damages. (OB p.27-35 and ECF 282-285, 317, 320/exhibits) likewise hostile

environment was evidenced at trial but refused to conform to the evidence. (Reply

Brief p.15-18) Garity and USPS raised retaliation and hostile environment based on

disability and retaliation at summary judgment and again in Motion to Conform to

ensure issues were considered. (ECF 260, 282, 344, 346, 357, Order 367. 395)

Garity stated, ECF 292 9:7-8, “The totality of exhibits (ECF 282) evidenced the

hostile environment in which the plaintiff worked.” Defendant did not dispute. See

Eddy v. Virgin Islands Water and Power Authority, 256 F.3d 204, 209-10 (3d Cir.

2001) (Alito, J.); Schwarzer et al., Federal Procedure Before Trial, at § 14:27.1

C. RETALIATION

Order ECF 316 4:19-21 “Plaintiff maintains that she received information from

numerous sources that the management was intent upon firing her, and was

frustrated by her filing Equal Employment Opportunity (“EEO”) complaints.” This

leaves but for the EEO complaints as disputed material fact for the jury. Dismissed

retaliation is contrary to Burlington N. & Sfr Co. v. White, 548 U.S. 53, 126 S. Ct.

2405, 165 L. Ed. 2d 345 (2006) in that prima facie and pretext were shown. (ECF

282 15:9 to 20:20, EX 14, EX 11 p.3-4; ECF 317 p.9-10, e.g. EEO complaint on 4-811. Response to the EEO on 4-11 to 4-16 and firing starts on 4-20-11; denial of

advance sick leave for cancer surgery on 2/18/2011 after response to EEO

investigative questions on 2/15/2011) On top, the pattern and practice of retaliation

in USPS verifies. (ECF 282 EX 14 p.33-36)

Lopez v. Donahoe 94 F. Supp. 3d 845 - Dist. Court, SD Texas, 2015 The

showing of deviation from policy and procedure coupled with temporal

proximity makes a prima facie case of causation.

Garity had no prior discipline on record, employer did not follow policy and

procedures in termination and temporal proximity was about 2 weeks. This is

contrary to Agravante v. Potter Dist. Court, ND Illinois, 2015; Smith v. Xerox Corp.,

371 F. App'x 514, 520 (5th Cir. 2010) (discipline record, policy and temporal

proximity); Clark County School Dist. v. Breeden, 532 U.S. 268, 121 S. Ct. 1508, 149

L. Ed. 2d 509 (2001) (close proximity); Strong v. Univ. Healthcare Sys., LLC, 482

F.3d 802, 808 (5th Cir. 2007). Facts starting on p.7 line 27 of Order, ECF 316, are

incorrect as there was no transfer and no protected activity against Pahrump

Management from 2008 thru August of 2010 with the exception of an informal

complaint in June, 2009 that was amicably settled. Others with EEO activity were

subjected to adverse actions supporting the “but for” causation. (ECF 282 20:11-15).

“But for” is not the standard as discussed in Question 8 below.

Dissembling on above claims include 46 pages of deposition testimony verifying

lies about material facts. (ECF 282 EX 20 p.12-25) This dissembling supports the

denied claims. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 147 L.

Ed. 2d 105, 120 S. Ct. (2000), an employer’s “dissembling,” can be powerful

circumstantial evidence of discrimination. Burrage v. US, 134 S. Ct. 881, 571 U.S.

204, 187 L. Ed. 2d 715 (2014) shows Univ. of Tex. Southwestern Med. v. Nassar, 133

S. Ct. 2517, 570 U.S. 338, 186 L. Ed. 2d 503 (2013) does not require that retaliation

was only “but for” reason for employer’s adverse action. Accord Foster v. University

of Maryland-Eastern Shore, 787 F.3d 243 (4th Cir. 2015).

Pretext on all claims include suspiciously timed decisions, written/oral statements,

behavior and comments directed at her, comparator evidence and multiple pretext.

ECF 316. 282, 317, 320)

Retaliation and hostile environment were based on disability, protected activity and

race. (ECF 282 2:13-15, 344, 346, 357) All facts and inferences were not drawn in

light most favorable to the non-moving party. Gonzalez v. City of Anaheim, 747 F.3d

789, 793 (9th Cir. 2014). Summary Judgment ruling was completely against weight

of evidence and determined credibility and disputed facts. Agency admits it should

not have taken removal action by the unilateral reinstatement and by discipline

issuers not believing discipline would be upheld, thus admitting reasons as stated

cannot be correct reason for termination.Record taken as a whole fully supports

claims and would allow rational trier of fact to find for Garity. Summary judgment

ruling was contrary to each below law and many more:

Animal Legal Def. Fund v. FDA, 836 F.3d 987, 988 (9th Cir. 2016) (en banc)

(per curiam); Brosseau v. Haugen, 543 U.S. 194, 195 n.2 [125 S.Ct. 596, 160

L.Ed.2d 583] (2004) (per curiam); Anderson v. Liberty Lobby, Inc., All U.S.

242, 249, 255 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Tolan v. Cotton, 134 S.

Ct. 1861, 1866. 572 U.S. 650, 188 L. Ed. 2d 895 (2014); Reeves v. Sanderson

(district court had not properly considered the totality of the circumstance;

Faragher; Ellerth; Suders; Cerros v. Steel Technologies, Inc., 398 F.3d 944

(7th Cir. 2005); Schiano v. Quality Payroll Sys., Inc., 445F.3d 597, 603 (2d

Cir. 2006); Hunt v. Cromartie, 526 U.S. 541, 119 S. Ct. 1545, 143 L. Ed. 2d

731 (1999); Salazar-Limon v. City of constructive Houston, Tex., 137 S. Ct.

1277, 197 L. Ed. 2d 751, 581 U.S. (2017); 14 Penn Plaza’, Biestek v. Berryhill,

139 S. Ct. 1148, 587 U.S., 203 L. Ed. 2d 504 (2019); Erickson v. Pardus, 551

U.S. 89, 94 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007); Ahmed v. Johnson,

752 F.3d 490 (1st Cir. 2014); Tiffany and Company v. Costco Wholesale Corp.,

971 F.3d 74 (2d Cir. 2020); Butt v. United Brotherhood of Carpenters &

Joiners of America, No. 12-1331 (3d Cir. Jan. 31, 2013); Maracich v. Spears,

675 F.3d 281 (4th Cir. 2012); IN RE Bayer Healthcare And Merial Ltd. Flea

Control, 752 F.3d 1065 (6th Cir. 2014); Williams v. Dart, 967 F.3d 625 (7th

Cir. 2020); Randolph v. Ind. Reg'l Council of Carpenters, 453 F.3d 413 (7th

Cir. 2006) (Plaintiffs statements must be believed); Leone v. Owsley, 810 F.3d

1149 (10th Cir. 2015); Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Desert Palace, Inc. v.

Costa, 539 U.S. 90, 99-100 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003) and 76

Wash. & Lee L. Rev. 1567(2019) (Un)Conscious Judging:

Claims here were reported multiple times starting in December 2010 without any

attempt to investigate/remedy. Multiple law review journals, ECF 197-75, verify

summary judgment is prohibiting meritorious cases to the benefit of discriminators.

“Too often litigation has become more about resources and expense than

about reaching the merits and doing justice.” Summary Judgment in

Employment Discrimination Cases: A Judge’s Perspective 57 N.Y.L. Sch. L.

Rev. 671 (2012-2013) Hon. Denny Chin

This affects all discrimination claims and encourages discrimination which is

contrary to congressional intent and allows Circuit Courts to issue decisions

contrary to law regularly without any oversight or possible remedy.

QUESTION 8 Order ECF 316 7:3 “But-for causation is required...” is error. Facts

are misstated as noted in Question 7. This is outlined extensively at OB p.28-29.

“But for” is not causation standard for federal employees on retaliation. See EEOC

and Savage v. Department of the Army (Docket Nos. AT-0752-11-0634-I-2, AT-122112-0591-W-l MSPB September 3, 2015 (Where difference in statutes is laid out

explicitly-federal employees fall under section 717 codified at 42 USC §2000e-16(a)).

Supreme Court clarified that 42 U.S.C. § 2000e-16 does not in fact incorporate 42

U.S.C. § 2000e-3(a). The Federal sector provision instead “contains a broad

prohibition of ‘discrimination/ rather than a list of specific prohibited personnel

practices.” Gomez-Perez v. Potter, 553 U.S. 474, 487-88, 488 n.4 (2008). Hence, EEO

retaliation claims in the Federal sector do not implicate the statute at issue in

Nassar. Standard is any discriminatory motive. Cases are supportive:

..."but for" standard discussed in...Nassar ...does not apply to retaliation

claims by federal sector... employees under Title VII or the ADEA because

the relevant federal sector statutory language does not contain the "because

of' language on which the Supreme Court based its holdings. Donny F. v.

Dep't of Homeland Sec., EEOC Appeal No. 0720130035 (October 20, 2015);

carefully examine...statute to determine the appropriate causation standard.

Critical to this analysis... text of the statue, and any legislative intent... Babb

v. Wilkie, 140 S. Ct. 1168, 206 L. Ed. 2d 432 (2020) accord Gross v. FBL

Financial Services, Inc., 557 U.S. 167, 129 S. Ct. 2343, 174 L. Ed. 2d 119

(2009); Federal Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008).

“But for” is not determined as ADA standard either. Excellent arguments, in Siring

v. STATE BD. OF HIGHER EDUC. EXREL EOU, 977 F. Supp. 2d 1058 (D. Or.

2013), show motivating factor should be the standard. Disability is a status based

claim like race and gender as discussed in Nassar. Motivating factor is causation for

Rehab Act discrimination and retaliation based on all the above.

QUESTION 9 USDOJ representation in discrimination claims is against policy.

(Fully outlined in OB, ECF 300, 302) Right to due process and equal protection

concerning representation by EEOC and DOJ to federal employees was denied. See

Chandler; Markowicz v. Nielsen, 316 F. Supp. 3d 178 (D.C. 2018).) In EEO Act of

1972. Pub. L. No. 92-261. 42 U.S.C. § 2000e(a), (f) (1994) responsibilities for

litigating cases were divided between EEOC for private sector and DOJ for state

and local employers. Federal employees were unaddressed. To deny rights to a

citizen because they became a Postal employee is unconstitutional. It is this exact

action that is allowing rampant discrimination and promotion of those who commit

these acts, as clearly admitted by USPS. (ECF 282 p.4 & 26) DOJ is not mandated

to represent Agencies in discrimination claims (28 U.S.C. 516, 517, 518, 519),

especially here where discrimination was found and well evidenced. DOJ advocated

against the very laws supposed to uphold and represented Garity’s coworkers

against her. (ECF 270 8:20-23) DOJ is required to report adoption of formal policy of

representing against employee discrimination claims. (28 U.S.C.§ 530D) DOJ is to

provide representation to all employees.

“If conflicts exist between the legal and factual positions of...employees in

the same case... inappropriate for a single attorney... maybe separated into

...groups as is necessary to resolve the conflict...provided with separate

representation....advisable that private representation be provided ...and

Justice Department representation be withheld so as not to prejudice

particular defendants...procedures of § 50.16 will apply.” 28 C.F.R. 50.15

This is required for equal protection. (Amendment XIV - Ratified 7/9/1868) Supreme

Court held in Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct, 693, 98 L. Ed. 884 (1954)

equal protection requirements apply to federal government through Due Process

Clause of Fifth Amendment. It is against public interest to fight against eradicating

discrimination in Federal Agencies and thus against the interest of the U.S. USPS

waived sovereign immunity in Title VII claims and pays own damages. DOJ should

not represent in these circumstances.

USDOJ Civil Rights Division...representation-only appropriate

when the agency's position reflects public policy. Eric Schnapper, Lesal

Ethics and the Government Lawyer. 32~REC. A.B.N.Y. 650 (1977). James R.

Harvey III, Loyalty in Government Litigation: Department of Justice

Representation of Agency Clients, 37 Wm. & Mary L. Rev. 1569 (1996), Error!

Hyperlink reference not valid.

The importance of [DOJ] to the effective enforcement...cannot be

overstated...the prestige, expertise, and financial and personnel resources to

challenge discriminatory employment practices...As a general rule, private

attorneys and public interest organizations lack the financial and personnel

resources to act as nrivate "Attorneys General" in... enforcement scheme. The

Leadership Conference on Civil and Human Rights/The Leadership

Conference Education Fund 2015

Garity was subjected to efforts to eliminate her meritorious claim and “win at any

cost”. USPS was granted over 30 extensions, ECF 251, including 21 days late,

extending years beyond reason. Extensions prevented testimony and protecting

against abusive delay is an interest of justice. Martel v. Clair, 565 U.S. 648, 132 S.

Ct. 1276, 182 L. Ed. 2d 135 (2012); U.S. Code > Title 18 > Part I > Chapter 73; 18 U.S.

Code §1505, §1506 §1512. USPS/DOJ called Garity crazy, delusional, paranoid,

unintelligible and more, expert witness shopped, obstructed evidence, illegally

represented coworkers, quashed valid subpoenas, used multiple underhanded

tactics, refused to speak with Garity, and but not limited to, filed frivolous motions

without consequence. In contrast Garity was severely sanctioned twice as a pro se

for no actual violation. Failure to redact, ECF 266, was allowed without ruling and

USPS relates not subject to Court rules. (ECF: 271 5:4-12; 274 and 274-3). ECF 266

and 274 outline DOJ illegal actions.

“Fraud... egregious offense against the integrity of the judicial system ...”

Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 252 (Fla. 1st DCA 2012)

...depends on truthful disclosure...system that depends on an adversary’s...

uncover falsehoods is doomed to failure... conduct must be discouraged in

the strongest...way. Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998).

QUESTION 10 Punitive Damages

39 U.S. Code § 409 - Suits by and against the Postal Service (d)

(1) For purposes of the provisions of law cited in paragraphs (2)(A) and (2)(B),

respectively, the Postal Service—

(A) shall be considered to be a “person”, as used in the provisions of law

involved; and

(B) shall not be immune under any other doctrine of sovereign immunity

from suit in Federal court by any person for any violation of any of those

provisions of law by any officer or employee of the Postal Service.

[S]uch waivers by Congress of governmental immunity... should be liberally

construed.. .when...establishes...an agency, authorizes it to engage in

commercial and business transactions with the public...permits it to "sue and

be sued," it cannot be lightly assumed that restrictions on that authority are.,

implied. FHA, Region 4 v. Burr 309 U.S. 242 (1940). See also Postal Service v.

Flamingo Industries (USA) Ltd., 540 U.S. 736,124 S. Ct. 1321, 158 L. Ed. 2d

19 (2004); Loeffler v. Frank, 486 U.S. 549, 108 S. Ct. 1965, 100 L. Ed. 2d 549

(1988).

Statutory immunity is contrary to Constitutional right of equal protection. Any law

repugnant to the Constitution is void. This encourages discrimination in USPS even

though they are the biggest offender. (OB p.49) USPS is liable just as any other

entity. (OB p.15-16, 41) USPS never raised statutory immunity affirmative defense

in Answer or Summary Judgment and thus waived it.

QUESTION 11 Pro se consideration, Jones v. Blanas, and determination on the

merits was contrary to law: Pro se litigants are afforded protection from procedural

or technical injustice. Rand v. Rowland, 154 F.3d 952, 957-58 (9th Cir. 1998);

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006); IN RE ERIC

WATKINS LITIGATION, No. 20-10408, Non-Argument Calendar (11th Cir. Oct. 1,

2020)(liberally construe pro se filings to correspond between substance of claim...

underlying legal basis); Holley v. Department of Veteran Affairs, 165 F.3d 244, 247-

48 (3rd Circuit 1999) Harsh treatment of pro se trying to eradicate discrimination

has become oft-repeated error in District Courts. (ECF 163,163-2, 316; Cynthia

Gray. Reaching out or Overreaching: Judicial Ethics and Self-Represented

Litigants. 27J. Nat’l Ass’n Admin. L. Judiciary Iss.l (2007))

This case is one such example for others to forego pursuing discrimination claims.

The disadvantages of slavery, economically, socially, and educationally, are

well known. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 387-90

(1978) (opinion of Marshall, J.).. .courts are once again-and this time with the

aid of the federal government-"whittling away" the important civil rights

acts...."technicalities are particularly inappropriate in a statutory scheme in

which laymen, unassisted by trained lawyers, initiate the process.'" E.g. Love

v. Pullman Co., 404 U.S. 522, 527(1972). [It has not gotten better]

...litigants have a protected interest in a meaningful opportunity to be heard

....analytically distinct from any protected liberty or property interests that...

underlie...cause of action...Laurence H. Tribe, American Constitutional Law

§ 10-18 at 753-54 (2d ed. 1988)... pro se...lack of knowledge... retain its

rightful place as a "shield"...and not become a "sword" for the court to use to

deter him from suing or to defeat him in court if he does sue. The University

of Chicago Law Review Julie M. Bradlow B.A. 1985, Yale University; J.D.

Candidate 1988, University of Chicago.

The sword to defeat was clearly used. Courts are becoming closed to civil rights

claims. Those rights are eviscerated thru the exact issues and conduct raised in this

appeal. The totality of treatment is nothing less than another abuse and violation of

rights. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418 (1978);

McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 358-359 (1995).

QUESTION 12 Trial errors prevented full fair hearing on the merits (OB p.35-42;

ECF 493, 494). All trial errors were cumulative.

"Redetermination of issues is warranted if there is reason to doubt the

quality, extensiveness, or fairness of procedures followed in prior

4, Apr. 15, 1977)" Montana.

One bad decision after another eliminated damages, front pay-when disability

retirement not voluntary, jury trial, career, make whole remedy and further

findings. This was just a rubber stamp and not a true well-reasoned opinion, based

on full fair review of the record, which Garity was entitled to after 10 years. Garity

was removed from her property interest without due process of right to be heard

and without remedy. See Walls v. Central Contra Costa Transit Authority 653 F. 3d

963 -9th Cir. 2011; Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105

S. Ct. 1487, 84 L.Ed.2d 494 (1985).

Trial errors are outlined in OB p.35-42 and included denial of motion to conform, see

US v. Gila Valley Irr. 859 F.3d 789 (9th Cir. 2017), FRCP 15(b)(2); denial of pattern

and practice of disability discrimination; massive interference of testimony; denying

testimony because not a Manager; denial of depositions, Klune v. Palo Verde Health

Care District, No. 15-56918 (9th Cir. Feb. 14, 2019); denial of 30(b)(6) deposition use

at trial; testimony limited based on unfiled motion on grievances with inapplicable

law; required to extensively discuss witness questions in front of witnesses before

asking; imposed time limits during trial requiring almost no sleep to change

questioning to comply; allowing summary exhibit without the background evidence

(ECF 487), Amarel v. Connell, 102 F. 3d 1494 (9th Cir. 1996) and denial of race

claim without factual findings, evidence and testimony All errors affected outcome.

QUESTION 13 Race claim had evidence and testimony prevented from Armendariz/

Albertini (ECF 488, ECF 84, 142) Allowed testimony verified: ECF: 487 172:13-24,

197:24 to 198:7; 488 29:6-20, 32:23-39:7-(EX 11 105-106), 41:20 to 42:9, 44:2-45:6,

EX 31, 142:10-25, 145:15-147:5, 152, 158:24-160:3; 161:15 to 170:4, 170:23- 171:1,

172:10-178:22, 183:1-3; 489 108:9-20; 507 77:13-80:12, 184:15-186:12; 282 EX 2

Albertini exhibit 3. Demotion and replaced by Albertini was also shown. ECF 282

13:1-15:8 and EX 13 shows undisputed facts on the discrimination.

CONCLUSION

Each question presented, verified rulings are contrary to established law affecting

all discrimination and pro se plaintiffs, particularly against the government. Each

and every established law of this Court and Circuit Courts was ignored and

violated, apparently because oversight is very rare. Garity asks the case be

remanded for a full, including Retaliation, Accommodation and Hostile

Environment, fair trial on the merits by jury of peers, with exception of disability

discrimination-found, and full testimony on constructive discharge and damages.

Each Decision compounded one on another starting with DOJ representation, to

denial of evidence, to summary judgment, to removal of damages and jury trial, to

failure to recuse after becoming an accuser, to preventing witness testimony/

evidence, to ordering no testimony on damages to final Order. "Redetermination of

issues is warranted if there is reason to doubt the quality, extensiveness, or fairness

of procedures followed in prior litigation." Montana

Denied testimony and evidence prevented full proof of all claims. (ECF: 487 147:22

to 149:1, 212:1-24, 213:5-10, 220:14-18; 488 8:25 to 10:20; 489 189:16 to 190:25; 490

9:25 to 10:20) None of the errors are disputed. Denial of Garity’s rights throughout

does not make any of the issues raised moot. Maybe Garity, as a pro se, just wasn’t

worth the time. This was just another day for the Court and DOJ but it was Garity’s

career and her life. It is well researched that discrimination plaintiffs do not have

fair access to trial courts. Journals verify the civil rights act has basically been

eliminated by Trial Court Judges. (ECF 163-2)

ABA JOURNAL Posner: Most judges regard pro se litigants as 'kind of trash

not worth the time' By Debra Cassens Weiss Posted September 11, 2017.

If Federal District Courts are allowed to rule against laws of the Supreme Court

and Congress, then the right to be free from discrimination, particularly disability

discrimination, is in extreme jeopardy. USPS has lost class action after class action

related to Disability Discrimination, retaliation and hostile environment for the

exact same conduct in this claim. USPS continues their actions because they

believe, and rightfully so, they are untouchable and above the law. Managers/

coworkers falsely accused Garity of inclination to murder because they would likely

do so if treated the way Garity was treated. See John H. Clark, American Jurist in

Valdez v. United States, 244 U.S. 432, 450 37 S. Ct. 725, 61 L. Ed. 1242 (1917).

■ ■.meaningful access to justice for every American is more than just a

professional responsibility—it is a moral obligation and a national charge. It

is at the very core of what this country stands for. ..deserves fair treatment

from the civil justice system... deserves our best efforts in the service of that

cause. June 3, 2015 Courtesy of Attorney General Loretta E. Lynch

Garity prays this will not be allowed to stand.

s/Rosemary Garity

3231 Florenza St

Pahrump, NV 89060

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.