Petition for Writ of Certiorari — Harisadhan Patra, et ux., Petitioners v. Pennsylvania State System of Higher Education, et al.

No. 23- /

In The

Supreme Court of the United States

HARISADHAN PATRA AND PETULA VAZ

Petitioners,

v.

PENNSYLVANIA STATE SYSTEM OF HIGHER

EDUCATION et al.

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

HARISADHAN PATRA

PETULA VAZ

Pro Se Plaintiffs

29 Duke of Gloucester Rd.

Bloomsburg, PA 17815

(308) 293-5728

patra3@gmail.com

Pro Se Petitioners

1

QUESTIONS PRESENTED

Supreme Court precedents require, “The evidence

of the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505

(1986); Tolan v. Cotton, 572 U.S. 650, 659, 134 S.Ct.

1861, 1868 (2014). Further, Supreme Court

precedents require that credibility determinations be

left for the jury, and have held that the jury’s disbelief

of the employer is a “form of circumstantial evidence

that is probative of intentional discrimination.” Reeves

v. Sanderson Plumbing Prod., Inc., 530 U.S. 133

(2000). Further, in First Amendment retaliation

injury contexts, the Supreme Court precedent

warrants an “independent” review to apply facts to

specified constitutional standards. E.g. Bose Corp. v.

Consumers Union of U.S., Inc., 466 U.S. 485, 499

(1984). There are some inter-circuit and intra-circuit

disputes about whether Plaintiffs must be “chilled”

and cease exercising their First-Amendment rights

altogether to demonstrate an injury. Also, the

objective criteria on how to examine and decide

“blasphemous insults” as “pervasive” or “severe” are

lacking because, individual perceptions and opinions

differ, and one often cannot fathom the trauma of

religious insults to a person from another religion.

Thus, the QUESTIONS PRESENTED are as follows:

1. Do the United States Court of Appeals have

obligations to enforce FRCP 56 and the Supreme

Court’s precedents when Statement of Material Facts

and supporting records filed by movants, pursuant to

Local Rules, contradicted other records filed pursuant

to FRCP 56? Specifically, should Courts admit

movants’ Statement of Material Facts and assertions,

pursuant to Local Rules, even when contradicted by

records filed pursuant to FRCP 56 by movants and/or

11

nonmovants? Further, should Courts grant summary

judgment for movants based on movants’ Statement of

Material Facts and assertions, even when the full

record, filed pursuant to FRCP 56 by nonmovants

and/or movants show there are “genuine” disputes to

material facts?

2. In the context of First Amendment claims, do

the United States Court of Appeals have obligations

to independently review the entire record, and not

simply accept the lower Courts’ erroneous factual

findings, based on Courts’ strict interpretation of

Local Rules, even when nonmovants’ evidence, filed

pursuant to FRCP 56, contradicts movants’ Statement

of Material Facts, evidence, or assertions?

3. What is the appropriate standard for “chilling”

to sustain a First Amendment injury claim?

Specifically, in order to sustain an injury claim under

First Amendment rights, are public or government

employees always required to show that they ceased

speaking altogether on matters of public concern?

4. What is the objective standard for determining

whether blasphemous insults to employees at the

workplace by supervisors against employees’ religion

are “severe” or “pervasive” in the context of workplace

harassment to sustain discrimination and/or “hostile

work environment” claims? How should Courts

examine the effects of religious insults on employees,

since religious beliefs are personal and vary widely

among societies and religious backgrounds? Further,

should the United States Court of Appeals not accept

employees’ testimonies and email records as credible

and require further corroborating evidence, despite

movants’ lack of contrary evidence; and if so, what

quality or quantity or type of corroborating evidence

should the United States Court of Appeals demand to

prevail at the summary judgment stage?

Ill

PARTIES TO THE PROCEEDING

The Petitioners, who were the Appellants in the

United States Court of Appeals for the Third Circuit,

are Harisadhan Patra and Petula C Vaz, Pro Se

Plaintiffs and former faculty of Bloomsburg

University of Pennsylvania. The respondents, who

were the Appellees in the United States Court of

Appeals for the Third Circuit, are Pennsylvania State

System of Higher Education; Bloomsburg University

of Pennsylvania; Frank T. Brogan, individually and in

his official capacity as Chancellor; David Soltz,

individually and in his official capacity as President of

Bloomsburg University; Ira Blake; Robert P.

Marande; Richard Angelo; Jorge E. Gonzalez; and

Thomas R. Zalewski.

RELATED PROCEEDINGS

• Patra and Vaz v. Pennsylvania State System of

Higher Education et al., No. 4:14-cv-2265, U.S.

District Court for the Middle District of Pennsylvania.

Judgment entered May 08, 2018 (see 059a-064a).

• Patra and Vaz v. Pennsylvania State System of

Higher Education et al., No. 18-2236, U.S. Court of

Appeals for the Third Circuit. Judgment entered July

12, 2019 (see 051a-058a).

• Patra and Vaz v. Pennsylvania State System of

Higher Education et al., No. 4:14-cv-2265, U.S.

District Court for the Middle District of Pennsylvania.

Judgment entered May 27, 2020 (see 020a-046a).

• Patra and Vaz v. Pennsylvania State System of

Higher Education et al., No. 20-2320, U.S. Court of

Appeals for the Third Circuit. Judgment entered July

19, 2023 (see 003a-019a).

• Patra and Vaz v. Pennsylvania State System of

Higher Education et al., No. 20-2320, U.S. Court of

IV

Appeals for the Third Circuit. Judgment entered

(Petition rehearing by the panel and the Court en banc

denied) November 30, 2023 (001a-002a).

V

TABLE OF CONTENTS1

Page

QUESTIONS PRESENTED

1

PARTIES TO THE PROCEEDING

111

RELATED PROCEEDINGS

m

TABLE OF CONTENTS

v

TABLE OF AUTHORITIES

vn

PETITION FOR WRIT OF

CERTIORARI...................

1

OPINIONS BELOW

. 1

JURISDICTION

1

CONSTITUTIONAL AND OTHER

PROVISIONS.................................

1

STATEMENT OF THE CASE

3

REASONS FOR GRANTING THE

WRIT..............................................

5

A.

The Third Circuit failed its obligations

to enforce FRCP 56, FRCP 83, and the

Supreme Court’s precedents for

summary judgment............................... 6

i A separate APPENDIX is filed, which contains a “TABLE

OF CONTENTS”, listing all appendices. We avoid repeating the

same here, based on examples we read online.

VI

B.

In the First-Amendment injury context,

the Third Circuit failed its obligations

to ‘make an independent examination

of the whole record’; erroneously acted

as Defense Counsel; and accepted

Defendants’/movants’ false assertions

as true........................................................ 26

C.

This Court’s guidance and clarification

of an objective standard for “chilling” to

sustain a First Amendment injury

claim are essential................................ 32-33

D.

In the context of hostile work

environment involving blasphemous

insults, this Court’s guidance and

clarification of objective standards for

“severe” or “pervasive” and any

requirement of corroboration of

evidence are essential..........................

CONCLUSION

37

42

Vll

TABLE OF AUTHORITIES

Page

Cases

Adams v. Austal, U.S.A., LLC,

754 F.3d 1240, 1254 (11th Cir. 2014)............

39

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249, 255-56 (1986)....................

6

Ayissi-Etoh v. Fannie Mae,

712 F.3d 572, 577 (D.C. Cir. 2013).................

39

Baloga v. Pittston Area School District,

927 F.3d 742 (3d Cir. 2019)............................. 31, 33

Bart v. Telford,

677 F.2d 622, 625 (7th Cir. 1982)...................

34

Beck v. City of Pittsburgh,

89 F.3d 966, 971 (3d Cir. 1996)......................

19

Bennett v. Hendrix,

423 F.3d 1247 (11th Cir. 2005).......................

34

Bose Corp. v. Consumers Union of U.S., Inc.,

466 U.S. 485, 499 (1984)..................................

26

Boyer-Liberto v. Fontainbleau Corp.,

786 F.3d 264, 268 (4th Cir. 2015) (en banc) ..

39

Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 68, 126 S.Ct. 2405, 2415 (2006)

16

Constantine v. Rectors &

Visitors of George Mason Univ.,

411 F.3d 474, 500 (4th Cir. 2005)..................

33-34

Cox v. Burke,

706 So. 2d 43, 47 (Fla. 5th D.C.A. 1998)......

24

Curley v. Village of Suffern,

268 F.3d 65, 73 (2d Cir. 2001).....................

33

Vlll

Faragher v. City of Boca Raton,

524 U.S. 775, 788 (1998).....................................

38

Garcia v. City of Trenton,

348 F.3d 726, 728 (8th Cir. 2003)......................

33

Harris v. Forklift Sys., Inc.,

510 U.S. 17, 22 (1993)..........................................

38

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

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

26

Heffernan v. City of Paterson,

136 S.Ct. 1412, 1418 (2016)...............................

16

Helfter v. United Parcel Serv., Inc.,

115 F.3d 613, 616 (8th Cir. 1997)......................

7

Holtz v. Rockefeller Co., Inc.,

258 F.3d 74 (2d Cir. 2001)..................................

9

Hozier v. Midwest Fasteners, Inc.,

908 F.2d 1155, 1165 (3d Cir. 1990)...................

8-9

Kaucher v. Cty. of Bucks,

455 F.3d 418, 423 (3d Cir. 2006).......................

33

Lane v. Franks,

134 S.Ct. 2369, 189 L.Ed.2d 312 (2014) ....20, 34-35

Mendocino Envtl. Ctr. v. Mendocino City,

192 F.3d 1283, 1300 (9th Cir. 1999)

34

Pa. State Police v. Suders,

542 U.S. 129, 133 (2004)..................

38

Paladino v. Newsome,

885 F.3d 203 (3d Cir. 2018).............

10

Perry v. Sindermann,

408 U.S. 593, 597 (1972)..................

31

Pfaller v. Amonette,

55 F.4th 436, 450 (4th Cir. 2022)....

10

IX

Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 150 (2000).......................................

6

Reno v. ACLU,

521 U.S. 844, 872 (1997).......................................

37

Rodgers v. Western-Southern Life Ins. Co.,

12 F.3d 668, 675 (7th Cir. 1993)...................... 39

San Diego v. Roe,

543 U.S. 77, 82, 125 S.Ct. 521, 160 L.Ed.2d 410

35

(2004) (per curiam)....................................

Scott v. Harris,

550 U.S. 372, 380 (2007)..................................

6

Snoeyenbos v. Curtis,

60 F.4th 723, 730 (4th Cir. 2023)..................

33

Sullivan v. Carrick,

888 F.2d 1 (1st Cir. 1989)................................

33

Thomas v. Nugent,

572 U.S. 1111, 134 S.Ct. 2289 (Mem),

189 L.Ed.2d 169 (2014)....

Tolan v. Cotton,

572 U.S. 650, 659,

134 S.Ct. 1861, 1868 (2014)

25-26

6, 25-26

Vermont Teddy Bear v. 1-800 Beargram Co.,

373 F.3d 241, 244 (2d Cir. 2004)....................

9

Waters v. Churchill,

511 U.S. 661, 674, 114 S.Ct. 1878,

128 L.Ed.2d 686 (1994) (plurality opinion) ..

35

Williams v. Griffin,

952 F.2d 820, 823 (4th Cir. 1991)...............

9

X

Statutes and Rules

U.S. Const. Amend. I

1,4-5, 13, 15-16,

26-29, 31, 33-38

U.S. Const. Amend. VII

..........1,8, 24-25

U.S. Const. Amend. XIV.........................

L8

Title VII of the Civil Rights Act of 1964

3, 5, 16

PA Whistleblower Law........

4-5, 13, 15-16, 27-28

28 U.S.C. §1254(1)................

1

28 U.S.C. §1746.....................

1,6

42 U.S.C. §1983 .....................

1

34 CFR 602.20(a)(2)(iii)........ ............................. 12, 36

34 CFR §668.14(b)(4), (b)(10) ............................ 10, 36

Supreme Court Rule 10...... ........................ 5, 26, 32

FRCP 56.................................. 1, 6-8, 10, 25-26, 39, 42

FRCP 83................................. ............................. 1, 6-8

M.D.PA. Local Rule 7.8......

1,6

M.D.PA. Local Rule 56.1.....

1, 6, 8-9

Miscellaneous

CAA-2008-Standards for accreditation

10, 36

Wigmore, Evidence,

278 (Chadbourn Rev., 1979).................

25-26

1

PETITION FOR WRIT OF CERTIORARI

Petitioners, Patra and Vaz, respectfully petition

for a writ of certiorari to review the Judgment of the

Hon. Third Circuit.

OPINIONS BELOW

The Opinion of the Third Circuit is attached (005a019a). The Court’s orders denying rehearing or

rehearing en banc and permission to file a fraud-onthe-Court motion prior to ruling of rehearing or

rehearing en banc are attached (001a-002a; 047048a). The Opinion of the Middle District of

Pennsylvania is attached (021a-046a). Prior Circuit

and District Court Judgments and Opinions are

attached (051a-064a).

JURISDICTION

The Third Circuit entered its Judgment and

Opinion on July 19, 2023 (003a-019a), and denied

Petitioners’ timely rehearing petition on November,

30, 2023 (001a-002a). Hon. Justice Alito, Jr., granted

Petitioners’ application to extend time to file a petition

for a writ of certiorari to April 29, 2024. This Court

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

CONSTITUTIONAL AND OTHER PROVISIONS

Relevant parts from the following relevant

provisions (U.S. Const. Amend. I, VII, and XIV; 28

U.S.C. §1746; 42 U.S.C. §1983; FRCP 56 and 83;

M.D.PA. Local Rule (hereinafter “LR”) 7.8 and 56.1)

are reproduced at 682a-686a.

We cited the appendix, if a record is attached in it.

Hereinafter, citation styles in Table-1 are followed.

Multiple records, pages, etc. are separated by

We

cited page numbers from headers of Court records.

2

“Plf” and “Def” are used to identify Plaintiffs’ and

Defendants’ documents, respectively (e.g. Plf-Brief).

Table-1

Records

Style

Examples

District

Court’s

DCR#number

DCR#34

Circuit

Court’s

USCA#case

number/Docnumber or

document type

USCA#202320/Doc-23;

Deponent-Dep

Smith-Dep

Declarations Declarant-Dec

Reed-Dec

Plf-Dec

Page/s

099a;

099a-101a

Depositions

Line/s

Appendix page

number

followed by “a”

Otherwise,

source.P.page

number/s

dine number/s

Paragraphs

or sections

(t paragraph

or § section

number/s)

Footnotes

(n.footnote

number/s)

USCA#182236/Opinion

DCR#34.P.3;

DCR#34:P.3-6;

Smith-Dep.P.34

099a: 10;

099a: 10-15;

099a:4-101a;

099a:4-101a:5

099a(H4);

125a(§4-6)

DCR#73(n.ll)

If applicable/relevant, we added identifier/s as

“[identifier]”. E.g. (280a-316a(§44)[Plf-Dec]). We cited

3

evidence from Court records and issues raised in lower

Courts.

STATEMENT OF THE CASE

I. Patra and Vaz, a married couple of Indian

origin/race and Hindu faith, joined Bloomsburg

University (hereinafter “BU”), under certain pre-hire

agreements (hereinafter “PHA”) and individualized

contracts (hereinafter “PIC”) [which incorporated a

Collective Bargaining Agreement (hereinafter “CBA”)

between the Pennsylvania State System of Higher

Education

(hereinafter “PASSHE”)

and

the

Association of PA State College and University

Faculties (hereinafter “APSCUF”) and Faculty

Handbook] (243a-246a(§2-10)[Plf-Dec]).

II. In addition to nine EEOC/PHRC charges

(DCR#81-27. P.2-12) during 2012-2014 (beginning

Fall-2012), Petitioners regularly filed complaints with

BU/PASSHE administration, during Spring-2012 and

05/30/2014 for race/national-origin/religion-based

discrimination and retaliation against Plaintiffs.

(271a-275a(§43.A, D)[Plf-Dec]).

III. During Plaintiffs’ employment, BU had one

doctoral program, the ~4 year-long Doctor of

Audiology (hereinafter “AuD”). The AuD-program was

accredited by the Council on Academic Accreditation

(hereinafter “CAA”) of the American SpeechLanguage-Hearing Association (hereinafter “ASHA”).

CAA/ASHA required BU, inter alia, to report yearly

program-completion rates within the published timeframe (hereinafter “OCR”) timely, accurately to

CAA/ASHA and conspicuously on websites for the

public (e.g. prospective students). CAA required >80%

OCR for accreditation (242a-243a(§l)[Plf-Dec]). At

least for 10 years, BU never met accreditation

4

requirements, but successfully falsified official

records for accreditation, funds, student recruitment,

etc. (257a-264a(§24-33)[Plf-Dec]).

IV. In Spring-2012, Plaintiffs raised poor AuDOCRs with Marande and Angelo. Marande sternly

warned Plaintiffs not to bring up such “frivolous

issues” to anyone, especially CAA to avoid serious

consequences, which Plaintiffs complied with due to

fear of job losses/threats, etc. (252a(§18)[Plf-Dec]). By

08/27/12, Plaintiffs discovered prospective-speech

suppression / threats were aimed to cover-up

Defendants’ false/fraudulent reporting of grosslyinflated OCR (usually ~25% as 100%) for

accreditation, student recruitment, funds, etc., while

several Defendant Officials (hereinafter “DO”s) and

non-Defendant Officials (hereinafter “NDO”s) were

gaining

personal /financial

benefits,

causing

waste/abuse/misuse of public funds. Specifically

students were compelled to remain in the program up

to 8 years, and many were compelled to leave theAuDprogram without a Diploma, which caused severe

stress, financial burden, and other losses to these

students and taxpayers; although BU received a

federal grant to train audiologists. Considering

Defendants’ actions as matters of serious public

concern, Plaintiffs, throughout 08/27/12-05/30/14,

spoke against Defendants on such issues to the public

in public fora (outside the employment-chain-ofcommand) under First-Amendment rights as private

citizens and contemporaneously, also reported to

appropriate authorities via employment-chains-ofcommand under PA Whistleblower Law (hereinafter,

“PWL”) (252a-271a(§ 19-42)[Plf-Dec]).

V. Throughout 08/27/2012-05/30/2014, Plaintiffs

engaged in consistent/continuous streams of

5

interleaved

and/or

overlapped protests

and

whistleblowing, under Title-VII, PWL, and FirstAmendment rights (hereinafter, collectively “ProAct”s) (271a-280a(§43)[Plf-Dec]). Following each ProAct,

Defendants

mostly

within

days,

selectively/disparately caused consistent, continuous

streams of adverse employment actions (hereinafter

“AEA”s) selectively against Plaintiffs (unlike against

similarly-situated (probationary/untenured) or any

other faculty), including termination, contrary to

Plaintiffs’ Contracts (280a-453a(§§44-134)[Plf-Dec]).

VI. Plaintiffs filed this civil action in November

2014 and amended on 03/06/15. Attorneys from the

Attorney General of Pennsylvania’s Office have been

acting as Defense Counsels (hereinafter “AGDC”).

VII. On 10/16/17, AGDC filed a summary

judgment motion (hereinafter “SJM”) (DCR#70). On

05/08/18, the District Court granted Defendants

summary judgment (059a-064a), which the Third

Circuit vacated and remanded on 07/12/19 (051a058a). Then, the District Court ordered Plaintiffs to

refile their opposition, pursuant to LRs and other

directions (065a-068a), while accepting Plaintiffs’

prior exhibits (068a(n.9)). Accordingly, Plaintiffs filed

their opposition (DCR#103, 103-1-103-10; e.g. 069a487a). On 05/27/20, the District Court again granted

Defendants summary judgment (020a-046a), which

the Third Circuit affirmed (003a-019a). On 11/30/23,

rehearing or rehearing en banc was denied (001a002a).

REASONS FOR GRANTING THE WRIT

Pursuant to Supreme Court Rule 10(a) and 10(c),

Petitioners respectfully petition for a writ of certiorari

6

to review and reverse the Hon. Third Circuit’s

judgment for the following:

A. The Third Circuit failed its obligations

to enforce FRCP 56, FRCP 83, and the

Supreme Court’s precedents for summary

judgment.

1. Pursuant to FRCP 83, no LRs could

supersede FRCP 56. FRCP 56 and this Court’s

standards (e.g. Anderson v. Liberty Lobby, Inc., All

U.S. 242, 255-56 (1986); Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 150 (2000);

Tolan v. Cotton, 572 U.S. 650, 659, 134 S.Ct. 1861,

1868 (2014)) require Courts to accept nonmovants’

version of facts in SJMs, except when nonmovants’

version of facts “is blatantly contradicted by the

record, so that no reasonable jury could believe it”

(Scott v. Harris, 550 U.S. 372, 380 (2007)).

Specifically, the “general rule that a ‘judge’s function’

at summary judgment is not ‘to weigh the evidence

and determine the truth of the matter but to

determine whether there is a genuine issue for trial.’”

(Anderson, All U.S., at 249). However, the District

Court and Third Circuit departed from the foregoing

requirements, as shown in examples infra.

2. We/Plaintiffs certify that we, untrained in

law, followed LRs, FRCPs, and the Court’s order, to

the best of our understanding (069a(n.l-2)[Plf-Brief]).

Plaintiffs controverted movants’ SMF, pursuant to LR

56.1 (108a-128a), while offering counter SMF,

pursuant to LR 7.8(a) in the Brief (071a-076a(§C-E)),

by citing Plaintiffs’ declarations (pursuant to FRCP

56(c); 28U.S.C. §1746; Exhibits-P2-P4; 129a-453a[PlfDec]). Considering “a lengthy and complicated factual

record” (057a:15-16[USCA#18-2236/Opinion]) and

that Plaintiffs were ordered to address, inter alia, 13

7

specific issues in Plaintiffs’ Brief within 30 pages

(066a-068a[DCR#100/Order]); Plaintiffs (untrained in

law) completely relied on citations of Plaintiffs’

multiple declarations (129a-487a[Plf-Dec]; ExhibitsP2-P5 as DCR#103-3, DCR#103-6, DCR#103-7,

DCR#103-8), which were based on Plaintiffs' first­

hand knowledge and replete with cited evidence from

depositions and discovery evidence (e.g. emails,

generated in the course of regular official business;

information

store d/se arche d

electronically

(hereinafter

“ESI”):

discovery

responses

by

Defendants and Plaintiffs, Bates-stamped with DEFand PLAPS-, respectively; 101a-107a[DCR#103-l]).

Furthermore, the District Court had analyzed

(066a[DCR#100/Order]) the admissibility of Plaintiffs’

documents and concluded “Plaintiffs need not refile

any of their exhibits at ECF Nos. 80 and 81”

(068a(n.9)[DCR#100/Order]). Since Plaintiffs followed

LRs and FRCPs; Courts must consider Plaintiffs’

declarations, even if Plaintiffs’ filings were not

technically sophisticated like skilled attorneys.

However, contrary to FRCP 56, FRCP 83, this Court’s

precedents (§A.l, supra) and other Circuits’ positions

(e.g. rejecting plaintiff’s statements, while accepting

the employer’s is deemed “an approach ... inconsistent

with the fundamental rules governing summary

judgment” and “To hold otherwise ... an employee’s

account could never prevail over an employer’s ...would

render

employee’s

protections

against

an

discrimination meaningless.” Helfter v. United Parcel

Serv., Inc., 115 F.3d 613, 616 (8th Cir. 1997)), the

District and Circuit Court cited only movants’ SMF,

evidence (including out-of-context, misleading,

incomplete transcripts from Plaintiffs’ testimony,

cited by movants; see §B.2-5, infra) and assertions,

without any of Plaintiffs’ declarations, DO’s/NDO’s

8

deposition testimony or other Plaintiffs’ evidence. E.g.

the District Court held, “On December 29, 2012, Patra

filed two complaints” with the EEOC (032a033a(§4)[DCR#109/Opinion]), citing movants’ SMF,

Tf54; even though Plaintiffs controverted movants

(126a(Tf54)[DCR#103-2]) with cited evidence that

Patra filed one EEOC charge on 12/04/12 and another

on 12/29/12.

3. SMF/LR-56.1 statements. Movants’ SMF

included claims about Plaintiffs’ hiring (without

mentioning

PHA)

and

yearly

evaluations

(DCR#71(1fl-6)); Patra’s evaluations and nonrenewals

(DCR#71(Tf7-26)); Vaz’s evaluations and nonrenewals

door-lock

changing

a

(DCR#71(127-42));

(DCR#71(143-53)); and lists of Plaintiffs’ EEOC

charges (DCR#71(lf54-61)); and nothing else; as if

Plaintiffs’ whistleblowing and other claims, including

AEAs, did not even occur. Yet, the District and Circuit

Courts failed to recognize limitations of LR 56.1

and the scope of FRCP 56. as discussed infra:

Nonmovants could respond only to movants’ SMF

claims (685a-686a(§9)) and were not permitted to add

additional SMF (see the District Court’s order;

068a(§5)[DCR#100/Order]). If Courts allow and accept

movants’ SMFs as complete material facts (as in this

case), movants can/will win SJM by simply stating

selected favorable SMFs, while omitting unfavorable

material facts (as in this case). However, LRs cannot

supersede FRCPs (see FRCP 83; 685a), and the scope

of FRCP 56 is broad to ensure protection of VII- and

XlV-amendment rights (682a-685a), which the Third

Circuit recognized (e.g. “[N[othing in Rule 56 prevents

[the nonmoving party] from creating a genuine issue

of material fact by pointing to sufficiently powerful

countervailing circumstantial evidence.” Hozier v.

9

Midwest Fasteners, Inc., 908 F.2d 1155, 1165 (3d Cir.

1990)). Yet, the District and Circuit Courts ignored

nonmovants’ evidence (see 101a-487a; e.g. 129a145a [D CR# 103- 3/Plf-Dec]; 146a-240a[DCR#103-6/Plf454aDec];

241a-453a[DCR#103-7/Plf-Dec];

487a[DCR#103-8/Plf-Dec]; 488a-580a[testimony]) and

objections to movants’ evidence (108a-128a[DCR#1032]; 129a-145a[DCR#103-3/Plf-Dec]; 071a-076a(§CE)[DCR#103/Plf-Brief]; 078a-079a(§H)[DCR#103/PlfBriefl; 094a-100a(§I-J)[DCR#103/Plf-Brief]), without

offering reasons/explanations. The Second Circuit

emphasized, “Allowing a Local Rule 56.1 statement to

substitute ... admissibility requirement set forth in

Fed.R.Civ.P. 56(e) “would be tantamount to the tail

wagging the dog.”” Holtz v. Rockefeller Co., Inc., 258

F.3d at 74 (2d Cir. 2001) (internal citation omitted),

and LR 56.1, “does not absolve the party seeking

summary judgment of the burden of showing that it is

entitled to judgment as a matter of law, and a Local

Rule 56.1 statement is not itself a vehicle for making

factual assertions that are otherwise unsupported by

the record.” Id. Also see, Vermont Teddy Bear v. 1-800

Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (the

Court “may not rely solely on the statement of

undisputed facts contained in the moving party's Rule

56.1 statement.”). Further, the Fourth Circuit treated

verified complaints as “the equivalent of an opposing

affidavit for summary judgment purposes, when the

allegations contained therein are based on personal

knowledge” (Williams v. Griffin, 952 F.2d 820, 823

(4th Cir. 1991)), unlike the Third Circuit in

Petitioners’ case (e.g. EEOC/PHRC charges, under

penalty of perjury). Furthermore, the Third Circuit,

contrary to its own precedents (“self-serving affidavits

pointing to specific facts can create a genuine issue of

material fact sufficient to survive summary judgment”

10

Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018)) and

other Circuits’ position on affidavits (e.g. Pfaller v.

Amonette, 55 F.4th 436, 450 (4th Cir. 2022)), failed to

consider Petitioners’ declarations (but accepted

movants’ declarations), under penalty of perjury;

erroneously ratifying FRCP 56(c) provisions. Further,

the District Court accepted movants’ SMFs and

assertions; whereas, the Circuit Court, not only

accepted the District Court’s version of SMF, but even

accepted movants’/Appellees’ newly created “facts”

on

appeal

USCA#20-2320/Doc-23(§3,

(e.g.

5) [Appellees-Brief]

D CR# 71 [Def- SMF];

vs.

DCR#73[Def-Brief]); although movants’ claimed facts

were mostly false, half-truths, unsupported or

contradicted by movants’ own evidence and by

nonmovants (including movants’ own officials’

testimony), shown infra.

4. Omission of material facts. Movants’

SMF (§A.3, supra) contained none of Plaintiffs’

whistleblowing claims (except a partially accurate

EEOC charges list; 125a-126a) or AEAs (except false

claims of evaluations and nonrenewals). We offer

examples here and refer to Plaintiffs’ declarations

(129a-487a; specifically, 241a-487a) (also SB, infra).

a. Whistleblowing on matters of public

concern: Defendants violated, inter alia, CAA-2008Standards for accreditation and Department of

Education (hereinafter “DOE”) requirements (e.g. 34

CFR §668.14(b)(4), (b)(10)) because, CAA-2008Standards required BU, inter alia, to meet at least

80% OCR and post accurate program-completion

data on BU’s websites conspicuously for the public

(242a-243a(§l)[Plf-Dec]), which BU never met for at

least 10 years. However, Defendants falsified official

records. E.g. although, AuD-OCRs between 2008/09—

11

2011/12 were 19%, 27%, 25%, and 9%, respectively;

Defendants regularly /consistently reported grosslyinflated (100%) completion-rates to CAA/ASHA and

the public (on websites), always favorable to

Defendants

(257a-263a(§24-32)[Plf-Dec]).

For

clear/convincing evidence of Defendants’ deliberate

falsifications, we report data for students, who joined

in 2009/10 and expected to graduate in 2012/13 in

Table-3 (633a-634a; 636a-637a).

Table-3

T3

<D

CD

<d

ft

ft

CD

ao

be

£>

CD

co • i—I

+J -4-S

rt CD

£

bjo.

<D

a

To whom or a ®

o

g

where

o .3

reported

3 a

Z o

'Z 3

d i

§

P-i

2 8 £

CAA/ASHA

3

6

0

100 3+6 = 9

Websites

13

0

2

100 13+2 =15

Factual data

1

1

15

6

o

o

•

O

5_

CD

'ft

p—H

® 'ft

s-i S

Cti

O

o

E-H

CD

1+1+15=17

Defendants knowingly falsified to CAA/ASHA that

number completing were (3+6) on 07/31/13 and on

websites as 13 on 11/07/13 because Defendants

owned factual records (636a-637a), which showed

that OCR was only 6%. Table-4 shows actual

completion data; completion time in row 1 and number

completed in row 2.

Table-4

May Aug

2013 2013

1

1

Dec

2013

Jan

2014

May

2014

Dec

2014

May

2015

2

2

1

2

5

12

Defendants willfully falsified because, on 11/07/13

or 07/31/13, Defendants could not have known about

15 students’ futures (since, 2, 5, and 5 students

completed in Dec-2013, 2014, 2015, respectively,

while 3 never completed; 636a-637a). Had

CAA/ASHA known that Defendants did not meet

accreditation requirements and falsified/fabricated

AuD-data for ~ 10-years, CAA/ASHA would have

been obligated to enforce its requirements as required

by [34 CFR 602.20(a)(2)(iii)].

Although, BU received a federal grant to train

audiologists, yearly OCR were ~<25%. Defendants, for

personal/financial gains, did not provide required

services; robbed years of AuD-students’ careers; and

wasted/abused/misused public funds. E.g. Zalewski

spent as little as 5-minutes/week for thesis

mentoring for enrolled students (Table-5) (254a255a(§21)[Plf-Dec]).

Table-5

Time Zalewski spent for theses mentoring

CG

m

5 I

CO fl

Minutes/week

tn

aO

aj

CO

S=i

O

CO

Sh

o

CO

PQ

03

Eh

10

20

10

Ch

P3

rO

02

a

o

<D

3

<r>

o

Eh

<

PQ

cd

CO

15

5

5

20

Yet Zalewski’s pay increased disproportionately,

as shown in Table-6 (628a).

13

Table-6

Zalewski’s Pay

Pay-type 2010-11 2011-12 2012-13 2013-14 2014-15

/Year

Regular 87,826 88,745 89,496 98,192 103,589

pay

Gross 115,244 102,681 128,564 124,984 164,146

pay

Differ- 27,418 13,936 39,068 26,792 60,557

ence

58.5

% extra 31.2

15.7

43.7

27.3

pay

Petitioners/Plaintiffs considered that abysmal

OCRs, Defendants’ falsification of AuD-data in official

records for accreditation, student recruitment, funds,

etc. and misuse/abuse/waste of public funds for

personal/financial gains were serious matters of

public concerns. Therefore, throughout 08/27/1205/30/14,

Plaintiffs

used

two

avenues

of

whistleblowing contemporaneously under PWL and

First-Amendment

rights

against

Defendants’

fraudulent practices (255a-271a(§22-42)[Plf-Dec]; §BC, infra).

b. Contracts. Consistent with Plaintiffs’

declarations (244a-246a(§4-10)[Plf-Dec]), movants’

own records (581a-583a, 618a-622a) showed Plaintiffs’

superior qualifications and Marande/Defendant

agreeing to PHA, prior to Plaintiffs’ signing PIC. PHA,

PIC, and CBA (hereinafter, collectively “contracts”)

were binding for BU and Petitioners (244a-245a(§48)[Plf-Dec]). Yet, Defendants did not honor PHA (e.g.

start-up funds, functional laboratories, assigning jobs

in Plaintiffs’ doctoral and postdoctoral training and

areas of expertise, relocation funds, etc.); conditioned

14

honoring PHA to fulfilling illegal demands (e.g.

Plaintiffs making false complaints against Awan

citing differences in religion and race/national-origin;

falsifying about AuD data/program) and subjected

Plaintiffs to various threats, racial/religious

harassment, etc. (246a-251a(§ll-17)[Plf-Dec]; 384a387a(§73-74)[Plf-Dec]; §D, infra). Not honoring PHA

and assigning Plaintiffs to teach courses exclusively

outside their areas of specializations and

doctoral/postdoctoral training, violated Plaintiffs’

contracts and are material because Marande’s email

(false assurance) influenced Plaintiffs to enter into

contracts. Marande’s email/false assurance (581a583a) deceived Plaintiffs, inducing them to sign

PICs/accept BU-jobs. Without Marande’s email, “the

transaction would not have occurred” (hence, it was

deception and fraud). Despite Plaintiffs’ controverting

movants’ SMF, Courts accepted movants’ SMF,

contrary to this Court’s precedents (§A.l, supra;

DCR#103-2). Contrary to PHA, throughout Vaz’s

employment at BU; Vaz, who specialized in dysphagia

(swallowing and feeding disorders; 618a-622a) with

doctoral/post-doctoral training, was compelled to

exclusively teach courses other than dysphagia and

outside Vaz’s areas of expertise; and deprived Vaz of

any dysphagia research laboratory or funds, while

compelling Vaz to teach large consolidated courses as

one (which were assigned to other faculty in two small

courses), without additional pay or credit (244a(281a-294a(§44)[Plf-Dec]).

251a(§4-17)[Plf-Dec];

Patra was also deprived of a functional laboratory and

start-up funds, etc., contrary to PHA (id.). Patra’s

doctoral and postdoctoral training were in

specializing

m

audiology/he aring

science,

psychoacoustics/hearing sciences (e.g. masking; 618a621a). Defendants’ records (DCR#81-11.P.6-7) showed

15

Patra was specifically “hired to teach in the Au.D.

graduate program” (522a[Smith-Dep.P.79:1-14]).

Contrary to Plaintiffs’ contracts, immediately

following Plaintiffs’ EEOC charges (12/04/12) and

whistleblowing (under free-speech and PWL) during

the week of 12/10/12; Defendants, on 12/16/12

(DCR#80-1.P10-11), changed Patra’s teaching entirely

and assigned Patra to teach undergraduate courses

(311a-313a(§44(32-33)[Plf-Dec]) exclusively; not a

single

course

was

in

AuD

or

Patra’s

doctoral/postdoctoral training or expertise). Following

Plaintiffs’ whistleblowing/Pro-Acts, Defendants never

assigned Patra to teach any AuD courses, although

Patra was specifically hired to teach in the AuD

program. NDO Smith testified, “[I]t’s not what I would

consider a reasonable assignment” (522a[SmithDep.P.80:5-6]). Vaz’s and Patras assignments were

analogous to hiring a cardiologist to teach /perform

cardiac surgery, while compelling the cardiologist to

teach /practice general surgery without an operation

theater or surgical tools. Furthermore, Defendants

scheduled Patra’s classes with “unreasonable” timeschedules. E.g. a three-hour class (beginning at 6:00

pm) ending at 9:00 pm on Wednesdays, followed by a

class next morning (Thursday) at 8:00 am, followed by

subsequent classes until 1:45 pm without sufficient

time gaps between such classes (e.g. 284a285a(§3)[Plf-Dec]; 349a-350a (§B-C)[Plf-Dec]; 652a653a), although Defendants assigned Patra brandnew classes, not in AuD or in Patra’s specialization

areas (unlike other similarly-situated probationary

faculty; e.g. Yue. Cf 651a va. 652a-653a). These

courses were all new preparations for Patra.

Defendants never made such assignments for any

other faculty. Defendants’ actions significantly

altered “the terms and conditions” of Plaintiffs

16

employment, and were both, discriminatory and

retaliatory (see, Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415 (2006)).

Plaintiffs were evaluated on the aforesaid

unreasonable assignments and issued nonrenewals.

c. AEAs. Throughout 08/27/12—05/30/14,

Plaintiffs participated in “consistent and continuous”

streams

of

or

overlapping

interleaved

whistleblowing/Pro-Acts (under Title VII, PWL, freespeech); and suffered continuous streams of AEAs.

mostly within days after each Pro-Act (§V, supra;

271a-453a(§§43-134)[Plf-Dec]). Therefore, causative

factors of AEAs were multifactorial (076a078a(§G)[DCR#103/Plf-Brief]). Contrary to movants’

SMF, in their reply-brief movants/AGDC admitted

they “did not, and do not, argue that the various

actions, such as their research lab purchases, teaching

assignments ... negative evaluations, did not occur”

(yielding to Plaintiffs’ factual assertions, vet

Courts erroneously cited movants’ SMF) and

contended “such actions do not constitute an adverse

employment action” (DCR#107.P.7(§II)). Although,

AEA standards are not coterminous and depend upon

contexts (e.g. Title-VII discrimination, retaliation

under Title VII, PWL, First Amendment), AGDC did

not offer differential analyses and erroneously used

Title-VII-discrimination standards for some of

Plaintiffs’ claims (DCR#73.P.13-18(§I)[Def-Brief]),

while ignoring others, including Defendants’

prospective-speech suppression (§IV, supra; 252a255a(§18-21)[Plf-Dec]) in Spring-2012 (see Heffernan

v. City of Paterson, 136 S.Ct. 1412, 1418 (2016)).

d. Evaluations and nonrenewals. We

cite examples of records and officials’ (DOs’/NDOs’)

testimony contradicting movants’/AGDC’s assertions

17

(DCR# 71 (lf5-42) [Def-SMF];

654a-657a[DCR#721/Reed-Dec]), and Courts’ exclusive citations of

movants’ falsified SMF/evaluations/DCR#71 records

as true, overlooking contradictory evidence (§A.4.c,

supra;

025a-032a [DCR# 109/Opinion];

007a010a[USCA#20-2320/Opinion]):

Smith and Awan served on Plaintiffs’ evaluation

committees. Awan testified, “In previous years [prior

to whistleblowing] ...you had good evaluations from

those

(498a-499a[Awanpeople [Defendants]”

Dep.P. 186:25-187:1]). Defendants praised Plaintiffs

profusely (e.g. Vaz as “outstanding”, “excellent”; Patra

as “excellent”, “an asset”, etc.; 610a-615a; 330a335a(48)[Plf-Dec]; 357a-359a(62)[Plf-Dec]). Even on

01/26/12,

Decisionmaker/President

Soltz

complimented Plaintiffs, “You are commended for the

positive evaluations written by your colleagues”

(615a-617a). The Third Circuit acted as Defense

Counsel and even created imaginary records to

support movants (justified changing assignment to

establish lack of causation), holding, “he[Patra] had

been receiving poor student evaluations for several

prior

change”

(015a:34semesters

to

the

016a:2[USCA#20-2320/Opinion]), without citations.

contradicting factual records (DCR#73-1.P.663-693),

including NDO’s testimony (522a[Smith-Dep.P.79:1180:10]; Patra’s assignment was unreasonable,

violations of contracts and outside Patra’s

specialization/expertise; §A.4.b, supra).

NDOs testified Defendants did not follow conflicts

of interest, CBA/evaluation procedures/policies, etc.

(e.g. “That is not how the evaluation process is

supposed to work”; 526a[Smith-Dep.P.109:l-2]; 522a529a[Smith-Dep.P.78-141]; “No, I don’t consider any

of those things appropriate” 503a[Awan-

18

Dep.P.200:23-25]; 497a-503a[Awan-Dep.P.178-200]).

MovantsVReed’s

evaluation records

contained

numerous manufactured documents (e.g. Awan

testified, “I’ve never seen these documents before”;

501a[Awan-Dep.P194:3]) (violating CBA; 667a678a[Article-12-13]); numerous falsifications and

contradictions (e.g. “To date, Dr. Patra has no peerreviewed or non-peer-reviewed publications” contrary

to four peer-reviewed publications during 2010-2013;

llla-114a(§c-d)[DCR#103-2]; on 11/27/12, Marande

stated, “Vaz purchased over three years ago is still in

its original packaging” although Plaintiffs/Vaz did not

even interview at BU in 2009; 371a-372a(§66)[PlfDec]); falsified evaluations using disparate evaluation

criteria and tampered students’ evaluations (360a386a(§64-73)[Plf-Dec]; Plaintiffs had better teaching,

research, service records; compared to other faculty in

their probationary years; contrary to the Court’s

Opinions, Vaz had more peer-reviewed publications

than all other faculty, except Awan; 399a407a(§87)[Plf-Dec]). Defendants violated evaluation

procedures/policies (e.g. DCR#103-7[Plf-Dec] sections

in 330a-338a, 345a-399a, 425a-428a, 440a-441a,

446a-451a) and included false complaints, post-facto

supplemented and anonymous/unsigned records (e.g.

505a-514a[John-Dep.P.71-111]; 139a-143a(§3-4)[PlfDec]; DCR#72-7.P.24), violating CBA (658a-678a). In

DCR#103-7[Plf-Dec] (also see 583-609a; 120a-125a),

Plaintiffs offered evidence of antagonism along with

inciting students and staff/faculty (see 338a-345a,

432a-439a); disparate treatment; evidence of

Defendants’ religious/racial discriminatory animus

(388a-394a, 441a-446a); and selective deprivation of

teaching, research and service opportunities (384a388a);

which

altered

terms/conditions

of

employment/contracts and negatively impacted

19

Plaintiffs’ performance and evaluations (yet Plaintiffs

had superior records than most department/peer

faculty, during such faculty’s probationary/untenured

(similarly-situated) period at BU; 360a-386a(§6473) [Plf-Dec]; 399a-407a(§87) [Plf-Dec]).

Records showed that nonrenewal decisions were

predetermined,

well-before evaluations

(428a432a(§ 105-107)[Plf-Dec]). Reed also falsified about

nonrenewals (655a-657a) because Soltz sent each

Plaintiff a nonrenewal notice (dated 01/27/14). Both

notices offered exact same reasons:

“Your current contract will end as of... May 30,

2014. This action is taken in accordance with

the provisions of Article 14, RENEWALS AND

NON-RENEWALS, Section A, 4.b.(2) of the

Collective Bargaining Agreement...” (DCR#7211.P.24, DCR#72-8.P.12).

However, Reed’s own evidence (678a-679a) showed

Article 14§A.4.b.(2) required that nonrenewal notices

“shall be sent by the President no later than December

15” and nonrenewal “shall be effective at the end of

the spring semester”. Hence, Soltz’s decisions were

capricious and arbitrary. Further, Soltz violated the

CBA (§5.d, infra) and Blake did not conduct Plaintiffs’

Fourth-year evaluations, contrary to BU’s customary

and standard practice (353a(§57)[Plf-Dec]). See, Beck

v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)

(Customs are “such practices of state officials so

permanent and well-settled as to virtually constitute

law”).

wrongful

Hence,

nonrenewals

were

repudiation/discharge. Plaintiffs had expectations of

retraction of nonrenewal decisions; however, Soltz did

not retract nonrenewal notices, making Plaintiffs’

termination effective 05/31/14 (446a-453a(§133134) [Plf-Dec]).

20

5. DOs’/NDOs’ perjury and officers of the

Court AGDC’s willful falsifications to the Courts.

The Hon. Supreme Court underscored, “Anyone who

testifies in court bears an obligation, to the court and

society at large, to tell the truth ... (criminalizing false

statements under oath in judicial proceedings) ...

(“Perjured testimony is an obvious and flagrant

affront to the basic concept of judicial proceedings”)”

{Lane v. Franks, 134 S.Ct. 2369 (2014) (internal

citations omitted)). We provide examples of

DOs’/NDOs’ perjury under oath and/or penalty of

perjury (e.g. 465a-486a(§ll)[Plf-Dec]; 094a-100a(§IJ)[Plf-Brief]), infra.

a. Reed perjured (falsified under

penalty of perjury). Reed provided false

pay/compensation information (465a-469a(§ll.A)[PlfDec]). Example-1: Nozza (untenured/probationary

faculty) worked for ~one semester in Spring-2011

(522a[Smith-Dep.P.90:3-4] ;

563a[SpezialettiDep.P.56:8-57:6]). Reed provided falsified/fabricated

evidence because Reed’s evidence (627a-629a) showed

Nozza, who left BU and never worked during 20112012, received $84.140 in 2011-2012. which included

regular-pay ($64,566). Example-2: John testified

Reed’s evidence (627a-629a) contradicted facts

because John was paid 3-5 times more than Reed’s

documents showed (504a-505a[John-Dep.P.32:2035:2]). Reed’s records also showed no payment for

John in 2013-2015, although John testified to working

then and earning more than previous years at BU

(John-Dep.P.12-13, 20, 32). History: Reed had a

history of falsifications, evidence fabrication and

suppression

(411a-420a(§91-99)[Plf-Dec];

143a144a(§5-6)[Plf-Dec]. In 2013, Reed conducted a

contrived investigation against Patra; when Blake,

Marande, Angelo, Gonzalez and Spezialetti provided

21

false interviews/information, stating Patra did not

provide grade information (DCR#81-35.P125-138);

although they knew Patra provided grades to

Spezialetti and course material to Gonzalez (622a626a). Reed/DOs/NDOs violated the CBA (658a667a[Article-2-5];

679a-680a[Article-43]).

Reed

suppressed critical documents/evidence and found

Patra

guilty

(DCR#81-35.P117-120),

causing

Plaintiffs enormous mental sufferings and loss of

faculty jobs at Utah State University).

b. Spezialetti perjured (falsified under

penalty of perjury) (475a-476a(§ll.E-F)[Plf-Dec]).

Example-1: Spezialetti provided false responses to

Interrogatory#23, under penalty of perjury (629a631a) because Awan (NDO/professor with experience

serving as Department Chair and Dean of Graduate

Studies (492a[Awan-Dep.P.6:1-14]) testified that data

provided by Spezialetti were inaccurate (492a [AwanDep.P.6:19-14:12]). When confronted, Spezialetti

testified/admitted that her data in response to

Interrogatory#23 were not correct (563a[SpezialettiDep.P.56:3-5]). Furthermore, Spezialetti’s response

contradicted factual records (636a-638a). Example-2:

Spezialetti

provided

false

responses

to

Interrogatory#26

(630a).

When

confronted,

Spezialetti admitted/testified her responses to

Interrogatory#26 were not accurate (564a[SpezialettiDep.P. 115:4-5]). Example-3: Spezialetti provided

false responses (DEF-3569) to Request for Production

of Documents# 19 because Awan testified that DEF3569 contained inaccurate information (496a [AwanDep.P. 152:21-156:19]). Further, Spezialetti also had a

history of falsifications (§5.a.History, supra).

c. Wislock perjured (falsified under

penalty of perjury) (e.g. 474a(§ll.D)[Plf-Dec]; 476a-

22

480a(§ll.G-H.3)[Plf-Dec]): Example-1: In response to

Interrogatory# 15,

Wislock knowingly falsified

because ESI-records showed Wislock provided three

different versions of the event even in 2012, which

AGDC concealed bv carefully inserting Wislock’s

emails randomly within >25k pages (644a-648a).

Wislock falsified because he provided a fabricated

description and a record of calling Vaz as leaving a

voicemail for Patra, although voicemail transcripts

indicated otherwise (476a-479a(§ll.G)[Plf-Dec]; 644a650a).

Example-2:

Wislock

responded

to

Interrogatory# 14, which contained falsifications

because, Smith and Awan (NDOs/professors with

administrative

experiences),

under

oath

testified/marked “F” to indicate so, including

information about Smith and Awan (638a-644a).

Wislock

knowingly

falsified

because

Defendants/Employer had true employee-data.

d. Soltz perjured under oath. Example1: Decisionmaker/President Soltz initially claimed he

did not violate CBA in Petitioners’ case (529a530a[Soltz-Dep.P.46:10-14]); however, Soltz was

compelled to admit that he did not follow the CBA and

later attempted to deny it, by stating, “I followed the

CBA as I interpreted it and as the director of labor

relations for the State System interpreted it”

(555a[Soltz-Dep.P.239:5-10]), although the CBA was

not open to unilateral [mis] interpretation for

convenience (667a-679a(Article-ll-14)[CBA]). E.g.

551a[Soltz-Dep.P.233.22-25]

Q Do you agree that you violated - did not

follow the CBA?

A I did not send - I did not send it that

year. You're right.

23

552a[Soltz-Dep.P.236.1:10]

Q And you told them that you did not follow CBA

in 2012.

A Yes, I said I wasn’t - I wasn’t aware of

that section at that time.

Q Then when we asked this question earlier this

morning, you denied that, don’t you think that is

considered falsification under oath?

A I had --1 had forgotten that. I've

corrected it now.

Q You are corrected because you are caught.

Example-2: Soltz knowingly falsified about AuD

data because Plaintiffs sent Soltz emails with actual

data/information and Soltz had access to official

records (530a-557a[Soltz-Dep.P.62-279:14]). During

deposition, Soltz was compelled to admit, “I agree that

the rates that were reported to ASHA were

inaccurate” (557a[Soltz-Dep.P.279:12-14]). Soltz even

claimed CAA/ASHA was aware of inaccuracies

because BU informed them (555a-556a[Soltzdep.P.275:16-277:6]). Yet, despite such knowledge,

Soltz initially testified, “I would presume that the

survey response submitted to ASHA would be the

accurate form” (534a[Soltz-Dep.P. 102:3-4]).

Although yearly AuD-enrollments were 8-17,

professors with Ph.D.s reported such small numbers

incorrectly for ~10 years (259a-261a(§27)[Plf-Dec];

516a-518a[Smith-Dep.P. 53:23-58:15]), which Soltz

termed merely “calculation errors” (548a[Soltzdep.P.173:16-17]). Yet, Defendants/movants/AGDC

wanted Courts to believe that these same professors

provided honest /truthful evaluations for Plaintiffs,

whose unrelenting whistleblowing against DOs/NDOs

risked exposure of an ~10-year-long aforementioned

scandal. Contrary to precedents and requirements in

24

SJM (§A.l, supra), Courts accepted such movants’

assertions over Plaintiffs’ evidence. Throughout his

Deposition, Soltz tried to evade the truth, and

repeatedly changed his answers. Soltz failed to follow

BU’s/PASSHE’s policies and CBA (529a-560a).

Significance: The Hon. District Court noted, “If

they [Plaintiffs] believe her[respondent] response is

untrue, the appropriate recourse is cross-examination

at trial” (DCR#41.P.20:5-6). The examining witnesses’

truthfulness is the factfinders’ job. Yet, District and

Circuit Courts deprived us of a “jury trial”; weighted

evidence in perjurers’ favor against our/nonmovants’

evidence; and granted movants summary judgment.

Additionally, the Third Circuit denied us permission

to file a fraud-on-the-Court motion, prior to denying

our rehearing petition (047a-050a).

Perjury is a crime against society because it

desecrates the sanctity of “oath”, the pillar upon

which the entire Judiciary rests. Movants’ entire

motion rested on Reed’s declarations, and most of the

critical discovery evidence, material to showing AEAs,

disparate treatment, whistleblowing claims, etc., were

produced by Reed, Wislock, and Spezialetti, who

perjured (465a-486a(§ll)[Plf-Dec]). Because AGDC

were present during DOs’/NDOs’ depositions, when

evidence was obtained, AGDC knew about such

perjury. Despite being attorneys, AGDC willfully used

such falsified evidence and made false assertions to

District and Circuit Courts (also §B.2-4, infra). See,

Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th D.C.A. 1998):

“The integrity of the civil litigation process

depends on the truthful disclosure of facts. A

system that depends on an adversary’s ability

to uncover falsehoods is doomed to failure,

which is why this kind of conduct must be

25

discouraged in the strongest possible way”.

Although “to err is human”; recurring falsifications

by a group/organization indicate systemic, organized,

and calculated use of mendacity,

as an

institutionalized tool to deliberately impair the search

for truth. See, Wigmore, Evidence, 278 (Chadbourn

Rev., 1979):

“[T]he inference, indeed ... a party’s falsehood

or other fraud in the preparation and

presentation of his cause, his fabrication or

suppression of evidence ... and all similar

conduct is receivable against him as an

indication of his consciousness that his case is

a weak or unfounded one; and from that

consciousness may be inferred ...lack of truth

and merit. The inference thus does not

necessarily apply to any specific fact in the

cause, but operates, indefinitely though

strongly, against the whole mass of alleged

facts constituting his cause.”

6. The foregoing shows “departure from” and

“a clear misapprehension of summary judgment

standards in light of [Supreme court] precedents” (see

Tolan supra; Thomas v. Nugent, 572 U.S. 1111, 134

S.Ct. 2289 (Mem), 189 L.Ed.2d 169 (2014)) and that

material facts asserted by movants were genuinely in

dispute (also §B-D, infra). In denying Petitioners right

to have a jury determine such issues, District and

Circuit Courts violated Rule 56 and this Court’s

summary-judgment

standards,

and

deprived

Petitioners of their Seventh Amendment right to a

jury trial. The District Court “so far departed from the

accepted and usual course of judicial proceedings,

[and the Third Circuit] sanctioned such a departure

... as to call for an exercise of this Court’s supervisory

26

power.” Supreme Court Rule 10(a). This Court,

pursuant to its precedents in Tolan and Thomas,

should vacate, reverse and remand this case or

pursuant to Hazel-Atlas Glass Co. v. Hartford-Empire

Co., 322 U.S. 238, 246 (1944) and Wigmore, Evidence,

278 (Chadbourn Rev., 1979) grant summary judgment

for PlaintiffsVPetitioners in accordance with FRCP

56(f) (see 094a-100a(§I-J)[Plf-Brief]; §B.2-5, infra)

because of AGDC’s willful use of DOsVNDOs’ perjured

and falsified evidence and false assertions to win this

case.

B. In the First-Amendment injury context,

the Third Circuit failed its obligations to

‘make an independent examination of the

whole record’; erroneously acted as

Counsel;

and

accepted

Defense

Defendants’/movants’ false assertions as

true.

1. For First Amendment retaliation claims, the

Supreme Court precedent warrants an “independent”

review to apply facts to specified constitutional

standards. E.g. Bose Corp. v. Consumers Union of

U.S., Inc., 466 U.S. 485, 499 (1984) (“[I]n cases raising

First Amendment issues we have repeatedly held that

an appellate court has an obligation to ‘make an

independent examination of the whole record’ in order

to make sure that ‘the judgment does not constitute a

forbidden intrusion on the field of free expression’”

(internal citation omitted). The Third Circuit failed its

obligations to ‘make an independent examination of

the whole record’; and accepted the lower Courts’

erroneous interpretations of LRs, FRCP 56, and this

Court’s precedents, including erroneous admission of

movants’ SMFs and false assertions contradicted by

nonmovants with factual records (see §A, supra); as

27

shown in examples infra.

2. Movants’ SMFs contained no statements or

evidence related to Plaintiffs’ whistleblowing under

free-speech or PWL (DCR#71). Although parties

cannot create new material facts on appeal, movants

made new factual assertions (e.g. USCA#20-2030/Doc23.P.29-31(§3, §5; n.9)); and by doing so, implicitly

admitted disputes of material facts. E.g. in addition to

qualified immunity claims, movants argued in the

District

(DCR#73.P.30-32(§VII-VIII)),

Court

“PLAINTIFFS’ FIRST AMENDMENT CLAIM FAILS

BECAUSE THEY WERE NOT SPEAKING ON

MATTERS OF PUBLIC CONCERN, NOR WAS

THEIR SPEECH A SUBSTANTIAL FACTOR IN

THEIR TERMINATION”. The District Court ruled for

movants citing the “absence of causation” between

protected activity and the last years’ negative

evaluation or nonrenewal. Unlike District Court

filings, movants raised new issues in the Appeals

Court, “The professors’ First Amendment Claim fails,

because they were not speaking as citizens ...”

(USCA#20-2030/Doc-23(§II.E)[Appellees-Brief]

vs.

DCR#71[Def-SMF]; DCR#73(§VII-VIII)[Def-Brief])).

Movants changed their argument from “not speaking

on matters of concern” to “not speaking as citizens”,

which was legally not permissible. Further, even

after 58 days and two extensions. AGDC Enerson filed

(on 10/21/2020; USCA#20-2030/Doc-23) a nearly

verbatim copy of most pages (e.g. USCA#20-2030/Doc23.P-17-31) from a Brief filed by AGDC Kirkpatrick

~2 years earlier, including verbatim copies of wrong

citations and false claims (e.g. USCA#18-2236/Doc003113060969.P.16-30), which we had pointed out

(USCA#18-2236/Doc-003113079245.P.23) were false.

~2 years earlier. Enerson used a verbatim copy of

Kirkpatrick’s assertion and a made-up citation (“Vaz

28

Depo. 130:8-17”), which did not support Enerson’s

assertion (USCA#20-2320/Doc-23.P.29(§3)):

“[Plaintiffs] also spoke about the inaccuracies

with “people at the university from other

departments”—whom they refer to as “friends

and neighbors”—at the University’s cafeteria

and students services center for faculty.”

AGDC’s assertions were false because:

We spoke as private citizens within BU (BU was

an open-campus) and outside, in public fora (e.g. in

parks, cafeteria, sidewalks, etc.), to the public, outside

the employment-chain of command, outside working

hours, and without payment (264a-271a(§34-42)[PlfDec]). In depositions, we emphasized that we used two

avenues for whistleblowing, contemporaneously

under PWL and free-speech, as evident from the

following excerpts of our testimony (emphasis added).

(DC#73-2.P. 133 [Vaz-Dep.P. 132:8-15])

A. Like our friends and neighbors.

Q. Okay.

A. People that we interact with.

Q. Okay.

A. People at the university from other

departments. The cafeteria for example ... is

often a common place for — and the students services

center ...

(DC#73-2.P. 135 [Vaz-Dep.P. 134:17-22])

A. Sometimes people from the university, ...

... who maybe like spouses of people who are working

there.

29

A. People within the community. People within

our profession.

Vaz, a scientist/educator with postdoctoral

education, knew meanings of “friends” and

“neighbors”. Vaz was simply listing examples, not

defining who “our friends and neighbors” were.

Further, “Sometimes” means occasionally, not always.

Interactions with BU-employee’s spouses, people in

the cafeteria, people in the community (our residential

neighborhood)

and

within

our

profession

(professionals from the U.S. and abroad) were not

within the scope of employment.

(DC#73-l.P.73[Patra-Dep.P.284:3-12]):

Q. When you say outside, do you mean outside

your department or outside bloom?

A. Outside - both.

Q. Okay.

A. Even within the Bloom outside the

department, like in the cafeteria.

Q. Okay?

A. When we sat together ha[d] lunch and talked,

... But those

are free speech. ...

Patra’s statements; such as “Outside-both”, “Even

within Bloom” (suggesting including Bloom), “having

lunch and talk” in the cafeteria were not part of work.

Since AGDC deposed Plaintiffs, the foregoing shows

that AGDC knowingly made false assertions. Since

AGDC filed SJM not on the ground that we “were not

speaking as citizens” (DCR#73.P.30-32(§VII-VIII)),

AGDC’s false assertions are material because it

deceived the Third Circuit to hold, “speech was limited

30

to ... conversations with colleagues, not the

community at large, and thus it was not protected”

(018a:9-12(§VI)[USCA#20-2320/Opinion]).

3. Similar to impermissible new facts in

Appellees’ Brief, movants’ arguments in their Brief

(DCR#73.P.35(n.ll)) were erroneously accepted as

facts and cited by the Third Circuit, “In fact, because

of the plaintiffs’ reporting, Bloomsburg revised the

incorrect graduation statistics” (018a(n.5)[USCA#202030/Opinion]), because attorneys’ arguments were

not evidence and AGDC knowingly falsified (Plaintiffs

blew the whistle throughout 8/27/12-05/30/14 (273a274a(§43.B[Plf-Dec]).

Yet,

Defendants

falsely

reported data throughout 2012-14, changed some

numbers (not with correct data) in 2015, and

continued false reporting, even in 2017 (259a261a(§27-28); 633a-636a vs. 636a-638a). See Table-7;

Defendants had two sets of data (different from the

factual record), even after Soltz’s (544a-545a[SoltzDep.P.163:25-164:2]; and Smith’s (517a[SmithDep.P.55:12-56:4])) admission of inaccuracies and

falsifications, respectively.

Table-7

(For 2014-15)

Source

On 11/08/17

(636a)

On 4/11/17

(635a)

Actual Record

(637a-638a)

No.

No.

No. not

completing completed completing

on time

later than

on time

7

1

2

6

2

3

7f

0

10

31

flncluding summer semester

4. In Baloga v. Pittston Area School District, 927

F.3d 742 (3d Cir. 2019); the Third Circuit held

“Whether a public employer’s conduct rises to the level

of an actionable wrong is “a fact intensive inquiry

focusing on the status of the [employee], the status of

the retaliator, the relationship between the

[employee] and the retaliator, and the nature of the

retaliatory acts. ...Although ...retaliatory acts ...must

“be more than de minimis,” ...the threshold is “very

low,” “...Indeed, ...“an act of retaliation as trivial as

failing to hold a birthday party for a public employee

...when intended to punish her for exercising her”

First Amendment right may suffice” (internal

citations/quotations omitted). Yet, in Petitioners’ case,

the Third Circuit failed to apply its own standards;

offered no analyses of AEAs; selectively considered

movants’

unsupported

assertions

without

nonmovants’ evidence; and agreed with movants that

the only AEA, contract nonrenewal, was not “a result

of their whistleblowing” (017a-018a(§VI)[USCA#202320/Opinion]).

However,

Defendants

denied

numerous benefits to Plaintiffs, contrary to Plaintiffs’

contracts; and caused numerous AEAs, mostly within

days following Plaintiffs’ whistleblowing (280a316a(§44)[Plf-Dec]; 316a-453a), which any reasonable

factfinder would find as retaliation, pursuant to

Baloga. In Perry v. Sindermann, 408 U.S. 593, 597

(1972), the Supreme Court emphasized, “[I]f the

government could deny a benefit to a person because

of his constitutionally protected speech or

associations, his exercise of those freedoms would in

effect be penalized and inhibited.” The standard

requires

examining

potential

effects

on

“constitutionally protected speech or associations”.

Since District and Circuit Courts in Petitioners’ case,

32

considered movants’ evidence and unsupported

assertions, while not considering/citing Plaintiffs’

evidence (depositions, declarations, etc.; SA-B.3.

supra), Courts weighted even state-attorneys’ false

assertions over Pro Se Plaintiffs’ legally admissible

evidence. Court’s acting as Defense Counsel, vouching

for and demanding evidence from Pro Se Plaintiffs

(while ignoring Plaintiffs’ evidence) on issues, not

raised by movants, initially at the District Court, are

extremely troubling. If Hon. Courts fail to do their

duty, where would/should Pro Se Plaintiffs go;

(especially, when taking a case to the Hon. Supreme

Court is almost an impossible task for Pro Se

Plaintiffs, like us, who have no legal training and

help)? The Hon. Supreme Court must consider what

Petitioners had to endure and sacrifice to raise

matters of serious public concern (i.e. Defendants’ ~10

year-long willful falsifications in official records for

accreditation, student recruitment, funds, etc., while

corrupt officials spent as little as 5 minutes/week for

mentoring students and gained financial benefits at

students’ and taxpayers’ expense (see §A.4.a, supra).

Otherwise, Courts’ misapplication of laws and

erroneously granting SJM would have chilling effects

on other future educators deterring them from raising

such issues.

5. For the foregoing, the Third Circuit not only

sanctioned the District Court’s departure from

Supreme Court’s precedents, it too failed its obligation

to review the “full record”, pursuant to Supreme Court

precedents. Hence, pursuant to Supreme Court Rule

10(a), (c), a writ of certiorari is warranted.

C. This Court’s guidance and clarification

of an objective standard for “chilling” to

33

sustain a First Amendment injury claim

are essential.

The Third Circuit held that Petitioners “had to

show that: (1) their speech was protected by the First

Amendment, and (2) the defendants’ retaliatory

action was substantially motivated by the protected

activity” and “[Plaintiffs] concede that, far from

“chilling” their speech” because “the defendants’

actions never dissuaded them from speaking out

about the school’s graduation rates” (017a018a(§VI)[USCA#20-2320/Opinion]). The Court did

not follow its own precedents (e.g. Baloga, supra;

Kaucher v. Cty. of Bucks, 455 F.3d 418, 423 (3d Cir.

2006)) by not conducting the “ordinary firmness” test,

while erroneously citing some random and

impertinent pages “Appellants’ Br. at 66-77”, (where

pages 69-77 were nowhere related to FirstAmendment claims: USCA#20-2320/Doc-9-l. P.7079 [Appellants-Brief]). The Fourth Circuit has

“cautioned that ‘[n]ot all retaliatory conduct tends to

chill First Amendment activity.’” Snoeyenbos v.

Curtis, 60 F.4th 723, 730 (4th Cir. 2023); Constantine

v. Rectors & Visitors of George Mason Univ., 411 F.3d

474 (4th Cir. 2005) (“Chilling” “is likely to deter a

person of ordinary firmness from the exercise of First

Amendment rights” and “[A] claimant need not show

[he] ceased those activities altogether to demonstrate

an injury in fact”). Further, “The ordinary-firmness

test is well established in the case law ...” (Garcia v.

City of Trenton, 348 F.3d 726, 728 (8th Cir. 2003));

despite minor inter-circuit differences. E.g. Curley v.

Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)

(plaintiff must show that First Amendment rights

were “actually chilled”); also see Sullivan v. Carrick,

888 F.2d 1 (1st Cir. 1989). The vast majority of Circuit

Courts apply the “ordinary firmness” test, including

34

the Third Circuit, although this Circuit selectively

departed from such standards in Petitioners’ case.

This Court's intervention is essential because “a

subjective standard would expose public officials to

liability in some cases, but not in others, for the very

same conduct, depending upon the plaintiffs will to

fight.” Constantine, 411 F.3d at 500; and “[I]t would

be unjust to allow a defendant to escape liability for a

First Amendment violation merely because an

unusually determined plaintiff persists in his

protected activity. . . .” Mendocino Envtl. Ctr. v.

Mendocino City, 192 F.3d 1283, 1300 (9th Cir. 1999).

As Hon. Judge Wilson emphasized, “There is no

reason to “reward” government officials for picking on

unusually hardy speakers.” and “In the employment

context, the required adverse action in a retaliation

claim is an “adverse employment action.” (.Bennett v.

Hendrix, 423 F.3d 1247 (11th Cir. 2005)). In Hon.

Judge Posner’s words, “[t]he effect on freedom of

speech may be small, but since there is no justification

for harassing people for exercising their constitutional

rights it need not be great in order to be actionable.”

Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).

Therefore, even “campaign of petty harassments” such

as “[hjolding her [Plaintiff] up to ridicule for bringing

a birthday cake to the office” was considered a cause

of action for retaliation, id. at 624.

Moreover, the requirement that employees must

cease exercising their First Amendment rights

altogether to demonstrate “chilling” effects to sustain

a First Amendment injury claim is antithetic to the

spirit and purpose of First Amendment rights. A clear

guidance with an objective standard from this Court

is essential, not only for uniformity but also to prevent

“chilling” effects on exercising First Amendment

rights because this Court in Lane v. Franks (134 S.Ct.

35

2369, 189 L.Ed.2d 312 (2014)), emphasized that

“There is considerable value, moreover, in

encouraging, rather than inhibiting, speech by public

employees. For “[government employees are often in

the best position to know what ails the agencies for

which they work.” Waters v. Churchill, 511 U.S. 661,

674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality

opinion). “The interest at stake is as much the public’s

interest in receiving informed opinion as it is the

employee's own right to disseminate it.” San Diego v.

Roe, 543 U.S. 77, 82, 125 S.Ct. 521, 160 L.Ed.2d 410

(2004) (per curiam).

The consequences of the Third Circuit’s error are

profound: Permitting a government entity censure

and/or to take AEAs against its employees and

eventually terminate such employees for not being

“chilled” and continuing to speak against the

government

entity’s

wrongdoing

undermines

democracy, chills speech, and emboldens corrupt

government officials, which would metastasize the

ailment in the government entities and destroy the

moral fabric of our society. Especially in Petitioners’

case, evidence suggests that despite Petitioners’

unrelenting whistleblowing, Defendants continued

fraudulent practices for years (§B, supra). Defendants

were compelled to modify their behavior due to this

lawsuit and Plaintiffs’ contemporaneously continuing

free-speeches against Defendants’ practices (even

after Plaintiffs’ termination); which led alumni,

students, and family to raise the same issues to

Defendants (DCR#80-5. P.118-120, 114-115). Had

Petitioners stopped whistleblowing (i.e. ceased using

First-Amendment rights), Defendants would have

continued their 10-year-long illegal practices even

today because Defendants successfully used the

aforesaid illegal practices at least for 10 years for

36

accreditation, student recruitment, funds, etc. (252a271a(§18-42)[Plf-Dec]). Most importantly, CAA and

DOE failed their supervisory duties for at least 10

years because CAA accredited BU’s AuD program for

~10 years, based on Defendants’ falsified records, even

when Defendants did not meet accreditation criteria

(517a[Smith-Dep.P.54-57]; A.4.a, supra). DOE failed

its supervisory duties over CAA for lacking any

mechanism to enforce CAA-standards, as required in

34 CFR 602.20(a)(2)(iii), including other regulations

(e.g. 34 CFR §668.14(b)(4), (b)(10)). In fact, the third

Circuit had a duty to demand that CAA and DOE

explain such huge lapses and also compel them to take

appropriate measures to prevent similar colossal

failures by such agencies in the future because if

educational programs could receive accreditation and

funds using falsified data, the purpose of accreditation

would become meaningless. In the greater interests of

society/public, this Court must use its supervisory

power to ensure Courts do not ignore such serious

matters of public concerns so that academicians,

employers, and students could trust accreditation and

accrediting agencies, and the sanctity of the

accreditation process is preserved. Further, the Third

Circuit’s rule iudicializes abandonment of Free

Speech as a requirement to sustain any First

Amendment injury claim, which undermines

First Amendment values. The effect would be

devastating to society, especially because, higher

education is essential for progress and other educators

would be “chilled”, undermining citizens’ voices,

essentially one of the most valuable tools for ensuring

‘institutional integrity’. Therefore, the Third Circuit’s

rule comes at a cost to Free Speech, the First

Amendment, itself. Wary of absence of any protection

and triggering AEAs, including termination; should

37

an educator issue criticism or speak against

corruption, falsifications or other wrongdoing that a

court could construe as sufficiently similar to absence

of “chilling”; other educators will think twice before

speaking against any corruption or wrongdoing—

generating precisely the sort of “chilling effect” the

First Amendment is designed to combat. See, e.g.,

Reno v. ACLU, 521 U.S. 844, 872 (1997).

D. In the context of hostile work

environment

involving

blasphemous

insults, this Court’s guidance and

clarification of objective standards for

“severe”

or “pervasive”

and

any

requirement of corroboration of evidence

are essential.

1. In this case, supervisor Angelo regularly

demanded Petitioners make false complaints against

a fellow faculty (Awan), citing differences in religion

and race, and conditioned PHA (e.g. job assignments

in expertise/specialization/training areas; start-up

and research funds; etc.) to Petitioners yielding to

illegal demands (246a-251a(§ll-17)[Plf-Dec]). When

Petitioners declined, Angelo threatened Petitioners

with

insubordination,

firing,

and

even

deportation/reporting to homeland security (316a328a(§45)[Plf-Dec]). Throughout 2012-2013 (until

retirement), Angelo and throughout 2012—05/30/2014,

Gonzalez (who often parroted Angelo, in addition to

various racial insults and physical threats), regularly,

continuously, and repeatedly used religious and racial

insults and threats to Petitioners. Id.; 384a-387a(§7374) [Plf-Dec];

225a-226a(§ 10-14) [Plf-Dec];

235a239a(§E.4-7)[Plf-Dec]. Although Plaintiffs regularly

protested against such threats, religious and racial

insults; and complained to higher administration;

38

administration took no actions (277a-279a(§43.F)[PlfDec]). Contrary to Plaintiffs’ numerous emails (e.g.

DCR#81-35.P.34-45, 61-62, 71-78) and (under penalty

of periurv/oath) EEOC charges (DCR#81-7),

declarations

(456a-465a(§l-10)[Plf-Dec];

313a315a(§44.A.35)[Plf-Dec],

316a-328a(§45)[Plf-Dec]),

and depositions: District and Circuit Courts

overlooked nonmovants’ evidence of illegal demands,

religious slurs/abuse/insults, and threats, and held

“comments” were not “severe” or “pervasive” (044a:612 [D CR# 109/Opinion];

016a-017a(§V)[USCA#202320/Opinion]); even though supervisors’ actions

caused Petitioners severe stress, anxiety, mental

agony, etc. requiring medical help (DCR#103-4.P.23[medical record]).

2. The constitution guarantees “Freedom of

Speech” and to safeguard such freedom, there is no

law directly against blasphemy. However, “right to

free-speech is not a license to injure religious

feelings”. Specifically, no laws protect employers from

religious discrimination against employees (e.g.

Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998)). To prevail, plaintiffs must show that

discrimination was “severe or pervasive” (e.g., Pa.

State Police u. Suders, 542 U.S. 129, 133 (2004);

Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)).

Courts require looking at the “totality” of the

circumstances, including “the frequency of the

discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” id

at 23. Even “isolated incidents” would amount to

harassment if “extremely serious” {Faragher, supra at

788). Several Circuits held that even an extreme

isolated act of discrimination could create a hostile

39

work environment (Boyer-Liberto v. Fontainbleau

Corp., 786 F.3d 264, 268 (4th Cir. 2015) (en banc);

Rodgers v. Western-Southern Life Ins. Co., 12 F.3d

668, 675 (7th Cir. 1993); Adams v. Austal, U.S.A.,

LLC, 754 F.3d 1240, 1254 (11th Cir. 2014)). The D.C.

Circuit held, “This single incident [of using the “nword”] might well have been sufficient to establish a

hostile work environment.” (Ayissi-Etoh v. Fannie

Mae, 712 F.3d 572, 577 (D.C.Cir. 2013)). Unlike other

Circuits’ and the Supreme Court’s positions, the Third

Circuit overlooked emails, EEOC charges, and

evidence cited in Petitioners’ declarations (§D.l,

supra); essentially eliminated/ratified movants’

obligations and nonmovants’ rights to defend under

FRCP 56; and ruled, “none of their allegations were

corroborated. We agree with the District Court that

the few comments ... about the plaintiffs’ race or

religion, while offensive, were too isolated ...

Moreover, the plaintiffs failed to account for the fact

that, despite being offered positions at Utah State at

the alleged height of the defendants’ abusive behavior,

they chose not to leave Bloomsburg” (016a017a(§V)[USCA#20-2320/Opinion]). The Third Circuit

failed to consider nonmovants’ evidence showing

Defendants’ false Article-43 grievance against Patra,

preventing Petitioners/Plaintiffs from joining Utah

State (315a(§ 44 .A. 38) [Plf-Dec]; DCR#81-35.P.l-78;

411a-420a(§91-99)[Plf-Dec]); reasons why Plaintiffs

applied for jobs elsewhere (e.g. 120a-123a; 133a134a(§6)[Plf-Dec]; 224a-225a(§5-9)[Plf-Dec]) and how

Plaintiffs got job offers at a better university

(DCR#80-2.P.186-188); or why BU’s SLP-program

ranking fell following Plaintiffs’ termination

(388a(§76)[Plf-Dec]). Further, contrary to Patra's

testimony, the Third Circuit created its own records

(008a(n.2)[USCA#20-2320/Opinion]) stating, “The

40

plaintiffs do not know exactly when or how often these

comments were made

citing “Patra Dep. at

89”(emphasis added), although Patra (not Plaintiffs)

was responding to “when he [Angelo] made those

statements”, not “how often” (DCR#73-l.P.24[PatraDep.P.89:19-21]). Therefore, an extremely critical

question arises about how Courts should decide

whether blasphemous religious insults are

“severe” and/or pervasive” and what evidence is

required to corroborate Plaintiffs’ allegations.

Specifically, it is impossible for a person of one

faith or background to realize or even fathom how

certain insults could be “severe” to another. E.g. a

person from the Nordic region may be unaware of

negative connotations of the “n-word”. Sometimes

what is offensive to someone, may not be offensive to

another. E.g. “swastika” is a Hindu religious symbol

and a “holy” sign for Hindus, while the same is

extremely offensive to the Jewish faith. A naive Hindu

from India may not even know the “swastika” sign

could be offensive to someone. Similarly, for many,

idol worship is sacrilegious, while for a devout Hindu,

it is an essential religious practice. Therefore, the

Third Circuit’s Opinion about Petitioners’ perception

about blasphemous insults about Hindu Deities are

fundamentally flawed because it is analogous to a

“swastika” to individuals with Jewish faith or the “nword” insult to African-Americans. Because one often

cannot fathom the trauma of religious insults to a

person from another faith, Courts may erroneously

dismiss a claim, as the Third Circuit did in

Petitioners’ case. Further, Courts must recognize that

highly-educated supervisors in higher education (such

as Angelo and Gonzalez) are extremely smart,

intelligent individuals with administrative experience

and when they discriminate against or harass others,

41

they do so in smart ways, avoiding witnesses from

testifying against them or without leaving a trail of

incriminating evidence against them (455a-465a(§l10)[Plf-Dec|). The purpose of anti-discrimination laws

is to prevent against illegal discrimination; however,

if Courts fail to offer protection to genuine Plaintiffs

by seeking direct evidence or “corroboration” at the

summary judgment stage, as the Third Circuit did in

Petitioners’ case, protection against discrimination

would be rendered futile. It is evident that currently

there is ambiguity about standards and requirements,

especially in the context of religious insults.

Therefore, this Court must provide guidance and

clarification of objective standards for “severity” or

“pervasive” in the context of religious/blasphemous

insults. This Court’s direction about requirements of

corroboration of evidence is essential because

Plaintiffs may rarely have direct corroboration and

should be allowed to rely on Plaintiffs’ own testimony

and/or declarations under oath or penalty of perjury

and documentation such as emails. We must

emphasize that during employment negotiations,

while employed at BU (e.g. meetings with Deans,

Provost, etc.) and in this legal proceeding, we

(Plaintiffs/Petitioners) were both present at most

meetings together; and hence, we could serve as a

witness and advocate for the other. We are two

different individuals and just because we filed this

case together, Courts must not treat us as one

individual. Patra’s testimony corroborated Vazs

testimony and vice versa. Courts must not act as fact

finders and take on the work of a jury to discount

Plaintiffs’ versions of discrimination, harassment, and

religious or other insults. Since in Petitioners’ case,

the District Court did so and the Circuit Court

approved the District Court’s credibility assessment;

42

discounting Petitioners’ testimony, declarations and

official emails (although filed pursuant to FRCP 56);

this Court’s intervention is essential to protect all

similarly-situated present and future Plaintiffs.

Otherwise, laws intended for protection against

discrimination would become meaningless.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Date: April 26, 2024.

Respectfully submitted,

29 Duke of Gloucester Rd.

Bloomsburg, PA 17815

Tel: (308) 293-5728

Harisadhan Patra

Email:

Pro Se Petitioner

patra3@gmail.com

Petula C. Vaz

Pro Se Petitioner