Petition for Writ of Certiorari — Patricia A. Allen, Petitioner v. Scott Bessent, Secretary of the Treasury

Supreme Court briefDec 10, 2024

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Supreme Court, U.S.

FILED

DEC 1 0 2024

OFFICE OF THE CLERK

No.

2.4'(pMO

In The

Supreme Court of tfje ®mtetr H>tate£

PATRICIA A. ALLEN,

Petitioner,

JANET L. YELLEN,

Official Capacity as Secretary of the Treasury,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

Patricia A. Allen, pro se

P.O. Box 23828

L’Enfant Plaza S.W.

Washington, DC 20026

(202) 288-4175

harryspikes@gmail.com

RECEIVED

DEC I 2 2024

LEGAL PRINTERS LLC • Washington, DC • 202-747-2400 • legalprinters.com

QUESTION PRESENTED

Whether, in a Title VII lawsuit, mixed Title VII

claims, where causation evidence and facts supports

the

employee’s

Retaliatory

Hostile

Work

Environment Claims under Title VII Anti-retaliation

provision§ 2000e-3(a), which requires the employee

to prove she suffered “objectively tangible”

harm ” and the same causation evidence and facts

support the employees Retaliatory Discrimination

work assignment claims, based on prior Title VII

protected activity and race, under § 2000e-2(a)(l),

which do NOT require the employee to prove she

suffered “objectively tangible” harm ”, did the trial

court abused its discretion to relay to the jury Title

VII Section§ 2000e-3(a) jury instruction ( standard)

provisions, and to exclude Title VII § 2000e-2(a)(l),

jury instruction (standard) Provision, which deprived

the jury of an opportunity to decide the retaliatory

discrimination assignment claims, and to decide,

under summary judgment standards, § 2000e-2(a)(l),

with the application of objectively tangible harm

standard?

QUESTION-CONSTITUTIONAL VIOLATIONS

Whether the employee, Petitioner {Allen} was

denied a fair impartial jury trial under Title VII, the

5th Amendment, the United States Bill of Rights,

District of Columbia Circuit prevailing case law, and

the United States Supreme Court Authorities, in

Muldrow, when the trial court;

When, (i) omitted Petitioner’s Title VII retaliatory

discrimination assignment claims from the jury

instruction, for jury deliberation?

When, (ii) omitted Petitioner’s, Title VII

retaliatory discrimination assignment claims from

the jury (verdict form) for a decision on the

employee’s assignment claims.

When, (iii) instructed the jury on Title VII Anti

retaliation provision§ 2000e-3(a), the Petitioner’s

Retaliatory Hostile work environment claims,

requiring the Petitioner to prove “objectively

tangible” harm.”

When, (iv) did not instruct the jury on Title VII

provisions § 2000e-2(a)(l),

Anti- discriminatory

which does not require the Petitioner to prove

“objectively tangible” harm,”

When, (v) and decided that the employee’s

temporal proximity evidence {gap} for an inference of

causal connection to the employee’s assignment

claims and the Defendants adverse employment

action was too great, {perhaps} as reasons to omit

causation evidence from the jury instruction that

supported the employee’s assignment claims?

Issue: For a fair jury trial, does Title VII and the

5th Amendment to the U.S. Constitution due process

clause require jury instructions and jury verdict

forms relaying to the jury the prevailing law in the

circuit on any legal theory that has a basis in the law

and the record and was actually argued to the jury?

Ill

PARTIES TO THE PROCEEDINGS

The parties are petitioner Patricia Ann Allen, and

respondent, Janet L. Yellen, Official Capacity as

Secretary of the Treasury. In the District Court, Allen

pursued claims under Title VII of the Civil Rights Act

of 1964, against the Secretary Yellen. Only the

Discriminatory Assignment Claims under Title VII

are at issue in this petition.

RELATED PROCEEDINGS

1. Chambers v. District of Columbia,

35 F.4th 870 (D.C. Cir) Decided 6/03/ 2022.

2. Mark Townsend, v. United States et al.

(No.l5-C-01644) petition for En Banc, D.C. Circuit

Court of Appeals. (January 27, 2021).

3. Muldrow v. City of St. Louis et al.

No. 20-2975, 30 F.4th 680 (8th Cir. Apr. 4, 2022).

TABLE OF CONTENTS

THE QUESTION PRESENTED

QUESTION-CONSTITUTIONAL VIOLATIONS

PARTIES TO THE PROCEEDINGS

RELATED PROCEEDINGS

TABLE OF AUTHORITIES

Vll

OPINION BELOW

JURISDICTION

RELEVANT STATUTORY PROVISION

Introduction

STATEMENT OF THE CASE

Factual background

Jury Trial,

Four assignment Claims

ASSIGNMENT 1

ASSIGNMENT 2

The Trial Memorandum Opinion

addressed Allen’s assignment Claim(s)

of April 30, 2008 and June 04, 2008....

ASSIGNMENT 3

The Court addressed the June 23,

2008 assignments with Judicial Err

of material fact.....................................

June 2008 Kentucky Employee Killings

relevant to the Dec. 03, 2008 Assignment

and Allen’s prior Title VII Complaint.......

ASSIGNMENT 4

Allen’s Assignment Claims within

the definition of Chambers............

Where an employee is required to work

is a term, condition, or privilege of

Employment...............................................

Assignment Claims Argued to the Jury

The Court’s evidentiary analysis was wrong

as a matter of Fact and Law and an abuse

of judicial discretion..........................................

The Court’s evidentiary analysis was

wrong as a matter of Fact and Law and

an abuse of judicial discretion................

Plain error One Analysis

Plain error Two Analysis

The trial Court further erred in

its Temporal Proximity analysis

Plain error Three Analysis

{Evans’ inconsistent testimony misled the Court}

relative to the June 23, 2008 Job Assignment........ 21

Plain error Four Analysis

Plain error Five Analysis

Disparate treatment assignment

There is no Proximity Gap between

Supervisor Evans discriminatory attitude

and discriminatory Assignment Decisions

The Court deprived Allen the only evidence

to Prove Her Assignment Claims................

Allen’s Jury Instructions

Reversable Error:

Minor and major judicial errors

MOTION FOR A NEW TRIAL

No Forfeiture of Rights

Constitutional Rights Violations

CONCLUSION

Vll

TABLE OF AUTHORITIES

Cases

Aka v. Wash. Hosp. Ctr.,

156 F 3d 1281 (D.C. Cir.1998)

Bergbauer v. Mabus,

934 F. Supp. 2d 55 (D.D.C. 2013)

Bostock v. Clayton County,

140 S.Ct 1731, 207 L. Ed 218 9020)

23, 29, 32

Brown v. Brody,

199 F.3d 446....

16, 30

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

584 U.S. 53..................... ................

3, 30

Chambers v. District of Columbia,

35 F.4th 870 (D.C. Cir 2022).... 4, 16-17, 23, 29, 31, 34

Czekalski v. LaHood,

589 F.3d 449 (D.C. Cir. 2009)

19, 30, 32

Figueroa v. Pompeo,

435 F. Supp. 3d 160 (D.D.C. 2020)

Herrnreiter v. Chicago Hous. Auth.,

315 F.3d 742 (7th Cir. 2002).......... .

Joy v. Bell Helicopter Textron, Inc.,

999 F 2d 549 (D.C. Cir. 1993).........

19, 32

Lutkewitte v. Gonzales,

436 F.3d 248.................

Mark Townsend v. United States, et al.

No. 19-5259................................................

6, 33

McDonnell Douglas Corp. v. Green,

411 U.S. 792.......................................

Miller v. Poresky,

595 F.2d 780 (D.C. Cir. 1978)

Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc.,

493 F.3d 160 (D.C. Cir. 2007)

Muldrow v. City of St. Louis,

601 U.S. 2024.........................

O'Neal v. Ferguson Constr. Co.,

237 F.3d 1248 (10th Cir. 2001).

3-5, 30, 33, 34

Patrick v. Ridge,

394 F.3d 311 (5th Cir. 2004)

Singletary u. District of Columbia,

225 F. Supp. 2d 42............................

St. Mary’s Honor Ctr u. Hicks,

509 U.S. 502, 113 S. Ct. 2742.

26-27

Taylor v. Solis,

571 F.3d 1313 (D.C. Cir. 2009)

Texas Dep’t of Comm. Affairs,

450 U.S. 248, 101 S.Ct. 1089 (1981)

United States v. Olano,

504 U.S. 908 (1992).....

2, 33

United States Postal Serv. Bd. of Governors

v. Aikens,

460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403

(1983)................................................................

Constitutional Provisions, Statutes and Rules

U.S. Constitution Fifth Amendment

2, 19, 34, 35

42 U.S.C. § 2000e-2....2-9, 12-14, 16, 22, 25-27, 30-33

Fed. R. Civ. P 59 (a) (1) (A)

2, 32

Fed. R. Civ. P 52 (b)

Fed. R. Civ. P 61

PETITION FOR A WRIT OF CERTIORARI

Petitioner Patricia A. Allen respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the District of

Columbia Circuit, for Title VII Violations and 5th

Amendment Violation denial of a fair trial.

PETITION FOR A WRIT OF CERTIORARI

Petitioner Patricia A. Allen respectfully petition

for writ of certiorari to review the judgment of the

United States Court of Appeals for the District of

Columbia Circuit.

OPINION BELOW

The District of Columbia Circuit’s en banc decision

(pet.App.39a,40a and 41a-42a, Rehearing In Banc 43

a,) is not published. The district court’s opinion (pet.

A-226-A-260), is available

JURISDICTION

The District of Columbia Circuit Court of Appeals

entered judgment on July 23,2024. See Pet. App.43a.

On October 09, 2024, Chief Justice Robert grant Allen

an extension until December 12, 2024 to file the

petitions for writ of Certiorari. See No.24 A331.This

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

RELEVANT STATUTORY PROVISION

Title VII Anti- Discrimination Provision, of the

Civil Rights Act of 1964 Section 703(a)(1): (a) 42

U.S.C. § 2000e-2, provides: (a) Employer practices:

It shall be an unlawful employment practice for an

employer:

(1) to fail or refuse to hire or to

discharge any individual, or otherwise to

discriminate against any individual with

respect to his compensation, terms,

conditions, or privileges of employment,

because of such individual’s race, color,

religion, sex, or national origin, (or

participation in other Title VII Protected

Activity.)

Fed. R. Civ. P 59 (a) (1) (A), contains litigant rights

to a new trial based on Judicial material erroneous

ruling that resulted in a miscarriage of justice. Allen

claims plain judicial error in jury instructions under

Title VII Anti-Discrimination provision, sec.

703(a)(1). The U.S. Supreme Court has granted

certiorari to clarify the standard for "plain error"

review by the courts of appeals under Rule 52(b). See

United States v. Olano 504 U. S. 908 (1992) decided

(1993).

The United States Fifth Amendment Bill of

Rights guarantees litigant’s procedural and

substantive due process rights to a fair and impartial

civil jury trial.

Introduction

In Muldrow v. City of St. Louis, 601 U.S. 2024, this

court reviewed a Title VII {summary Judgment

Ruling} that required Muldrow to show “materially

significant disadvantage.” for a viable Job transfer

claim based on Title VII protected activity. This Court

decided Title VII lawsuits, claiming discriminatory

job transfer based on a protected activity, with respect

to the terms {or} conditions of employment, came

under Title VII Sec. 2000e-2(a) (1), and that

Muldrow was not required to show transfer caused

her to experience “materially significant

disadvantage,” for a viable Title VII job assignment

claim. Id. pg.l. The Materially adverse standard

applies to Title VII retaliation action, citing

Burlington N.& S.R. Co. v White, 584 U.S. 53. Id pg.3,

referring the application of Title VII Sec. 2000e-3(a),

antiretaliation provision standard of “materially

adverse,” meaning that it causes “significant

harm.” Id pg.8-9. The significant harm standard is

coterminous with D.C. Circuit’s {“objectively

material harm”.} The Harm Standard to be applied

in the Title VII case determine the employee’s burden

of proof standard.

Title VII of the Civil Rights Act of 1964 forbids

employers from discriminating on the basis of race,

color, religion, sex, or national origin with respect to

their employee’s’ “compensation, terms, conditions, or

privileges of employment.” 42 U.S.D. Sec. 2000e2 (a)

(1). In Chambers v. District of Columbia, the District

of Columbia Circuit established the prevailing

standard of proof required for an employee’s claims of

Retaliatory discrimination Job Assignment under

Title VII Anti-discriminatory provisions § 2000e2(a)(1). Once it has been established that an employer

has discriminated against an employee with respect

to that employee’s “terms, conditions, or privileges of

employment” because of a protected characteristic,

the analysis is complete. The plain text of Title VII

requires no more. Any additional requirement, such

as Brown’s (199 F.3d 446) demand for “objectively

tangible harm,” is a judicial gloss that lacks any

textual support. See Chambers v. District of

Columbia, rehearing en banc decision, 35 F.4th 870,

Id 174-175 (D.C. Cir) Decided 6/03/ 2022. Also cited

40 F 4th 870, Id. 875 (D.C.Cir.2022).

To be certain, the issue decided by the D.C. Circuit

in Chambers is whether, under 42 U.S.C. § 2000e2(a)(1) anti-discrimination provision an employee

need to prove that the transfer or refusal to transfer,

caused the employee to suffer “objectively tangible

harm,” with respect to that employee’s “terms,

conditions, or privileges of employment” as the

employee’s burden of proof, either at summary

judgment or jury trial. The D.C. Circuit answer is

(NO), the employee need not prove objectively

tangible harm, under the historical {objectively

tangible harm doctrine}.

Divisions in the circuits: The U. S Supreme

Court decision in Muldrow v. City of St Louis, sets

an evidentiary standard under Title VII § 2000e2(a)(1). The Muldrow standard eliminated the

“objectively tangible” harm,” standard for job

assignment claims. The Muldrow standard is that

the employee need show {“some disadvantage or harm

relative to a term or condition of employment”}.

Muldrow specifically held that the text of Title VII

does not contain any requirement for an adverse

employment action to have {“significant”} harm.

District of Columbia Circuit decision in Allen v.

Yellen, appears to be in indecision as to whether

Muldrow’s {“some disadvantage standard} applies to

a {Title VII § 2000e-2(a)(l) retaliatory discrimination

assignment claims} where Title VII § 2000e-3(a)

evidence of retaliatory hostile work environment

claim is the same evidence that support Allen’s

retaliatory discrimination Assignment claims. This

suggest that the D.C. Circuit, relative to Allen’s

lawsuit, holds that Muldrow’s disadvantage harm

standard should {not}apply to a hostile work

environment retaliation assignment claim. A conflict

appears in D.C. Circuit‘s rehearing en banc decision

in Chambers v. District of Columbia’s harm

standard, explained in detail below. It is unclear as to

whether the Muldrow “some harm” standard applies

to hostile work environment claims, with causation

evidence supporting both the Retaliation Hostile

Work Environment Claim and the Retaliatory

discrimination job assignment claims based on race

and prior Title VII protected activity. The trial court’

memorandum opinion that denied Allen’s post-trial

motion for a {new trial} and a {judgment as a matter

of law}, addressed in detail Allen’s retaliatory Job

Assignment Claims. The Court decided the jury could

not find for Allen’s on the assignment claims. In

contrast, the D.C. Circuit ruled, : Moreover, to the

extent that she has not waived or forfeited any

argument based on Chambers v. District of

Columbia , 35 F 4th 870 (D.C. Cir.2022) (en banc),

appellant has not shown any Chambers-based error,

let alone plain error, in the jury instructions or any

other aspect of the case” See DC ORDER, Doc.

2046126, (March 21, 2024), also See 39a 40.

In Mark Townsend v. United States, et al, No.

19-5259, the District of Columbia Circuit was

presented with a question-issue- identical to the

question presented in Chambers. To he most precise,

whether {objectively tangible harm doctrine}

applied to issues of alleged discriminatory job

assignment (based on Age discrimination). The D.C.

Circuit decided in Townsend age discrimination

lawsuit, the same as in Chambers: § 2000e-2(a)(l):

Under Title VII § 2000e-2(a)(l), for discrimination

assignment claims} the employee need not prove he

suffered objectively tangible harm for a viable Title

VII cause of action.

STATEMENT OF THE CASE

Petition Patricia A. Allen is a Black Female with

35 years employment with the Bureau, as a Supply

Technician, without incident, and with cash awards

for good and excellent employment performance.

Allen asserts claim against Respondent for

violations of Title VII of the Civil Rights Act of 1964

arising from her employment as a supply technician

at the Bureau of Engraving and Printing.... Ms. Allen

alleges that she experienced a discriminatory and

retaliatory hostile work environment from 2008 to

2014. Petitioner Patricia A. (Allen}maintains the

Respondent, Janet Yellen, through Allen’s first line

supervisor: (i) refused Allen’s request to be assigned

from her harasser and from the same cubicle in which

he harassed Allen, (ii) Granted a similarly situated

employee request to be reassigned from the same

person who harassed Allen, (iii) assign Allen and two

other female employees, who had complained to

Evans the harassment of which the three of them

were victimized by the same harasser, to a work

detail, not within their job description, and (iv)

assigned Allen to work in the same cubicle with

Allen’s known harasser, when, at the time of the

assignment, Allen maintained a Title VTI harassment

complaint of retaliation against both Evans, who

ordered the assignment, and her harasser, with whom

she was assigned to work, and of whom she feared

might kill Allen in the workplace. Evans was fully

aware of these facts when she ordered assignment

four. By both parties, Allen’s four assignment claims

were argued to a jury, along with Allen’s three

Retaliatory Hostile Work environment claims. The

jury instructions and jury verdict forms included the

retaliatory hostile work environment claims. The jury

instructions and jury verdict forms omitted the four

Retaliatory Discrimination job assignment claims

based on Allen’s race and prior protected activity. The

jury returned a verdict against Allen’s Three

Retaliatory Hostile Work Environment Claims. It was

impossible for the jury to return a verdict on Allen’s

Retaliatory Discrimination Job Assignment Claims,

because the jury was without instructions for

deliberation on those claims, or jury verdict forms to

render a verdict on the Assignment claims. The Trial

Court’s Memorandum Opinion below, found that

Allens’ evidence of a causal connection between

Allen’s Title VII protected Activity and the Alleged

adverse employment action of allege retaliatory

discrimination assignments was insufficient. See A255, N. 11, A-256,N13.

Under an erroneous temporal proximity analysis,

the court concluded the gap between Allen’s alleged

protected activity and Supervisor Evans’ alleged

adverse employment action was too great for the jury

to find retaliatory discrimination assignment Title

VII violation.

I. Factual background

Allen’s Title VII retaliatory

Jury Trial

discrimination claims were tried to a jury over a fiveday trial, from October 29, 2022 to 11/07/2022. On

11/08/2022 the jury returned a verdict for DefendantRespondent, against all of Allen’s claims.

The court below clearly acknowledged Allen’s

assignment claims. Each assignment claim was

addressed in the court’s Memorandum Opinion

denying Allen’s motion for a new trial and a judgment

as a matter of law. Ca.# 18-1214.A-226-A-260. The

Court maintains that what proved fatal to those

claims is Allen’s failure to prove a causal connection

linking the claims to the alleged adverse employment

action. The court’s conclusion was based on erroneous

temporal proximity analysis. Trial evidence reveals

the errors in the court’s analysis.

The three retaliatory hostile work environment

claims were tried and decided by the jury under the

objectively material harm standard, Title VII Anti

retaliation provision§ 2000e-3(a).

Allens four retaliatory discrimination assignment

claims under Title VTI §-2000e-2(a)(l), were argued to

the jury, but decided by the District Court, under the

objectively material harm standard, Title VII Antiretaliation provision§ 2000e-3(a).

Four assignment Claims

ASSIGNMENT 1

1. On April 30, 2008 Supervisor Evans

denied Allen’s reassignment request: On the

same day, April 30, 2008, Allen’s supervisor, Julie

{Evans} denied Allen’s request to be reassigned from

the same work cubicle as white co-worker, Andrew

{Wilson}, when Allen reported to Evans Wilson kicked

or threw a metal trashcan in the direction of Allen and

co-worker, Foster; with their backs to Wilson.

Tr.1075. Id at A-82. By refusing Allen’s reassignment

request, Evans forced Allen to remain in the same

cubicle from April 30, 2008 until May 08, 2008. Wilson

became angry at Allen and Foster who were listening

to CNN aka, Bureau News Network (BNN) broadcast

about Black presidential candidate, Obama. Wilson

became angry, lost his temper, and kicked/threw the

metal trashcan. Allen reported to Evans: (“As of this

morning Andrew Wilson is still occupying his desk in

201-28A, where my desk is located... I am extremely

disturbed, uncomfortable, frightened.”). See Allen’s

May 08, 2008 Email, A-173.

At trial, Allen testified the metal trashcan barely

missed contact with her head. The Court recognized

Allen remained in the cubicle for eight (8) days.

{“Apparently, Ms. Allen was still working in the same

cubicle as Mr. Wilson on May 08, 2008, about a week

after the trash can incident. Id. at {1075:5-13.”} See

A-82. Evans defined Wilson’s 4/30/2008 behavior:

“Irate behavior that demonstrated a lack of self-control

and sound judgment”, a violation of the Bureau

Threat policy against violence, harassment and

intimidation. A-171.pg.2. Also see Allen’s EEO

Complaint 6/19/2008, {“ a metal trash can came

flying toward us”} Id A-141.

Facts: On June 04, 2008, Wilson expressed

physically assaultive behavior toward Employee Ms.

Rachelle {“Wright”}. Wright accompanied by Allen

reported the totality of Wilson’s behavior to Police

Officer Henderson, the Bureau’s EEO Division

Representative, and her supervisor Evans. Wright

reported that, while working in the same unit with

Wilson and watching Bureau Broadcast Network

(BNN) news about Black presidential candidate,

Obama, Wilson became upset about the BNN

Broadcast about Obama. Wilson approached Wright,

pounding fist in hand, exclaiming (“there was no

fuc.dng way a Black man would become president.”)

ASSIGNMENT 2

On June 04, 2008 Supervisor Evans granted

Rachell Wright’s reassignment request, Tr. 1076

-L6-8, See A-83. { Q. So it is true that you removed

Ms. Wright from Mr. Wilson’s presence because of

Mr. Wilson’s unprofessional behavior toward her, but

you didn’t do the same thing for Ms. Allen; is that

correct.? See Evan’s Tr. 1161-1162, A-106, L-24 -25,

A-107, L-l-2, with an answer, YES, L12-13.

Undisputed, Allen and Wright were similarly

situated in the same workplace: (i) Evans supervised

Allen, Wright and Wilson, (ii). Wilson’s workplace

violence on April 30, 2008 and the June 04, 2008 was

motivated by the broadcast of Obama, (iii) each event

involved black females, (iv) on the same day of the

respective incidents, Allen and Wright expressed

their fear of Wilson and requested reassignment from

Wilson workplace, (v) by Evans, Allen’s reassignment

request was denied; Wrights ‘s reassignment request

was granted, (vi) Allen remained in the same cubicle,

in which Wilson kicked/threw the metal trash can, for

eight (8) days, from April 30, 2008 until May 08, 2008.

The Trial Memorandum Opinion addressed

Allen’s assignment Claim (s) of April 30, 2008

and June 04, 2008

The Court: (“Mr. Wilson was watching coverage of

the 2008 election on the Bureau’s internal news

network, Bureau News Network (“BNN”), while Ms.

Wright was at the back of the lab. Id. at 188:7-13,

222:10-12. Ms. Wright overhead Mr. Wilson say,

“There’s no [fucking] way a black man gonna become

president,” while punching his own hand. Id. at

188:7-13. Ms. Wright left the lab and reported the

incident to Ms. Evans. Id. at 189:7-13. She also met

with Ms. Allen the same day, and the two of them filed

a police report. Id. at 189:24^190:3. At trial, Ms.

Evans’s testimony largely corroborated Ms. Wright’s

account of the incident. Id. at 969:9-19. The

government does not dispute that Mr. Wilson made

this statement. Id. at 1276:11-14.”) See A-236.

The Court also found Wilson’s June 04, 2008

statement {race based}: The Court: {“Although Mr.

Wilson’s statement was race-based, it did not involve

a racial epithet. Nor did Mr. Wilson direct this

statement toward Ms. Allen—in fact, she was not

present during this incident but only learned about it

afterwards.”} See Tr. 881:15-21.”} See A-237.

ASSIGNMENT 3

Assignment of June 23, 2008. On June 23, 2008,

Evans initially assigned to a clean-up detail the three

Black Females who had complained to Evans Wilson’s

harassment; (i) Foster, (ii) Wright, and (iii) Allen.

Only after Allen complained to Evans about the initial

selection, Evans caused to be made additional

selections of non-complainant employees to the

Clean-up detail. Allen perceived the June 23, 2008

assignment an act of retaliation by Evans for Allen’s

prior protected activity. {“So I took upon myself to go

and ask Ms. Evans why just the three of us. Why

three females’ Black women’s that ... filed the

complaint against Mr. Wilson. Why were we only

asked to do the cleaning? See Allen’s”} Tr. Id 810:3-6,

& A-257.

The Court addressed the June 23, 2008

assignments with Judicial Err of material fact

The Court rule the June 23, 2008 assignment was

not retaliatory, because Evans did not know about

Allen’s prior protective activity. The Court: {“The

problem with this theory is that Ms. Evans testified

that she first learned about Ms. Allen’s 2008 EEO

complaint four days after the clean-up duty had

already occurred’).

Undisputed, Evans was on same day notice that

Allen and Wright engaged in Title VII protected

activity on June 04, 2008: {“Ms. Wright and employee

Pat Allen, SAC Badge # 12818, were escorted by Stg.

Henderson to the EEO Office, Room 606-A and we left

there with EEO Counselor Mattie Wimberly, SAC

Badge#14175, for counseling on the matter.”) see

Bureau’s Offense /Incident Report, found at

ECF#189, Appendix 44a. Evans confirms Allen and

Wrights June 04, 2008 protective activity: (“I

understood that they’ve gone to the EEO Office and

talked to Andree Faulk“). See Evan’s Tr. 969,9-25 and

Appendix 45a. Evans even participated in Allen’s

Wright’s protected activity, when they reported the

same to Evans. Allen and Wright met twice with

Evans, once on June 04, and again on 05, 2008. The

next day, June 05, 2008 Evans met with Allen and

Wright: {“ I am writing to inform you that I am feeling

very uncomfortable and scare due to the incident with

Andrew Wilson Wednesday morning. Yesterday

morning you mentioned to Patricia and I that

Andrew did not mean to say what he said or look

at me while condemning Obama.....” See Wrights’

Uncontested Email, A-l 74. Allen perceived Evans’

statement an act of retaliation and an adaptation of

Wilson’s statement to Wright. Evan’s statement

caused Allen to suffer a panic attack, and Wright to

suffer race-based violent nightmares. A-l 74.

Undisputed, accompanied by Allen, Wright

explained to Evans the totality of Wilson’s

behavior of June 04, 2008 to the EEOC division,

to Officer Henderson, and to Supervisor Evans.

The Court confirms Wright’s protected activity, but

omits Allen’s opposition to what Allen believed was a

Title VII violation by Wilson.

Ms. Wright left the

lab and reported the incident to Ms. Evans. Id. at

189:7-13. She also met with Ms. Allen the same day,

and the two of them filed a police report. Id. at

189:24-190:3”)

Evans’ false testimony caused the Court to find

Evan’s decision to assign Allen to the June 23, 2008

clean-up detail was not and could not be a retaliatory

assignment, believing Evans learned about the

protected activity four days after the June 23, 2008

clean up detail. The err was judicial, and extremely

prejudicial to the outcome of Allen’s trial, because it

served as a reason for the court to omit the June 23,

2008 assignment from the jury instructions and

verdict forms. The Court ignored the 18-day gap

between Allen’s June 04 and 05, 2008, protected

activity and the June 23, 2008 assignment.

5. June 2008 Kentucky Employee Killings

relevant to the Dec. 03, 2008 Assignment and

Allen’s prior Title VII Complaint

Shortly after June 25, 2008, when a Kentucky

employee killed his supervisor and other co-workers,

Allen asked Evans how could she know Wilson would

not do the same at the Bureau. Evans also heard

Allen expressed her fears to other Bureau’s

Employees that Wilson might come after her outside

the workplace. (“I heard her talking to one of the other

employees and saying she was afraid he was going to

come after her after work”) . See Tr.l052-L 19-20 &

Tr.1053, L 1-6,16-25. Tr 1054, L-Also. (A-59-60).

{“A. Yeah. I recall that -okay. This is after—

shortly after the initial kicking the can incident, there

was a story in the news about a workplace shooting in

Kentucky. And it was about—about two days

afterwards. And—okay. Ms. Allen asked how I could

know that Andrew would not come in and do

something similar. Q. Okay. And did that give you

notice that Ms. Allen had a serious fear of Mr. Wilson?

A. Yes. Q. Okay. Did that indicate to you that Ms.

Allen thought Mr. Wilson might kill her in the

workplace? A. Yes. Q. Okay. Now, what do you do—

what do you think a supervisor should do when she

has an employee who is afraid of another employee

killing her in the workplace—what should you have

done as Mrs. Allen’s supervisor with that notice? —A.

Okay. I could—probably—may have done—following

up with security/ You know, I had separated them,

you know.... You know—but—yeah. Anyways, I when I went by, I heard her talking to one of the other

employees and saying she was afraid he was going to

come after her after work.” Evans’ Tr. 1052- 1054. A59-A-60.

ASSIGNMENT 4

On December 03 2008, Evans Assigned Mr. Wilson

to work in the same unit as Allen, with notice that

Allen feared Wilson might kill Allen inside and

outside the workplace, if given the chance. {“ So—so

you realized that Mrs. Allen was afraid that Mr.

Wilson might kill her in the workplace from your

statement and declaration that dated back to June

2008; am I correct” A. yes.} Evans Tr. 1074 L 22-25,

1075 1 1-4. A-82-A 83. See A-173. See also Tr. 10521054. A-59 - A -60. Evans ordered the 12/03/2008

assignment with (i) notice that on June 04, 025, 2008,

Allen had participated in protected activity; (ii) with

notice, that on June 19, 2008 Allen had filed an EEO

Complaint at the Bureau’s administrative level

against Wilson; See A-140 to 142, (iii) with notice of

Allen’s July 22, 2008 EEO Complaint against Evans,

Dr. Gupta and Juith Diaz-Myers. ECF.1-3 (A-14-16).

(iv)_Always, Evans and Dr. Gupta were with notice

that Allen’s EEO Complaints were pending and

unresolved when they ordered the Dec. 2008

assignment.

Allen’s Assignment Claims within

the definition of Chambers

Chamber’s allegations are the same as Allen’s.

Chambers claimed her transfer constituted unlawful

sex discrimination and retaliation for filing

discrimination charges, in violation of Title VII. Allen

claim race and retaliatory discrimination motivated

her assignments. In Chambers, the D.C. Circuit

ruled:

{“Employer that transfers employee

or denies employee’s transfer request

because of employee’s race, color,

religion, sex, or national origin violates

Title VII by discriminating against

employee with respect to terms,

conditions, or privileges of employment,

overruling Brown v. Brody, 199 F.3d

446. Civil Rights Act of 1964 § 703, 42

U.S.C.A. § 2000e-2(a)(l).”} Id. 871.

Chambers confirms the breath of §

2000e-2(a)(l), intent to strike at the

entire spectrum of discrimination in job

transfers, whether discrimination is

economic or non-economic, tangible or

intangible, subtle or overt. Allen’s four

assignments were subtle and non

economic. Nevertheless, this is the exact

forms of discrimination § 2000e-2(a)(l)

addresses and Chambers are design to

prevent, and address with corrections.

Chambers recognizes, as does Allen

alleges,

retaliatory

discrimination

2000etransfers violate Title VII

2(a)(1). Therefore, Allen’s assignment

covered

the

are

claims

antidiscrimination provision of Title VII,

section 703(a) (1), which defines a Title

VII violation within the meaning of an

employer’s decision to refuse an

employee assignment request or

reassign an employee based on Title VII

characteristics,

with

respect

her...terms, conditions, or privileges of

employment. Chambers, Cite 40 4th

870, Id 874. Where Allen worked was a

condition of her employment.

Where an employee is required to work is a

term, condition, or privilege of Employment

If an employer discriminatorily changes the space

in which an employee must work, the “conditions in

which he works” have been unlawfully altered.

Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742,

744 (7th Cir. 2002).

April 30, 2008 refusal to reassign: Evans

decision to deny Allen reassignment request from

Wilson’s violence forced Allen to accept Wilson’s race

based motivated assaultive behavior as a condition of

Allen’s employment, for eight (8) days.

Disparate treatment assignment of June 04,

2008. Evans decision to deny Allen’s reassignment

request deprived Allen of Equal Employment

Opportunity to enjoy a peaceful harassment free

environment, which was enjoyed by Wright. Allen

reported Wilson coughed saliva into her face, in June

2011, and struck twice at her head with his steel cane

on Dec.23,2012, and during the interim, followed her

in the common areas of the Bureau, but not Wright.

The December 03, 2008 reassignment: Evans

decision to reassign Wilson and Allen to work

together, forced Allen to accept, as a condition of her

employment, the fear that Wilson might kill Allen

during the course of the reassignment.

Assignment Claims Argued to the Jury

At trial, both parties argued the assignment

claims to the jury. See Memorandum Opinion denying

Allen’s post-trial

motions. A-192-260.

The

instructions omitted reference to Allen’s Four

retaliatory discrimination assignment claims. See

Jury Instructions, la to 36a. The jury was deprived

the opportunity to consider the assignment claims

during deliberation, and to render a verdict on the

assignment claims. The Trial Court Memorandum

Opinion denying Allen’s post-trial motions, examined

each of the four assignment claims in detail. A-226 to

A-260.

Failure to submit a proper jury instruction is a

question of law subject to de novo review. District of

Columbia Circuit case law required the Court to

submit to the jury, instructions and verdict forms for

deliberation on the assignment claims and to reach a

verdict on the assignment claims. See Czekalski v.

LaHood, 589 F.3d 449, 453-456 (D.C. Cir. 2009). The

D.C. Circuit case law is that a party is entitled to an

instruction on any legal theory that has a basis in the

law and the record. Lutkewitte v. Gonzales 436 F.3d

248, 255. Although the law does not require the

instructions to contain specific language, Czekalski,

Id. 455, it is legally and constitutionally mandatory

that the instructions at least include the relevant

legal theory and the relevant law and factual evidence

in support of the legal theory. Czekalski, citing Joy.

999 F.2d at 556 (quoting Miller v. Poresky, 595 F.2d

780, 788 (D.C. Cir. 1978).

The Court’s evidentiary analysis was wrong as

a matter of Fact and Law and an abuse of

judicial discretion

The Trial court committed reversable errors of fact

and law because The Court’s Temporal Proximity

Analysis was wrong, and Deprived the Jury Of

evidence of Causation for each Assignment Claim.

The evidentiary analysis is plain error which deprived

Allen her 5th amendment due process rights to a Jury

Trial on the Assignment Claims.

Plain error One Analysis

The Court, in reference to the June 23, 2008

Job Clean -up assignment: “(“This sequence of

events is fatal to Ms. Allen’s effort to attribute a

retaliatory motive to Ms. Evans. See Bergbauer v.

Mabus, 934 F. Supp. 2d 55, 79 (D.D.C. 2013) (noting

that retaliation requires that “the defendant

knfojw of plaintiffs protected activity”). A-255.

The Court Errs: Evans notice Allen and Wrights’

protected activity on June 04 and 05, 2008, 18 days

next to June 23,2008. Evans testimony relative to the

June 04 and 05 2008 protected activity is that (“I

understood that they’ve gone to the EEO office ”),

Tr. 969 ,9-25.

Plain error Two Analysis

The trial Court further erred in its Temporal

Proximity analysis:

The Court: (“The jury could have also

reasonably {found a lack of causal

connection} between the trash can

incident on April 30, 2008 and the clean

up duty on June 23, 2008, which

occurred about two months later. See

Taylor v. Solis, 571 F.3d 1313, 1322

(D.C. Cir. 2009) (observing that two

months may be too distant to infer

“retaliatory motive”). Tr. at 943:11—

944:9.A 256. footnote 13.

The Court Errs: Again, Allen’s protected activity

was on June 04 and 05, 2008 , 18-day gap between

the June 23, 2008 assignment, not a two months gap.

Evan’s Tr. 969 ,9-25.

Plain error Three Analysis

(Evans’ inconsistent testimony misled the

Court} relative to the June 23, 2008 Job

Assignment:

The Court reasonedFirst, she argues that Ms.

Evans retaliated against her by assigning her and

other African-American women who had engaged in

protected activity to a clean-up crew on or around

June 23, 2008. The problem with this theory is that

Ms. Evans testified that she first learned about Ms.

Allen’s 2008 EEO complaint four days after the clean

up duty had already occurred.” A-255. Tr. at 972:1622.

Court errs: Evans’ testimony was false and

inconsistent

Evans participated in Allen’s protected activity on

June 04 and 05, 2008, and acknowledged she did so.

See Tr. 969 ,9-25. See (45a). On June 04,2008 Allen

and wright visited the Bureau EEO Office and Evans

and reported to them Wilson’s race-based statement.

See 44a. Did Evans specifically intended to mislead

the jury and Court to believe she was without prior

notice of Allens’ and Wright protected, activity on

June 04, 05, 2008, in which Evans participated. A^

255. Tr. at 972:16-22.

Plain error Four Analysis:

The Co u rt: “... Likewise, Ms. Alle n’s

passing argument that Ms. Evans

retaliated against her by assigning her

and Mr. Wilson both to work in the

durability lab on December 5, 2008—

over half a year since the trash can

incident—is weak for the same reason.

Tr. at 943:11-944:9. Also see Note 13,

A-256.

Court Errs: There was {No Gap} between Allen’s

unresolved Title VII protected activity Complaints of

June 19,2008 (A-140142) and July 22,2008, {A-14-16}

against Evans, Wilson, and Gupta, and the Dec. 03,

2008 assignment. Allen’s Title VII protected

activities, unresolved, coexisted with the Dec. 03,

2008 assignment, leaving no proximity gap between

the protected activity and the discriminatory

assignment.

Plain error Five Analysis:

Disparate treatment assignment

The Court Erred in concluding Allen and Wright

were not similarly situated. See A-248 Foot note 11.

Allen and Wright were similarly situated in almost

every respect, (i) they are Black Females, (ii) with the

same supervisor, Julie Evans, (iii) they were both

physically threatened with violence by the same

Harasser; Wilson, under Evans supervision, (iv) in

the same workplace, the Bureau, (v) under identical

circumstances, that is to say, both times in which

Wilson displayed violent behavior against them, the

violence was associated with Wilson’s concern about

the Bureau Broadcasting Network airing the

presidential candidacy of Black Democrat nominee,

Barack Obama. Refusing an employee’s request for a

transfer while granting a similar request to a

similarly situated employee is to treat the one

employee worse than the other”) See Chamber, cite

as 40 F.4th, Id 875, citing Bostock v. Clayton

County, U.S. 140 S CT 1731,1740, 207 L. Ed 218

9020).

There is no Proximity Gap between Supervisor

Evans discriminatory attitude and

discriminatory Assignment Decisions

Allen

maintains,

Evans

displayed

discriminatory attitude when, on June 05, 2008, she

stated directly to Allen and Wright, (“that Andrew

did not mean to say what he said or look at me

while condemning Obama”). Here, Evans adopted

Wilson’s exclamation, (‘there was no fuc..ing way a

Black man would become president. ’) with a factually

equivalence of directing the same at Allen and

Wright. The Trial court viewed Wilson’s statement to

be race based, but discounted the racial impact the

statement had on Allen, because the statement was

not made by Wilson directly to Allen. (A-249). On

June 05, 2008 Evans’ statement was directed at Allen

and Wright, with a serious impact on Allen, who,

because of what Evans said, {directly to Allen}

caused Allen to suffer a panic attack. Evans’

supervisory responsibilities included investigations of

Allen and Wrights EEO Complaints at the

administrative level and to report the Complaints to

the Bureau’s Security Division for an investigation,

including Allen’s EEO Complaints against Evans.

Evans did not investigate Wright’s EEO Complaint,

she closed Allen’s April 30, 2008 complaint the next

day, May 01,2008, without an investigation, A-224,

she never informed the Bureau or the Bureau’s

investigation team, {The Violent Intervention Team,}

of Allen’s pending complaints against Evans and

Wilson, although, she participated in all investigation

related to Allen’s EEO claims against Wilson, with

decision making authority.

There is Probative Evidence of a supervisor’s

discriminatory attitude, at least when it is targeted

directly at the plaintiff, as with Evans speaking

directly to Wright and Allen. See.” Morris, 825 F.3d

at 670 where the D.C. Circuit decided that (“ a jury

may infer discrimination from , among other things, “

evidence of discriminatory statements or attitudes on

the part of the employer.” See Aka v. Wash. Hosp.

Ctr., 156 F 3d 1281 (D.C. Cir.1998) (En Banc

Decision), (finding comments made two or three years

prior to adverse employment action to be probative of

probative

value

of previous

intent).

The

discriminatory statements might also be bolstered by

evidence that a supervisor has previously taken

adverse employment actions as a result of

discriminatory attitudes. This inference was never

considered by the Court. Factually, had the court

considered Evans’ Discriminatory Attitude, likewise,

Evans’

the court would have had to consider

discriminatory attitude coexisted with each of her

assignment decisions, leaving no gap between Allen’s

protected activity and Evan’s discriminatory

assignments decisions for Allen. Mr. Wilson’s racial

animus, (attitude) is that he visited the Ku Klux

Klan website, A-242 , yelled “horsewhipping,” “hang

nooses,” and “lynching mob”, “[tjhey’regoing to hang

nooses” next to statements such as “[t]he Democrat

[c]andidate should be shot for treason” and “[y]ou

need to be shot in the head. Id. at 336:18, 329:1. A243. Wilson’s race-based attitude coexisted with all of

Wilson’s race based actions.

The Court deprived Allen the only evidence to

Prove Her Assignment Claims

Allen Trial Court found there was (NO) evidence

of causation to support Allen’s Title VII Assignment

Claims. The finding is clear substantial prejudicial

error, that affected the jury inability to decide the

Assignment Claims, because, based on the errors, the

assignment claims were not part of the jury

instructions. The close connection between Allen’s

protected activities and Evans’ alleged adverse

actions were the {only} evidence Allen had to prove

her assignment claims were retaliatorily motivated

because of her Title VII activity and or race. See

Singletary, 225 F.Supp.2d at 56,57&58,where the

D.C. Circuit held that a close temporal relationship

{may alone} establish the required causal

connection. ("The causal connection component of the

prima facie case may be established by showing that

the employer had knowledge of the employee's

protected activity, and that the adverse personnel

action took place shortly after that activity."); accord

O'Neal v. Ferguson Constr. Co., 237 F.3d 1248,

1254-55 (10th Cir. 2001). See United States Postal

Serv. Bd. of Governors v. Aikens, 460 U.S. 711,

717, 103 S.Ct. 1478, 1482-83, 75 L.Ed.2d 403 (1983)

(remanding a Title VII action because the district

court's factual findings in favor of the defendant may

have been "influenced by its mistaken view of the

law"); ("When an appellate court discerns that a

district court has failed to make a finding because of

an erroneous view of the law, the usual rule is that

there should be a remand for further proceedings to

permit the trial court to make the missing findings.").

Pullman, 456 U.S. at 291, 102 S.Ct. at 1791. The

district court in Allen’s lawsuit, was influenced,

partially by Evans, to make a finding because of an

erroneous temporal proximity fact, with that source

being the basis for the erroneous view of the law.

Allen’s Prima Facie Evidence as a matter of

fact are : (1) Allen, a black African American

Female, a member of a protected class, engaged in

Title VII protected activity, (2) Allen’s supervisor

(“Evans”) was aware of Allen’s protected activity, (3)

because of her participation in Title VII protected

activity, (4) her supervisor, against whom Allen

maintained a Title VII discriminatory retaliation

complaint, as of July 22,2008, and thereafter,

retaliatorily discriminated against Allen for

participating in the protected activity ( against the

supervisor and her harasser), and because of her race,

(4) the discriminatory acts refusing her assignment

request to be removed from her known harasser.

There is a causal connection between Allen protected

activity and the assignments with respect to the

terms, conditions and privileges of Allen’s

employment. See Me. Donnell Douglas 411 U.S. at

802, and Texas Dep’t of Comm. Affairs, 450 U.S.

248, 253,101 Ct. 1089(1981) for the four Elements for

a Prima Facie evidentiary case of causation. See

Texas Dept, of Community Affairs v. Burdine, 450

U.S. 248, Id 252-260. Defendant failed “to articulate,

with clarity and reasonable specificity, a legitimate,

non-discriminatory reason for the retaliatory

discrimination assignments suffered by Allen. See St.

Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 510-11,

113 S. Ct. 2742. See Burdine, 450 U.S. at 254. See the

burden of proof as set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792. The articulation of a

non-discriminatory reason goes directly to the

ultimate issue of causation. D.C. Circuit has

remanded the lawsuits to the District court for

reconsideration on the issue of causation, which is the

ultimate issue in all Title VII lawsuits. See Figueroa

v. Pompeo, 435 F. Supp. 3d 160, Id. 163, (D.D.C.

2020). When prima facie evidence of a claims is

undisputed, within the context of summary judgment,

the claims maybe considered conceded under D.C.

LCvrR 7 (h) (1), Pompeo, 435, Id. 165. This is so,

because Evans’ failure to articulate a nondiscriminatory reason against a prima facie

evidentiary claim of discrimination, is the

equivalence of articulating no reason at all. See

Patrick v. Ridge, 394 F. 311, 320 (5th Cir. 2004).

Evans, on one hand, admitted she denied Allen’s April

30, 2008 assignment request, See A-105, Tr.1160 L

18-20, but on the other hand, she claims notice of

Allen’s 8-day retention with Wilson. See A-82, Tr.

1075, L 19-24, and not the reason for the same. Evans

admitted Disparate Treatment. On the same day, is

it true that you removed Mr. Wilson- Ms. Wright

from Mr. Wilson's presence? A. yes. See A-104., pg.

1159, Tr. L 24-25, pg. 1160, L-l to-5.

Also see Tr. 1076. L-6 21. A-83.

Evans admit notice of Allen’s fear that Wilson

might kill Allen in the workplace; the existence of

Allen’s Title VII complaints against Evans; Wilson

and Gupta, when she ordered the Dec. 03, 2008 job

assignment. {“ So—so you realized that Mrs. Allen

was afraid that Mr. Wilson might kill her in the

workplace from your statement and declaration that

dated back to June 2008; am I correct” A. yes.} Evans

Tr. 1074 L 22-25, 1075 1 1-4. A-82-A 83. But, during

the same trial, Evans backed away from her prior

testimony: Evans’ testimony: {“ It is also true that in

June, Ms. Allen explained to you that she was afraid

that Mr. Wilson might kill her in the workplace; is

that correct” A I don’t know”} A-105.L-18-21. No

reasonable jury could believe Evans forgot her

contrary testimony, where she explained in detail her

personal knowledge that Allen was afraid Wilson

might Kill Allen in and outside the workplace. See

Evans Tr. 1052- 1054. A-59 - A -60, also infra,

paragraph Five (5). Gupta’s response to Allen’s

Dec. 03, 2008 email, in relevant part, (“ Pat:

Although we try is not always possible to confine you

and Andy to different laboratories all the time..}

Gupta’s email, A-223.Gupta’s response is not a nondiscriminatory reason for the Dec.03, 2008

assignment. See A-173. Evans ordered the Dec. 03,

2008 assignment. Because Evans falsely testified, she

was without notice of Allen’s protected activity for the

June 23, 2008 assignment, she failed to articulate any

reason for the Assignment. Before the Dec. 03, 208

assignment,

Evans recognized Wilson had

demonstrated irate behavior and the lack of sound

judgment, without provocation, against Allen on April

30, 2008, (‘ .. you became irate and kicked an empty

trash can in the direction of Ms. Allen’s chair” ) See

A171. (“Your action demonstrated a lack of selfcontrol and sound judgment”). A-172. A vicious

12/03/2008 retaliatory discrimination assignment is

supported by these facts.

Evans presented nothing for Allen to rebut.

Chambers’ burden of proof standard is : {“ Once it

has been established that an employer has

discriminated against an employee with respect to

that employee’s “terms, conditions, or privileges of

employment” because of a protected characteristic,

the analysis is complete”} See Chamber cite, 35.F.4th

870, Id 174-176 (D.C.Cir.2022).

Allen’s Jury Instructions

( “It is your duty as jurors to follow the law as I

shall state it to you, and to apply that law to the facts

as you find them from the evidence in the case”.) la.

The Court did not instruct the jury on Allen’s Title VII

retaliatory discrimination assignment claims under

Sec.2000e-2(a)(l)] and Chamber v. The District of

Columbia and Bostock v. Clayton County

Standards for discriminating job transfer

claims. For Allen’s assignment claims, D.C. Circuit

en banc decision in Chambers was the current

applicable Circuit case law that addressed Title VII

Assignment claims, and the legal standard for the

assignment claims. The instruction did not address

Chambers standard of proof for the Assignment

claims, leaving the jury with absolutely nothing to

follow relative to the assignment claims. The jury

followed the instruction as given by the court, and

deliberated on the instructions as directed by the

court, with no reason to believe otherwise. The Jury

was instructed “to determine the facts in the case and

to apply those facts consistent with the legal principles

that ‘I will explain to you. You—and only you—are the

judges of the facts.” Preliminary Instruction

(Adapted D.C. Std. Civ. Jury Instr. No. 1-2) See

2a.-{“It is your sworn duty as jurors to accept and

apply the law as I explain it to you. “} Id. .2a. The

jury instructions did not include one fact within the

context of Allen’s Assignment claims. The Word

{“assignment” and Assignment Claims} were omitted

from the entire jury instructions, leaving the jury

with absolutely no possibility to deliberate on the

assignment claims for a jury verdict on the claims.

The entire jury instructions were based on the

(Objectively Material Harm Standard} see-Id 25a. The

instruction reference Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 56 (2006) (quoting 42 U.S.C.

§ 2000e—3(a)), in the Court’s Memo. Opinion, ECF.28,

A-253. Muldrow makes it clear; White’s dissuasive reasonable employee provision, is an objective harm

standard for retaliatory discrimination, which is

contrary to Title VII. Sec2000e-2(a)(l) antidiscrimination provision, applicable to Allen’s

assignment claims. See Muldrow, Cite as: 601 U.S. Id.

pg. 3. (2024). (“ The standard has an objective and

subjective component. Not only must the plaintiff

subjectively perceive the environment to be abusive,

a reasonable person would also have to objectively

conclude that the alleged conduct was so severe or

pervasive to create an objectively hostile or abusive

work environment”). Id 23a. Title VII § 2000e-3(a), is

the wrong standard for Allen Retaliatory

discrimination assignment claims.—This is the

objectively tangible harm standard applied at

summary judgment in Brown v. Brody 199 F.446

(12/21/1999), and also Czekalski’s jury trial, cited 589

F.3d 449, Id 453- 456 (D.C. Cir. 2009)). The objectively

tangible harm standard, in Brown and Czekalski was

overruled in the District of Columbia Circuit

rehearing en banc decision in Chambers v. District

of Columbia, No. 19-7098. The current applicable

Circuit case law to which Allen’s was entitled is

Chambers’ burden of proof standard. Chambers’

Standards required Allen provide Prima Facie

evidentiary proof that Evans’ decision to either (i)

deny her assignment request, (ii) refuse her

assignment request, (iii) assign her to work with her

Harasser, (iv) the disparate treatment assignment,

discriminatorily motivated base on her prior Title VII

protected activity and or race. Allen exceeded

Chamber’s standards.

Reversable Error:

The court committed reversable error in, (1) in not

instructing the jury on Chamber’s standard for

Allen’s four retaliatory discrimination assignment

claims, (2) excluding from the instructions and the

Jury Verdict Forms any reference to Allen’s

Assignment claims, or even the phrase {Assignment

Claims.} (3) Instructing the jury of the Material

Adverse Harm Standard, which is the wrong

standard for the Title VII Assignment Claims. See la

to 36a; original, Ca.l:18 -cv-ol214, Doc. 72 , Filed

11/08/22 pg. 36 of 37. Reviewing, as a whole, the Jury

Verdict Forms clearly omits

Instructions and

reference to Allen’s assignment claims, See A37 to 38.

Ecf. Doc. 176.

Allen’s prima facie causation evidence was

excluded from the jury for consideration on the

Assignment Claims, as was the D.C. Circuit

prevailing case law on the Assignment claims. The

Supreme Court Authority is clear, {“ only the written

word is the law, and all person are entitled to its

benefit. ’’See Bostock v. Claton County, George,

Cited as 140 S. Ct. Jd.1732 (2020). In Czekalski v.

Lahood,, Id at 454, a jury trial, under the overruled

objectively harm standards, the D.C. Circuit

recognized Czekalski’s rights to jury instructions on

the Assignment Claims and special jury verdict forms

for the assignment claims.

Minor and material judicial errors.

There are two types of errors; (1) harmless error,

insufficient for reversal and a new trial, (2) and

material prejudicial error, which may be sufficient for

reversal and a new trial. An alleged failure to submit

a proper jury instruction is a question of law subject

to de novo review. The choice of the language to be

used in a particular instruction is reviewed only for

abuse of discretion. See Czekalski v. Lahood 589

F.3d 449, Id 454 (D.C.Cir.2009), citing Joy v. Bell

Helicopter Textron, Inc., 999 F 2d 549,556 (D.C. Cir.

1993). Where the choice of language in the

instructions makes reference to the claims to he

decided by the Jury, the court may review the

instructions for minor error. Minor error is where the

language in the instructions gives the jury an

opportunity to consider the claims tried to the jury for

consideration on the prevailing Circuit Case Law and

evidence in support of the claims, as consideration for

a verdict on the claims. The harmless error rule does

not apply to Allen’s lawsuit. It is axiomatic that

Allen’s jury did not and could not (i) consider Allen’s

Title VII Assignment Claims, (ii) deliberate on the

applicable D.C. Circuit case Law, for a verdict for the

claims, when the instruction omitted any reference to

(

the Assignment Claims and the correct instructions

for the assignment claims. The error in Allen’s

lawsuit is materially prejudicial. The error affected

the outcome of the district court proceedings. The

outcome of the judicial proceedings is that Allen was

not provided a consummated trial on the Assignment

Claims, and she was denied- completely- the

opportunity for a verdict on the assignment claims.

See Muldrow ex rel. Estate of Muldrow v. Re-Direct,

Inc., 493 F 3d 160, 168 (D.C. Cir. 20007) and United

States v. Olano, 507 U.S.725, 734, 113 S.Ct.1770, 123

L. Ed.2d 508 (1993)’ see Fed. Civ. 61.

MOTION FOR A NEW TRIAL

Following a jury trial, the court may grant a

motion for a new trial “for any reason for which a new

trial {“has heretofore been granted in an action at law

in federal court.” Fed. R. Civ. P. 59 turns to case law

and permits a new trial in those circumstances

traditionally viewed as permitting a new trial”) See

District Court’s memorandum Opinion, see Memo., A228. The District of Columbia Circuit, in finding the

District Court applied the wrong standard for Title

VII Sec.2000e-2(a)(l)] discriminatory assignment

claims, remanded the claims to the district court for

the application of the correct standards: (1) D.C.

Circuit rehearing en banc decision in Chambers v.

District of Columbia, 35 F.4th 870 (D.C. Cit.2022),

(2) D.C. Circuit, in Mark Townsend v. United

States, et al, No. 19-5259; (ii) (en banc) decision and

(3) Muldrow v City of St. Louis, Missouri, et al.,

No.22-193. There is no meaningful distinction

between the three lawsuits and Allen’s, relative to the

District Court’s application of the wrong Title VII

standard, that could justify a denial of a remand for

Allen.

No Forfeiture of Rights.

Allen’s D.C. Circuit order of March 21, 2024, {39a},

recognized Allen’s argument for a Chambers’

violation, adopted in Allen’s rehearing en banc order

of July 15, 2024, {41a}, without elaboration in detail,

the order relevantly reads: (“Moreover, to the extent

that she has not waived or forfeited any argument

based on Chambers v. District of Columbia, 35

F.4th 870 (D.C. Cit.2022) (en banc), appellant has not

shown any Chambers- based error. Allen takes the

court’s order to mean that she has been granted the

right to argued to the Supreme Court the PetitionerAlien’s alleged Chambers-based, violations. However,

a forfeiture does not preclude judicial review to avoid

a miscarriage of justice and a 5th amendment

violation. See Muldrow, Cit as :601 U.S., Id 11,

(2024).

Constitutional Rights Violations

The 5th amendment to the U.S. Bill of Rights, not

only guaranteed Allen’s rights to a fair trial, its

demands Allen receive ( a trial) on all legal claims in

her lawsuit, for which she preserved for trial. Judicial

Notice is that, for a jury trial, the 5th amendment has

two procedural requirements. Requirement one; the

parties present to the jury all claims the jury will

ultimately be required to consider for a verdict on the

claims. Procedural one was completed in Allen’s

lawsuit. Procedural two, is where the Court must

provide the jury with proper instructions on the

claims tried to the jury and the applicable prevailing

circuit case law and Supreme Court authorities for

the claims. Procedural two is absent in Allen’s

lawsuit. The jury was not instructed on Allen’s

assignment claims. The jury was not provided verdict

forms for a verdict for Allen on her assignment claims.

Violation of the second requirement of the 5th

Amendment, is the legal equivalent of denying Allen

a jury trial on the Assignment claims. This 5th

amendment jury rights violation is substantive. A

trial on Allen’s assignment claims is the cure for the

violation.

CONCLUSION

The petitioner for a writ of certiorari should be

granted.

Respectfully submitted,