Petition for Writ of Certiorari — Abrishamian v. Gutierrez

recruited me with an offer of promotional transfer from

Goddard Space Flight Center (GSFC). Both the Robot

Systems Division and NBS were later renamed the

Intelligent Systems Division (ISD) and the National Institute

of Standards and Technology (NIST) respectively. Albus

was the Chief of the Division and remained in that position

until late 1998 when he was forced to vacate it due to OIG

investigation which found him to have engaged in some

official misconduct for which Albus paid a substantial fine.

Albus was initially hired by Evans to join NBS in 1973 and

the two became “old friends and long time collaborators.”

Evans left NBS to join private industry in late 1970’s. Faced

with recurring business failures and about to lose his ‘vb,

Evans persevered to return to NIST. His first attempt in 1996

for a posted vacancy was rejected. Pressured to step down,

Albus used the occasion and came up with a scheme to force

the return of Evans to NIST -- Albus refused to resign unless

Evans were rehired to replace him as the Division Chief of

the Intelligent Systerns Division (ISD). For that sole purpose,

in early 1998, Albus created a new ZP-V Senior Scientist

position and, without posting it, rehired Evans. On December

20, 1998 Evans was installed as the new ISD Division Chief

and replaced Albus without competition — Albus had

managed to prevent the posting of his position as the

Division Chief.

For more than ten years Albus deliberately violated my

rights under the antidiscrimination and anti-retaliation

provisions of Title VII by creating, supporting, maintaining

and perpetuating a hostile work environment, continuing

violations owing to his own acts and his support of an

ongoing pattern of discrimination, retaliation, unlawful

termination from work and discriminatory and retaliatory

violations of my rights based on age, national origin and

religion. To insure that such perpetuation would never cease,

Albus deliberately installed Evans, who did not know me or

anything about me except through Albus, as my new direct

supervisor. During a short time in that capacity, in just a few

4

days over two months, Evans spuriously and unjustifiably

singled me out and set his focus on me with one aim, which

he told me without hesitation — to get rid of me no matter

what. Evans was unrelenting in his hostile treatment of me

which never diminished but rather grew stronger in intensity,

frequency and pervasiveness. In addition to the continued

hostile environment, Evans retaliated against me when | filed

EEO compiaints against Albus and Evans and subjected me

to such harsh and adverse treatment that the treatment finally

took its toll - my mental breakdown. I became incapacitated

and was not able to retr ~n to work.

I filed my formal complaint with the agency after exhausting

proper procedures with the EEO Counselor. | then filed my

complaint with the federal judiciary system. In my complaint

| complained about having been deliberately subjected to

continuing violation in the form of hostile work

environment, hostile retaliation and constructive discharge. I

presented many instances of harassment, abuse and hostile

conduct which I endured throughout the years at the hands of

Albus and others and finally at the hands of Evans — all of

which are components of and an integral part of continuing

violation and hostile work environment. In support of my

charges, I relied heavily upon the testimonies, memoranda

and representations of coworkers, supervisors, experts,

doctors and others and the sworn affidavits and depositions

of such people — there are some 14 such affidavits as well as

some 14 such depositions of such people; and also upon

other information such as official EEO reports, official e-

mails and other work related documents.

REASONS FOR GRANTING THE PETITION

The issues presented in this case are important because of

their national significance. As this Court stated in Thomas v.

Collins, 323 U.S. 516, 65 S. Ct 31S, 322,

“The right to petition for redress of grievances is ‘among

the most precious of the liberties safeguarded in the bill of

rights’ [cites omitted]. Inseparable from the guaranteed

rights entrenched in the First Amendment, the right to

petition for redress of grievance occupies a ‘preferred

place’ in our system of represeatative government and

enjoys a ‘sanctity and a sanction not permitting dubious

intrusions,””

The Maryland Trial Court’s blatantly arbitrary, subjective

and standardless process which has strayed from established

federal constitutional and statutory law and Mandates of this

Court poses a clear danger to that right and should be

corrected to ensure that our Nation continues to be governed

by the rule of law. Time and again this Court has pronounced

that “It is necessary for this Court to decide cases during

almost every Term on due process and equal protection

grounds.”

This Court’s review of the process and decisions in the lower

courts is warranted because it “decides an important federal

question that conflicts with relevant decisions of this Court,”

Sup. Ct. R. 10(c). As discussed in greater detail below, this

case presents important questions regarding the federal

statutory and constitutional restraints on the ability of the

judiciary system to impose ad hoc and unlawful exercise of

judicial power to unjustifiably extinguish and destroy

otherwise meritorious claims without any hearing at all. The

decision below also conflicts with precedents of this Court,

other courts throughout the Nation and even precedence in

its own court(s). Sup. Ct. R. 10(b).

There is a profound national interest in ensuring the

fairness of the judicial process. This is the sort of case that

this Court should hear. The fact that this case is “pro se”

should not be a bar to review; actually, because of it, review

is warranted. If it does, the Court would send a strong

national] signal that, when it comes to petitioning the

Government for grievances, no voice no- matter how weak is

left behind. The review would significantly strengthen, if not

restore, the trust and faith of the people in their Government

and encourage their own participation— a Government of the

6

people, by the people and for the people; if it does not, it

would send the opposite signal that the First Amendment is

hollow and toothless because it only serves a select few. It

would raise some citizens’ voices above others in

contravention of the First Amendment Rights.

I initially brought my action with the conviction that

justice would prevail. | am still convinced that it will. Thus

far, however, I have encountered unjustifiable road blocks to

achieve justice. Some of those roadblocks are noted by

Justice Goldberg in Thornbrough v. Columbus And

Greenville R. Co. U.S. Court of Appeals, 5" Circuit, No. 84-

4410, 760 F.2d 633 (1985). Quoting from Robert Browning,

Justice Goldberg wrote: “Grow old along with me! The best

is yet to be, The last of life, for which the first was made.”

Id. at 637. Justice Goldberg continued, “For many elder

Americans, Browning’s verse is a cruel jest rather than a

reassuring vision. Not only must they face the inexorable

advance of nature—they must face the biases of their fellow

men.” /d. Furthermore, “In 1967, recognizing that one of the

tests of a civilized society is its treatment of the elderly,

Congress enacted the Age Discrimination Act .... The Act

has as its purpose the ‘elimination of discrimination from the

workplace,’ ... by making it unlawful for employers to

discriminate against persons between the ages of forty and

seventy based on their age.” /d. My disadvantage, however,

was not just limited to age; it was compounded by the fact

that I am a more observant person of the Jewish faith, | come

from a country in the Middle East—Iran, which has been a

formidable source of long-term agony for the United States

(both for which I was ridiculed and treated disparately) and

that my formal first name is “Azizollah,” which caused me to

be mocked by supervisors and other staff because it is both

Arabic and sounds similar to “Ayatollah.” My disadvantage

was further compounded by the fact that | ran out of

resources and was forced to appeal my case as Pro Se and

further, in the same capacity, for Rehearing and Rehearing

En Banc and in the same capacity for this petition.

I. Review Is Warranted In This Case Because The

Court Below Disregarded Federal Laws

Governing The Right To Petition The

Government For A Redress Of Grievances, The

Right To Due Process, The Right To Equal

Protection And The Right To Protected Property

Interest.

The district court Judge (henceforth “the Judge”) violated

my federal rights under the First Amendment, Due Process

and Equal Protection laws and deprived me of Protected

Property Interest when the Judge abused hjs discretion and

allowed the extinguishing of my cause of action.

As I stated above, charge of retaliation was one of my causes

of action against the Defendant -- it is a bona fide charge

under Title VII. Recognizing this charge, in his first

memorandum, the district court Judge limited his

consideration of my charge by simply mentioning the word

“retaliation” in two distinct references, “by retaliating

against him” (see App. A at 1) and “to retaliate against him

for complaining to the Equal Employment Opportunity

Commission (‘EEOC’)” (see App. A at 3). The Judge did not

consider my charge and quashed it by keeping silent and

refusing to render any opinicn. Unlawfully, the judge

violated my right under the Constitution requiring a fair

hearing of my grievances and their redress. The Judge acted

in this manner despite his full knowledge that, with regard to

my retaliation charge, the Defendant’s (U.S. Department of

Commerce’s) own internal investigation had established that,

“Complainant filed his first EEO complaint on February

24, 1999. On March 10, 1999, Evans, who was

interviewed by the EEO Counselor for the first complaint,

issued a memorandum critical of Complainant’s

performance. On May 20, 1999, he issued a letter

concerning Complainant's continued use of leave. These

actions followed Complainant’s first complaint within

such a short time that we find a prima facie case of

reprisal.” Underlining added. (See App. E at 12).

8

With this crucial evidence before it, the Judge could have

firmly established that, taken as a whole, there exists ample

evidentiary record before a jury to support a conclusion of

retaliatory conduct and retaliation both of which Albus and

Evans exercised against me. But, the Judge remained silent

and fefused to render any opinion. So did the panels at the

Appeals Court.

The Constitution has established the right of redress for

grievances under the First Amendment. The Right to petition

in courts is a fundamental Right also guaranteed by the First

Amendment. See California Transport v. Trucking

Unlimited, 404 U.S. 508, 510 (1972). In Chambers v.

Baltimore & Ohio R.R. , 207 U.S. 142, 148 (1907), the

Supreme Court of the United States recognized the central

role of the Petition Clause as follows, .

“The Right to sue and defend in the courts is the

alternative of force. In an organized society, it is the right

conservative of all other rights and lies at the foundation

of orderly government.”

Owing to the fact that government controls all judicial

processes, a lawsuit can be said to be a “Petition to

Government to Redress Grievances” whether the grievance

is against private persons or government. Recognizing this

fact, the Court pronounced that access to courts and

petitioning through the courts are both First Amendment

Rights. The Court has declared,

“Certainly the right to petition extends to all departments

of the Government. The right of access to the courts is but

one aspect of the right of petition.” California Transport

v. Trucking Unlimited, supra, at 510.

But, in a much stronger sense, the Petition Clause is the focal

point of the First Amendment when a petition to courts is a

petition to redress grievances with the courts themselves. See

City of Long Beach v. Bozek, 3\ C.3d 527. It is to expand

the effectiveness of judicial remedies for violations of

fundamental rights, notwithstanding that the violation may

be committed by persons acting in an official capacity. This

means that the Right to petition government for redress

implies the Right to effective, compulsory means to obtain :

redress for wrongs by government. Thus, the Petition Right

is the most important of all rights because, without it,

government cannot be held to account for its wrongs; but

with it, every person has the effective right to compel

government to obey the law with respect to the person’s

Rights, and to command just compensation for injuries

which the person has suffered. See Chambers supra.

Furthermore, the Court has held,

“The right to petition for redress of grievances is ‘among

the most precious of the liberties safeguarded in the bill of

rights’ [cites omitted]. Inseparable from the guaranteed

rights entrenched in the First Amendment, the right to

petition for redress of grievance occupies a ‘preferred

place’ in our system of representative government and

enjoys a ‘sanctity and a sanction not permitting dubious

intrusions.” Thomas v. Collins, 323 U.S. 516, 65 S. Ct.

315, 322. Indeed, “It was not by accident or coincidence

that the rights to freedom in speech and press were

coupled in a single guarantee with the rights of people

peaceably to assemble and to petition for redress of

grievances.” /d, at 323,

It seems to reason that, if the filing is protected, then surely

the object of the protected Right — of obtaining a due process

guaranteed fair hearing of petitioner’s grievances and their

redress — is the very essence of the Petition Clause. This

truism is applicable to all petitioners including myself.

In fact, the characteristic which distinguishes _

petitioning through the courts from other forms of petition is

the access to compulsory process of law, wherein the parties

are equal before the law. Without ultimate recourse to that

compulsory process, there is no reason for government to ;

listen to grievances at all, let alone to redress them fairly.

It is therefore axiomatic that, underlying all civil

relations between the Government and the Governed is the

fundamental Right of the Governed to compel Government’s

obedience to law, through the compulsory process of the law.

10

If that is not so, Government will say that peoples’ only

Rights to redress are really gifts of Government. No “gift”

can be an acceptable substitution for the “fundamental

Rights” of the people. The arbitrary and standardless action

of the Judge violates my First Amendment Rights. His

unlawful action raises some citizens’ voices above others,

and drowns out still others. The First Amendment can not

withstand such judicial overreaching.

The Court traditionally has held that the Due Process

Clauses protect civil litigants who seek recourse in the

courts, either as defendants hoping to protect their property

or as plaintiffs attempting to redress grievances —“...

abstract words of the Due Process Clause ... [which] at a

minimum ... require that the deprivation of life, liberty or

property by adjudication be preceded by notice and

opportunity for hearing appropriate to the nature of the

case.” See Mullane v. Hanover Bank &Tirust Co. , 339 U.S.

306, 313 (1950). Furthermore, to make it crystal clear that a

cause of action and the opportunity for its fair hearing and

redress is a fundamental right protected by the Constitution,

the Court determined and held that a cause of action is a

species of property protected by the Due Process Clause. /d.

That is to say that in the eye of the Constitution a “cause of

action” is the “property interest” of the litigant and enjoys

the same constitutional protection as for “property right.”

In fact, to further make the point crystal clear, the

Court interpreted the “property” component of the Fifth

Amendment’s Due Process Clause as if it is one and the

same as the “cause of action” and used that determination to

even impose Constitutional limits to the powers of the

courts. In Societe Internationale v. Rogers, 357 U.S. 197,

209 (1958), without a hearing, the trial court had dismissed a

plaintiff's claim for failure to comply with trial court’s order.

The Court reversed and furthermore read the “property”

component of the Due Process Clause of the Fifth

Amendment to impose “constitutional limitations upon the

powers of courts, even in aid of their own valid processes, to

il

dismiss an action without affording a party the opportunity

for a hearing on the merits of his case.”

The Court decisions have emphasized time and again,

that the Due Process Clause grants the aggrieved party the

opportunity to present his case and have its merits fairly

judged. Thus it has become a truism that ... “some form of

hearing” is required before the owner is fully deprived of a

protected property interest. See Board of Regents v. Roth,

408 U.S. at 570-57, n.8.

Each of these facts leads to the conclusion that as the

appellant, I am entitled to have the trial court consider, based

on the substantiality of the available evidence, the merits of

my charge before deciding to terminate my claim. My

interest in redressing instances of retaliation are all

substantial. At the same time, unless this Court intervenes,

the deprivation here is final. Any system or procedure that

deprives persons of their claims in a random manner or

otherwise without consideration of the charge and a fair

hearing necessarily presents an unjustifiably high risk that

meritorious claims will be terminated. In my case, it is the

trial Judge himself who unlawfully destroyed my property

interest without any justification. The Judge operated to

terminate my meritorious claim without 2 — hearing at all,

while allowing frivolous complaints of others to proceed

through the entire judicial review process. Terminating

potentially meritorious claims in an ad hoc and random

manner is hardly a practice even in line with our common-

law traditions.

Since a cause of action is a species of protected

property, the district court judge has likewise deprived me of

my protected property when he violated my constitutional

right and destroyed my action without affording me the

opportunity for a hearing on the merits of my case.

Fifty years ago under Chief Justice Warren, the Court

read that the Due Process Clause of the Fifth Amendment

12

includes a guarantee of Equal Protection equivalent to that of

the Fourteenth Amendment’s Equal Protection Clause. In

Bolling v. Sharpe, 347 U.S. 497, 499 (1954) pronounced,

“The Fifth Amendment, ..., does not contain an equal

protection clause as does the Fourteenth Amendment

which applies only to the states. But the concepts of equal

protection and the due process, both stemming from our

American ideal of fairness, are not mutually exclusive.”

In my case, the trial Judge’s action unambiguously

divided claims - and thus, clai:» ants — into two discrete

groups that are accorded radicaily disparate treatment --

claims that are given full consideration on the merits and

whereby, complainants bringing such charges are awarded

the opportunity for full judicial reviews, yet by contrast,

otherwise identical claims that do not receive a hearing are

unceremoniously, and finally, terminated.

The Court “consistently has required that legislation

classify the person it affects in a manner rationally related to

legitimate governmental objectives.” Schweiker v. Wilson,

450 U.S. 221, 230 (1981). However, the classificatory

scheme must “rationally advanc[e[ a reasonable and

identifiable governmental objective.” /d. at 235.

Title VII itself has several expressed purposes (please

see supra section CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED). It is evident at a glance that none

of these objectives is advanced by Judge’s action.

Terminating potentially meritorious claims in a random

manner obviously cannot serve to redress instances of

discrimination. Here, the Judge may unjustly operate to

terminate meritorious claims without any hearing at all,

while allowing frivolous complaints to proceed through the

entire judicial review process.

This Court has an obligation to review the

classificatory system, in an effort to determine whether the

disparate treatment accorded the affected classes is arbitrary.

13

Here, that inquiry yields an affirmative result. So far as Title

VII purpose is concerned, every Title VI! claimant's charge

stands on the same footing. Yet, certain randomly selected

claims are irrevocably terminated without review. In other

words, the judge converts similarly situated claims into

dissimilarly situated ones, and then uses this distinction as

the basis for its classification. “[T]he Equal Protection

Clause imposes a requirement of some rationality in the

nature of the class singled out,” James v. Strange. 407 U.S.

128, 140 (1972), and that rationality is absent here. Giving

preference to a discrete class “merely to accomplish the

elimination of hearing on the merits, is to make the very kind

of arbitrary legislative choice forbidden by the Equal

Protection Clause ...” Reed v. Reed, 404 U.S. 71,76 (1971).

The Judge’s classification failed to promote Title VII

- objectives in any rational way. As a claimant, I possessed no

power over the Judge’s decision. It is unfair and irrational to

punish me for the Judge’s failure. The Judge's classification,

which bore no relationship to the merits of my retaliation

charge, is arbitrary and irrational when measured against

Title VII purposes. Dy his refusal to consider and afford me

a fair hearing of my charge, the Judge also deprived me of

the Equal Protection Clause under the law.

The Judge’s unlawful action only confirms the

wisdom of the constitutional design, faithful adherence to

which requires that the Court review the Judge’s usurpation

of judicial power in defiance of the Constitutional plan. The

Court should grant review and reverse the judgment below

for all of these violations of the laws and deprivations of my

rights guaranteed by these laws.

II. Review Is Warranted In This Case Because The

Measures Used In The Court Below To Decide

Whether A Work Place Is Hostile Are In

Conflict With The Mandated Yardstick Set By

This Court, Employed By Other Courts,

Including Its Own, And The Governing Federal

14

Statutes. The Yardsticks Devised By The Court

Below To Determine Hostile Work Environment

And Constructive Discharge Claims Do Not Pass

Constitutional Muster.

A. 4" Circuit proclaimed Standards for summary

judgment

The traditional view of the 4” Circuit Court of Appeals

regarding the principles of summary judgment has been that,

“The burden is on defendant, as the moving party, to

demonstrate the absence of any genuine issue of material

fact. ... The facts themselves, and the inferences to be

drawn from the underlying facts, must be viewed in the light

most favorable to plaintiff, as the party opposing the motion.

... Only where it is ‘perfectly clear that there are no issues in

the case’ is summary judgment proper, and even where a

directed verdict would be proper after hearing the evidence,

the district court should not try the case in advance by

summary judgment. ... The non-moving party is in a

favorable posture, being entitled ‘to have credibility of his

evidence as forecast assumed, his version of all that is in

dispute accepted, all internal conflicts in it resolved

favorably to him, the most favorable of possible alternative

inferences from it drawn in his behalf, and finally, to be

given the benefit of all favorable legal theories invoked by

the evidence as considered.’ ... Care is required in deciding

whether the evidence presents a genuine issue of motive, for

‘summary judgment is seldom appronriate in cases wherein

particular states of mind are decisive as elements of [a] claim

or defense.’ ... Resolution of questions of intent often

depends upon ‘the credibility of the witnesses, which can

best be determined by the demeanor of the witnesses during

direct and cross-examination.”” Ross v. Communications

Satellite Corp. , 759 F.2d 355 (1985, 4" Cir.). In accord,

Charbonnages, 597 F.2d at 414; Pierce v. Ford Motor Co.,

190 F.2d 910, 915 (4" Cir), cert. denied, 342 U.S. 887, 72

S.Ct. 178 (1951); United States v. Diebold, 369 U.S. 654,

15

655, 82 S.Ct. 993, 994 (1962); Poller v. Columbia

Broadcasting Systems Inc. , 3698 U.S. 464, 473, 82 S.Ct.

486, 491 (1962); Morisson v. Nisan Co., LTD, 601 F.2d 139,

141 (4" Cir. 1979); Abasiekong v. City of Shelby, 744 F.2d

1055, 1059 (4" Cir. 1984); Duke V. Uniroyal, Inc., 928 F.2d

1413, 1419 (4" Cir.), cert. denied, 502 U S. 963 (1991);

Taylor v. Home Ins. Co., 777 F.2d 849, 854 (4" Cir. 1985);

Williams v. Staples, Inc. No. 03-1550 (4" Cir. 2004)

(Quoting Thomson v. Aluminum Co. of Am. 276 F.3d 651,

656 (4" Cir. 2002) - In reviewing the evidence, the court

must draw all reasonable inferences in favor of the

nonmoving party and may not make credibility

determination or weigh the evidence.)

Fully cognizant of tk +se principles set by his own 4" Circuit

Court, the Judge’s unlawful actions show his defiance to

them — he violated most if not all, of these principles (see

App. A and B). He also violated following Mandates of the

Court uniformly adhered to by all other courts including his

own 4" Circuit Court in other cases similar to mine.

B. Hostile Work environment — Standards oi Review

The long-standing standard of review for the

determining of harassing and hostile work environment is

established in Harris v. Forklift Systems, Inc. 126, LED 2™

295, 510 U.S. 17 (1993), the standard which is also followed

by the 4" Circuit. Harris’ test, among other things, prohibits

time-barring as well as the desegregation of abusive and

harassing conduct. To determine whether an environment is

hostile or abusive, Harris expressly enacted the “totality of

circumstances” standard,

“But we can say that whether an environment is ‘hostile’

or ‘abusive’ can be determined only by looking at all

circumstances. These may include 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

employees work performance.” /d. at 302, underlining

added.

16

Quoting Harris, the Court expressly directed other courts to

only employ the “totality of circumstances” yardstick in

determining hostile work environment,

“We directed courts to determine whether an environment

is sufficiently hostile or abusive by ‘looking at all the

circumstances,’ including the ‘frequency of the

discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or mere offensive

utterance; and whether it unreasonably interferes with an

employee's work performance.”” Faragher v. Boca Raton

§24 U.S. 775, 787, underlining added. In accord Onacle

v. Sundowner Offshore Services, Inc. 118 S. Ct. 998

(1998)-

In National R.R. Passenger Corp. v. Morgan 536 U.S. 101

(2001) the Court distinguished hostile environment from

discrete acts as follows,

“Hostile environment claims are different in kind from

discrete acts. Their very nature involves repeated conduct.

.. (‘The repeated nature of the harassment or its intensity

constitutes evidence that management knew or should

have known of its existence’).” /d. at 115.

The Court clearly expressed that disaggregating the work

environment into a series of discrete incidents is in violation

of the statute,

“A hostile work environment claim is comprised of a

series of separate acts that collectively constitute one

‘unlawful employment practice.’” /d. at 117.

“The statute does not separate individual acts that are part

of the hostile environment claim from the whole ... .” /d.

at 118.

As in Harris, Morgan prohibits time-barring of the abusive

and harassing conducts.

“The ‘unlawful employment practice’ therefore cannot be

said to occur on any particular day. It occurs over a series

of days or perhaps years ...” /d. at 115.

The Court then held that,

“Given therefore that the incidents comprising a hostile

w k environment are part of one unlawful employment

17

practice, the employer may be liable for all acts that are

part of this single claim.” Morgan, supra, at 118.

Except in my case, the Fourth Circuit has consistently

applied Harris’ “totality of circumstances” test to determine

whether a work environment is hostile. See for example

Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4" Cir.

2001); Ocheltree v. Scollon Prods., Inc. 335 F.3d 325, 331

(4" Cir. 2003); Cf. Conner v. Schrader-Bridgeport

International, Inc., No. 98-2055 at 10 (4" Cir. 2000).

Other courts have recognized the above statutory

mandates that, in evaluating a hostile work environment

claim, the fact finder must consider “all the circumstances.”

For example, Henson v. City of Dumdee, 682 F.2d 897, 904

(11 Cir. 1982)

({T)he district court should not carve the work

environment into a series of discrete incidents and then

measure the harm adhering in each episode. Instead, the

trier of fact must keep in mind that each successive

episode has its predecessors, that the impact of the

separate incidents may accumulate and that the work

environment created thereby may exceed the sum of the

individual episodes”),

Smith v. Kmart, 1996 WL 780490 at *8 (using “totality of ~

circumstances” standard in age harassment case); In accord

are EEOC v. Mitsubishi Motor Manufacturing, 990 F. Supp.

1059, 1074 (C.D III. 1998); Jenson v. Eveleth Taconite

Company, 130 F.3d 1287 (8" Cir. 1997); Robinson v.

Jacksonville Shipyards, Inc. 760 F. Supp. 1486, 1524 (M.D.

Fla. 1991); Burns v. McGregor, 955 F.2d 559, 565 (8" Cir.,

1992); Vance v. Southern Bell Telephone and Telegraph

Company, 863 F.2d 1503, 1510-1511 (11 Cir., 1989);

Durham Life Insurance v. Evans, 166 F.3d 139, 149 (3 Cir.,

1999) (employers cannot “disaggregate the various allegedly

discriminatory acts and endeavor to cast doubt on each one;

lower court had appropriately refused to consider each

discriminatory incident in a vacuum.”)

Several courts have recognized that under Harris’

“severe-or-pervasive” test, a single incident of invidious

harassment can create a hostile work environment. See for

example Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274

n.4 (7" Cir., 1991) (indicating a single instance of racial

harassment can establish a hostile work environment);

Torres v. Pisano, 116 F.3d 625, 631, n.4 (2™ Cir., 1997)

(single incident of sexual harassment can in some

circumstances suffice to state a claim of hostile work

environment of sexual harassment).

Courts have also ruled that “time gaps” between

specific incidents of harassment do not defeat hostile work

environment claim. See for example Waltman v.

International paper Co., 785 F.2d 468, 476 (5" Cir. 1989)

(hostile work environment claim not defeated by time gaps

between the specific incidents of harassment, noting cases in

which harassment involved separate incidents spanning

many years); Ways v. City of Lincoln, 871 F.2d 750, 755 (8"

Cir., 1989) (evidence of an average of 3 incidents per year

over 17-year employment sufficient for hostile work

environment claim.)

These latter holdings by themselves defeat the

Judge’s reasoning for destroying my hostile environment

cause of action. In his first memorandum (App. A, at 9), the

Judge falsely argued that “Abrishamian’s allegations of

offensive conduct do not establish a hostile work

environment” because, according to the Judge, “Abrishamian

admits that there were long periods when he was not subject

to offensive remarks.” I do not know where the Judge

obtained this information; After hostile environment began

there were no long periods when | was not subject to

harassment including offensive remarks. Regardless, gaps

would not defeat my hostile work environment claim.

As to the relationship between “hostile work

environment” and “constructive discharge,” the Court has

declared th” the “[c]reation of a hostile work environment is

19

a necessary predicate to a hostile-environment constructive

discharge case.” Cf. State Police v. Suders, No. 03- 95, slip

op. at 11 (U.S. 2004).

It stands to reason that, when faced with the claims of

hostile work environment and constructive discharge by the

same claimant, the trier of fact should look into the hostile

environment claim first. The court in Landgraf did but not

the Judge who actually cited Landgraf (see App. A at 9)

which expressed, “[t]o prove constructive discharge, the

plaintiff must demonstrate a greater severity or pervasiveness

of harassment than the minimum required to prove hostile

working environment.” Landgraf v. USI Film Products, 968

F.2d 427 (5 Cir. 1992) quoting Pitman v. Hattiesburg

Municipal Separate School District, 644 F.2d 1071, 1077

(5" Cir. 1981).

Notwithstanding the above clear Court declarations,

to destroy my cause of action for hostile work environment

claim, the Judge imposed his own rule which he created by

fiat and unlawfully departed from the established legal

requirements set by the Court-Ifi the guise of first analyzing

“constructive discharge claim,” the judge used his newly

fashioned invention and reduced the conducts of my hostile

environment claim to “five remarks” (App. A, page 9, last

line). Only then did the Judge commence his analysis of my

hostile work environment claim, without citing Harris, and

failing to consider the “totality of circumstances” afresh for

the hostile work environment analysis, the Judge unlawfully

used these same selectively remnant “five remarks” as the

sole components of my hostile work-place claim and

disposed of my hostile work environment cause of action.

The Judge’s action in first analyzing “constructive

discharge” claim was not by accident but by design. The

Judge knew well that, were he to consider my hostile

environment claim first, in the face of all of the above-

mentioned Court mandates and lawful statutes regarding the

determining of a hostile work environment and the Court’s

20

imposition of “looking at all circumstances,” he could not

get away with destroying even one hostile conduct, let alone

with the major destruction he committed. !n committing such

destruction of my hostile work-place evidence, the judge

acted in flagrant violation of the Court’s imposed

requirements for determining hostile environment claims. He

unlawfully and selectively carved out a smal! portion of the

total hostile conduct; disaggregated this portion into

individual incidents; weighed each incident in isolation and

flushed away most of them by various methods, some of

which are described below.

a. Flushing away evidence by way of time-barring

In measuring the individual hostile acts in the context

of his “constructive discharge” analysis, the Judge weighed

some of the hostile conducts in isolation and excluded them

by way of time-barring. The judge reasoned, “Many of the

incidents Abrishamian points to happened so far in the past

that no reasonable jury could find that they affected his work

environment as of the time he resigned.” Moreover,

“{alccordingly, conduct that occurred in early 1990's says

little about his working environment in 1999.” (App. A at 6).

Examples of hostile conduct the court eliminated in this way

are 1) “rhymed his name ‘Azizollah’ with “Ayatollah” 2)

“ridiculed him for observing kosher” 3) segregation 4)

“pocket-vetoed his promotion” 5) he was “forced to move to

a basement office” (I was the only Division employee Albus

or Evans ever placed in any basement room) 6) by force,

“shared another office with his former secretary” (I was the

only Division employee Albus or Evans ever so treated) and

7) was “wrongfully passed over for several promotions.”

(App. A at 6 and n3.) The Judge reasoned that conducts |

and 2 occurred sometime around 1991. In actuality, they

both started around 1985-1986 and remained in force until I

left the ISD. For exclusion of conduct 3, the Judge figured

that the Group was formed sometime in 1988 and that its

members have long since moved on to other assignments. In

21

fact, formed in 1988, the Performance Measures Group

lasted well into 1995, if not longer, where I was forced to

work under humiliating conditions for seven years. For the

exclusion of the remaining conduct the Judge figured that

they occurred prior to the mid-1990’s. Actually, the sharing

of an office with my former secretary and Albus’ rejecting

my last promotion did not occur until 1998.

Following his design, the Judge erroneously analyzed

Albus’ refusals to promote as “discrete acts” (App. A at 4).

In each case, Albus’ refusal to promote me was not because I

was not qualified, as | was qualified; it was because he was

engaged in harassing conduct (in each such case Albus

invariably harassed me by comparing me with “Ayatollahs”

and branding me as a follower and not a leader because

Albus claimed, “Iranians are followers and not leaders

because they are lead by Ayatollahs,” etc.) which culminated

in a tangible employment action against me, i.e. failure to

promote. The Supreme Court in Suders, supra at 9, identifies

two categories of hostile work environment claims: 1)

harassment that culminates in a tangible employment action

and 2) harassment that takes place in the absence of a

tangible employment action. The Court identifies “failure to

promote” as a tangible employment action. Therefore, each

and every act of harassment by Albus that culminated in a

refusal to promote was part and parcel of the ongoing total

hostile work environment.

b. Flushing away evidence by way of weighing

against constructive discharge threshold.

The Judge isolated from the whole and trivialized

Albus’ deliberate repeated performance downgrading and

Evans’ false performance evaluation with the term “unfair

performance reviews,” and flushed them away after he

unlawfully weighed them against a constructive discharge

threshold (App. A at 7), a litmus test much higher than those

for hostile environment claims; see Landgraf, supra at 1077.

The Judge violated the law when he did not assess the

22

evidence in its totality as required by Harris. Additionally, in

Von Gunten v. Maryland, 243 F.3d 858, 867 (4" Cir. 2001)

the 4" Circuit held that a “downgrade of performance

evaluation could effect a term, condition, or benefit of

employment” if it has a tangible effect on the terms or

conditions of employment.” Each downgrading of my

performance evaluation had severe tangible impact on my

employment and therefore each effected a term, condition, or

benefit of my employment. Likewise, Evans’ false

evaluation effected a term, condition, or benefit of my

employment because it involved falsehood and other tangible

effects. Furthermore, the Judge’s contention, “Abrishamian’s

subjective view that his performance warranted a positive

evaluation is entitled to no weight,” is baseless because the

facts have nothing to do with my view, subjective or

otherwise. The record in each case of downgrading and the

adverse evaluation shows that in fact it was in the views of

my supervisors, Lee end Albus himself, that my performance

warranted much higher positive evaluation.

The Judge also disregarded the fact that the

production of Evans’ false evaluation was indeed retaliatory.

I have discussed this issue at length above (pages 7-13

supra). The point is that in spite of the fact that the

wrongdoer itself admitted to the finding of prima facie case

of reprisal (App. E), the Judge, on the other hand, sided with

the wrongdoer and defended the wrongdoer’s adverse action

by terming it “given unfair performance reviews.” (App. A at

7).

Likewise, the Judge isolated from the whole Albus’

and Evans’ refusal to timely give me my FY-98 performance

plan, trivialized it with the term “not given sufficient

guidance” (App. A at 7) and flushed it away after weighing it

against a constructive discharge threshold. The issue here is

not whether Albus’ and Evans’ actions rose to the level of

constructive discharge, but rather the fact that both Albus

and Evans singled me out, treated me differently from all the

cther ISD employees and, thereby, discriminated against me.

23

The Judge disregarded the fact that, for the first time in my

entire tenure with NIST, both Evans and Albus failed to

provide me with my performance plan which I should have

received some 4 2 months prior to when I finally received it

in February, 1999. Likewise, neither Evans (nor anybody

else for FY-99) ever assigned me any engineering tasks let

alone tasks commensurate with senior level engineering

work — but that prior to giving me my plan Evans assigned

me secretarial and technician level tasks to supposedly keep

me busy. As part of the ongoing hostile work place, Evans

adversely evaluated my job performance on these activities

which I had already performed prior to receiving my plan or

on other activities which were already rated in previous years

by Albus and Herman as “satisfactory” but which Evans re-

rated as “unsatisfactory.” Instead of looking at this issue in

an impartial manner and following the above 4" Circuit

proclaimed standards for summary judgment (page 14,

supra), the Judge again defended the wrongdoer. This time,

he cited case law ~ Weirauch v. Department of Army, 782

F.2d 1560 (Fed Cir. 1986) and claimed, “While the complete

failure to give an employee any performance review or plan

may constitute a violation of CSRA, mere delay does not.”

(App. A at 11). The Judge misunderstood the significance of

the Weirauch case he himself cited and never cared to learn

about the scope of my hostile work-place complaint. My

complaint had nothing to do with any “delay.” I was merely

explaining that Evans evaluated my job performance on non-

engineering activities which I completed prior to receiving

any valid plan, valid standards or valid critical elements. On

the other hand, a cursory review of the Weirauch’s case

makes it clear that “With respect to Weirauch, his

performance was appraised on the basis of the criteria

communicated to him no later than May, 1982. Only

incidents thereafter and before February |, 1983, were

considered in support of the unsatisfactory performance

ratings given to him on which his removal is based.” /d. at

1563; underlining added. In fact, by his own citation, the

24

Judge proved my case of discrimination, harassment and

hostile work environment but he would never admit to it.

Likewise the Judge isolated and trivialized Evans’

demand for me to produce under duress a vast amount of

medical information as “sought sensitive medical

information from” me or “Evans requested that Abrishamian

provide him with medical information” (App. A at 3, 8). The

fact is that Evans did not simply “request” or simply “seek,”

but actually “demanded,” for his own personal use, and

placed me under additional! duress. After Evans’ adverse

actions caused my mental breakdown and I became

incapacitated to do good work I went on sick leave. Evans

approved two 2-week periods of sick leave followed by one

4-week period. At the time when I made my requests, Evans

never told me that he needed any special set of medical

documentation from my doctor. But, during the last 4-week

period, fully cognizant of the fact that he had had four (4)

weeks time to obtain any necessary medical document, he

deliberately waited until 2 ‘2 days before the expiration of

this 4-week period and served me with a terse demand by a

personal server. In his letter, Evans demanded the production

of a vast amount of medical documentation to be prepared

and delivered to him before the end of the 4-week period. He

made his demand fully cognizant of the facts that doctors are

not waiting like waiters to serve their patients and that it

would take an appreciable amount of time for my doctor to

prepare and provide documents demanded by Evans. While

the wrongdoer itself admitted to the finding of prima facie

case of reprisal (App. E), the Judge again sided with the

wrongdoer, defended the wrongdoer’s adverse action and, as

if speaking for the wrongdoer, said, “Evans requested that

Abrishamian provide him with medical information so that

Evans could approve Abrishamian’s sick leave.” (See App.

A, at 8). If it were just a true and bona fide request, Evans

could have done it immediately or shortly after his approving

the 4-week leave, but he did not; moreover, he did not need

to serve me with a personal server, which he did — it was not

25

a request but personal adverse demand in order to harass me

even when he had full knowledge that I was sick at home.

Moreover, the Judge’s declaration, “Similarly,

Abrishamian’s decision to continue working until 1999

means that he himself did not find his situation intolerable in

earlier periods” (App. A at 6-7) is painful and insensitive. It

flies in the face of his own 4" Circuit Court of Appeals

declaration in Cf. White v. BFI Waste Services, No. 03-1833;

03-2020 (4 Cir. 2004). There, the Appeals Court regarding

Gaskins who was still employed by BFI, held, “Gaskins’

continued employment with BFI does not defeat his hostile

work environment claim. One need not sacrifice one’s job

(and a steady source of income) in order to prove that the

racial harassment in the workplace rose to the level of

actionable hostile work environment.” /d. at 14.

c. Flushing away evidence by way of the Judge

acting as engineering expert.

The Judge erred when he wrongly figured that “the record

contradicts any claim that [Abrishamian] was doing solely

menial work,” that the “record establishes that, in 1998 or

early 1999, Abrishamian was given six complex engineering

tasks.” (App. A at 7). There is no record in existence to

support any of these contentions by the Judge. On the

contrary, testimonies from engineers, scientists and doctors

of philosophy in the field of engineering such as Amatucci

(he was the ISD Division Deputy Chief for several years),

Wheatly, Juberts, Wakid, and Swyt show that I was indeed

assigned only menial, technician and secretarial-level tasks.

Even the wrongdoers, Evans and Albus themselves admitted

to this. Moreover, the Judge erred by making determinations

in areas where he lacks expertise. He is not an engineer,

much Jess one in this field. Assessment of scientific and

engineering work, whether it has to do with “the relative

complexity of high-level engineering tasks” or otherwise, is

best left to the experts in these fields; the Judge himself later

26

commented “court is in no position to judge the relative

complexity of high-level engineering tasks” (App. A at 7).

Likewise, in dismissing the hostile conduct when Albus

compelled me to do janitorial work for others, the Judge

said, “Department expected all engineers to keep their labs

clean and well organized” (App. A at 7). I did not take issue

with the fact that employees were expected to clean up after

themselves. Instead, I am contending that I was not treated

comparably because of my age, pigmentation, religion and

national origin. I was discriminated against because Albus

repeatedly singled me out and had me act as a janitor and

keep labs clean after they had been made dirty and cluttered

by other coworkers,-visitors or guest workers. | was the only

Division engineer, senior or otherwise, Albus singled out in

this manner.

d. Flushing away evidence by way of the Judge being

insensitive to prejudice.

The Judge was insensitive to racial and ethnic slurs, to which

I was continually subjected; he termed them as merely

“offensive comments,” “rudeness” and “coworkers

rudeness” (App. A at 2, 4(n1)). Racial epithets such as being

an Ayatollah; being a follower of Ayatollahs; being only

capable of following, like dumb sheep, being led by

Ayatollahs; being an Arab-kind of a person; mockingly

rhyming my formal name “Azizollah” with “Ayatollah,”

including in song; as well as comparing me with Ayatollahs

had been going on for many years up until 1999 when | left

work. Such conduct is plainly despicable, highly repugnant,

hostile and humiliating according to any reasonable person’s

standard, particularly myself because the perpetrators well

knew that I am Jewish. My whole family suffered

tremendously, including the murder of my father, under the

oppressive, terroristic, despotic and anti-Semitic regimes and

beliefs of the Ayatollahs and their followers and adherents in

Iran. Ayatollahs are considered to be brutal terrorists and

rulers of terror, internationally and otherwise, over peoples,

27

communities, emirates and countries. They are considered to

be instigators of terror, despots and brutal Anti-semitic

oppressors of those who do not follow or agree with their

ideology. They are considered to be instigators of throat

cutters who behead the innocent as “infidels.” To repeatedly

and frequently compare me with Ayatollahs and equate me

with their followers is painful and nothing short of character

assassination — falsely identifying me with mass-murdering

felons by calling me a terrorist, ruler of terror, someone who

ascribes to the use of terror and terroristic acts whether such

acts are committed locally, internationally or otherwise. To

trivialize these ongoing racial and ethnic slurs as simply

“offensive” or “rude” flies in the face of decency and

manifests injustice.

The Judge also was insensitive to Evans’ racial and

ethnic slur that as an Iranian and a Jew i knew how to cajole

my doctor into preparing his report according to Evans’

specific timing and other demands (App. A at 8). Evans’ slur

sets Iranians and Jews as being dishonest and unscrupulous.

In my case, however, it is particularly injurious because I am

both an Iranian and a Jew. Prejudice of this sort is indicative

of blatant disdain for the recipient, one who is seen as

unentitled to respect and equal rights, seen as subhuman as a

Jew, and such was the practice. To be insensitive to this type

of repugnant racial and ethnic slurs and attempt to explain

them away, that they just occurred “sometime around 1991”

(App. A at 6) - they had not, they continued for many years

and until I left in 1999, in fact, Evan’s above slur took place

while I was sick at home (I never was able to return to work)

- is the same as condoning them. It also flies in the face of

the 7" Circuit declaration in Daniels, supra atl274 n.4 (7"

Cir., 1991) (indicating a single instance of racial harassment

can establish a hostile work environment).

e. Decision in conflict with similar 4" Circuit

precedence

28

The frequency and reguiarity of the unwelcome conduct

established by the evidence in my case is similar to that

underlying the 4° Circuit’s decision in Amirmokri y.

Baltimore Gas and Electric Co., 60 F. “J 1126 (4° cir. 1995)

and Conner vy. Schrader-Bridgeport | i 1 227

F.3d 179 (4™ Cir. 2000). In Amirmokri a prcernn and

coworkers abused dn Iranian piaintiff by calling him “the

local terrorist,” a “camel jockey,” “the Ayatollah,” and “the

Emir of Waldorf.” Setting the standard for a national origin

harassment claim, the Amirmokri Court, after considering

Amirmokri’s work atmosphere in totality, held, “A

reasonable person could easily find this atmosphere to be

hostile.” Amirmokri, supra at 1131. In Conner, the 4" Circuit

Court, by its consideration of four hostile events, reasoned

and concluded that the unwelcome conduct established by

the record was sufficiently humiliating to support the jury

verdict.

In addition to being erroneous, the Judge’s decision

also fails to comport with its own 4" Circuit Court holdings

in Amirmokri, Conner and other cases cited above. The

Judge’s decision also fails to comport with holdings in other

Circuits as discussed above. These conflicts further support

the reversal of the Judge’s ruling and review in this Court.

Sup. Ct. R. 10(b).

al Constructive discharge Standard of Review;

conflict with similar 4" Circuit precedence

As in the hostile case, the trial court discarded and failed to

consider the most important relevant conduct, that the

constant stress created by the hostile work environment

caused my mental breakdown. Indeed, after establishing

hostile work environment claim, this was the most probative

relevant evidence with respect to my claim of constructive

discharge. This conduct is similar to that underlying the 4”

Circuit court’s decision in Amirmokri, supra. In Amirmokri,

the plaintiff became afflicted with an ulcer caused by the

constant stress due to his hostile work environment.

29

Considering the plaintiff's work atmosphere, the

Amirmokri’s court reasoned, “The constant stress created by

this atmosphere caused him to get an ulcer and eventually

resign. A reasonable trier of fact could find these conditions

intolerable.” Amirmokri, supra, at 1132. In my own case, |

became afflicted with a mental breakdown due to the

ongoing hostile work environment I endured for many years.

The Government declared me disabled based upon the

opinion of Dr. Rojcewicz who wrote,

“[T]o a reasonable degree of medical certainty, that the

current medical conditions that | have described were

caused by or related to the stress of Mr. Abrishamian’s

work environment.”

Further, he wrote,

“Mr. Abrishamian’s inability to perform useful and

efficient service arose while he was serving under the

Federal Employees’ Retirement System. He had been

working as a ZP-0855-IV Electronics Engineer at the

Intelligent Systems Division, National Institute of

Standards and Technology, U.S. Department of

Commerce.”

Moreover,

“| advised him that he could not go back to work because

of his psychiatric condition.”

Mental breakdown may be a more severe affliction than an

ulcer because the latter may be treatable but not necessarily

the former. It is very painful when the Judge himself gets

into character assassination by stating, “The fact that a

worker may feel stymied in his professional advancement

does not give him license claiming constructive discharge.”

(App. A at 8).

The Judge’s unlawful action unambiguously divided

claims - and thus, claimants — into two discrete groups that

are accorded radically disparate treatment -- claims that are

treated impartially and in accordance with the existing

federal laws and statutes and the mandates of the Court, yet

by contrast, otherwise identical claims are treated by judicial

fiat and in flagrant violation of the same federal laws,

30

statutes and Mandates of the Court. [he Judge’s

classification failed to promote Title VII objectives, Federal

statues and Mandates of the Court and even the promulgated

4" Circuit standards of review for summary judgment in any

rational way. Because by his refusal to follow the law the

Judge also deprived me of the Equal Protection Clause under

the law, review is warranted.

The arbitrary decision by the Judge to defy the well

established mandates of the Court, as they plainly stood prior

to the Judge’s actions, is in flagrant violation of the Courts

imposed requirements regarding the determining of hostile

work environment and constructive discharge claims. But the

plain language of the federal statute and the Court’s

mandates indicate that the Judge must follow them; it is also

plain that the Judge failed to do so. Given the importance of

the issue, the Court should decide whether or not the Court

meant what it said, when it directed that, “We directed courts

to determine whether an environment is sufficiently hostile

or abusive by ‘looking at all the circumstances,’ ...”

Faragher, supra at 787. If the Court did, then the judgment

below must be reversed. Also because the Judge’s decision

“conflicts with {a] relevant decision{]} of this Court,” review

is warranted. Sup. Ct. R. 10 (c). Likewise, Because the

Judge’s decision fails to comport with his own 4" Circuit

Court holding in Amirmokri and with holding in other

Circuits review is warranted. Sup. Ct. R. 10(b). :

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

Azizollah Abrishamian

9328 Edgewood Court

Gaithersburg, Maryland 20877

(301) 977-2460

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND -

AZIZOLLAH ABRISHAMIAN,

Plaintiff,

v. :

: CIVIL NO.

DONALD I. EVANS, SECRETARY, : L-00-2746

U.S. DEPARTMENT OF COMMERCE, :

Defendant. $

MEMORANDUM

This case involves broad-ranging allegations of

employment discrimination and the violation of related

Federal statutes levied by a Federal employee against the U.

S. Department of Commerce ("Department"). Specifically,

Plaintiff Azizollah Abrishamian’s ("Abrishamian") Second

Amended Complaint alleges (i) that the Department violated

Title VII by discriminating against Abrishamian on the basis

of race, national origin, religion, and by retaliating against

him, (ii) that the Department violated the Age Discrimination

in Employment Act ("ADEA"), (iii) that the Department

violated the Civil Service Reform Act ("CSRA"), 5 U.S.C. §

4302(b)(1) et seq., (iv) that the Department violated the

Privacy Act of 1974 ("Privacy Act"), 5 U.S.C. 552a, and (v)

that the Department violated the Family Medical Leave Act

of 1993 ("FMLA"), 29 U.S.C. § 2601.

Now pending is the Department's Motion for

Summary Judgment. As the Motion has been fully briefed,

the Court will dispense with a hearing. See Local Rule 105.6.

(D. Md. 2001). For the reasons stated below, the Court will,

by separate Order, DENY the Department's motion to

dismiss as to Abrishamian's most recent failure-to-promote

claim, and GRANT the Department's motion as to all

|

remaining counts.

1. BACKGROUND ;

From 1983 until July 2, 1999, Abrishamian worked as

an engineer for the National Institute of Standards and

Technology (“NIST"), a unit of the Department of

Commerce. On September 13, 2000, Abrishamian filed his

initial Complaint in this lawsuit, which encompassed 192

pages and 961 numbered paragraphs, and claimed

empicyment discrimination, retaliation, and unlawful

termination under Title VII, and violations of the Privacy

Act. On August 28, 2001, this Court granted the

Department's Motion to Dismiss for failure to comply with

Federal Rule of Civil Procedure 8. The Court allowed

Abrishamian to re-file, but imposed a 25-page limit on any

further memoranda filed by Abrishamian's Counsel.

Abrishamian filed an Amended Complaint, and on

September 24, 2001, he filed the operative Second Amended

Complaint.

After the close of discovery, the Department filed the

pending Motion for Summary Judgment. Although

Abrishamian's Motion in Opposition meets the page limit

imposed by this Court, it attaches several hundreds of pages

of exhibits, including a 32-page affidavit sworn by

Abrishamian himself. Abrishamian relies almost exclusively

upon his own affidavit in opposing the Department’s Motion.

Abrishamian's prolix complaints are difficult to

analyze. Nevertheless, they may be summarized as follows.

Abrishamian's grievances center upon the actions oftwo of

his supervisors, James Albus ("Albus") and John Evans

("Evans"). Abrishamian alleges that both of his supervisors

discriminated against him over a fifteen-year period through

their offensive comments, rudeness, by giving him

demeaning tasks, and continually denying him training and

promotional opportunities. He alleges that these supervisors

wrongfully evaluated his performance, refused to give him

sufficient guidance, and

2

sought sensitive medical information from him, in part

because of his race, religion, and national origin, and in part

to retaliate against him for complaining to the Equal

Employment Opportunity Commission ("EEOC"). He also

alleges that a number of his peers made fun of his accent,

national origin Iranian), and religion (Jewish), and generally

treated him rudely. The Department denies all of these

factual allegations.

ll. STANDARD VIEW

The Court may grant summary judgment when "the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgrnent as a matter of law.” Fed.

R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986); see also Felty v. Graves-Humphreys Co., 818

F.2d 1126, 1128 (4th Cir. 1987) (recognizing that trial judges

have "an affirmative obligation" to prevent factually

unsupported claims and defenses from proceeding to trial).

Nevertheless, in determining whether there is a genuine issue

of material fact, the Court views the facts, and all reasonable

inferences to be drawn from them, in the light most favorable

to the non-moving party. Pulliam Inv. Co. v. Cameo

Properties, 810 F.2d 1282, 1286 (4th Cir. 1987).

Ill. ANALYSIS

A. Employment Discrimination under

Title V e ADEA

To establish a violation of either Title VII or the

ADEA, Abrishamian must show that he suffered some

adverse employment action. Abrishamian attempts to satisfy

this requirement through

three theories: failure to promote, constructive discharge, and

hostile work environment. |

1. Failure-To-Promote

Abrishamian alleges that the Department failed to

promote him five times between 1988 and 1998. To maintain

an action under Title VII, a Federal employee must contact

an EEOC counselor “within 45 days after date of the matter

alleged to be discriminatory.” Pueschel v. Veneman, 185 F.

Supp. 2d 566, 568 (D. Md. 2002) (quoting 29 C.F.R. §

1614.105(a)(1)). Similarly, under the ADEA, Abrishamian

must file a notice of intent to sue with the EEOC within 180

days after the alleged unlawful practice: 29 U.S.C. § 633a(d).

The first four opportunities arose in the early 1990's or

earlier. Abrishamian did not contact the EEOC, however,

until December 10, 1998. Thus, Abrishamian's first four

failure-to-promote claims are untimely under both Title VII

and the ADEA.

Abrishamian contends that none of his i

failure-to-promote allegations are time-barred because the

Department's actions constituted a continuing violation. The

Court disagrees. Discrete discriminatory acts such as the

failure to promote an employee “are not actionable if time

barred, even when they are related to acts alleged in timely

filed charges.” Nat'l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 113 (2002). Thus, Abrishamian's continuing

violation theory is unavailing. The Court will, therefore,

DISMISS Abrishamian’s first four failure-to-promote claims.

By contrast, the record does not make clear exactly

when the final promotional opportunity arose. The

Department contends broadly that all of Abrishamian's

failure-to-promote claims are time

1 Although Abrishamian complains of other actions, ¢. g., his

office being moved to the basement or his coworker’s rudeness, the

overwhelming majority of these complaints do not constitute an adverse

employment action, unless they rise to the level of constructive discharge

or create a hostile work environment.

4 o

barred. It fails, however, to analyze this final opportunity,

and does not point out the facts necessary to understand the

nature of this promotion, the date on which Abrishamian was

bypassed for this promotion, or the date on which he was

required to contact the EEOC. Although Abrishamian

suggests that this final opportunity arose in late 1997 or

1998, he is also vague concerning the facts supporting this

claim. Accordingly, the Court will provide both sides with

an opportunity to supplement the record and submit further

briefs on this issue.

Abrishamian must also demonstrate that the Department

chose not to promote him for this final opportunity because

of his age, race, national origin, religion, or in retaliation for

contacting the EEOC. Abrishamian puts forth direct

evidence that Albus, his supervisor at the time of the final

promotional opportunity, discriminated against him because

of his age and/or national origin.2 Given this evidence, there

is a genuine issue of material fact as to whether the

Department failed to promote Abrishamian because of his

age or national origin. Accordingly, this Court will DENY

the Department's Motion for Summary Judgment without

prejudice as to the final failure-to-promote claim. If tk

Department believes that this final failure to promote claim

is untimely under either the ADEA or Title VII, it may

renew its Motion.

2. Constructive Discharge

Abrishamian attempts to show an adverse employment

claiming that the Department

2 Abrishamian alleges that in late 1998, Albus told him that he

was over 50 and did not have “zing.” He also claims that Albus told him

that he was not qualified for a leadership position because Iranians were

not leaders but rather followers of Ayatollah. Given this direct evidence

of discrimination, "the McDonne!! Douglas test is inapplicable.” Trans

World Airlines. Inc. v. Thurston, 469 U.S. 111, 121 (1985).

5

constructively discharged him. To prove he was

constructively discharged, Abrishamian must show:

(1) [the Department's] actions of which [he] complains were

deliberately done; and (2) [his] working conditions were

intolerable. Deliberateness exists only if the actions complained of

were intended by the employer as an effort to force the plaintiff to

quit. Whether a plaintiffs working conditions were intolerable is

assessed by the objective standard of whether a reasonable person

in the plaintiffs position would have felt compelled to resign.

Taylor v. Virginia Union Univ., 193 F.3d 219, 237 (4th Cir.

1999) (internal citations omitted).

Abrishamian's allegations do not create a jury issue on

his constructive discharge claim. Many of the incidents

Abrishamian points to happened so far in the past that no

reasonable jury could find that they affected his work

environment as of the time he resigned. For example,

Abrishamian complains that several of his co-workers

rhymed his first name "Azizollah" with "Ayatollah," an

offensive reference to his Iranian roots. He also argues that

some of his peers ridiculed him for observing kosher. These

alleged incident occurred, however, sometime around 1991.

Similarly, Abrishamian claims that he once worked in a

subgroup at the NIST wholly comprised of naturalized

citizens. He presses this as circumstantial evidence of

Albus's bias. The group was formed sometime in 1988, and

its members have long since moved on to other assignments.

3

To sustain a constructive discharge claim, the conditions

of Abrisharnian's workplace, measured at the time he left in

July of 1999, must have been intolerable. Accordingly,

conduct that occurred in the early 1990's says little about his

working environment in 1999. Similarly, Abrishamian's

3 Abrishamian complains of several other incidents that happened

long before he left NIST. For example, he complains that Albus “pocket-vetoed"

his promotion from GS-13 to GS-14, that he was forced to move to a basement

office, to share another office with his former secretary, and, as discussed above,

that he was wrongfully passed over for several promotions. All of these alleged

incidents occurred prior to the mid-1990's.

6

decision to continue working until 1999 means that he

himself did not find his situation intolerable in earlier

periods.

Moreover, Abrishamian's allegations that he was

given low-level work, given unfair performance reviews, and

was not given sufficient guidance do not rise to the level of

constructive discharge. The record establishes that, in late

1998 or early 1999, Abrishamian was assigned six complex

engineering tasks. While Abrishamian may argue that these

projects were beneath his skill level, the record contradicts

any claim that he was doing solely menial work.

Furthermore, a court is in no position to judge the relative

complexity cf high-level engineering tasks.

Abrisharnian also contends that his work consisted of

menial chores unsuitable for a professional engineer. The

record does not support his contention. While Abrisharnian

alleges that, from time to time, he was required to perform

janitorial tasks, the record establishes that Abrishamian was

merely required to keep his laboratory clean and

occasionally to move large laboratory equipment. The record

also establishes that these assignments were not unique to

Abrishamian, but that the Department expected all engineers

to keep their labs clean and well organized.

Abrishamian's claim that he was subject to unfair

performance reviews is similarly unavailing. The receipt of

negative performance evaluations cannot make a workplace

intolerable. Moreover, Abrishamian's subjective view that

his performance warranted a positive evalua*ion is entitled to

no weight. See Hawkins v. PepsiCo. Inc., 203 F.3d 274, 280

(4th Cir. 2000) ("[i}t is the perception of the decision maker

which is relevant, not the self-assessment of the plaintiff.")

(quoting DeJarnette v. Corning. Inc., 133 F.3d 293, 300 (4th

Cir. 1998)).

Finally, the remainder of Abrishamian's complaints do

not establish that he was constructively

7

discharged. Abrishamian alleges that in September of 1998,

Albus told him that he lacked "zing" because he was over 50.

He contends that around the time of the latest promotional

opportunity, Albus told him that Iranians were not leaders

but followers of the Ayatollahs. He also claims that Evans

advised him to retire because he was too old; once on

November 9, 1998, and once on January 5, 1999. Finally, in

May of 1999, Evans requested that Abrishamian provide him

with medical information so that Evans could approve

Abrishamian's sick leave. According to Abrishamian, Evans

stated thai, as an Iranian and a Jew, Abrisharnian knew how

to cajole his doctor into giving Evans the medical

information he sought. 4

Even if these allegations are true, they fail to establish

that a reasonable worker would feel compelled to leave.

First, the alleged statements were spread out over the course

of eight months. Second, Abrishamian admits that there were

several amicable intervals in which he was not subjected to

offensive remarks. Third, there is no evidence that

Abrishamian's supervisors encouraged his coworkers to

isolate him. To the contrary, the record reveals several

pleasant and supportive interactions between Abrishamian

and his peers, including a "get well soon" card signed by

many of Abrishamian's co-workers. Finally, Abrishamian

points to only five offensive comments in the year before he

left NIST. Viewing these allegations as a whole, no

reasonable jury could find that these conditions were so

intolerable that an average person would feel compelled to

quit. The fact that a worker may feel stymied in his

professional advancement does not give him license to

depart claiming constructive discharge.

4 Albus and Evans deny making these remarks.

3. Hostile Work Environment

Abrishamian argues that the conditions in his office

constituted a hostile work environment. The standard for

establishing a hostile work environment claim is less

demanding than a constructive discharge claim. Landgraf v.

USI Film Prods., 968 F.2d 427, 430 (Sth Cir. 1992). Thus,

this Abrishamian's failure to establish a constructive

discharge is not dispositive of his hostile work environment

claim. To state a hostile work environment claim, :

Abrishamianh must show (i) that he experienced unwelcome

harassment, (ii) that the harassment was based on his race,

religion, national origin, or age, (iii) that the harassment was

sufficiently severe or pervasive to alter the conditions of

employment and create an abusive environment, and (iv) that

there is some basis for imputing liability to the Department.

Bass v. E. |. DuPont de Nemours & Co., 324 F.3d 761, 765

(4th Cir. 2003). This only occurs "[wJhen the workplace is

permeated with discriminatory . . . intimidation, ridicule, and

insult that is sufficiently severe or pervasive to alter the

conditions of the victim's employment and create an abusive

working environment.” Ocheltree v. Scollon Prods.. Inc., 335

F.3d 325, 331 (4th Cir. 2003) (quoting Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21 (1993)). Moreover, "the sporadic

use of abusive language” is not sufficient to create a hostile

work environment. Faragher v. Citv of Boca Rator~ 524 U.S.

775, 788 (1998).

Judged by these standards, Abrishamian's allegations

of offensive conduct do not establish a hostile work

environment. Abrishamian admits that there were long

periods when he was not subject to offensive remarks.

Abrishamian argues, nevertheless, that co-workers

"continuously" made fun of his name, nationality, accent,

and observance of kosher. When questioned on deposition,

however, the only offensive comments he could point to

during the last two years of his tenure were the five remarks

9

allegedly made by Albus and Evans, as outlined in Section

III.A.2, supra. Even if these five remarks were made, they

clearly would not have rendered his work environment

hostile. Accordingly, this Court rejects Abrishamian's hostile

work environment claim.

B. CSRA Claim

Abrishamian argues that the Department violated his

rights under the CSRA because (i) his reviewing official did

not approve the changes to his fiscal year 1998 ("F Y-98")

performance review, (ii) his reviewing official did not sign

his FY-98 performance review on time, (iii) his supervisor

_ did not give him his FY-99 performance plan on time, (iv)

that the wrong person signed his F Y-99 performance plan,

and (v) that the FY-99 performance pian he finally received

did not give him sufficient guidance. The relevant statutory

text provides:

Under regulations which the Office of Personne! Managemen shall

prescribe, each performance appraisal system shall provide for-

(1) establishing performance standards which will,

to the maximum extent feasible, permit the accurate evaluation

of job performance on the basis of objective criteria (which may

include the extent of courtesy demonstrated to the public)

related to the job in question for each employee or pcsition

under the system.

5 U.S.C. § 4302(b)(1).

Abrishamian's CSRA claims fail as a matter of law.

Initially, Abrishamian's - st and second grievances

contradict each other. Abrishamian admits that Richard

Jackson, his reviewing official, eventually signed--and

therefore approved--his F Y-98 performance review. Second,

Abrishamian's complaints about the timeliness of his F Y-98

performance review and F Y-99 performance plan fail to state

a cause of action under the CSRA. Assuming that agencies

require performance reviews and plans to be delivered by

October 30, 1998, Abrishamian has not established a

violation of the CSRA.

10

While the complete failure to give an employee any

performance review or plan may constitute a violation of the

CSRA, mere delay does not. See Weirauch v. Dep’t of

Army, 782 F.2d 1560, 1563 (Fed. Cir. 1986).

Finally, even if Abrisharnian's FY-99 performance

plan was vague, he has failed to establish a violation of the

CSRA as a matter of law. The Department need not give

Abrishamian guidance solely through a formal performance

plan. To the contrary, the Department may communicate its

expectations "in any manner calculated to apprise

{Abrishamian] of the requirements against which [he] is to

be measured.” Melnick v, Dep't of Hous. & Urbun Dev., 42

M.S.P.R. 93, 99 (1989). Even if Abrishamian's FY-99

performance plan was somewhat vague, he received

additional guidance in a March 10, 1999 memorandum from

Evans, his supervisor. 5 This memorandum describes, over

the course of eight single-spaced pages and in exhaustive

detail, Evans's evaluation of five recent tasks completed by

Abrishamian, a numerical assessment of Abrishamian's work

as a whole, Evans's expectations of engineers at

Abrishamian's level, the principal objectives and knowledge

base required for Abrishamian's position, and Evans's

expectations of Abrishamian over the next 60 days. No

reasonable jury could find that Abrishamian lacked

guidance. Accordingly, this Court will GRANT the

Department's motion for summary judgment as to

Abrishamian's CSRA claim.

C. Privacy Act Claim

Abrishamian further argues that the Department

violated his rights under the Privacy Act when it requested

medical information from him. In general, the Privacy Act

prohibits Federal agencies from

5 Abrishamian admits receiving this memorandum.

i.

a

disclosing information such as medical history that it coilects

from individuals. See 5 U.S.C. §§ 552a(a), (b). In late April

and early May of 1999, Abrishamian had been absent from

work on sick leave for nearly five weeks. Abrishamian failed

to notify his supervisors directly as to why he had been

absent. Instead, Abrishamian faxed a cursory note from his

doctor to a secretary in the NIST, stating baldly that "(t)his

leave is medically necessary, because of a severe medical

disorder." On May 20, 1999, Evans sent Abrishamian a letter

requesting more information about his medical problems.

Abrishamian eventually sent his reply directly to a doctor

within NIST, and Evans never saw any sensitive medical

information regarding Abrishamian.6 Evans's request for

information forms the basis for Abrishamian's Privacy Act

claim.

Unlike a typical Privacy Act claim, Abrishamian does

not allege that the Department wrongfully disclosed his

information to a third party.7 Rather, Abrishamian argues

that the Department violated his rights under the Privacy Act

by failing to properly inform him of (i) the Department's

authority for collecting the information, (ii) the principal

purpose for which the information was sought, (iii) the

routine uses made of the information, and (iv) the effects on

him of not providing the information.

In addition to proscribing the wrongful disclosure of

information, the Privacy Act requires that agencies seeking

information covered by the Act make a series of disclosures

explaining the authority for collecting, principal purpose,

routine uses, and effects of not providing the requested

information. 5

6 Evans subsequently approved additional leave

7 Abrishamian admitted in his deposition that he had no

information that would lead him to believe that the Department disclosed

his information to anyone.

12

[S5]U.S.C. § 552a(e).8 The Privacy Act also creates a private

cause of action whenever an agency fails to make the

required disclosures "in such a way as to have an adverse

effect on an individual." 5 U.S.C. § 552a(g)(1)(D).

Abrishamian's claims under the Privacy Act fail as a

matter of law. First, Abrishamian does not present any

evidence suggesting that the Department's failure to explain

its authority or purpose for requesting the required

information adversely affected him.9 Second, putting aside

whether Abrishamian can show that he was adversely

affected, he cites no authority for the proposition that the

Privacy Act meant to constrain employers from requesting

that their employees to explain a protracted absence.

Accordingly, this Court will GRANT the Department's

motion for summary judgment as to Abrishamian's CSRA

claim.

D. FMLA claim

8 Title 5 U.S.C. § 552a(e) provides:

Each agency that maintains a system of records shall . . .

(3) inform each individual whom it asks to supply information, on the

form which it uses to collect the information or on a separate form that

can be retained by the individual-

(A) the authority (whether granted by statute, or by executive order of

the President) which authorizes the solicitation of the

information and whether disclosure of such information is mandatory

or voluntary;

(B) the principal purpose or purposes for which the information is

intended to be used;

(C) the routine uses which may be made of the information, as

published pursuant to paragraph (4)(D) of this subsection; and

(D) the effects on him, if any, of not providing all or any part of the

requested information.

9 The only evidence Abrishamian presents on this point is his own

circular statement that he was harmed by the Department's failure to

properly inform him.

13

Finally, Abrishamian claims that the Department

violated his rights under the FMLA by invoking his FMLA

entitlements without his knowledge or permission. 10 The

Department argues that Abrishamian's FM'.A claim is barred

by sovereign immunity. This Court Agrees.

Title Il of the FMLA covers federal employees.

Unlike Title I, which covers private employees, Titlc II does

not contain an unequivocal waiver of sovereign immunity.

Mann v. D. N. Haigh, 120 F.3d 34, 37 (4th Cir. 1997). Thus,

Federal employees may not sue the government for

violations of the FMLA. Id. Abrishamian does not dispute

that he is an “employee” as defined in Title Il. See 5 U.S.C.

§§ 6381(1), 6301(2), 2105(a). Accordingly, this Court holds

that Abrishamian's FMLA claim is barred by sovereign

immunity, and will GRANT the Department's motion for

summary judgment as to this claim.

IV. CONCLUSION

For the reasons stated herein, this C.urt will, by

separate Order, DENY the Department's Motion for

Summary Judgment as to Abrishamian's final

failure-to-promote claim without prejudice, and will GRANT

the Department's Motion as to all remaining claims. The

Department may re-file its Motion for Summary Judgment

on the issue of whether Abrishamian's final

failure-to-promote claim is timely.

Dated this 30th day of September, 2003.

10 Abrishamian argues that Evans did this when, in response to

Abrishamian's request for sick leave, CRS REG, “TegpIENe you NES

under FMLA.”

14

/s/

Benson Everett Legg

Chief Judge

15

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

AZIZOLLAH ABRISHAMIAN,

Plaintiff,

v. : CIVIL NO.

DONALD L. EVANS, SECRETARY, : L-00-2746

U.S. DEPARTMENT OF COMMERCE, :

Defendant. :

ORDER

Currently pending is the U.S. Department of

Commerce's ("Department") Motion for Summary Judgment.

For the reasons stated in the Memorandum filed this date, the

Court hereby:

(i) DENIES without prejudice to re-filing the

Department's Motion for Summary Judgment (Docket

No. 47) as to Azizollah Abrishamian's ("Abrishamian")

final failure to-promote claim;

(ii) GRANTS the Department's Motion for Summary

Judgment (Docket No. 47) as to all remaining claims.

The Court will ailow the Department to re-file its Motion

for Summary Judgment as to whether Abrishamian’s final

failure-to-promote claim is timely. Accordingly, on or before

October 14, 2003, the parties shall submit a joint status

report addressing the following:

(i) Whether the Department intends to re-file its motion;

(ii) If so, whether additional discovery is necessary,

(iii) A proposed discovery and briefing schedule.

It is so ORDERED this 30th day of September, 2003.

Benson Everett Legg

Chief Judge

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

AZIZOLLAH ABRISHASIIAN :

Plaintiff, $

v. : CIVIL NO. L-00-2746

WILLIAM M. DALEY, et al.,

Defendants.

we MEMORANDUM

This case centers upon allegations of employment

discrimination. Now pending before the Court are (i)

Plaintiff Azizollah Abrishamian's motion to vacate the

judgment [Docket No. 71], (ii) the Defendant U.S.

Department of Commerce's renewed motion for summary

judgment [Docket No. 73], and (iii) Abrishamian's motion

for leave to file a sur-reply [Docket No. 81]. In light of the

parties’ most recent briefs, the Court finds that Abrishamian

failed to exhaust his administrative remedies as a matter of

law. Accordingly, the Court wil!, by separate Order filed this

date, DENY Abrishamian's motion to vacate, DEN Y

Abrishamian's motion for leave to file a sur-reply, and

GRANT the Department's renewed motion for summary

judgment.

1. BACKGROUND

From 1983 until July 2, 1999, Abrishamian worked as

an engineer for the National Institute of Standards and

Technology ("NIST"), a unit of the Department of

Commerce. On September 13, 2000, Abrishamian filed his

initial Complaint in this lawsuit, which encompassed 192

pages and 961 numbered paragraphs, and claimed

employment discrimination, retaliation, and unlawful

termination

under Title VII, and violations of the Privacy Act. On

August 28, 2001, this Court dismissed the Complaint for

failure to comply with Federal Rule of Civil Procedure 8.

The Court allowed Abrishamian to re-file, but imposed a

25-page limit on any further memoranda filed by his

Counsel. Abrishamian filed an Amended Complaint, and on

September 24, 2001, he filed the operative Second Amended

Complaint.

After the close of discovery, the Department moved

for summary judgment. Abrishamian's motion in opposition

attached several hundreds of pages of exhibits, including a

thirty-two page affidavit sworn by Abrishamian himself.

Abrishamian relied almost exclusively upon that affidavit in

opposing the Department's first motion for summary

judgment. !

Jn summary, Abrishamian alleged that two of his

supervisors (James Albus and John Evans) discriminated

against him over a fifteen-year period through their offensive

comments, rudeness, by giving him demeaning tasks, and

continually denying him training and promotional

opportunities in violation of Title VII and the Age

Discrimination in Employment Act ("ADEA").' The Court

granted summary judgment in favor of the Department on

Abrishamian's constructive discharge and hostile work

environment theories.

Abrishamian also alleged that the Department failed to

promote him five times between 1988 and 1998. Four of

these promotional opportunities arose prior to the

mid- 1990's. Abrishamian first contacted the EEOC,

however, on December 10, 1998. The Court granted

summary judgment on

1 Abrishamian also alleged violations of the Civil Service

Reform Act, Privacy Act of 1974, and the Family Medical Leave Act of

1993. The Court granted summary judgment in favor of the Department

on all of these claims.

2

these claims, finding them time-barred.

The record was unclear as to the timing of the final

promotional opportunity, however. The Court, therefore,

denied summary judgment, and allowed the parties to

re-brief the timeliness of this last claim.

On October 15, 2003, Abrishamian moved under Rule

59(e) to vacate this Court's partial grant of summary

judgment. On October 30, 2003, the Department renewed its

motion for summary judgment as to the final failure to

promote. Abrishamian seeks to file a sur-reply to the

Department's reply in support of its renewed motion for

summary judgment.

Il. ANALYSIS

A. Abrishamian's Motion to Vacate

Abrisharnian challenges this Court's partial grant of

summary judgment in favor of the Department. The motion

to vacate totals ten pages, and attached a thirty-four page

affidavit signed by Abrishamian. After the Department

opposed the motion, Abrishamian's Counsel filed a

forty-four page reply brief, accompanied by yet another

affidavit from the Plaintiff spanning twelve pages. Both

affidavits were filed months after the close of discovery.

The sum total of these briefs and affidavits merely

seek to re-argue questions decided by this Court in its

September 30, 2003 Memorandum. It is well settled that a

Rule 59(e) motion "may not be used to relitigate old

matters.” Pacific Ins. Co. v. American Nat. Fire Ins. Co., 148

F.3d 396, 403 (4th Cir. 1998) (quoting Wright et al., Federal

Practice and Procedure Civil 2d. § 2810.1). Because

Abrishamian presents no compelling reason to revisit these

issues, the Court will DENY his motion to vacate.

3

B. Abrishamian's Motion for Leave to File Sur-Reply

Abrishamian seeks to file a sur-reply to the

Department's reply brief,in support of its renewed motion for

summary judgment. Sur-replies are aiiowed only with leave

of Court, Local Rule 105.2.a (D. Md. 2001), and "may be

permitted when the moving party would be unable to contest

matters presented to the court for the first time in the

opposing party's reply." Khoury v. Meserve, 268 F. Supp. 2d

600, 605 (D. Md. 2003).

Abrishamian contends that the Department's reply

brief raises two new issues: (i) the timing of the final failure

to promote, and (ii) whether Abrishamian exhausted his

administrative remedies. Neither issue is new. After

hundreds of pages of briefs and exhibits, the Court need not

consider further filings, and will DENY Abrishamian’s

motion for leave to file a sur-reply.

C. The Department's Renewed Motion for Summary

Judgment

The Court may grant summary judgment when "the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986). In determining whether there is a genuine

issue of material fact, the Court views the facts, and all

reasonable inferences to be drawn from them, in the light

most favorable to the non-moving party. Pulliam Inv. Co. v.

Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987).

Abrishamian’s final failure to promote claim

challenges the Department's refusal to promote him to leader

of the Perception Systems Group. On November 23, 1997,

the previous group leader, Martin Herman, left this post for a

new position within the NIST. (Def.'s Mem. in Supp. of

Renewed

4

Mot. Summ. J. Ex. |.) Abrishamian alleges that, sometime

thereafter, he applied for the group leader position but was

angrily rebuffed by Albus. 2 (Abrishamian Dep. 75.) The

Department contends that the undisputed material facts show

that Abrishamian failed to exhaust his administrative

remedies regarding this claim.

A federal employee seeking relief under the ADEA

must either (i) “bring a claim directly to federal court so long

as, within 180 days of the allegedly discriminatory act, he

provides the EEOC with notice of his intent to sue at least 30

days before commencing suit,” or (ii) "invoke the EEOC's

administrative process, and then sue if dissatisfied with the

results." Rann vy. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003);

29 U.S.C. 633a(d).

Abrishamian does not allege that he notified the

EEOC thirty days before commencing suit. Accordingly, he

must show that he properly invoked the EEOC's

administrative process, including the requirement that he

contacted an EEOC counselor “within 45 days of the date of

the matter alleged to be discriminatory." 29 C.F.R. §

1614.105(a)(1).

Federal employees suing under Title VII have no

option to bring a claim directly to federal court, and therefore

must contact an EEOC counselor within the same 45 day

window. See Pueschel v. Veneman. 185 F. Supp. 2d 566,

568 (D. Md. 2002) (citing 29 C.F.R. § 1614.105(a)(1)).

Abrishamian fails as a matter of law to show that he

properly invoked the EEOC's

2 Abrishamian's failure to promote cause of action accrued as

of the date of this alleged discussion. See Martin v. Southwestern Va.

Gas Co., 135 F.3d 307, 316 (4th Cir. 1998) (holding that an unlawful

employment practice occurs on the date that the employee is given

definitive notice of the employment decision). Despite additional

briefing, the exact timing of this alleged exchange remains unclear.

Because the Court finds that Abrishamian never exhausted his

administrative remedies, the date of this conversation is irrelevant.

5

administrative process. The only evidence that Abrishamian

exhausted his administrative remedies is his own affidavit,

filed months after the close of discovery, alleging that he

discussed the Perception Systems Group position with EEOC

Counselor George Klouda during their interviews in

December of 1998. The record conclusively refutes this

allegation.

First, Abrishamian admitted at deposition that he did

not file an EEO complaint regarding the Department's failure

to promote him to leader of the Perception Systems Group.

(Abrishamian Dep. 78.)

Second, Abrishamian's administrative complaint

arising Out of the December 1998 meetings with Klouda does

not allege that he was wrongfully denied this position.

Although the administrative complaint (spanning fourteen

single-spaced pages) charges that Abrishamian was

wrongfully denied three group leader positions in early 1995,

the Perception Systems Group is mentioned only in an

unrelated context. (Def.'s Mot. for Summ. J. Ex. 2.)

Third, the Department's Office of Civil Rights wrote

a confirmatory letter to Abrishamian identifying the issues

raised by the administrative complaint. (Id, Ex. 3.) The letter

does not mention the Perception Systems Group. Moreover,

the letter requests that Abrishamian notify the Department if

it did not correctly identify the issues raised by the

administrative complaint. (Id.) Abrishamian did not respond.

Finally, an exhaustive, eleven page, single-spaced

memorandum from Mr. Klouda docurnenting his meetings

with Abrishamian makes no-mention of the Perception

System Group. (PI.'s Mem. in Opp. to Summ. J. Ex. 7a.) The

Court finds, therefore, that Abrishamian failed to exhaust his

administrative remedies as a matter of law and will GRANT

the Department's renewed motion for

summary judgment.

lll. CONCLUSION

For the reasons stated herein, the Court will, by

separate Order filed this date, DENY Abrishamian's motion

to vacate the judgment [Docket No. 71], GRANT the

Department's renewed motion for summary judgment

[Docket No. 73], DENY Abrishamian's motion for leave to

file a sur-reply [Docket No. 81], and DIRECT the Clerk of

the Court to CLOSE this case.

Dated this 26th day of March, 2004.

/s/

Benson Everett Legg

Chief Judge

APPENDIX C

lc

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1683

AZIZOLLAH ABRISHAMIAN,

Plaintiff - Appellant,

versus

WILLIAM M. DALEY, Secretary, U.S. Department of

Commerce;

UNITED STATES DEPARTMENT OF COMMERCE,

Defendants - Appellees.

Appeal from the United States District Court for the District _

of Maryland, at Baltimore. Benson Everett Legg, Chief

District Judge. (CA-00-2746-L)

Submitted: November 4, 2004 Decided: November 15, 2004

Before WILKINSON, MOTZ, and DUNCAN, Circuit

Judges.

Affirmed by unpublished per curiam opinion.

Azizollah Abr‘shamian, Appellant Pro Se. Larry David

Adams, Assistant United States Attorney, Baltimore,

Maryland, for Appellees.

Unpublished opinions are not binding precedent in this

circuit. See Local Rule 36(c).

PER CURIAM:

Azizollah Abrishamian appeals from the

district court's final order dismissing his civil action alleging

employment discrimination. The order also denied

Abrishamian's motion to reconsider an earlier order denying

all but one of his claims.

We have reviewed the record and find no

reversible error. Accordingly, we affirm for the reasons

stated by the district court. See Abrishamian v. Daley, No.

CA-00-2746-L (D. Md. Mar. 26, 2004). We dispense with

oral argument because the facts and legal contentions are

adequately presented in the materials before the court and

AFFIRMED

APPENDIX D

[ FILE COPY ]

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

April 14, 2005

No. 04-1683

CA-00-2746-L

AZIZOLLAH ABRISHAMIAN

Plaintiff - Appellant

Vv.

WILLIAM M. DALEY, Secretary, U.S. Department of

Commerce,

UNITED STATES DEPARTMENT OF COMMERCE

Defendants - Appellees

The appellant's petition for rehearing and rehearing en

banc was submitted to this Court. As no member of this

Court or the panel requested a poll on the petition for

rehearing en banc, and

As the panel considered the petition for rehearing and

is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

rehearing en banc is denied.

Entered for a panel composed of Judge Wilkinson,

Judge Motz, and Judge Duncan.

For the Court,

/s/ Patricia S. Connor

CLERK

NOTICE OF ISSUANCE OF MANDATE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

April 22, 2005

MANDATE

TO: Clerk, District Court

FROM: Lisa D. Nesbitt

Deputy Clerk

RE: 04-1683 Abrishamian v. Daley

CA-00-2746-L

HEREWITH IS THE MANDATE OF THIS COURT,

ISSUED THIS DATE, ON THE JUDGMENT CENTERED

BY THE COURT ON 11/15/04.

[ ] Order and Certified Copy of Judgment

[x] Opinion and Cer-tified Copy of Judgment

[ } Order on Costs

[ ] Order dismissing appeal R42(b) or Local Rule 45

[ ] Other:

{ ] The record has been retained for use in case number

ce: Azizollah Abrishamian

Larry David Adams

APPENDIX E

FINAL DECISION

BY THE

U.S. DEPARTMENT OF COMMERCE

IN THE DISCRIMINATION COMPLAINT OF

Azizollah Abrishamian

COMPLAINT NUMBERS

99-57-00247 & 99-57-00626

12

99-57-00247

99-57-00626

REMARK:

Page 12 of the Final Decision by the U.S. Department of

Commerce has the above page and complaint numbers and in

part documents the following:

Retaliati

In order to establish a prima facie case of retaliation,

Complaimant must prove three elements:

l. protected participation or opposition under federal

civil rights laws;

2. an employment action or actions disadvantaging him;

and

3. the disadvantaging action followed the protected

activity within such a period of time that a retaliatory

motivation may be inferred.

Hochstadt, supra

Complainant filed his first EEO complaint on February 24,

1999. On March 10, 1999, Evans, who was interviewed by

the EEO Counselor for the first complaint, issued a

memorandum critical of Complainant’s performance. On

May 20, 1999, he issued a letter concerning Complainant’s

continued use of leave. These actions followed

Complainant’s first complaint within such a short time that

we find a prima facie case of reprisal.

‘te

FILED

No. 05-447 DEC - 9 2005

OFFICE OF THE CLERK

a = UP REM COURT, US

IN THE

Supreme Court of the United States

AZIZOLLAH ABRISHAMIAN

Petitioner

Vv.

CARLOS M. GUTIERREZ,

SECRETARY OF COMMERCE, ET AL.

Respondent

ON PETITION FOR A Writ OF CERTIORARI

TO THE UNitTeD STATES COURT OF APPEALS

FOR THE FourTH Circuit

PETITION FOR REHEARING

aieemenie

Azizollah Abrishamian

9328 Edgewood court

Gaithersburg. MD 20877

(301) 977-2460

TABLE OF CONTENTS

TABLE OF CONTENTS-- ---1

TABLE OF AUTHORITIES . ---iti

PETITION FOR REHEARING I

REASONS FOR GRANTING THE PETITION FOR

REHEARING

If.

The Court should consider and grant this

Petition for Rehearing because this petition puts

forth a “Substantial ground not previously

presented” in the Petition for Certiorari — the

record discloses that the conduct of the District

Court Judge was egregious and that this fact should

be properly considered in this Court’s determination

of whether the Judge’s conduct was “conscience-

shocking” in the constitutional sense and therefore a

violation of substantive due process.

The Court should consider and grant this

Petition for Rehearing because of the Court's

n

recent grant for certiorari to review the 9" Circuit

“retaliation” decision in Ceballos v. Garcetti (9"

Cir 03/22/2004) — this grant by the Court

constitutes an “intervening circumstance[{] of ...

substantial effect,” in that a charge of “retaliation”

presents the critical importance and expectation

that it must be addressed rather than ignored by the

Judge showing his (her) partiality as to the matters

within his (her) jurisdiction.

CONCLUSION

TABLE OF AUTHORITIES

page

Ceballos v. Garcetti (9 Cir 03/22/2004)- 7

County of Sacramento v. Lewis,

523 U.S. 833 (1998) 1,3

Daniels v. Williams,

474 US., at 331 1

Davidson v. Cannon,

474 US., at 348 -|

DeFunis v. Odegaard (1974)--- -- 8

Faragher v. Boca Raton,

524 U.S. 775 (1998)- 3

Garcetti v. Ceballos 7

Harris v. Forklifi Systems, Inc.,

126 LED 2™, 295, 510 U.S. 17 (1993)--------------- 3,4

National Passenger Corp. v. Morgan,

536 U.S. 101 (2001)- - . 4

Onacle v. Sundowner Offshore Services, Inc.,

118 S. Ct. 998 (1998)- -4

MISCELLANEOUS

Remarks by Sandra Day O’cconor before the Arab Judicial

Forum, Manama, Bahrain, September | 5, 2003)------------6-7

TITION

Pursuant to Supreme Court Rule 44.1, I respectfully

petition the Court for rehearing of its denial of my Petition

for writ of Certiorari issued on November 14, 2005.

FOR GRANTIN P N FOR

REHEARING

l. The Court should c..nsider and grant this

Petition for Rehearing because this petition puts

forth a “substantial ground not previously

presented” in the Petition for Certiorari — the

record discloses that the conduct of the District

Court Judge was consciously egregious and that

this fact should be properly considered in this

Court’s determination of whether the Judge’s

conduct was “conscience shocking” in the

constitutional sense and therefore a violation of

substantive due process.

The degree of fault that supports a finding that

Government conduct is “conscience-shocking in the

constitutional sense,” giving rise to a violation of substantive

due process is explained by this Court in County of

Sacramento v. Lewis, 523 U.S. 833, 845-850 (1998)

(footnotes omitted).

It should not be surprising that the constitutional

concept of conscience shocking duplicates no

traditional category of common law fault, but rather

points clearly away from liability, or clearly towards

it, ...; liability for negligently inflicted harm is

categorically beneath the threshold of constitutional

due process. See ... 106 S. Ct., at 663; see also

Davidson v. Cannon, 474 U.S., at 348, 106 S. Ct., at

670-671 (clarifying that Daniels applies to

subsiantive, as well as procedural, due process). It is,

on the contrary, behavior at the other end of the

culpabilit; spectrum that would most probably

support a substantive due process claim; conduct

intended to injure in some way unjustifiable by any

government interest is the sort of official action most

likely to rise to the conscience-shocking level. See

Daniels v. Williams, 474 U.S., at 331, 106 S. Ct., at

665 (“Historically, this guarantee of due process has

been applied to deliberate decisions of government

officials to deprive a person of life, liberty, or

property” (emphasis in original)).

Whether the point of the conscience shocking is

reached when injuries are produced with culpability

falling within the middle range, following from

something more than negligence but “less than

intentional conduct, such as reckless or ‘gross

negligence,’” id., at 334, n.3, 106 S. Ct., at 666, n.3,

is a matter for closer calls. To be sure, we have

expressly recognized the possibility that some official

acts in this range may be actionable under the

Fourteenth Amendment, ibid, and our cases have

compelled recognition that such conduct is egregious

enough to state a substantive due process claim in at

least one instance.

Therefore, the Court in Lewis established that:

l.

“{L]iability for negligently inflicted harm is

categorically beneath the threshold of constitutional due

process.” /d. at 849,

2.

But, “conduct on the other end of the culpability

spectrum ... would most probably support a substantive due

process claim.” /d.,

3.

“[W]hether the point of conscience shocking is

reached when injuries are produced with culpability falling

than negligence but less than intentional conduct, such as

recklessness or ‘gross negligence,’ is a matter for closer

calls.” Id.

In my case, a cursory review of the record discloses

that, in extinguishing my claim, not only was the act of the

District Court Judge (Henceforth the Judge) intentional but

that it was also egregious enough to support the conclusion

that my case implicates the required high level of culpability

that this Court demands as a condition to a finding that the

Judge’s conduct is “conscience-shocking in the

constitutional sense.” County of Sacramento v. Lewis, 523

U.S. 833, 847 (1998).

Records in my case reveal that my Federal Complaint

encompassed three major areas: |) Hostile work

environment; 2) Retaliation; and 3) Constructive discharge.

To determine whether a work environment is

“hostile.” in Harris v. Forklift Systems, Inc., 126 LED 2™,

295, 510 U.S. 17 (1993) this Court has set the following

litmus-test:

“But we can say that whether an environment is

“hostile” or “abusive” can be determined only by

looking at all circumstances. These may include the

frequency of the discriminatory cor.duct; 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.” (/d. at 302; bolding added).

In Faragher v. Boca Raton, 524 U.S. 775 (1998) this

Court went on to admonish lower courts for failure to heed

this Court's already established standard for determination of

hostile work environment expressed in Harris:

“We directed courts to determine whether an

environment is sufficiently hostile or abusive by

‘looking at all 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.” /d. at 787 (bolding added); See also

Onacle v. Sundowner Offshore Services, Inc. 118 S.

Ct. 998 (1998); National Passenger Corp. v. Morgan,

536 U.S. 101 (2001).

Yet when it came to determining my claim of “hostile

and abusive” work environment, in the guise of analyzing

my constructive discharge claim, the Judge flushed away

most if not all of the components of my hostile environment

claim and extinguished it by his arbitrary and capricious

application of a test only applicable to the determination of

constructive discharge claims and not for that of hostile work

environment claims (see how the Judge destroyed all but a

few of the elements of my hostile claim on pages 5-10 of Pet.

App. A) and in doing so he transgressed by violating the

long-standing litmus-test for hostile environment set by this

Court in Harris and directed in Onacle, the test which have

been uniformly adhered to by other Courts including his own

District and Circuit Courts.

This Judge’s act to destroy the components of my

hostile claim was no‘ accidental and did not occur out of

negligence. Rather, because the Judge was already fully

cognizant of the Harris’ edict and precept (see Pet. App A, at

9) his action was intentional and egregious and he did it to

purposely inflict injury upon me. Furthermore, this

intentional destructive act by the Judge is an act of spoliation

of my hostile work environment evidence which, according

to 18 U.S.C. Section 2071, may be criminal when performed

by a federal employee such as the Judge. This conduct by the

Judge alone should support the conclusion that the Judge’s

conduct was “conscience-shocking in the constitutional

sense.”

Furthermore, in his two memorendums (see Pet. App.

A, at 2 and App. B at 1-2) the Judge repeatedly complained

that my September 13, 2000 Complaint in this lawsuit

encompassed 192 pages and 96] numbered paragraphs; as a

result he granted the Defendant's Motion to Dismiss on

August 28, 2001. Moreover, that despite this infraction, he

encouraged me to re-file provided my Counsel followed

certain page limitation restriction. The Judge did not impose

any other page limitations including for any sworn

affidavit(s) prepared by me. This resulted in his satisfactory

acceptance of my September 24, 2001 Second Amended

Complaint which became operative. This seemingly fair

action by the Judge was persuasive. It led me into believing

that the Judge was going to be impartial and unbiased and

that he would follow the rule of the law in his dealing with

my case. Therefore, I diligently pursued my case and

invested substantial time and capital to properly prepare it.

This included the taking of some 14 depositions and a

multitude of affidavits during the discovery. However, when

it came to considering the facts, the Judge again first

complained — this time not because my Counsel had violated

any page limitation the Judge had previously irnposed but

rather because attached to my Motion in Opposition attached

_ were “several hundreds of pages of exhibits” and “a 32-page

sworn affidavit by” myself (see Pet. App. A, at 2) and then

he egregiously acted and destroyed my case as explained

above. This combination of facts regarding the action of the

Judge is nothing short of Judicial “bate and switch.” By his

initial persuasion the Judge had induced and “bated” me into

believing that he was going to fairly and constructively deal

with my case by following the rule of law if only my

Counsel wouid follow the Judge's imposed page restriction,

which my counsel did. The Judge “switched” to, however,

intentionally and egregiously destroying my case as

explained above. This combination of conduct by the Judge

is nothing short of “conscience shocking.” Any person,

however ignorant of the law, by just committing a “bate and

switch” tactic would pay dearly in terms of legal actions -

both criminal and civil. How should the conduct of the Judge

who is fully cognizant of the law but intentionally engages in

The Judge’s conduct was not justifiable by any

government interest. Rather, it was harmful because it was

intended to injure contrary to any government interest. In the

words of Justice Sandra Day O’Connor:

The very first canon of the Code of Conduct for

federal judges admonishes judges to ‘uphold the

integrity and independence of the judiciary.’ As the

Code of Conduct explains, ‘[a}n independent and

honorable judiciary is indispensable to justice in our

society.’ In addition to placing tangible restrictions

on judge’s conduct, such as prohibiting judges from

deciding a case in which he or she has a personal

interest, the Code of Conduct recognizes the

importance of perceptions of the judiciary. A

perception of corruption, bias, or other unethical

traits can be almost as harmful to society's

confidence in its legal system and its respect for the

rule of law as the reality of those traits. Judges must

not only avoid impropriety, but also the appearance

of impropriety, if public confidence in the judiciary is

to be maintained. Thus, the Code of Conduct for

from conduct that would create a perception that the

judge's ability to carry out his or her judicial

responsibilities with integrity, impartiality, and

competence is imparted. By insisting that judges

establish, maintain and enforce the highest standards

of conduct, judicial codes of ethics are designed to

ensure and that every case receives a fair

hearing. ( by Sandra Day O’cconor

before the Arab Judicial Forum, Manama, Bahrain,

September 15, 2003).

When viewed in this light, the issue presented here

provides this Court an important opportunity to make clear

that the Judge violated my substantive right to due process

by his “conscience-shocking” conduct. As was noted in my

Petition for Certiorari, the substantive due process question:

presented here is framed by the particularly egregious set of

undisputed facts posed by this record. The Judge’s conduct

described above should not go unrecognized by this Court,

even if the courts below overlooked the constitutional

significance of these undisputed facts. The Judge’s conduct

presents a sufficient ground for this Court to grant writ-of

Certiorari in my case.

Il. |The Court should consider and grant this Petition

for Rehearing because of the Court’s recent grant

for certiorari to review the 9" Circuit

“retaliation” decision in Ceballos v. Garcetti (9"

Cir 03/22/2004) — this grant by the Court

constitutes an “interven.ng circumstance|| of ...

substantial effect,” in that a charge of

“retaliation” presents the critical importance and

expectation that it must be eddressed rather than

ignored by the Judge showing bis (her) partiality

as to the matters within his (her) jurisdiction.

Another ground for a petition for rehearing is an

“intervening circumstance[] of substantial effect. In Garcetti

v. Ceballos, Ceballos was an assistant district attorney who

sued his employer and his supervisors claiming that they

“retaliated” against him in violation of his 1" Amendment

right. Ceballos wrote a memorandum to his supervisor in

which he claimed that a deputy sheriff had lied in an

application for a search warrant. Ceballos claimed that he

was demoted in retaliation for this. The trial court granted

summary judgment for the defendants on the ground of

qualified immunity. The 9” Circuit reversed. This Court

granted certiorari to review the 9" Circuit decision. This

Court's grant of certiorari constitutes an “intervening

circumstance[] of substantial effect” in my case because not

only the fair adjudication of “retaliation” claims can not be

ignored but rather such adjudication is so important that it

warrants this Court’s grant of certiorari; otherwise, this Court

would not have made such grant in Ceballos. In my case,

although the Judge acknowledged my complaint for

retaliation, he ignored it completely and discarded it without

any further due (see Petition at 7-13). The Judge’s actions

present an actual and substantial threat to my constitutional

rights because his actions unjustly cause my retaliation claim

to remain as yet unresolved, the outcome of which J have

strong vested interest. See DeFunis v. Odegaard (1974). The

issue is not one that could be avoided as unnecessary to the

resolution of my case. Moreover, the Court had to apply and

did apply some sort of standard of review in reaching its

decision to deny in my writ for certiorari. But the Court

disclosed nothing about what that standard of review was. |

respectfully submit that these reasons should be sufficient to

warrant granting this petition for rehearing.

CONCLUSION :

For all of the “~regoing reasons, I respectfully request

the Court to grant » petition for rehvaring.

Respectfully submitted,

Azizollah Abrishamian

9328 Edgewood Court

Gaithersburg, Maryland 29877

(301) 977-2460