PROPOSAL

                            (1/6/2020) 

A.   The seriousness of discrimination and retaliation in universities and workplace:

       1. The seriousness of discrimination and retaliation in universities is beyond imagination. 

           The courts always dismissed students’ case immediately because the universities always claimed that the dismissal related to academic issues. Because of this, some shameless professors retaliated against without any concern. Just list a few facts in Mr. Jun Xiao’s (“Xiao”) case to show how serious the discrimination and retaliation is ---

           1) University policy states, “No more than three days of professional leave or vacation may be taken during any one rotation. Students can request professional leave via ‘Time Tracking’ function in E*Value.” Xiao never requested any “professional leave”. However, the University assigned 4 days as “professional leave”. This resulted in placing Xiao on probation.

            2) The preceptor of another rotation never gave any grade to Xiao for this rotation, but University assigned an “F” to this rotation. Due to this and the above rotation, Xiao was placed on academic probation.

            3) By February 21, 2013, Xiao has successfully repeated 7211 and was repeating 7126 at Walgreens. Professor Rodriguez informed Xiao that the probation would be “automatically” removed per policy once the Plaintiff passed 7126 at Walgreens ending on March 29, 2013. However, after Xiao reported a professor who publicly humiliated Xiao directly to the school bypassing Rodriguez, Rodriguez made numerous lies against the Plaintiff. For example, Student Office Director Haeg emailed Rodriguez that “[Xiao’s] grade in 7211 is showing as an ‘A’. Michelle is indicating that the ‘A’ comes from Harvet Arbit.”2, but Rodriguez lied to the school hearing committee that Xiao “never” repeated 7211. Because of this false accusation of Rodriguez’s Xiao was dismissed from the University at the time that Xiao almost graduated.

           4) After Xiao filed a Complaint, all the University employees were against Xiao. For example, Haeg sat at the Hearing Committee, but he never corrected Rodriguez’s lie. Instead, Heag also told the Committee that Xiao did not repeat 7211.

       2. Retaliation claims with the Equal Employment Opportunity Commission and Courts have emerged as the most prevalent discriminatory charge leveled by employees. 

           Over the past decade EEOC has reported that the workplace retaliation complaints was most common issues, and has already risen rapidly from 44% to 48% between 2009 and 2013 and was nearly half of total complaints. Disability claims in EEOC have increased every year since 2005. People with psychiatric disabilities fared significantly worse in ADA lawsuits. However, they are less likely to have a case resolved. This huge burden in the National medical costs, lawyer and administrative costs and tremendous stress and challenge to the family and social society, and damage of employee’s health and economic products have been demonstrated to be caused by the retaliation. 

        EEOC and Legal representation have powerful effects on outcomes of workplace discrimination and retaliation.  Here is another example in Ms. Yu’s case against Maryland Department of Health (“MDH”) Secretary Robert Neall and Maryland Department of Budget  and Management (“MDBM”), Secretary David Brinkley (U.S. Supreme Court case No. 19-262) how employee was suffered from workplace discrimination and retaliation, EEOC and courts abuse of their duties for employees’ charges with workplace discrimination and retaliation leading to the deprivation of employees’ property, health, life without due process and equal protection.

           1) Ms. Yu’s case background:

                 a. Petitioner is in a protected class: (Asian American, over 60, and with disability) She worked well and got along with her co-workers or customers without any complaints.

                 b. Petitioner engaged in protected activities: she opposed unlawful and discriminatory employment practices (such as discriminatory deprivation of the reclassification of her job position as Epidemiologist III, and the position identification number MDH and MDBM approved for her was given to Ms. Barra, who is Caucasian and about 25 years younger than Petitioner), causing underpayment, and subsequent downgrading her annual performance evaluation without private discussion with as did for others; depriving her of job responsibilities under seniority system supported by CDC funding without any condition required by Human Resources as retaliation against her filing reports to managers and appeals with both MDH and MDBM. Ms. Barra accused her protected activities as “disruptive behavior”. She filed charges of age, racial discrimination and retaliation with EEOC on Nov. 12, 2013.

                 c. Petitioner received Respondents’ adverse actions: such as initiating 6 of unwarranted disciplinary actions  within 4 months, especially on the day immediately after she reported managers via email about Ms. Barra's new discriminatory behavior at National Origin because Ms. Barra sent Ms. Yu a warning email on the Chinese New Year Eve although Ms. Barra had previously approved her request to take half the day off and two months from the date of her filing of charges under Title VII and ADEA with EEOC between Dec. 2013 and August 2014.  Petitioner became ill due both to escalating hostility in her working environment and to retaliation by Ms. Barra; Petitioner indicated diagnoses of “workplace stress, major anxiety, major depressive disorder and posttraumatic stress disorder” which were confirmed through work ability evaluation by a State Medical Director and two other health professional services; it made Petitioner become eligible to FMLA and accommodation.

           d. Repondents changed the organization of the CCDPC office as a pretext for the rejection of accommodation immediately after receipt of Ms. Yu’s EEOC charge file on 9/3/2014 and HR’s constructive discharge to force her to resign or retire as Ms. Barra intentionally motivated. It ultimately prevented Petitioner from returning to work under different supervisor or different position “Epidemiologist III” which she applied for and was evaluated by HR as “best qualified” in a less hostile environment. HR’s constructive discharge (10/10/2014) led to consequent unlawful termination (by accusing her poor performance evaluated by Ms. Barra and unable to do essential job with accommodation, yet, which was never provided to Ms. Yu) without prior-mitigation or hearing and led to continuous retaliation for protected activities. Union manager who was work in MDH participated in the decision of termination making without informing Ms. Yu. Ms. Barra’s interference with EEOC’s investigation of her charge was further demonstrated by EEOC-FOIA’s recording file. It resulted in EEOC’s unlawful conclusion “no discrimination and retaliation” after over 3 years investigation.

           2) EEOC’s abuse of their duties: 

               a. EEOC deleted “Age discrimination” from EEOC Forms 131 & Priority Handing Procedure Form, which resulted in EEOC’s failure to execute Age Discrimination Employment Act (“ADEA”) procedure in the restricted time frame required by EEOC’s manual; 

               b. EEOC refused to assign an investigator and to provide an interview; postponed sending EEOC notice (Form 131) to Ms. Yu’s employer for several months even after Ms. Yu requested multiple times to identify who her investigator was and reported EEOC the unlawful termination without providing her mitigation on 11/3/2014; 

               c.  EEOC Abused their duties and refused to respond in spite of Ms. Yu’s multiple requests (via office visits and mails) with exhibits for amending MDH’s adverse actions (immediate rejection of accommodation on 9/3/2014, HR’s constructive discharge 10/10/2014, and termination without mitigation 11/3/2014) and refused to accept Ms. Yu’s rebuttal-related exhibits for years but accepted MDH’s “position statement” related exhibits; 

                d.  EEOC concealed the evidence of retaliation which was influenced by Ms. Barra’ interference with EEOC’s investigation. For instance, EEOC investigator’s notes for fact-finding conference based on the false information provided by the supervisor, wording 10/10/2014 “CP (complainant) ask to resign and retire”, when in fact, Ms. Yu received HR’s constructive discharge to force her resign or retire. Ms. Yu filed tort claim in EEOC on 12/11/2018, yet, she still has not been provided the Tort Claim Number by the EEOC Office of Legal Counsel, despite multiple written requests. 

            3) Federal Courts: 

                 a. U.S. District Court of Maryland: 

                     Ms. Yu filed her claim per EEOC’s right-to-sue letter regarding the termination of her permanent public service employment (supported by CDC funding) due to retaliation against her previous charges filed with EEOC on the bases of age, racial, ethnic/national origin, and disability without due process. The U.S. District Court of Maryland granted the State government’s motion to dismiss her claim despite the existence of significant genuine factual and legal issues by immediately closing her case without a hearing or jury trial and alleging her failure to exhaust EEOC remedy and to state her claims, lack of subject matter jurisdiction, and claiming that State has immunity to her suit. The Court neglected evidence of EEOC’s right-to-sue letter which was admitted in their docket (17-Cv-3260-JKB, ECF#20-exhibit#2); failure of the respondents to prove a prior mitigation for termination of her employment; and the Congressional amendment (42 U.S.C. § 2000d-7(a)(1)) for Section 504 of Rehabilitation Act of 1973, Title 29 USCS § 794 (incorprating 42 U.S.C. § 2000d-4a, Yu addressed it in her response to employer’s motion to dismiss), which emphasizes that by accepting federal funds, States waive their Eleventh Amendment immunity from a suit brought against them under the Rehabilitation Act, ADEA or Title VII discrimination and retaliation. In addition, the District court returned her motion for clarification and relief, and her second amendment with new evidence regarding former supervisor (Ms. Sara Barra)’s interference with EEOC’s investigation and the respondent’s pre-text for the rejection of accommodation (proved by EEOC_FOIA recording file on 7/6/2018 after the District Court  dismissed her claims, 4th Circuit Case No. 18-1889, docket#15). 

                  b. Fourth Circuit Court:

                      Although Yu requested  (8/24 and 8/31/2018) U.S. Court of Appeals at Fourth Circuit to intenvene  with the District Court’s biased actions within 30 days of filing (8/7/2018) her notice of appeal, the chief clerk Mr. Mark J. Zanchelli rejected her request for intervention and amendment of the new evidence; the leading panel judge via unpublished Curiam opinion affirmed the District Court’s dismissal, denied as moot Yu’s motion concerning alteration and deletion of the fourth Circuit’s docket records (lack of her notice of appeal for over two months after the Fourth Circuit established the case No. 18-1889 on 8/6/2018), dispensed with oralargument in favor of the State government to deprive the  Americans’ property without due process.  Further, in order to dismiss Yu’s claim without any judicial conference or a hearing in the appellate court, panel judges leading by Diana Jane Gribbon Motz used local rule (Rule 34b) requesting a vote for determination whether to review her petition for rehearing en banc by the court, but none of them voted resulting in denial of her petition for rehearing en banc. Thereby Fourth Circuit issued the mandate without prior denying Yu’s motion for stay violating Fed. R. App. P. 41(b). In addition, Fourth Circuit case manager used local rule 40(d) to override Constitution rejecting her request under §1 and 5 of Fourteenth Amendment and obstructing justice. 

      c. The U.S. Supreme Court:

        Ms. Yu filed application for stay and injunctive relief, and petition for writ of certiorari in the U.S. Supreme court while the Fourth Circuit’s mandate was pending, yet, her major appendix exhibits supporting her certiorari were refused for electronic uploading on the Supreme Court website (except 24 pages with courts’ orders and memorandum) despite her multiple requests to avoid only false/misleading information for public review and for justices’ review of her case; her petition for writ of certiorari was denied in the absence of opposite party’s cross-petition as the opposite party filed waiver due to the attorney not being a bar member of Supreme Court while the Supreme Court refused to require employer, who is liable for the supervisor’s discrimination and retaliation and failed to prove a mitigation prior to the termination of Yu’s employment, to respond. Because the Supreme Court does not grant certiorari or petition for rehearing without opposite party’s response, it indicated the Supreme Court’s pre-determination to deny her petition for writ for certiorari and her petition for rehearing prior to the conferences despite the denial is contrary to the decisions made by the Supreme Court and other circuit courts before and after denial of her petition (Fort County, Texas, v. Lois M. Davis, 139 S Ct. 1843, 2019; Bend County v. Davis; Head v. Wilkie, et al; and BNSF Railway Co. v. EEOC). The Supreme Court’s denial is violation of § 1 and § 5 of Fourteenth Amendment of U.S. CONST. and 42 U.S.C. § 2000d-7(a)(1)) for Section 504 of Rehabilitation Act of 1973, Title 29 USCS § 794. 

             In our group, there are several cases filed with federal courts regarding workplace discrimination and retaliation either due to retaliation for their concerns regarding sex and age discrimination in the promotion or questions regarding manager’s improper working procedure and records.  

         3. Good organization is urgent needed

             Unlike Jewish who have well organized association and trained attorneys to write amicus brief and to provide legal counsel service in supporting their complaints and protection of their civil rights, Asian American is very hard to get any organization to write amicus brief to support their claims (which can increase granting petition rate from 8.5 to 37.5%), and to have their own well and fully representative legal counsel service even they spent years’ savings for lawsuit. There is UCA who only helped Scientist Ms. Xia Fen Chen and Profession Xiaoxin Xi who were unlawfully treated as spy, yet, the most common workplace retaliation against their complaints on bases of age, sex, racial, national origin and disability were helpless.  

            There are increasing reports regarding imaginable discrimination and retaliation in universities and workplace. We have to have an organization to represent the weaker party, the students and employees, especially Asian Americans (based on the situations described above) to obtain equal opportunity to study and work, and equal justice to protect our property, life and health under constitution. Therefore, we expressed our desire to AACE President Yukong Zhao for the possibility to expand AACE’s organization and function to not only fight for equal education but also equal working opportunity and equal justice.

B.   The current core backbone and resources (such as volunteers) for the establishment of employment rights advocacy organizations:

       Mr. Jun Xiao is willing to be in charge of the educational affairs for students, postdoctoral fellows admitted in Universities. We will recruit some people who are willing to contribute their time and energy to help for this issue.

       Attorney Qiang Bjornbak is willing to function as legal counsel. 

       Ms. Li Yong and Xiao-Ying Yu are willing to provide personal experience to help victims of workplace discrimination and retaliation: We will invite some friends who has experience in lawsuit (especially succeed) as pro se to join discussion in the legal group in order to fully understand and represent victims of discrimination and retaliation. 

        Ms. Yong Li had IT working experience and may lead our database development and management for victims’ reports.

        Mr. Haiying Li is licensed account and is willing to manager our budget donation, membership fee and tax, etc.

        Christian Leader of the Core group: Since United States is built in the GOD we trust, and victims of discrimination and retaliation have been suffering tremendous mental pain and financial stress, there is needs for us to seek Christian leader to lead group pray and pray for each victim to bring them love and comfort, and ensure us to keep our organization in the right direction under GOD’s purpose.  The selection of candidates are during pray and consideration.

C.  Immediate and long-term action plans, assumptions, and purpose

Since Ms. Yu and Mr. Xiao sent their letters to U.S. House of Congress Representative speaker Nancy Pelosi and Senator leader Mitch McConnell and Senator President Mike Pence torequest further clarification and instructions regarding term of “State immunity” and “Due process and equal protection” in Congressional amendment in 42 U.S.C. § 2000d-7(a)(1)) and Congressional power of enforcement in § 1 and § 5 of Fourteenth Amendment of U.S. CONST. Ms. Yu filed application for stay of effective date of the Supreme Court’s 12/9/2019 order denying her petition for rehearing based on book of Supreme Court Practice, 10th Edit, and Congress Review Act and Cc. to the Department of Justice Attorney General William Barr and Solicitor General Noel J. Francisc, however, which was not electronically uploaded to the docket of the Supreme Court until today (1/6/2020).

Based on the evidence described above and Congress emphasized and amended federal low in response to the biased decisions made by the Supreme Curt and overturn the Supreme Court’s decisions, the letter sent by President Yukong Zhao in AACE to U.S. Department of Education on December 10, 2019, and the current Department of Justice ongoing investigation into the Harvard University Administration, we would ask if it is good timing, good idea and good approach for President Zhao to consider sending letter to support our complaint requesting Congress to provide further clarification and instruction as amendment for the federal laws which we stated in our letters and Ms. Yu’s application (see enclosed supporting documents), and Department Justice to write  a amicus brief as they previously did for other employees to open reconsidering process of Ms. Yu’s certiorari and petition for rehearing under § 1 and § 5 of Fourteenth Amendment of U.S. CONST. and 42 U.S.C. § 2000d-7(a)(1)) for Section 504 of Rehabilitation Act of 1973, Title 29 USCS § 794.   

       2 Long term plan

          We will contact University student association (including Chinese student association), Asian American-WeChat group members, other friends’ face book and newspapers, etc. to let people know we are here to help if victims need as non-profit organization independent from employer and government. We will also have our webpages. Our goal is to bring GOD’s love and comfort to victims of discrimination and retaliation in universities and workplace; help them to deal with Rodriguez-like professor and Ms. Sara Barra-like supervisor’s harassment, discrimination and retaliation on bases of age, sex, racial, national origin and disability as well as EEOC and Courts’ clerk and judge and judge’ failure to perform their duties in order to ensure and protect students and employees’ due rights and equal protection/justice under constitution in the university, workplace, EEOC and courts. We are hoping to contribute to the developing or/and amending federal laws via U.S. House of Congress Representatives and House of senator, and seeking correct and fair interpretation and implement of federal law and Constitution by EEOC and United States judiciary system and proceedings in the courts via EEOC head Quarter and Department of Justice. May GOD lead us and may GOD bless America!