In the United States District Court for the Eastern District of Virginia
Alexandria
Division
MONA CHU, )
)
Plaintiff
in Pro se )
)
)
v. ) Civil Action No. 1:15cv01375
)
)
PATENT AND TRADEMARK OFFICE, )
Under
Secretary and Director ) Jury Trail Demanded
Michelle K. Lee )
) Defendant ) date: April 8, 2016
Plaintiff’s Opposition
to Defendants’ Motion to Dismiss OR, in the alternative, motion for Summary
Judgment and motion to dismiss [“Def Motion for SJ
and DIS”]
Plaintiff, Mona Chu [Ms. Chu, I, me, she, her]
appearing PRO SE, while suffering from PTSD, in her limited capacity, hereby
files Plaintiff’s Opposition to Defendant’s Motion to Dismiss and/or for
Summary Judgement prior to Discovery
[FRCP Rule 56 (d) (1)(2)] would be
improper and premature as there are still clear issues of fact which preclude a
proper summary judgment or dismissal at this time.
Defendants’ Motion must be denied because there are
genuine material facts in dispute and Defendants are not entitled to judgment
as a matter of law. As discuss below - Rebuttal
to Defendant’s Memorandum, Plaintiff’s Opposition to Defendant’s Motion to Dismiss and Motion to Summary
Judgment and in the Amended
Complaint, the Defendant submits that the motion is not supported by facts
or law and should therefore be denied.
Plaintiff hereby Motion to move to Federal Rule of Civil Procedure Title V:
Disclosures and Discovery; as the
similarly-situated employees provided by the Defendants were misleading and
falsified data, which the Plaintiff had refused in Exhibit 250, Exhibit 350 page 12-13 and below
pp2 on Employee G, H, and I. OR, since all the material facts
indicated the Defendants did discriminated against the Plaintiff for being a
woman and an Asian/Chinese-American; as the result, wrongfully terminated her
despite unprecedented accomplishments while employed by the Agency and
throughout her career in the High-Tech industry such as a pioneer in Emulation
[Exhibit 380]. Emulation is a major part
of Patent Class 703 where Ms. Chu hired as a Patent Examiner by the
Defendants. Therefore, it is only
appropriate to rule in favor of the Plaintiff.
RESPONSE
TO: Notice of Hearing
Due to previous engagement,
Plaintiff can only meet on April, 15, 2016, 10am, not April 22, 2016. It is confusing whether the Hearing is on April 22, 2016, or April,
15, 2016.
RESPONSE TO: ROSEBORO
NOTICE
Every demand in
Defendants’ ROSEBORO NOTICE is
expected from the Defendant as well, as I’ve done in Plaintiff’s Opposition to Defendant’s Motion to Dismiss and Motion to Summary
Judgment. But the Defendants had not done so. There is no fact, but just sophistries and
outright lies such as in Defendant’s Reply in Support of Defendant’s Motion
to Dismiss and Motion to Summary Judgment accusation
on page 4 #1: “admitting that she submitted Form SF-52 to the USPTO and that
she resigned to avoid a termination going on her “permanent record”. I HAD NEVER ADMITTED or inferred in any way
submitting a SF-52 form to resign. The
Defendants threatened me in the termination letter that I won’t get my last
paycheck if I didn’t “complete the necessary paperwork for out-processing” (Exhibit
100 pp2, ¶4), and Form SF-52 was just one of the paperwork. Form SF-52 was just that, a form, like 30 to
40 forms I had spent my last day, all day, going from building to building to
get the signatures from all departments.
There wasn’t a word “RESIGN or RESIGNATION” in any of the form I signed. The Defendant is obviously lying under Oath
and made the mockery out of the COURT.
Another glaringly
misleading/falsify data is the Defendants’ similarly-situated
employees given in Exhibit
350 page 12-13, that Ms. Chu had fully refused in Plaintiff’s Opposition to
Defendant’s Motion to Dismiss and Summary Judgement #31 pp17-18. In
particular, Exhibit Document 17-1 Employee G, H, and I:
Employee AU
First-Line Employment COPA 2-5 Extra
/ GS Gender Supervisor Date Case
Reference
Plaintiff/ 9
|
Female
|
2128
|
Kamini Shah
|
1-6th month
|
Yes
|
YES
|
|
2123
|
Paul Rodriguez
|
7-8th month
|
|||||
G / 5
|
Male
|
4162
|
Paul Rodriguez
|
1-4th month
|
NO
|
NO
|
|
2175
|
William Bashore
|
6-8th month
|
|||||
H / 7
|
Male
|
4162
|
Paul Rodriguez
|
1-4 month
|
NO
|
NO
|
|
2176
|
William Hutton Jr
|
6-8th month
|
|||||
I / 9
|
Male
|
4162
|
Paul Rodriguez
|
1-4th month
|
NO
|
NO
|
|
2175
|
William Bashore
|
6-8th month
|
Another word, none of the Defendants’ so
call similarly-situated employee is in anyway similar to the Plaintiff. This is why Discovery is needed.
The COURT is invite
to take appropriate action.
Unlike the
Defendant, I have the utmost respect for the Court of Law and myself as I was
aspired to be a Transhumanist/Scientist and as a Science Professor, and been
conducted myself as such; everything I
submitted to Court been written under the assumption of made under Oath. But this is not the same for the
Defendant. Not only the Defendant lie as
stated above, again in Def Motion for SJ and DIS page 2 that falsely claimed the Court said
“failure
to state a claim”, and the Defendants’ strategy throughout this civil process been to use
sophistries, misleading information, out-of-context statements, and purported
as material facts to make their point.
Plaintiff did not receive
Defendants’ Motion until 3/19/2016; 21 days would be 4/8/2016.
OBJECTION
TO: Motion to Dismiss OR, in the alternative, motion for Summary Judgment and
motion to dismiss.
For
the following reasons:
- This case has not been through the fact-finding process of - Federal Rule of Civil Procedure Title V. DISCLOSURES AND DISCOVERY.
- According to FRCP Rule 56 (d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
1)
Defer
considering the motion or deny it;
2)
Allow
time to obtain affidavits or declarations or to take discovery;
- Nearly all Defendants’ purported material facts had been refuted in Plaintiff’s Opposition to Defendant’s Motion to Dismiss and Motion to Summary Judgment and in the Amended Complaint.
- There is a genuine issue of material fact to support Ms. Chu’s wrongful termination due to discrimination toward Ms. Chu as a woman and an Asian/Chinese-American case where Ms. Chu was terminated under the pretext of low performance as stated in the termination letter (Exhibit 170), when Plaintiff Ms. Chu’s Supervisor Paul Rodriguez admitted in his email to Director Garber “production was not the basis of the decision” (Exhibit 140 page 620), where Director Garber also said “Just because she's smarter than you doesn't mean she should be retained. :-)” (Exhibit 140). The termination was the resulted of 9 months of careful planning by Paul Rodriguez, as Ms. Chu shown in her Complaint and in this Opposition, when Ms. Chu had an apodictic first patent case that was known to many supervisors as well the then Undersecretary Mr. David Kappos; using every dirty tactic to undermine Ms. Chu’s performance from the get-go by Paul Rodriguez due to his discrimination toward Ms. Chu as a woman and as an Asian/Chinese that excelled in the job. Despite working in such hostile environment, Ms. Chu still met every stringent requirement (DEX DOC 12-1 page19 ¶50) by working nearly 24/7 as evidenced by her computer log time.
The low performance was
just a pretext to terminate Ms. Chu as the real reason was discrimination
toward Ms. Chu as a woman and an Asian/Chinese.
There was no requirement for Probationary Employee as stated in Paul
Rodrigues’ Affidavit (DEX DOC 12-1 page 17 ¶35) and Director Garber’s Affidavit
(DEX DOC 12-1 page 132 ¶31) “…. she does not have a production
requirement”. Additionally, in Defendant’s Motion to Dismiss and Summary
Judgement [“Def Motion to DaSJ”] DOC 12 page 20 ¶2 “Standard productivity
expectations for GS-9 examiners in Plaintiff’s technical field were two cases
per bi-week, and three in simpler field such as GUI”. These requirements are for exempt employees,
not probationary employees such as Ms. Chu.
Yet both Paul Rodriguez and Director Garber demanded that Ms. Chu do 3
cases per biweek for Class 703 as well Class 715 GUI, then put complex and
difficult COPA patent cases (Exhibit 160) in Ms. Chu’s docket to ensure Ms. Chu
couldn’t meet the stringent requirements.
So why such stringent requirements for Ms. Chu but not from her peers? Obviously, it is due to discrimination toward
Ms. Chu as a woman and an Asian/Chinese that excelled in the job, and had
already intended to set Ms. Chu for termination from the get-go.
Additionally, Ms. Chu
did meet the stringent requirements as indicated by Paul Rodriguez’s Affidavit
(DEX DOC 12-1 page19 ¶50) that Ms. Chu’s production reports were as follows:
June 7- 3 cases per
bi-week. (First pay period after the June02 meeting, a total of 5 days to
finish 3 COPA cases)
June 22 - 3 cases per
bi-week.
Ms. Chu’s Productivity
was at 119% and 103% for this period (DEX Doc 12-1 page 288).
Detail account of time working under Paul Rodriguez from June 2011 to
August 12, 2011, that led to Plaintiff’s eventual wrongful termination in Exhibit
340 page 8 #8 to page 12.
Ms. Chu had proven she’s
not only could do the job, but excelled with an apodictic first patent case
that was known to many Training SPE as well the then Undersecretary Mr. David
Kappo; Ms. Chu may be the first woman to hold such honor for Patent Class 703,
as well the USPTO.
None of the AU2123 or
sister unit AU2128 patent examiner had any industry experience in Class 703’s
Emulation; nor the replacement to replace Ms. Chu after her wrongful
termination due to discriminations, or even comparable to Ms. Chu qualification
of extensive industry experience in the Patent Class 703. Ms. Chu has a Master’s degree in EE, was an
Electrical Engineering Adjunct as well as an Applied Physics researcher with
published paper (Exhibit 120); in addition to one of the few women computer
hardware engineers in the world in the 1990, and all the outstanding
accomplishments Ms. Chu have throughout her career. Ms. Chu was one of the few people in the
world that uniquely qualified for this Patent Class 703 with her industry
experiences as a pioneer in the
Emulation field (Exhibit 380).
Neither Paul Rodriguez nor Director Garber had any technical
training. But both of them are in
management nevertheless while the infamous USPTO’s Patent backlog continues to
plague the USPTO, the High Tech industry, as well US’s economy.
There is also a matter
of whether Paul Rodriguez and Director Garber ignored President Obama’s mandate
to clear the infamous Patent backlog that’s been around for over a decade, in
term plaguing the innovations in America, that leads to harming economic
progress; by terminated women and/or minorities that excelled in the job such
as Ms. Chu; and as such, Patent Class 703 been problematic due to
mismanagement.
It took Plaintiff 4
years to go through the EEOC process to get to this point, while Ms. Chu
couldn’t work due to PTSD as the resulted of Defendant USPTO’s hostile working
environment and treatment, as well insidious defamation that instigated in the
USPTO where it followed Ms. Chu wherever she goes, aka trolling in similar
fashion as Washington Post journalists has been troll (Exhibit 330), except Ms.
Chu is being trolled in real life and is more deadly that resulted in 2 failed
attempt beheadings on her (Exhibit 150) that worsen her PTSD. And at age 53, Ms. Chu is too old to go back
to work at this point while suffering from PTSD. The Defendant USPTO, using all their
influence and power, supported by their army of lawyers, had rendered a highly
productive woman to homeless as a way to keep Asian women down. This is a violation of Human Rights.
- As shown further in Plaintiff’s Rebuttal to Defendant’s Memorandum below and in Plaintiff’s Opposition to Defendant’s Motion to Dismiss and Motion to Summary Judgment, however, Defendant United States Patent and Trademark Office’s [USPTO] motion does not meet the standards set by Federal Rule of Civil Procedure [FRCP] 12(b) (6) or FRCP Rule 56 for a dismissal or summary judgement . By and large, Defendant USPTO’s strategy in this motion is to use sophistries, misleading information, out-of-context statements, and purported as material facts to make their point; which Ms. Chu had fully refuted with genuine facts. Additionally, Defendants had provided misleading to falsify evidence on the similarly-situation Employee A-F (Plaintiff’s Opposition to Defendant’s Motion to Dismiss and Summary Judgement #31 pp17-18), and again in Exhibit Document 17-1 Employee G, H, and I. The Defendant should be found in contempt of court. It is especially shameful the United States Patent and Trademark Office’s army of attorneys, including the United States Attorney-Eastern District of Virginia resort to such dirty tactic. How are you different from Iran or North Korea? Therefore, it is necessary to move to Discovery to gather the material facts; as well a Jury Trial to ensure justice is served. If there should be a summary judgement, the only just is to rule in Plaintiff’s favor.
REBUTTAL TO: Defendant’s Memorandum of Law in Support of
Defendant’s Motion to Dismiss OR, in the alternative, motion for Summary
Judgment to Dismiss and Motion for to dismiss [“Rebuttal to Defendant’s
Memorandum”]
REBUTTAL
To: Introduction
Plaintiff objects to
Defendants showing such desperation by using such dirty tactic as to send the Reply in Support of Defendant’s Motion to
Dismiss and Motion to Summary Judgment on the day of the Hearing February
5, 2016 (Exhibit 370), but
continue to using the same ole sophistries to mislead the court, it is
unbecoming of a professional. Please
have some respect for yourself, your profession, the COURT and America laws.
The Amended
Complaint was send within the 20 days.
The Order to
Amend Complaint received on 2/10/2016 as I was away in NYC; my reply was
sent on 2/26/2016. 26-10=16.
The Defendants, instead of attack substantive matter
because there isn’t anything the Defendant could attack as everything is
supported by material facts, so the Defendant had to resort to attack the
Plaintiff’s writing; and the amount of pages I submitted in my Amended Complaint. Really?!
The reason for so many pages is because there are overwhelming facts to
support my case. Now if one counts all
the pages in each submittal by the Defendant, it is well over 50 pages. We just have a different ways of
compartmentalized our submittal.
It is offensive that the
Defendant continuously denigrating the Plaintiff Ms. Chu throughout Defendant’s
Motion
to Dismiss and Motion to Summary Judgment and again in Motion to Dismiss OR, in the alternative, motion for Summary
Judgment to Dismiss and Motion for to dismiss using words such as “rambling”, when the Defendant USPTO has an army of
lawyers and an office full of supporting staffs to help them craft their arguments
and sophistries, and now the United States Attorneys of Eastern District of
Virginia are joining the army of Defendant – United States Patent and Trademark
Office; where Ms. Chu is just a common folk without any legal training to
defend herself, while suffering from PSTD that caused by Defendant UPSTO’s
hostility and discrimination, and continue to do so by rigging the system
against her. Ms. Chu could barely
function while suffering from PTSD, yet must reply to all these falsified
accusations from an army of lawyers, as she can’t afford to hire a lawyer due
to the insidious doings of the Defendants USPTO. She can’t even afford to purchase a Microsoft
Office due to the Defendant’s continuing influence to ensure Ms. Chu can’t
secure a job, or receive any form of social service, not even to collect
unemployment (Exhibit 270), as well trying to behead her meant to kill her to
make this lawsuit go away (Exhibit 150).
Obviously, the Defendant does not like any legal action filed against
the Defendant, especially one such as Ms. Chu’s that any reasonable person/jury
would find wrong doing. It is a
continuation of abuses and hostility toward Ms. Chu since she joined the Patent
and Trademark Office, that is worst then Foxconn, and ended in a wrongful
termination due to discriminations toward Ms. Chu as a woman and an
Asian/Chinese (Exhibit 340 page 8 #8 to page 12). This is a violation of Human Rights. And the Defendant would go to great length to
make this lawsuit go away, and had achieved such in courts such as the EEOC. It is easy to see that as powerful as the
Defendant – The United States Patent and Trademark Office, their influence is
unlimited.
The Defendants is lying
against. The COURT has never mentioned
“failure to state a claim”.
The Claims were listed as follow in the AMENDED COMPLAINT page 2 and page 5
of the COMPLAINT:
Plaintiff Mona Chu, hired as a Patent Examiner on Nov. 2010, and was wrongfully
terminated by the Defendant the Patent
and Trademark Office, on August, 12, 2011 as the result of the following:
1. Discrimination
of sex and race/ethnicity, as a female and as an Asian/Chinese. Amended Complaint Page 2.
Legal Standard of
Appellate Review: Amended Complaint page 14-15.
2. Discrimination
based on national origin – in Ms. Chu’s case, being a Chinese-American woman
(national origin) perceived as Westernized/Americanized by people-from-Asia. Amended Complaint Page 2, page 22.
3. Due
to discriminations, Ms. Chu had been subjected to a hostile working environment
and sexual harassment, to finally terminated.
Amended Complaint page 2.
Legal Standard Of
Appellate Review: Amended Complaint page 25-26.
4. The
termination happened so abruptly, Ms. Chu never had the opportunity to defend
her case. Amended Complaint page 2, page 33.
PRAYER FOR RELIEF: Amended Complaint page
34.
Regarding Defendants’ comment: “now
forces the USPTO to once again expend time and resources to respond”, if the
UPSTO continue to allow racist and/or sexist such as Paul Rodriguez, who had a
history of discriminations toward women and/or Asian/Chinese, not even remotely
qualified for this Patent Class 703 to do anything, let alone as a supervisor;
and many others I named in the Amended Complaint that came from a Third World with a history of Human Rights violation;
these people are lawsuits waiting to happen, as I stated in the Amended Complaint. If the USPTO didn’t hired these
racists and sexists, neither one of us have to waste time on this case and
would have been working on something more productive such as advancing the
human race as a Transhumanist; but the USPTO instead spent millions defending
racist and/or sexist, and will spend more consider all these racists and
sexists are still gainfully employed.
How do you feel spending millions defending these malefactors, a cancer
to any institution and the human race?
For the rest of Def Motion for SJ and DIS,
the Defendants is just regurgitated Defendants’ Motion to Dismiss and for
Summary Judgment, which the plaintiff had rebutted fully and completely in Plaintiff’s
Opposition to Defendant’s Motion to Dismiss and Summary Judgment.
CONCLUSION
For
the foregoing reasons and all the others discussed in the Plaintiff’s
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND SUMMARY JUDGMENT
and AMENDED COMPLAINT; also, the Defendant’s strategy in this motion is
to use sophistries, misleading information, out-of-context statements, and
purported as material facts to make their point, are now fully and thoroughly
refuted. Therefore, the Defendant’s
motion to Dismiss and Summary Judgement should be DENIED. Plaintiff respectfully requests the Court to move
to Discovery and a Jury trial. OR, since all the facts indicated the
Defendants did discriminated against the Plaintiff for being a woman and an
Asian/Chinese-American; as the result, wrongfully terminated her despite
unprecedented accomplishments while employed by the Agency and throughout her
career in the High-Tech industry; therefore, it is only appropriate to rule in
favor of the Plaintiff.
I, Mona Chu, declare under penalty of
perjury that the foregoing is true and correct. Executed on April 8, 2016.
Respectfully
submitted,
Mona Chu
CERTIFICATE OF SERVICE
I hereby certify that on
this April 8, 2016, the foregoing document case: 1:15-CV-01375 was sent to the below addresses by the delivery method of first-class mail,
postage prepaid:
UNITED STATES DISTRICT COURT
for
the Eastern District of Virginia
Civil
Court
Albert
V. Bryan U.S. Courthouse
401
Courthouse Square
Alexandria,
VA 22314
Defendant:
AGATHA
M. SWICK
Special
Assistant United States Attorney
2100
Jamieson Avenue
Alexandria,
VA 22314
Telephone:
(703)299-3831
Fax: (703)299-3983
Email:
Agatha.swick@usdoj.gov
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