filed court document motion for reconsideration
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7/24/2019 Filed Court Document Motion for Reconsideration
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UNITED STATES COURT OF APPEALS
FOR
THE
SECOND
CIRCUIT
Thurgood Marsha ll U.S.
Courthouse
40 Foley Square, New York, NY 10007
Telephone:
212-857-8500
MOTION INFORMATION STATEMENT
Docket Number(s): _1_5_ _1_3_2_8
Motion for: Reconsideration
Set forth below precise, complete statement of relief sought:
Relief from dismissal of torts and 42 U.S.C. sec 1981,
and Family Medical Leave Act prior to due process
in Court of Appeals
Leena Varughese, M.D.
l.LJPlaintiff Defendant
IZJAppellant/Petitioner Appellee/Respondent
MOVING ATTORNEY: pending
Varughese v. Mount Sinai Medical Center et al
OPPOSING PARTY: Mount Sinai Medical Center
et
al
OPPOSING ATTORNEY:
Rory McEvoy
[name of attorney, with
firm,
address, phone number and e-mail]
Blank Rome LLP
405 Lexington Avenue
ew
York,
Y
10174-0208
court-Judge/Agency appealed from: Southern District of
ew
York - Judge McMahon
Please check appropr iate boxes:
Has counsel (required by Local Rule 27 1 ):
lJ Yesl JNo (explain):
position on motion:
LJ UnopposedD:>pposed [Zpon t Know
Does opposing counsel intend to file a response:
D YesGo
l}oon
t Know
FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
INJUNCTIONS PENDING APPEAL:
Has request for relief been made below?
Has this reli
ef
been previously sought in this Court?
D Yes IZINo
D Yes
IZINo
Requested return date and explanation ofemergency:
Is oral argument on motion requested? Ye s llJ No (requests for oral argument will not necessarily be granted)
D Yes IZJNo
f
yes, enter date: _
ey:
11/5/2015
Form T 1080 rev. 12-13)
Service by: IZJcMJECF D Other [Attach proofof service]
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Memorandum of Law on Motion
for
Reconsideration
The court's have irrefutable importance to a popular government, that justice has been
done in that individuals being what he is cannot safely be trusted with complete immunity
from outward responsibility in depriving others
of
their rights. so open review is advocated by
U.S. Supreme Court, recognizing that the right to be heard before being condemned to suffer
grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal
conviction, is a principle basic to our society and as appearances in the dark are apt to look
different in the light of day... The validity and moral authority
of
a conclusion largely depend on
the mode by which it was reached. Secrecy is not congenial to truth-seeking and self-
righteousness gives too slender an assurance of rightness. quoting
Joint Anti-Fascist Refugee
Committee v McGrath, 341US.123 at 171, 172 1951). The standard for analyzing the motion
for summary judgment have been discussed previously in my prior memorandum
of
law in case
docket, 15-1328 at 24, so I will not rehash it again. I will limit the arguments in this
memorandum
of
law to the fact that dismissal
of
stated meritorious claims with significant
remedies, prior to appropriate procedures before the court of appeals, is erroneous as a matter of
established law and the specific facts
of
the case as submitted by me in the Rule 56. l statements.
The court
of
appeals is to review the case de novo on a ruling against the non-moving party
based on the Rule 56, motion for summary judgment. The claims that were dismissed erroneous
by the court of appeals were numbers 13-22 as listed on page 2, paragraph 1 of the Second
Amended Complaint and Jury Demand in Varughese
v
Mount Sinai Medical Center et al,
12cv8812, document# 66.
I. Claims should not be dismissed
The U.S. Supreme Court in Neitzke v Williams, 490 US 319 1989) decided that In Forma
Pauperis (IFP) status pleadings by indigent prisoners dismissed using Rule 12(b)(6), for failure to
state a claim on which a remedy can be obtained, was erroneous. In my reading, indigent
prisoners are treated differently while they are incarcerated for a crime and various Judges have
argued that they have less rights than individual citizens at large. Since the IFP status is often
used by the indigent prisoner populations
1
, the U.S. Supreme Court informed the lower courts
that they are to use 28 U.S. Code 1915 (e), Proceedings in Forma Pauperis
2
,
in determining
dismissal of cases on the basis that section 1915(d) is designed largely to discourage the filing
of, and waste
of
judicial and private resources upon, baseless lawsuits that paying litigants
generally do not initiate and to this end, the statute accords judges not only the authority to
dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to
1
Federal Courts. Magistrate Judges. and the Pro Se Plaintiff.16 NOTRE
DAME
J.L. ETHICS & PUB. POL'Y 475, 479 (2002) (citing
David Rauma
&
Charles Sutelan,
Analysis
of
Pro
Se
Case Filings in
en
U.S. District Courts Yields
ew
Information
9
FJC
DIRECTIONS 6, 6 (1996) (reporting that 21 % of all case filings in ten districts in the period of 1991- 1994 involved pro se litigants,
and that prisoner petitions constituted 63 of these filings)).
2
28 U.S.
Code
1915 (e) (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court
shall dismiss the case at any time if the court determines that. .. (B) the action
or
appeal- (i) is frivolous
or
malicious;
(ii) fails to state a claim on which relief may be granted;
or
(iii) seeks monetary relief against a defendant who
is
immune from such relief.
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on plaintiffs either
at
the swnmary judgment stage or in the trial itself. quoting Crawford-El
v
Britton, 523 US 574, 594 (1998). Nietzke and Denton also deal squarely with indigent prisoner
population suing a government official, not indigent private parties in suits between private
parties, with large disparity
of
resources, such as between me and a very profitable multi-billion
dollar organization, Mount Sinai Medical Center, with litigation insurance and multiple lawyers,
that no one individual Plaintiff, cannot reasonably compete with monetarily but I can succeed in
this case based on the facts of the case and the basis in law that clearly show violations
of
Civil
Rights, federal statues, and tortious activity by Defendants.
II. 28 USC 1295
guarantees the
right
of
appeal from final decisions
made
by the trial
court, on
what
was based on
the
most egregious
errors
possible by
Judge
McMahon.
Judge McMahon stated that I did not comply with local court rules by failed to file a
Rule 56.1 statement (12cv8812, document 220, p.4), which she later stated is that the Rule 56.1
statement
of
facts that did not comply with Fed. R. Civil P. 56(e) (id.
at
p.7), neither
of
which
were true (12cv8812, document 204). Judge McMahon cherry picked facts and she actually
fabricated facts, after her declaration of her open hostility and her irreparable prejudice towards
me, to be discussed below, the Plaintiff, the non-moving party in a motion for swnmary
judgment. f he goal
of
due process
of
law is to preserve the appearance and reality
of
fairness,
generating the feeling, important to popular government, of justice being done , I am not
getting that feeling from the actions of Judge McMahon and Magistrate Francis, and based on
my reading
on
vast amount
of
related literature with regards to employment discrimination and
torts complaints in this setting, there is a vast injustice taking place currently in these courts to
individual Plaintiffs. quoting Joint Anti-Fascist Refugee Committee v McGrath, 34 US. 123,
172 1951).
Judge McMahon's searching review of the several thousand pages
of
transcripts and
other documents that she (Varughese) submitted in opposition to swnmary judgment was
necessitated because she made improper credibility assessments to ignore the plainly stated
disputes of facts (12cv8812, document 220, p.4). In the course
of
her defending this
unwarranted approach
of
searching review , despite the fact the Defendants submitted a rebuttal
to my Rule 56.1 statement
of
facts, Judge McMahon falsely accused me
of
insinuat(ing) that the
suicide
of
a colleague's relative was actually a murder for which yet another colleague is
somehow responsible . I did not accuse any of my colleagues of killing their relative or their
friend's relative, but Judge McMahon states this occurred. Judge McMahon was also
inexplicably upset that I have informed her
of
my concerns with regards to Defendants and their
counsel, Rory McEvoy's activities in my case
of
which I am concerned, enough to report the
matter to her, which was my only option. I do not have access to the large array of investigative
resources and surveillance capabilities that law firms and lawyers have at their disposal, and
which they are trained to utilize and they utilize in their litigations, therefore, I am in a situation
where my concerns have to be aired through the court without much more information on
suspect professional misconduct.
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Judge McMahon created a false narrative against me with snippets of depositions and
fabricated facts, to distract from the relevant disputes
of
facts and the legal merits
of my
case,
by
attacking my character, my credibility, and my diligent work on my case that clearly outline
disputes of fact and rebuttals that a reasonable jury could determine as discrimination, retaliation,
and torts. Judge McMahon' s partiality to white Defendants is directed
at
depriving
me
of
my
civil rights, so they can keep their jobs, federal funds, and escape unscathed to attack more
minorities, irrespective of their unlawful conduct, guilt, or competence, with predetermined
losers such as myself, who was discriminated and retaliated against and I worked under this glass
ceiling of impermissible discrimination and unlawful retaliation.
Judge McMahon even veers into the Federal Rules of Evidence to support her
contentions that I engaged in hearsay and other evidence rendered inadmissible by various
Federal Rules of Evidence on a civil litigation, even though the motion for summary judgment is
not the appropriate place to contend on this matter as the same evidence can be utilized in
different
ways
in a trial setting (id.
at
p.3, 7). Judge McMahon, however, utilizes even more
inadmissible evidence to make a determination for the Defendants. The more important issue
with motion for summary judgments as a Plaintiff, in general, is that these have become so
intensive that the Plaintiff must defend the motion for summary judgment with extensive
submissions
of
evidence, due to the fact that appellate review against non-moving party require
that the Plaintiff have already submitted the evidence, with very few exceptions. I submitted a
rebuttal to Defendants Rule 56.1 statements that was a tediously and meticulously referenced
collection of relevant facts according
to
the required standards
of
the court, rather than what I
considered would be the preferred method of presenting facts according in a timeline fashion, for
the court to determine the legal conclusion, which actually would have clarified the egregious
unlawful conduct
of
the Defendants even more clearly.
The motion for summary judgment decided
by
Judge McMahon is fanciful, delusional,
frivolous, and with fabricated facts, to cover up the obviously guilty conduct
of
the Defendants,
therefore it violates the constitutional equitable adjudication prescribed by life, liberty, or
property will not be taken
on
the basis of erroneous or distorted conception of the facts and the
law. Marshall v Jerrica, Inc., 446 US. 238, 242 1980). I am unimpressed by the flouting of
the law by the judges, the bullying, the defamatory attacks on my character, the searching
review evidence, the dispute
of
facts used to rebut Defendant's Motion for Summary Judgment
are used to marginalize, ostracize, and disenfranchise
me
, in order to keep establishment
institutionalized racism sexism and retaliatory conduct towards minorities
an
ongoing money
maker for the courts and lawyers, while bankrupting seriously aggrieved and suffering Plaintiffs.
The 2nd circuit, Court of Appeals is also unable to determine the arguable basis in
law
or in
fact without proceeding with a full hearing
on
appeals process afforded to litigants appealing
from a summary judgment decision with the full de novo review of
the claims that have basis
in
fact and law after the egregious errors
made
in this case.
III. The assignment
of pro
bono counsel to my case do not
warrant
the dismissal
of
any
claims.
4
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The fact that the court assigned a pro bono counsel to my case should not be followed by
the dismissal of my claims that are based in fact and law At the time of the decision on motion
for summary judgment, I did not apply for in forma pauperis. I applied to the court for pro bono
counsel and IFP status, given the poverty and the erroneous ruling against me by Judge
McMahon. The filing of IFP status in Appellate is not an invitation by this court to dismiss my
claims prior to all the steps in due process afforded in the Second District Court
of
Appeals.
IV The claims
re
supported by the facts of the case,
nd
have sound basis in law nd fact.
Insufficiency of discovery was appealed
during
fact finding with regards to case.
The Second District Court ofAppeals considering questions of law with de novo review
with the intention to seriously consider the matters before it without impermissible
discriminatory intent of this minority Plaintiff and in good faith, t should allow the following
tort claims and Family Medical Leave Act Claim to remain for review, also:
1
The facts of the case, as submitted in my Rule
56 1
statement of facts support the cause of
action of Defamation and/or Defamation per se, that lead to a substantial question of law that
should be answered and adjudicated. f his court is seriously considering my appeal on it's
merits, then it would not dismiss this tort. Defamation per se is clearly illustrated by the
summative evaluation filled out by the Defendant organization in coordination with
multiple individuals as per deposition testimony of Adolfo Firpo-Betancourt, Scott Barnett,
Paul Johnson, and the Defendant Institution's lawyers that is false and it has effectively
rendered it impossible for me to continue with my career in pathology, such as obtaining my
American Board
of
Pathology certification in Anatomic Pathology or complete the remainder
of my residency at another Institution. Adolfo Firpo-Betancourt, who signed this document,
was not even the Program Director or even practicing Pathology at the time my employment
was terminated, and he was only hired on a whim as per testimony from Carlos Cordon-
Cardo. In addition, I also did not work on a single patient case with Firpo-Betancourt and
the individuals he stated who wrote up summative evaluation for him to sign, as such they
cannot reasonably derive any conclusion other than that which is based in their ongoing
malice directed at me. The New York State Department of Health investigated my case
several times, and they have sent me multiple letters stating that they have not found any
wrongdoing on my part. I have been informed by them to pursue my career but without the
appropriate intervention with regards to this issue which is too damaging to my career. In
evaluating the standard for Defamation per se as established by the US Supreme court that
stated that defamation law developed not only as a means of allowing an individual to
vindicate his good name, but also for the purpose of obtaining redress for harm caused by
such statements Milkovich
v
Lorain Journal Co. 497 U.S. 1 at 12 (1990). The Supreme
Court also stated that their former decisions on defamation tort was not intended to create a
wholesale defamation exemption for anything that might be labeled 'opinion'. Milkovich
v
Lorain Journal Co. 497 U.S. 1 at 19 (1990). The US Supreme Court stated that the
question whether the evidence in the record in a defamation case is sufficient to support a
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finding
o
actual malice is a question
o
law. quoting Harte-Hanks Communications, Inc. v
Connaughton,
491 US 657
685 1989).
The supreme court further states that that there is
also another side to the equation; we have regularly acknowledged the 'important social
values which underlie the law
o
defamation,' and recognized that ' [s]ociety has a pervasive
and strong interest in preventing and redressing attacks upon reputation. '
Milkovich
v
Lorain Journal Co. 497 US. 1 at 22 1990) with internal quotations from Rosenblatt v
Baer
383 U
S. 75
86 1966). The 2nd Circuit stated that it has long been our standard in
defamation actions to read published articles in context to test their effect on the average
reader, not
to
isolate particular phrases but to consider the publication as a whole.
lmmuno
Ag.
v
Moor-Jankowski, 77
NY2d
235, at 250 1991). The second circuit also held that
compound charges
o
error in a publication, when considered from the viewpoint
o
the
average reader, can have the effect
o
accusing the plaintiff
o
general incompetence or
dishonesty in his profession so defendants who make compound charges o error are not
entitled to the assumption that their charges did not injure reputation
Celle
v
Filipino
Reporter Enterprises Inc.,
209F3d163
at 181 2d
Cir.
2000).
I think that given the issue
o
redress and the facts
o
the case, Defamation per se is a tort that should definitely be
reviewed in light
o
the questions o law, also see below at
#
3.
2.
The facts
o
the case, as submitted in my Rule
56.1
statement with evidence support the
cause
o
action
o
breach
o
contract and the violation
o
42 U.S.C. 1981
o
the Civil Rights
Act, that lead to a substantial question
o
law that should be answered and adjudicated. I was
a contracted employee who was targeted for the repeat discriminatory, retaliatory, and
misconduct
o
whites or white enough male who have engaged in discriminatory and
unlawful conduct with regards to my professional work and professional discretion, without
any reason, other than to disrupt my meticulous and professional work directed at the highest
standard o care for the patients. My performance at work was as expected, and it exceeded
the lower standards demanded by the shady practices
o
the Defendant, and I am absolutely
certain that in context
o
the professional's duties and from the facts that I submitted in Rule
56.1 Statements
o
Fact that my communication and my activities as noted in termination
letter would have hen entirely acceptable to the Defendants as my right, i I were not in my
protected class
o
woman physician
o
Indian National Origin. According to Judge
McMahon, any activity by a contracted employee that displeases the employer can lead to
termination
o
employment, so why then keep any employee who does anything negative for
which one employee is terminated but does not lead to the termination
o
another contracted
professional employee. Her discussion
o
the law and her legal conclusion does not hold
water and should be reviewed de novo in light
o
the disputes
o
facts and established facts
o
the case.
3.
The facts
o
the case as submitted in my Rule 56.1 statement support the cause
o
action
o
tortious interference with prospective economic advantage, and the violation o
42
U.S.C.
1981
o
the Civil Rights Act, that lead to a substantial question
o
law that should be
answered and adjudicated. I did not do anything wrong in how I did my work on December
2010 or following this date until the termination
o
my employment. I worked diligently to
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get my patient care work done, educate myself, and be competent at workplace with
extensive problems. The Defendants have sabotaged me as seen from the facts with their
whole cloth fabrications and allegations that are simply untrue or the entirely subjective
assessment
of
my professional work by malicious individuals who collaborated to terminate
my employment, I cannot succeed in that milieu
of
hate, discrimination, low standards
of
care, and lack
of
support, especially because I belong to a protected class, who is not
afforded the same rights by the Defendants. I can succeed on objective measures but
i l am
subjected to subjective assessments
of
Defendant Institution who have attacked and
destroyed my life, it's impossible to overcome that racism sexism and retaliation, the court
has to intervene for me to be able to repair the damages. This tortious action is a continuous
action with the creation
of
an objectively false summative evaluation in conjunction with
lawyers, improper hospital personnel, and others. Judge McMahon ignored the fact that the
Defendants informed the potential employer that I had filed a lawsuit against Mount Sinai
Medical Center and that I was to dismiss the lawsuit, although I had not filed a lawsuit at that
time and my only complaint was with EEOC, which Mount Sinai Medical Center refused to
mediate on either. Instead, they continued to create various materials against me since my
filing of the EEOC complaint in November 2011 such as with their House Staff Affairs
Committee decisions etc, including the refusal to correspond with regards to new
employment opportunity for me at another local Institution.
4. The facts of the case, submitted in Plaintiff's Rule 56.1 statement with the evidence support
the cause
of
actions that the Defendants interfered with reckless disregard to the protected
FMLA rights, notwithstanding the facts as understood by Judge McMahon. The random
forced leave
of
a minority professional is not acceptable when an employee requests
foreseeable FMLA without much other information available to the employer. A foreseeable
FMLA could take place for a planned surgery, pregnancy, or to care for a family member
etc The Defendants are not my physician nor does it have any access to my health records
for it to make any judgments as to a request for forseeable leave. I was informed by Caryn
Tiger-Paillex, Director
ofHR
that the Defendant Institution she did not even understand that
request of FMLA as the reason for my being barred from attending work on September 20,
2011. She also informed me that I was to report to work later. She also was unaware
if
the
leave was for myself or for the care
of
a family member. I did not do anything wrong for the
Defendants to have acted as they did to harass me and create a hostile workplace for
me
from
which I was barred on one day and my employment terminated from the following day with
their six reasons that to any professional will understand are pretext, even without any fact-
finding that Defendants cannot defend
or
even argue as legitimate reasons for termination
of
the employment of a professional employee. I have proved the pretext by my rebuttal in
Rule 56.1 statements with the evidence that I submitted. The Defendants were also aware
that I was represented by legal counsel but they were not contacted either during this period
on any of these matters, despite all the allegations that the issues were so serious to warrant
termination
of
my employment, and in fact, I was only made aware of the reasons as either
existing
or
being a reason for termination
of
contracted employment
on
the date that my
employment was terminated for all six reasons. This fact also goes to point out that my
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performance at work was as expected, and I am absolutely certain that in context o the
professional's duties and from the facts that I submitted in Rule 56 1 Statements
o
Fact that
my communication and my activities as noted in termination letter would be entirely
acceptable to the Defendants as my right, i I were not in my protected class.
5 The facts
o
the case as submitted in my Rule 56 1 statement support the cause
o
action the
aiding and abetting liability against the individual defendants in the commission o torts, and
the violation o 42 U.S.C. 1981 o the Civil Rights Act, that lead to a substantial question o
law that should be answered and adjudicated. The discovery has shown that innumerable
malicious actions were being engaged in by the Defendants against me, that has lead to the
termination
o
my employment, despite the fact that I did nothing wrong or engage in any
unprofessional activity. In September 2011, my email was likely hacked by the Defendants
because my emails were being edited or deleted as I was typing it using the Defendant
Institution's email server. I wrote several emails that simply disappeared, the content would
disappear as I was typing the email, and numerous other older emails were deleted from the
Mount Sinai Medical Center's email server during this period. However, one email that I
wrote outlining my concerns that the Defendants were creating a hostile work environment
managed to not be deleted from the email servers, but only after multiple attempts to send
the message. Following my email, Jordan stated that she was terrified o me while she was
at home around 11pm. During this time, Jordan, following her initial allegations she was
afraid, the following day she also stated again while at work, that she was afraid o me in her
emails to various supervisors, even though I was not even at work by saying things such as
she will lash out etc. . . She later admitted that she lied but she was afraid o being reported
for drinking alcohol at work to NY State Department
o
Health in September 2011. In April
2011, Caryn Tiger-Paillex informed me that she felt that Jordan was likely to harass me as
the Chief Resident. I considered this issue, and I left a voicemail for Tiger-Paillex informing
her that I agreed with her on this issue, and that Jordan should not be promoted to Chief
Resident because
o
her involvement in the incidents with me and her history
o
drinking
alcohol at work, poor judgment, among other issues with disruption o patient care, and her
lack o qualifications with her being a full year below my post-graduate year. Jordan was a
tool to retaliate against me, much like McCash, and both made false allegations against me,
as a proxy for the Defendants, which the Defendants knew were false since they admitted
that her various allegations were false, just like McCash had admitted to December 2010
incidents as being his responsibility. However, the Defendants only took further negative
actions against only me, to terminate my employment, while promoting Jordan, instead they
maligned me with various false allegations and disciplinary actions, essentially preventing
me from even being considered for the Chief Resident spot that i not for the December 2010
issues, the Defendants would have had to request o me to consider. The question o law is
should Jordan and McCash after admitting to making false allegations o another employee
that the employer knew as false, should the targeted employee, whose employment was
terminated be afforded legal protections. I also compared myself and my activities for which
I was targeted by Defendants to note that similar and far more egregious activities o my
coworkers were not being reprimanded even though they were in violation o hospital policy
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and for their involvement in various disruptions and outbursts on numerous occasions as
evidenced in Rule 56 1 Statement
o
Facts with referenced evidence, and that they were not
being referred to Physician Wellness Committee, a committee o the Board o Trustees, to be
evaluated for fitness for duty. However, I was targeted for one instance where my essentially
mild response was to being harassed and attacked yet again in the middle
o
delivering
patient care as a professional, and even in that instance, my conduct did not even rise to any
unprofessional level such as their actions and their conduct.
onclusion
The result o the trial court's vacuous management o employment cases is that in over
99
o
these cases, the decision by the Judges, ultimately mirrors the language, rhetoric, and
racist conduct o the Defendant's from which the Plaintiff is seeking relief and adjudication in
the United States Federal Courts4, but with added fabricated facts and new allegations that are
invalid in the context o a discrimination case where discovery was limited, for example, my
performance as a professional based on subjective perceptions
o
Defendants and their proxies,
that cannot be compared. The Judges disparage and attack the Plaintiff and her case, irrespective
o the sufficient presentation o facts and the basis in law to overcome the Motion for Summary
Judgment against the non-moving party. Unfortunately, the literature
o
statistical and directed
review o the Federal Circuit Judiciary has been informative. The Second Circuit Judiciary is
adverse to ruling in favor o minorities, which even encompass professional minorities in
professional fields such as medicine and law, who meet the set factual and legal standards
necessary at the motion for summary judgment and trial, against Defendant's white lawyer, the
white individual Defendants and white corporations
5
The Second Circuit, like other circuits,
also are made up o mostly Judges with background in working for large corporate firms and on
the side
o
vested powerful interests and against Plaintiffs in employment and other
discrimination cases
6
. Therefore, the impermissible goal o the trial court now appears is solely
to serve as the henchmen for white Defendants in employment discrimination cases, thereby
acting to disenfranchise and marginalize the individual Plaintiff from their property and
4
generally, Swaminathan,
Anand.
The Rubric of Force: Employment Discrimination in the Context of
Subtle Biases and Judicial Hostility. The Modern American, Spring 2007, 21-31.
5
ibid. at 26
6
generally, A Report By The National Employment Lawyers Association, Judicial Hostility To Workers'
Rights: The Case For Professional Diversity On The Federal Bench, February 2012. and at p 11
9
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7/24/2019 Filed Court Document Motion for Reconsideration
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profession
7
, and further violate the minority Plaintiff's civil rights in the most subversive and
unconstitutional manner8.
Any review
of
the 2nd Circuit's Civil Rights and torts in employment law decisions
produce a result that is revealing
of
the long list
of
negatively decided cases against Plaintiffs,
and therefore, a very small list
of
case law supporting Plaintiffs to really argue and develop their
cases, even when armed with sound evidence on which disputes of facts merit a trial by jury
9
Even the discussions in the vagaries
of
law are often centered on how much
a
fact can be
viewed as discriminatory or hostile or retaliatory by a majority White and historically male Court
ofAppeals, rather than to have these sort
of
questions being answered by trial
1
.
I think that the Federal District Court's actions such as in the decision by Judge
McMahon, that is based in her inventions
of
new facts such as that I was on forced leave of
which neither
I
nor my lawyers were informed of as such in 2011, constitute to openly advance a
larger society where White employers, which constitute majority
of
employers in United States,
just as in my case, can utilize impermissible factors to influence their decisions with regards to
discipline of a professional minority women employee, engage in rampant disparate treatment
of
the professional minority women employee, prevent professional minority women from
exercising their professional opinions in workplace matters, prevent professional minority
women from enjoying the same rights afforded to their white professional employees and their
male professional employees, randomly remove minority professional women from workplace as
a forced leave, and interfere with the professional employee's career going forward with
fabrications and retaliation, as the former Defendant employer sees fit. Plaintiffs filing lawsuits
against employers on discrimination and torts are disparaged and retaliated against broadly by
everyone including the courts, the lawyers, and the potential employers, majority
of
all these
different groups consist of Caucasian decision makers, as in my experience, yet, the monetary
gains in the court system is largely based on Plaintiff's who believe that courts adjudicate matters
7
Discovery in Disciplinary Proceedings Report, SUBSTANTIVE REPORTS, REPORTS 2015, Approved
by the Executive Committee on July 23, 2015. p. 21 A law license is unquestionably property in the
constitutional sense
of
a lawyer having a legitimate claim
of
entitlement to
it,
Bell v. Burson, 402 U.S. 535
(1971 ; Barry v. Barchi, 443 U.S. 55 (1979), particularly given the recognition
of
property
in
the
constitutional sense
in
such interests as a college professor's position in Perry v. Sindermann, 4 8 U.S.
593 (1972). II
http://www nysba org/Worl
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7/24/2019 Filed Court Document Motion for Reconsideration
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before it in a fair manner when it is questionable that the court has any such intention to
adjudicate in a fair and equitable manner
11
,
12
.
The facts are that I worked on over 15000 cases without any diagnostic or professional
errors from my work from which the Defendant Institution benefited from, especially during the
most arduous working years in a Pathology post-graduate work, which were the first three years
of
the post-graduate work that I completed satisfactorily. After the December 2010 incidents, I
worked on thousands more cases using y professional judgment to manage every single one of
my patient cases. My performance was above par compared to my coworkers, I was informed as
much during my first year, second year, third year, and even just prior to the termination of my
employment by the former program director, James Strauchen MD, Guang-Qian Xiao MD,
Chandan Nagi MD Paul Endres MD, Azra Lemp MD among many other experienced
Pathologist doctors that I worked with, meaning that I was on track
to
complete my contracted
employment year, take the Anatomic and Clinical Pathology Board Certification exam, and
continue in my chosen career,
if
not for the overt malicious tortious reprehensible and
impermissible activities
of
the Defendants. I was more successful in my endeavors than most
of
my coworkers at meeting the real objective standards such as obtaining appropriate licensure,
certification, as required by my employment contract, and I also pursued my professional
education and goals independently
of
the Defendants such as paying for several review courses
out of pocket, despite their racist sexist animosity and the retaliation against me to hinder my
success. There
is
absolutely no objective evidence to suggest that I did anything wrong, in my
handling of any incidents, especially compared to the Defendants racist sexist hostility and
retaliation only against me. During the entire period
of
my employment with the Defendants,
none of my actions warranted the disciplinary action against a professional minority woman, the
termination
of
my employment, and other unlawful activities
of
the Defendants towards me. I
have maintained my integrity as a professional doctor with high professional standards, which I
think
is
also another subtext of their reasoning for maligning
me
and engaging in defamatory
attacks. Only two weeks prior to the termination
of
my employment, I made independent
diagnosis on several intra-operative cases on call, to which my Indian supervisor stated that he
absolutely trusted my clinical judgment and decision making. Majority of my former
supervisors, not just my being armed with Dr. Tamara Kalir, irrespective of their race and
gender, have supported me and continue to support me because they know my professionalism
and my professional skill in every aspect
of
my work. Only two days prior to my employment
termination, I worked on numerous highly complicated hematopathology cases with extensive
case histories and clinical data to arrive at the diagnoses, despite the ongoing attack on my
employment, the much more egregious back ground situations that the Defendants were
fabricating against me, as they were aiding and abetting one another to fabricate false narrative
and situations to entrap and
to
place the blame on me. The extensive redactions in this case by
the Defendants
is
very telling of that aspect of this case.
11supra8.
12
Clermont, Kevin M., and Stewart
J.
Schwab. Employment discrimination plaintiffs
n
federal court: From bad to
worse. Harv. L
&
Pol y
v
. 3 (2009): 103.
11
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The individual Defendants and the Defendant Institution, Mount Sinai Medical Center
made false allegations about me, sabotaged my future, and engaged in illegal impermissible
discrimination and retaliated against me and they engaged in tortuous conduct knowingly, and
they barred me from the workplace without any valid reason that can stand up to scrutiny, as
discussed above. I merit all the same rights afforded to paying and represented litigants as a
professional medical doctor who given the ability to continue my
work as medical doctor would
surely succeed, as I already had a track record
of
doing so. I am only poor because of the lack
of
any relief from the court and the refusal to adjudicate matters equitably so that I continue with
my career, a constitutional right to my property. Rory McEvoy announced to Judge Francis that I
had no performance issue in the meet and confer on July
11
2012, but the response was
disparage me, bar much
of
comparator discovery, stating that a fishing expedition
of
my
coworkers will not be allowed, but the court's activity is to engage in fishing expedition or
searching review to string together an unmerited racist sexist delusional and false narrative.
My case warrants a de novo review in it 's entirety. Magistrate Francis even stated that there has
to be only one valid reason for termination ofmy contracted employment but as
of
today, there is
no legitimate reason that have survived following my rebuttal
of
the Defendants proffered
reasons.
12
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UNITED ST TES COURT OF PPE LS FOR THE SE OND CIRCUIT
CAPTION:
_V_a_ru--'g -h_e_s_e_,_L .
Mount
Sinai
Medical
Center
et
al
CERTIFIC TE OF SERVICE
Docket
Number:
15 1328
I, _M_.D_. hereby certify under penalty of perjury that
on
(name)
I served a copy of
Motion
for Reconsideration
(date)
by (select all applicable)*
(list all documents)
D
United States Mail
D Federal Express
D Overnight
Mail
D
Facsimile
ZJ E-mail
D Hand delivery
on the following parties (complete all information and add additional pages as necessary):
Rory
McEvoy 405
Lexington Avenue
NY NY
Name Address
City State
Name Address
City State
Name
Address
City State
Name Address
City State
November 5 2015
sl Leena Varughese
Today s Date
Signature
10174
Zip Code
Zip Code
Zip Code
Zip Code
If
different methods of service have been used on different parties, please indicate
on
a separate
page, the type
of
service used for each respective party.
Certificate
of
Service
Form
!"#$ &'(&)*+, -./01$23 4', &&56'5*6&', &7)74)), 8"9$&4 .: &4
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