Case 15-1328, Document 45, 11/05/2015, 1636433, Page1 of 14

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORMATION STATEMENT
Docket Number(s):
Motion for:

_1_5_-_1_3_2_8______________________
Varughese v. Mount Sinai Medical Center et al

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
IZJAppellant/Petitioner
MOVING ATTORNEY:

OPPOSING PARTY:

Mount Sinai Medical Center et al

Defendant
Appellee/Respondent

pending

OPPOSING ATTORNEY: Rory

[name of attorney, with firm, address, phone number and e-mail]

McEvoy

Blank Rome LLP

-----------------------court-Judge/Agency appealed from:

New York, NY 10174-0208

Southern District of New York - Judge McMahon

Please check appropriate boxes:

Has

405 Lexington Avenue

counsel (required by Local Rule 27 .1 ):

lJ YeslJNo (explain): _ _ _ _ _ _ _ _ _ _ _ __

FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND

INJUNCTIONS PENDING APPEAL:
Has request for relief been made below?
Yes IZINo
Has this relief been previously sought in this Court?
Yes IZINo
Requested return date and explanation of emergency:_ _ _ _ _ _ __

D
D

position on motion:

LJ Unopposed D:>pposed [Zpon ' t Know

Does opposing counsel intend to file a response:
Yes G o ll}oon 't Know

Is oral argument on motion requested?

0Yes

llJ No

D Yes IZJNo

(requests for oral argument will not necessarily be granted)

If yes, enter date: _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ __

ey:

11/5/2015

Form T-1080 (rev. 12-13)

Service by: IZJcMJECF

D Other [Attach proof of service]

Case 15-1328, Document 45, 11/05/2015, 1636433, Page2 of 14

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 selfrighteousness 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 Pauperis2, 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 Ten U.S. District Courts Yields New 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)).
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."

--

------------

- - -- --

Case 15-1328, Document 45, 11/05/2015, 1636433, Page3 of 14

pierce the veil of the complaint's factual allegations and dismiss those claims whose factual
contentions are clearly baseless." quoting Neitzke v. Williams, 490 US 319, 327 (1989).
However, free indigent citizens file about 18% of the IFP applications related to employment
discrimination3 , whose cases should be viewed with the same standard of those who paid the fee,
"the point of equating the test for allowing a pauper's case to the test for dismissing paid cases, is
to assure equality of consideration for all litigants." Coppedge v. United States, 369 US. 438,
447 (1962).

Neitzke v. Williams, 490 US 319 (1989) dealt with two different standards for the trial
court attempting to dismiss a pleading at the Rule 12 motion to dismiss stage, which a few years
later, the US Supreme Court clarified that "clearly baseless" was to be interrupted as follows:
As we stated in Neitzke, a court may dismiss a claim as factually frivolous only if the
facts alleged are "clearly baseless," 490 U. S., at 327, a category encompassing
allegations that are "fanciful," id., at 325, "fantastic," id., at 328, and "delusional," ibid.
As those words suggest, a finding of factual frivolousness is appropriate when the facts
alleged rise to the level of the irrational or the wholly incredible, whether or not there are
judicially noticeable facts available to contradict them. quoting Denton v. Hernandez,
504 US. 25, 33 (1992).
The US Supreme court also stated that "because a 1915(d) dismissal is not a dismissal
on the merits, but rather an exercise of the court's discretion under the in forma pauperis statute,
the dismissal does not prejudice the filing of a paid complaint making the same allegations." id.
at 34 and that "an in forma pauperis complaint may not be dismissed, however, simply because
the court finds the plaintiff's allegations unlikely" because "some improbable allegations might
properly be disposed of on summary judgment but to dismiss them as frivolous without any
factual development is to disregard the age-old insight that many allegations might be 'strange,
but true; for truth is always strange, Stranger than fiction.' Lord Byron, Don Juan, canto XIV,
stanza 101 (T. Steffan, E. Steffan, & W. Pratt eds. 1977)." quoting Denton v. Hernandez, 504
US. 25, 33 (1992).
In my motion for in forma pauperis, I made it clear that I was willing to borrow the court
fees, despite the issue of poverty, which again make the ruling to remove torts and other causes
of actions a wrong decision. Nonetheless, both Nietzke and Denton appears to deal with cases
acted on prior to fact finding even at the pleading stage, and even before a motion to dismiss was
filed by the Defendants. My complaint was not filed pro se or in forma pauperis, it was drafted
by an attorney, which met the standards of pleading to overcome Rule 12(b)(6), and it is
erroneous to equate my case to any other standard that those afforded any other represented and
private litigant. After the fact finding, "the text of any ... federal statute, nor the Federal Rules
of Civil Procedure, provide any support for imposing the clear and convincing burden of proof
Rosenbloom, Jonathan D. "Exploring Methods to Improve Management and Fairness in Pro Se Cases: A Study of
the Pro Se Docket in the Southern District of New York." Fordham urban law journa/30, no. 305 (2002). at 320

.. . --..------ --

------------

Case 15-1328, Document 45, 11/05/2015, 1636433, Page4 of 14

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. If the 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, 341 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
In the course of her defending this
disputes of facts (12cv8812, document 220, p.4).
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.

-------- .....

-- --

.. . .. -----"-- - --

Case 15-1328, Document 45, 11/05/2015, 1636433, Page5 of 14

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

..

,,,_

- -

---------------

Case 15-1328, Document 45, 11/05/2015, 1636433, Page6 of 14

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 are supported by the facts of the case, and have sound basis in law and fact.
Insufficiency of discovery was appealed during fact finding with regards to case.
The Second District Court of Appeals 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, it 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. If this 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 CordonCardo. 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
5

Case 15-1328, Document 45, 11/05/2015, 1636433, Page7 of 14

finding of actual malice is a question of 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 of 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 of error in a publication, when considered from the viewpoint of the
average reader, can have the effect of accusing the "plaintiff of general incompetence or
dishonesty in his profession" so "defendants who make compound charges of 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 of
redress and the facts of the case, Defamation per se is a tort that should definitely be
reviewed in light of the questions of law, also see below at # 3.
2. The facts of the case, as submitted in my Rule 56.1 statement with evidence support the
cause of action of breach of contract and the violation of 42 U.S.C. 1981 of the Civil Rights
Act, that lead to a substantial question of law that should be answered and adjudicated. I was
a contracted employee who was targeted for the repeat discriminatory, retaliatory, and
misconduct of 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 of care for the patients. My performance at work was as expected, and it exceeded
the lower standards demanded by the shady practices of the Defendant, and I am absolutely
certain that in context of the professional's duties and from the facts that I submitted in Rule
56.1 Statements of Fact that my communication and my activities as noted in termination
letter would have hen entirely acceptable to the Defendants as my right, if I were not in my
protected class of woman physician of Indian National Origin.
According to Judge
McMahon, any activity by a contracted employee that displeases the employer can lead to
termination of employment, so why then keep any employee who does anything negative for
which one employee is terminated but does not lead to the termination of another contracted
professional employee. Her discussion of the law and her legal conclusion does not hold
water and should be reviewed de novo in light of the disputes of facts and established facts
of the case.
3. The facts of the case as submitted in my Rule 56.1 statement support the cause of action of
tortious interference with prospective economic advantage, and the violation of 42 U.S.C.
1981 of the Civil Rights Act, that lead to a substantial question of 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 of my employment. I worked diligently to
6

Case 15-1328, Document 45, 11/05/2015, 1636433, Page8 of 14

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 ifl 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 of HR 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 factfinding 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
7

- - - - - -- ---------- - --

Case 15-1328, Document 45, 11/05/2015, 1636433, Page9 of 14

performance at work was as expected, and I am absolutely certain that in context of the
professional's duties and from the facts that I submitted in Rule 56.1 Statements of Fact that
my communication and my activities as noted in termination letter would be entirely
acceptable to the Defendants as my right, if I were not in my protected class.
5. The facts of the case as submitted in my Rule 56.1 statement support the cause of action the
aiding and abetting liability against the individual defendants in the commission of torts, and
the violation of 42 U.S.C. 1981 of the Civil Rights Act, that lead to a substantial question of
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 of 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 of me while she was
at home around 11 pm. 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 of 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 of being reported
for drinking alcohol at work to NY State Department of 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 of her involvement in the incidents with me and her history of drinking
alcohol at work, poor judgment, among other issues with disruption of patient care, and her
lack of 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 if not for the December 2010
issues, the Defendants would have had to request of me to consider. The question of law is
should Jordan and McCash after admitting to making false allegations of 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 of my
coworkers were not being reprimanded even though they were in violation of hospital policy
8

Case 15-1328, Document 45, 11/05/2015, 1636433, Page10 of 14

and for their involvement in various disruptions and outbursts on numerous occasions as
evidenced in Rule 56.1 Statement of Facts with referenced evidence, and that they were not
being referred to Physician Wellness Committee, a committee of the Board of 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 of 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.
Conclusion

The result of the trial court's vacuous management of employment cases is that in over
99% of these cases, the decision by the Judges, ultimately mirrors the language, rhetoric, and
racist conduct of 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 of a discrimination case where discovery was limited, for example, my
performance as a professional based on subjective perceptions of Defendants and their proxies,
that cannot be compared. The Judges disparage and attack the Plaintiff and her case, irrespective
of the sufficient presentation of facts and the basis in law to overcome the Motion for Summary
Judgment against the non-moving party. Unfortunately, the literature of statistical and directed
review of the Federal Circuit Judiciary has been informative. The Second Circuit Judiciary is
adverse to ruling in favor of 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 of mostly Judges with background in working for large corporate firms and on
the side of vested powerful interests and against Plaintiffs in employment and other
discrimination cases6 . Therefore, the impermissible goal of 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

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.

ibid. at 26

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

Case 15-1328, Document 45, 11/05/2015, 1636433, Page11 of 14

profession7, 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 jury9
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
of Appeals, rather than to have these sort of questions being answered by trial 10.
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

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, 408 U.S.
593 (1972).
http://www nysba org/Worl<Area/DownloadAsset aspx?jd=57725
7

.II

Clermont, Kevin M., and Theodore Eisenberg. "Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ
from Negotiable Instruments?." University of Illinois Law Review 2002 (2002): 947.

s generally, Ritenhouse, Damon et al. "A Primer on Title VII: Part One." at www.amerjcanbar.org, (2003).
Reinert, Alex. "Screening Out Innovation: The Merits of Meritless Litigation." Indiana Law Journal, Forthcoming
(2013). at p. 1224-1225

10

10

Case 15-1328, Document 45, 11/05/2015, 1636433, Page12 of 14

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 my 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 in federal court: From bad to
worse." Harv. L. & Pol'y Rev. 3 (2009): 103.

11

- - --

- - ---- --- --- -

--- ---------

- - - - - - - - - - -- -- -

Case 15-1328, Document 45, 11/05/2015, 1636433, Page13 of 14

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 of my contracted employment but as of today, there is
no legitimate reason that have survived following my rebuttal of the Defendants proffered
reasons.

12

----- - - --------

---

Case 15-1328, Document 45, 11/05/2015, 1636433, Page14 of 14

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

CAPTION:

_V_a_ru--'g"-h_e_s_e_,_L_ _ _ _ _ v.
CERTIFICATE OF SERVICE
Docket Number: 15-1328

Mount Sinai Medical Center

et al

_M_.D_._ _ _ _, hereby certify under penalty of perjury that on

I,
(name)

I served a copy of Motion for Reconsideration

(date)
(list all documents)
by (select all applicable)*

D
D
D

United States Mail

Federal Express
Overnight Mail
D Facsimile
GZJ 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

Zip Code

Name

Address

City

State

Zip Code

Name

Address

City

State

Zip Code

Name

Address

City

State

Zip Code

November 5, 2015
Today's Date

10174

Isl Leena Varughese

Signature

*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