Filed Court Document Motion for Reconsideration

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.

3

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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

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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


12/14

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 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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13/14

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 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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14/14

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

Documents

Filed Court Document Motion for Reconsideration