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UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
MOHAMMED HUSSAIN, )
Plaintiff, )
v. ) Appeal No. 04-5417
)
ANTHONY PRINCIPI, )
Secretary, Department of Veteran Affairs )
Defendant. )
___________________________________)
APPELLANT’S MOTION FOR SUMMARY REVERSAL
Appellant, Dr. Hussain, respectfully moves this Court for Summary Reversal of the district court’s orders of
November 28, 2004, granting summary judgment to Defendant and of its July 22, 2004 denial of Dr. Hussain’
s motion for an enlargement of time to conduct discovery.
Standard for Summary Reversal
On appeal, summary disposition is appropriate where the merits of the appeal are so clear that expedited
action is justified. Taxpayer Watchdog, Inc. v. Stanley, 819 F.2d 294, 289 (D.C. Cir. 1987); 627 F.2d 541, 545
(D.C. Cir.), cert. denied, 449 U.S. 994 (1980).
The errors of the district court involve basic rights of litigants that are so clear that this Court can reverse the
district court’s orders based on the expedited process of abbreviated review. Dr. Hussain presents four
basic rights that the district court erroneously denied to him: 1) the benefit of discovery; and 2) the right to
cross examine witnesses and allow the trier of fact to determine credibility based upon the witnesses’
testimony in their own words, answers to questions asked during cross examination and their demeanor; 3)
the consideration of material evidence in factual determinations made by the Court; and 4) impartial and
equal treatment of the parties, holding them to the same burdens of proof and consideration of litigation
costs. This Court may summarily reverse the district court’s grant of summary judgment to the Agency and
remand for discovery and a trial on the merits.
FACTS
Facts Underlying Title VII Claim
The relevant facts are fully set forth in Plaintiff’s Statement of Undisputed Material Facts (“Facts”); submitted
with his Opposition to Defendant’s Motion for Summary Judgment (“OMSJ”) (# 37); however, they are
summarized as follows.
Dr. Mohammed A. Hussain is dark skinned, fifty eight year old male and a practicing Muslim, born in India
and naturalized as a citizen of the United States. (Facts 1) In 1978, Dr. Hussain joined the VAMC as a
physician, assigned to the position of Assistant Chief of Radiation Therapy Services. (Facts 5)
There is religious tension between various faiths and there were religious alliances within the VAMC. The
Hospital Administrator, Mr. Garfunkel, and the Chief of Staff, Dr. Fletcher, established the “Jewish Society,”
which organizes an annual holocaust symposium on the hospital premises. (Facts 16) Dr. Spagnolo was
appointed Chief of Staff in 1998, by the VA Central Office, and hung a large portrait of Pope John Paul II in his
office. (Facts 16) After a year of tension, Mr. Garfunkel removed Dr. Spagnolo as Chief. (Facts 16)
At staff meetings, Drs. Finkelstein and Krasnow openly expressed their support for Israel over Palestine.
(Facts 16) They referred to themselves as the “chosen people” and conducted an annual symposium on
the holocaust at work. (Facts 16) Mr. Garfunkel and/or Dr. Fletcher were reputed to refer to Palestinian
Muslims as “uncivilized” and “violent nomads.” (Facts 16)
For the entire twenty-seven years of his service with the VAMC, Dr. Hussain was the only Asian or Indian
doctor in a managerial or supervisor position, within the Radiation and/or Oncology Departments, later
merged as the Radiology Service Division. (Facts 11) Dr. Hussain was the only Muslim, of any rank,
profession or position in the Radiation or Oncology Departments. (Facts 11) To the best of Dr. Hussain’s
knowledge, out of at least 2,500 employees at VAMC, he was the highest ranking Muslim at VAMC. (Facts
11)
For years, there have been major shortages of staff, equipment and resources the VAMC, reducing the
hospital’s ability to properly treat veterans. (Facts 19, 51, 52) Dr. Hussain repeatedly requested upgraded
resources, both in terms of equipment and personnel, to no avail. (Facts 19, 50) In 1997, the Regional
Office of the Veteran’s Administration created a Task Force to assess the shortages of staff and equipment
at the VAMC, particularly the Radiation Therapy Services Department. (Facts 19) Dr. Hussain risked his
own livelihood by becoming a “whistleblower” and reporting the unacceptable conditions. (Facts 50)
On June 25, l997, Dr. Hussain was appointed Acting Chief of Radiation Therapy Services when the former
Chief retired, but he was not compensated as a Chief. (Facts 21-22) VA regulations regarding probationary
status limits an appointment to an “Acting” position to 90 days; however, Dr. Hussain served as Acting Chief
for four and a half years. (Facts 23-24)
On or about June 1, 1998, Mr. Garfunkel hired Dr. Klemens Barth, a White, non-Muslim male, to work in the
radiology department as a contract employee (Facts 25) Dr. Barth began supervising Dr. Hussain (Facts
27), although, as an independent contractor, VA regulations prohibited him from supervising federal
employees (Facts 27). Dr. Barth was paid $200,000 to perform similar duties that Dr. Hussain had
performed, for four years, at a salary of $ 140,000 -- a difference $60,000 per year. (Facts 35)
On November 29, 2000, Dr. Hussain filed an internal EEO complaint with the Agency, alleging denial of the
promotion to the permanent position of Chief of Radiation Therapy Services, on the basis of race, national
origin, religion and age. (Facts 37) On February 14, 2001, Dr. Hussain filed a discrimination charge with
the Equal Employment Opportunity Commission ("EEOC") for failure to promote him, on the same bases.
(Facts 38) Immediately after Dr. Hussain’s filed his EEOC charge, Dr. Hussain received his first negative
evaluation in twenty-six years of service, rating him deficient in all areas. (Facts 62)
Dr. Hussain’s EEO charge brought specific attention to the fact that all of the managing doctors in the
Radiation/Oncology Departments, other than Dr. Hussain were, and had always been, White. (Facts 43)
They were all male. (Facts 43) In June of 2001, Dr. Barth hired Dr. Manning, an African-American, non-
Muslim female, approximately ten years younger than Dr. Hussain, for the newly created position of radiation
therapy staff physician, purportedly providing Dr. Hussain with the assistant that he had been requesting for
years. (Facts 42) Although Dr. Hussain was purportedly Dr. Manning’s direct supervisor, he was completely
excluded from the hiring process and was not permitted to supervise her. (Facts 42)
Dr. Manning was hired at $165,000 per year (Facts 44) The VA had refused to allocate more than $60,000
per year for the position when it authorized Dr. Hussain to fill it. (Facts 44) Dr. Manning, as an assistant to
Dr. Hussain, was paid a salary of $25,000 more per year than her boss, who had almost three decades of
seniority over her with the VAMC. (Facts 46)
In sharp contrast to the denial of Dr. Hussain’s request to teach at a local medical school one day per week,
Dr. Barth was permitted to teach one day per week with no reduction in pay. (Facts 9) Similarly, in June of
2001, when Dr. Manning was hired, she was permitted to work a four day week to teach one day per week at
Georgetown University. (Facts 9) On December 20, 2002, within a year and a half of hiring Dr. Manning as
Dr. Hussain's assistant, Mr. Garfunkel, Dr. Fletcher and Dr. Barth appointed Dr. Manning Chief of the
Radiation Therapy Section, making Dr. Manning Dr. Hussain's supervisor. (Facts 49)
After filing his EEO complaint, Dr. Hussain was excessively scrutinized, denied his civil service rights, limited
in his clinical privileges, threatened with termination, denied medical leave, undermined as a supervisor and
otherwise harassed as a means of creating such a hostile work environment, constructively discharging him
into early retirement (Facts 61-76), after 27 years of devoted service, rated, by the Agency, as “outstanding
and/or excellent” (Facts 61)
Procedural History
On February 24, 2003, Dr. Hussain filed his Complaint, under Title VII of the Civil Rights Act of 1964, alleging
discrimination on the basis of religion (Muslim), national origin (East Indian) and retaliation. On September
17, 2003, the district court dismissed claims against the discriminating officials personally, but upheld his
Title VII claims against the Agency. On November 6, 2003, Dr. Hussain filed a Second Amended Complaint.
The Agency did not timely answer the Second Amended Complaint – nor did the Agency timely request an
extension of time to file its Answer. The Agency did not request the right to file a late Answer until June 21,
2004 -- five months after the Answer was due.
The Agency filed its motion for an enlargement of time to file an Answer [# 27] to the Second Amended
Complaint [# 22] – six days after it filed its MSJ. The Agency also filed three motions for enlargements of
time to file a MSJ [#s 23, 24 and 25]. The Scheduling Order set April 26, 2004 as the due date for dispositive
motions. The district court granted the Agency’s first two motions for enlargements of time, which extended
the Agency’s time to file by two months, even though Dr. Hussain opposed the second motion. [# 24, page
2]. The second extension allowed the Agency to file its MSJ no later than June 8, 2004. [Minute Orders dated
4/14/04 and 5/24/04.] Instead of meeting its twice-extended June 8, 2004 deadline, the Agency filed a third
motion for an enlargement of time, opposed by Dr. Hussain. [# 25, page 2] Without a decision on its third
motion for an enlargement of time, the Agency filed its MSJ on June 18, 2004, ten days late. [# 26; see
discussion Pl.’s Motion for an Enlargement of Time to Respond to Def.’s MSJ, at 2-4, # 30] The court never
decided Defendant’s third motion.
In contrast to the court’s acceptance of the Agency’s untimely motions and Answer, the district court denied
Dr. Hussain’s July 9, 2004 Motion to Reopen Discovery because “the public” had expended funds to file of
the Agency’s MSJ [# 36, Tr. of July 22, 2004 at 6:2-3, 23:4-11, hereinafter, # 36] The district court
acknowledged that the undersigned was inheriting a case that is “perhaps” in “an extremely prejudiced
state” due to the denial of discovery [Id. at 23:16-21]. The court stated that denying Dr. Hussain discovery may
seem “very harsh” [Id. at 17:24-25], but advised Dr. Hussain to sue Mr. Shaw for malpractice. [Id. at 6:11-
15]
Dr. Hussain notified the court that he planned to file a Fed. R. Civ. P. Rule 56(f) affidavit with the Opposition,
asking the court to delay a decision on the MSJ until Dr. Hussain had had discovery, to obtain material
documents and testimony solely in the possession of the Agency [Id. at 16:17-22, 22:13-15]; however, the
court forbade Dr. Hussain from filing a Rule 56(f) affidavit with his Opposition to the MSJ, or a separate Rule
56(f) motion. [Id. at 16:17-25, 19:7-13, 21: 20-23, 22-24, 22:13-25, 25:7-8.]
Even without discovery, on August 30, 2004, Dr. Hussain filed 45 page Opposition (“OMSJ”), with a 31 page,
78 paragraph Statement of Undisputed Material Facts and an 18 page, 57 paragraph Statement of Disputed
Material Facts, accompanied by two volumes of Exhibits, labeled A through WW, supporting his version of the
material facts and disputing the material facts alleged by the Agency, particularly with respect to
assessments of his management accomplishments, abilities and the resources allocated to him, as
contrasted with the far superior resources and funding allocated to his replacements. (# 37, OMSJ at 8, 20)
On October 28, 2004, only 20 days after the Agency filed its October 8, 2004 Reply (# 39), the trial court
issued a thirty-two (32) page decision granting the Agency’s MSJ (# 43)
ARGUMENT
I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING DR. HUSSAIN’S MOTION TO REOPEN
DISCOVERY
A. Standard of Review for Decision not to Modify the Court’s Scheduling Order
A Court of Appeals reviews a decision of the trial court regarding modifications of the Court’s schedule
based upon whether the trial court abused its discretion. Atchinson v. District of Columbia, 73 F.3d 418, 424
(D.C. Cir. 1996). The court sets and modifies its scheduling order, taking into account the needs and due
diligence of the parties, the practicalities of obtaining certain evidence, the harm, surprise or unfairness to
either party, and in the interests of justice. Canady v. Erbe Elektromedizin GmbH, 307 F. Supp. 2d 2 (D.D.C.
2004).
B. The Trial Court Erroneously Held that Dr. Hussain had an Administrative Hearing
As discussed below, even without discovery, Dr. Hussain produced sufficient evidence to survive the Agency’
s MSJ; however, even if the district court deemed his evidence insufficient to allow this case to proceed to a
jury, its grant of summary judgment to the Agency, without discovery, was tantamount to a default judgment,
or dismissal. Such a penalty is to be imposed only in the most severe contempt and/or default cases. The
court imposed the harshest penalty possible on Mr. Shaw and his innocent client, Dr. Hussain, while
waiving, extending and ignoring the Rules of the Court where the Agency violated them.
The district court attempted to diminish the impact of denying Dr. Hussain’s motion to re-open discovery by
claiming that that Dr. Hussain “had an administrative hearing” [# 36, at 9:21]; however, Dr. Hussain has
never had any hearing in any forum on the merits of his case. The court also erroneously stated that Dr.
Hussain had “an opportunity to obtain discovery at the administrative level.” (November 28, 2004 Order at 8)
In the EEOC proceedings, the Agency violated several orders by EEOC Administrative Judge to produce
discovery and witnesses for depositions and the discontinuation of the administrative proceedings without
this discovery. [OMSJ at 38, # 36 at 22:8-9] When the Administrative Judge took an indefinite leave of
absence, Dr. Hussain abandoned the administrative process with the expectation that he would be able to
conduct discovery in his federal litigation, which constituted de novo proceedings. (OMSJ at 3, 9)
The Agency represented that its MSJ was based upon evidence produced in discovery at the administrative
level. [# 36, at 16:9-14.] This statement was misleading. In its motions for enlargements of time [#s 23, 24,
25, and 27], the Agency clearly stated that it needed additional information from its own client to respond to
the Complaint, as well as to draft its MSJ. OMSJ at 38-39. In fact, the Agency relied primarily on affidavits that
it obtained from its own employees after the administrative process had terminated and relied only minimally
on the partial discovery that was conducted before the EEOC. (OMSJ at 39)
The court’s reliance on the erroneous factual conclusion that Dr. Hussain had an administrative hearing or
full administrative discovery, constitutes reversible error.
C. Penalties Should be Commensurate to the Level of Degree of Wrongdoing
Several factors should be considered where a party must suffer a penalty as a result of an attorney’s
violation of the Rules of schedules of the Court.
A District court may order sanctions, including a default judgment, for misconduct, either pursuant to Rule 37
(b) (2) or pursuant to the Court’s inherent power to protect its integrity and protect abuse of the judicial
process.
Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir. 2001). Where the attorney’s failure to comply is not
due to willful bad faith, however, the harshest sanction of dismissal of the action or preclusion of evidence
which is tantamount to dismissal is inappropriate. Id.
There are three bases customarily invoked to justify dismissal or a default judgment: 1) prejudice to the
other party; 2) prejudice to the judicial system such as to cause “an intolerable burden on a district court by
requiring the court to modify its own docket and operations to accommodate the delay; and 3) the need to
sanction conduct that is disrespectful to the court and to deter similar conduct in the future. Webb v. District
of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998). The factors applied to contempt proceedings should be
considered in determining whether the trial court abused its discretion in imposing the ultimate penalty of
summary judgment on Dr. Hussain, as a penalty for his former counsel’s benign neglect.
The Court said that the Agency would be harmed if discovery were reopened because “the public” had paid
to file its MSJ (# 36 at 6:2-3, 23:4-11); however, because of electronic filing, the out of pocket filing costs to
the public were “zero.” OMSJ at 41. The Agency did not waste time drafting the MJS because the Agency
could have resubmitted when discovery was complete and it would be able to supplement it if new discovery
added to its arguments. Id. Moreover, Rule 56(f) specifically anticipates circumstances under which
discovery will be re-opened after a party has filed a motion for summary judgment.
The Agency’s own “unclean hands” more than justified any minor inconvenience to the Agency as a result of
re-opening discovery. The judicial system would not have been unduly burdened by re-opening discovery. In
fact, the court would not have had to modify its schedule at all. There was no valid scheduling order at the
time that Dr. Hussain requested that discovery be enlarged. The Agency had already destroyed the court’s
Scheduling Order through its motions for repeated enlargements of time to file a MSJ and its filing of its
Answer to the Second Amended Complaint five months late.
The court denied Dr. Hussain discovery to punish Mr. Shaw, calling Mr. Shaw’s inaction “willful action in
contravention of the court’s orders” (Id. at 18:23-24), despite its concession that Mr. Shaw’s failure to timely
conduct discovery may have been “unintentional” (Id. at 18:22). The court abused its discretion by
administering punishment for benign neglect that was appropriate for willful contempt of court. Even in
contempt proceedings, the penalty should not be greater than necessary to deter future misconduct. In
addition to being berated in open court, Mr. Shaw was terminated as Dr. Hussain’s counsel (# 40). In fact,
Dr. Hussain had already hired the undersigned at the time of the ruling. Mr. Shaw’s future misconduct was
therefore more than sufficiently deterred. There was no justification for continuing to punish Dr. Hussain
while there was still time to correct Mr. Shaw’s error by reopening discovery.
The court acknowledged that the undersigned was inheriting a case in “perhaps” “an extremely prejudiced
state” [# 36, at 23:16-21], noting that the denial of discovery may seem “very harsh” to Dr. Hussain [# 36, at
17:24-25] and that “unfortunately, the client does suffer when the lawyer falls down on the job” [Id. at 19:12-
13], however, the district court did not apply the Rules “harsh[ly]” to the Agency. The court could certainly have
again modified its already defunct Scheduling Order, but refused to do so for Dr. Hussain.
D. The Agency has “Unclean Hands”
1. The Agency Filed its Motion for Summary Judgment Ten Days Late
Mr. Shaw correctly asserted that the government did not stand before the district court with “clean hands” [#
36, at 6:16-17, 9:12-18]. The Agency filed three consecutive motions for enlargements of time to file a MSJ
[#s 23, 24 and 25], with no special justification. After failing to meet even one of the extended deadlines, the
Agency misrepresented to this Court that it had timely filed all of its motions [# 36, at 10:25 to 11:1]. The
Agency actually filed its MSJ on June 18, 2004 [# 26], ten days after its second extension of time to June 8,
2004. [# 24]
The Agency had no right to simply disregard its third deadline and assume that a third motion for an
enlargement of time would be granted, over Dr. Hussain’s objection, particularly when Dr. Hussain had
objected to even the second enlargement of time. Despite its late filing, the Agency’s MSJ was accepted by
the Court and Dr. Hussain was required to answer it.
The Agency exhibited particular bad faith by opposing Dr. Hussain’s motion for an enlargement of time,
necessitating a conference call, on July 12, 2004. The Agency argued that Dr. Hussain had missed his July
8, 2004 deadline, set by the court when it granted Defendant’s Second Motion for an Enlargement of Time to
File a Dispositive Motion. The Agency ignored its own proposed Order, in its Third Motion for an
Enlargement of Time to File a Dispositive Motion, proposing that Dr. Hussain be permitted to respond by July
19, 2004. (# 25, discussed in Plaintiff’s First Motion for an Enlargement of Time to Respond to Defendant’s
Motion for Summary Judgment, # 31 at 2) In other words, for purposes of filing its own MSJ, the Agency
pretended that the court had granted its third motion for an enlargement of time; however, for purposes of Dr.
Hussain’s response, the Agency attempted to hold Dr. Hussain to the July 8, 2004 date set by the May 24,
2004 Order granting the Agency’s second motion for an enlargement of time, set on the premise that the
Agency would file its MSJ by June 8, 2004. The Agency sought to have it both ways, enlarging its own time to
file its MSJ by ten days and shortening Dr. Hussain’s response time from 30 to 20 days. This type of
behavior has been typical of the Agency’s counsel (OMSJ at 42-45); however, the district court chastised only
Dr. Hussain’s counsel for “shenanigans” in its courtroom. (# 36 at 3:8-9)
2. The Agency Withheld its Answer to the Second Amended Complaint, in Bad Faith, Filing Five Months
Late, to Deprive Dr. Hussain of Discovery
The Agency filed a motion for an enlargement of time to file an Answer [# 27] to the Second Amended
Complaint [# 22] – six days after it filed its MSJ. The Agency late filed its motion to file the Answer late five
months after the Answer was due, and seven months after the Second Amended Complaint was filed
(November 6, 2003). After it filed its MSJ, the Agency openly informed the court that it had “anticipated” filing
its overdue Answer to the Second Amended Complaint simultaneously with its MSJ, and claimed, as “good
cause” for filing its Answer even beyond the filing of its MSJ, that it was unable to complete drafting both on
the same day [# 27, page 2]. The Agency offered no explanation for what it was doing on all of the days in the
preceding seven months, during which it failed to file its Answer, or why it needed, or had any right, to
withhold its Answer until it filed its MSJ. At most, both documents involved only re-interviewing its own
employees, since it had conducted its own internal investigation and collected relevant documents during
years of administrative proceedings.
“Discovery is generally related to matters raised by a Complaint and an Answer.” United States v. American
Tel. and Tel. Co., 461 F. Supp. 1314, 1347, 1349 (D.D.C. 1978). Plaintiffs typically await an Answer to a
Complaint before noticing unnecessary, expensive depositions, or wasting limited interrogatories on
questions that the defendant might well admit in an Answer. By deliberately withholding its Answer, the
Agency deprived Dr. Hussain of the ability to appropriately plan its discovery. The Agency’s conduct indicates
an overall scheme to deprive Dr. Hussain of his discovery, as it has done on the administrative level. (OMSJ
at 45)
The Agency argued that it had a right to withhold its Answer for the entire duration of the discovery period and
beyond because Dr. Hussain filed his Second Amended Complaint five days late, on November 6, 2003,
instead of November 1, 2003; however, it specifically relied on the Second Amended Complaint in its MSJ
and expressly declined to move to strike it. [#25, page 2] Again, the Agency attempted to have it “both ways –
relying on the Second Amended Complaint, yet, claiming that there was never any due date for answering it.
The Agency must not be permitted to take these inconsistent positions and benefit from its wrongdoing.
E. The District Court Demonstrated Bias in Applying Rules, Orders and Standards
The district court liberally granted the Agency enlargements of time, allowing it, without excuse or
explanation, to file is Answer to the Second Amended Complain five months late, and two months beyond
the original Scheduling Order to draft a dispositive motion – which, Where the court held the Agency to so
lax a standard of meeting the “good cause” requirement for three enlargements of time, the same liberal
standard should have been applied to Dr. Hussain’s request for an enlargement of discovery. The trial court
abused its discretion by stringently holding Dr. Hussain – but not the Agency -- to the Rules and Orders of
the Court.
II. THE DISTRICT COURT IMPROPERLY GRANTED SUMMARY JUDGMENT
A. Standard of Review for Summary Judgment
An appellate Court reviews a grant of summary judgment de novo. Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir.
1994) Pursuant to Fed. R. Civ. P. 56, a party is only entitled to summary judgment where the evidence in the
record shows that there is no genuine issue as to any material fact and the moving party is entitled to a
judgment as a matter of law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255 (1986). Rule 56(c) requires
that, for purposes of summary judgment, the evidence of the non-movant is to be believed and all justifiable
inferences drawn in his/her favor. Id.; Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 148
(2000).
B. The Court Erred by Holding that the Facts are Undisputed
Under Rule 56(c), a judgment should only be entered for the moving party:
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a
judgment, as a matter of law.
At the time that the Defendant filed its MSJ, the only “pleading” in the file was the Complaint. There were only
records in the file, exclusively in control of the Agency, that the Agency has chosen to produce and affidavits
that Agency counsel drafted for the Agency’s employees. There were no answers to interrogatories,
admissions, responses to document requests, or depositions in this federal litigation.
The court erroneously accepted, as fact, the Agency’s statements that it, in good faith, determined that Drs.
Barth and Manning were more objectively qualified for the unadvertised positions/promotions they were
given, than was Dr. Hussain. [November 28, 2004 Order at 23-24]. The court ignored the fact that the Agency
refused, for four years, to appoint Dr. Hussain to the position permanently, when he had absolutely no
competition for the job and was performing the duties alone. Clearly, the Agency was determined to deny Dr.
Hussain these positions, whether there were other “more qualified” candidates or not. The court deemed it
not “relevant” that Dr. Hussain had 26 years of experience with the Agency. [Id. at 24], in Radiology, and had
been the Acting Chief for 4 years, as contrasted with the one and a half year that Dr. Manning had with the
hospital -- as Dr. Hussain’s “assistant.” How can the experience of performing the very job for which he
applied, for four years, be “irrelevant” and not even raise a material question of disputed fact for a jury as to
whether Agency’s statements are pre-textual?
Dr. Hussain filed a 45 page Opposition (“OMSJ”), with a 31 page, 78 paragraph Statement of Undisputed
Material Facts and an 18 page, 57 paragraph Statement of Disputed Material Facts, accompanied by two
volumes of Exhibits, labeled A through WW, supporting his statements of facts, particularly with respect to
the Agency’s assessments of Dr. Hussain’s qualifications for the unadvertised positions/promotions for
which he was rejected, as well as his management accomplishments, abilities and the resources allocated
to him, as contrasted with the far superior resources and funding allocated to his replacements.
Despite Dr. Hussain’s extensive evidence that the Agency’s stated legitimate, non-discriminatory reasons
were false and/or misleading, particularly when assessed in light of the treatment and resources provided to
his comparators (OMSJ at 17-22), the district court completely disregarded Dr. Hussain’s version of the facts
and accepted the Agency’s version, usurping the authority of the jury to make such factual determinations.
The court characterized Dr. Hussain’s evidence as “his own perception of himself,” rather than of his
employer (October 28, 2004 Order at 17); however, Dr. Hussain produced the very performance evaluations
that his employer administered to him, over a 19 year period, rating him as “excellent.” (OMSJ at 18-19) A
reasonable jury could certainly conclude from this proof that the Agency’s stated reasons for his non-
selection and forced retirement were false and pre-textual.
1. The District Court Erred by Accepting the Agency’s Denial of Discriminatory Intent, at Face Value,
without Cross-Examination
Federal Courts strongly disfavor summary judgment in employment discrimination cases, where motive and
intent are at issue. Intent and motive must be ascertained through cross-examination of the decision-
makers and other witnesses regarding the Defendant’s purportedly non-discriminatory reasons for the
adverse action. The inconsistencies in the statements of the Agency’s witnesses indicate that the Agency’s
stated reasons for the adverse actions are pre-textual (Facts 49) and must be subject to cross-examination
before a jury. OMSJ at 17-23.
As evidence that Drs. Barth and Manning were better managers than Dr. Hussain, the Agency presented
written statements of biased and conflicting witnesses. (OMSJ at 17-22) In addition, Dr. Barth specifically
characterized the circumstances under which Dr. Hussain worked, on call 24 hours per day, 7 days per
week, 365 days per year, for 4 years, as “unbearable” (OMSJ at 20). Though Dr. Hussain bore them, his
efforts were unrewarded.
On October 28, 2004, only twenty (20) days after the Agency filed its October 8, 2004 Reply (# 39), making its
MSJ ripe for a decision, the trial court issued a thirty-two (32) page decision granting the Agency’s MSJ (#
43). The district court usurped the province of the jury and accepted, as undisputed fact, the statements of
the discriminating Agency officials, Dr. Fletcher and Mr. Garfunkel, supported by the biased beneficiaries of
the discriminatory conduct, of Drs. Barth, Manning and Patel, without questioning theirs statements or their
motives. Dr. Hussain is entitled to a jury determination on these material facts, while jurors observe the
witnesses’ demeanor under cross-examination.
Dr. Barth has reason to be biased, or have a conflict of interest in evaluating Dr. Hussain. Dr. Hussain had
filed an EEO charge challenging Dr. Barth’s selection as Chief. (OMSJ at 6-7, 14-15, 25-36) Dr. Barth was
the beneficiary of the VA’s discriminatory conduct when he was appointed Chief of Radiology Services, a
position which Dr. Hussain had performed in an Acting capacity for four years and sought on a permanent
basis. (OMSJ at 13, 15-16) Similarly, Dr. Manning was Dr. Hussain’s competitor for the position of Chief of
Radiation/Oncology Service.
Dr. Hussain must be permitted to depose Drs. Manning, Patel, Barth, Mr. Garfunkel, regarding their affidavit
accusations. The Agency’s witnesses were not confronted by comparative evidence regarding complaints
about other doctors and/or administrators or the context of the complaints made about the Radiation Therapy
Service and/or Oncology departments. (OMSJ at 37) The witnesses were not questioned about the 1997 VA
Regional Office Task Force Report or Recommendation, or as to why the Regional Office removed referrals
from additional hospitals from VAMC. (OMSJ at 19-22) The need for cross-examination, before a jury, is
particularly strong where, as here, the stated “legitimate, non-discriminatory reasons” are general,
conclusory, vague and subjective. (OMSJ at 17-22, 37)
2. The District Court Ignored Evidence of Religious Alliances and Animus
The district court completely ignored the undisputed evidence that the doctors at the VA had formed alliances
based upon religious affiliation, and that the alleged discriminating officials, in particular, were allied on the
basis of religion, having established and operated “The Jewish Society.” (Facts 16) When a Catholic Chief
of Staff, Dr. Spagnolo, was hired, he immediately hung, in his VA office, a portrait of the Pope. (Facts 16)
Mr. Garfunkel and Drs. Finkelstein and Krasnow expressed anti-Muslim/Arab sentiment, particularly making
references to the Jewish-Muslim conflict in the Middle East. (Facts 16) The “Jewish Society” and references
to themselves as “the chosen people” during staff meetings must be explored. This conduct, in a federal
government workplace, arguably raises questions of whether the VA doctors have violated the First
Amendment guarantees of separation of Church and State. It is certainly material to the questions of hostile
work environment and discrimination.
The court ignored evidence of antagonism between Dr. Spagnolo and the doctors in the Jewish Society,
which culminated in the dismissal of Dr. Spagnolo, after complaints by the very decision-makers in this
case. (OMSJ at 3, 36) The district court further ignored evidence that Dr. Patel, a Hindu, specifically
disparaged Dr. Hussain to co-workers, thereby extending the “holy war” in India to the VA. (Id.) The court
erroneously held that Dr. Patel’s bias against Muslims was irrelevant (Id), ignoring the fact that the decision-
makers relied upon Dr. Patel’s assessments of Dr. Hussain’s patient rounds, as well as his effectiveness
as a manager.
Instead of addressing the background of religious alliances and animosity among doctors at the VAMC, the
district court only acknowledged secondary evidence of religious animus offered by Dr. Hussain and did so
only by dismissing it as hearsay. (October 28, 2004 Order at 19) Where Dr. Hussain had to be subjected to
a colleague repeating references to Arab Muslims as “uncivilized and violent nomads” in his workplace
(OMSJ at 3), because Drs. Finkelstein and Fletcher had so injected this animus into the workplace, it is not
hearsay. Furthermore, even the statement were hearsay, in terms of admissibility in court, it is likely to lead
to admissible testimony in court, where the colleague who related the comment would subpoenaed to
testify. Moreover, if Dr. Hussain had been afforded discovery, he could have deposed the colleague and
there would not even have been an arguable hearsay objection.
III. THE TRIAL COURT EXHIBITED BIAS, REFERRING TO THE AGENCY AS “THE TAXPAYERS” AND
“THE PUBLIC”
The district court exhibited extreme bias by repeatedly referring to the Agency as “the public and “the
taxpayers,” expressing concern for any costs expended by the U.S. government in litigating this case, even
for printing out electronically filed exhibits. (# 36 at 6:2-3, 23:4-11; OMSJ at 41) In addition to this reference in
the July 22, 2004 hearing, during a September 9, 2004 telephone status conference, the court ordered Dr.
Hussain to provide Defendant with a hard copy of its exhibits A-WW, in addition to the courtesy copy provided
to chambers, stating that “the taxpayers” should not have to pay for printing out the electronically filed
exhibits. Conversely, the court had not required the Agency to provide Dr. Hussain with hard copies of its
voluminous exhibits and the undersigned had to download each electronically filed exhibit in order to
respond to the Agency’s MSJ, which is a tremendously time-consuming ordeal.
The court’s statements were particularly peculiar, since Dr. Hussain does not have the vast resources
available to the U.S. government for photocopying, printing and other costs. Dr. Hussain is a working
person, depending upon his retirement benefits and his joint income with his wife to pay legal fees. Dr.
Hussain, also a “taxpayer,” was a hard-working government employee whom the Agency harassed into early
retirement. He as also a public servant for twenty-right years, treating, healing and comforting U.S. veterans.
The trial court’s bias in favor of the U.S. government, and its portrayal of the government as the party with
limited resources, implies that the trial court would have viewed any ultimate award in favor Dr. Hussain as
an imposition upon the “public.” It appears that the district court “short-cut” the judicial process to “save”
“the taxpayers” any money that a jury might be award to Dr. Hussain or that the government would expend in
order to continue to litigate this case. In doing so, the court deprived Dr. Hussain of due process and
procedure under the Rules of the Court and controlling federal judicial holdings. Dr. Hussain is entitled to
adjudicate his claims on the merits, before a jury. He respectfully requests that this Court allow him to do
so.
CONCLUSION
Dr. Hussain respectfully moves this Court to reverse the trial court’s orders of July
22, 2004 and November 28, 2004 and remand the case for discovery and a trial on the merits.
Respectfully submitted,
Dawn V. Martin, Esquire
D.C. Federal Bar No. 412384
1090 Vermont Avenue, N.W., Suite 800
Washington, D.C. 20005
DVMARTINLAW@yahoo.com
www.firms.findlaw.com/dvmartinlaw
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
MOHAMMED HUSSAIN, )
Plaintiff, )
v. ) Appeal No. 04-5417
)
ANTHONY PRINCIPI, )
Secretary, Department of Veteran Affairs )
Defendant. )
___________________________________)
APPELLANT’S MOTION FOR SUMMARY REVERSAL
Appellant, Dr. Hussain, respectfully moves this Court for Summary Reversal of the district court’s orders of
November 28, 2004, granting summary judgment to Defendant and of its July 22, 2004 denial of Dr. Hussain’
s motion for an enlargement of time to conduct discovery.
Standard for Summary Reversal
On appeal, summary disposition is appropriate where the merits of the appeal are so clear that expedited
action is justified. Taxpayer Watchdog, Inc. v. Stanley, 819 F.2d 294, 289 (D.C. Cir. 1987); 627 F.2d 541, 545
(D.C. Cir.), cert. denied, 449 U.S. 994 (1980).
The errors of the district court involve basic rights of litigants that are so clear that this Court can reverse the
district court’s orders based on the expedited process of abbreviated review. Dr. Hussain presents four
basic rights that the district court erroneously denied to him: 1) the benefit of discovery; and 2) the right to
cross examine witnesses and allow the trier of fact to determine credibility based upon the witnesses’
testimony in their own words, answers to questions asked during cross examination and their demeanor; 3)
the consideration of material evidence in factual determinations made by the Court; and 4) impartial and
equal treatment of the parties, holding them to the same burdens of proof and consideration of litigation
costs. This Court may summarily reverse the district court’s grant of summary judgment to the Agency and
remand for discovery and a trial on the merits.
FACTS
Facts Underlying Title VII Claim
The relevant facts are fully set forth in Plaintiff’s Statement of Undisputed Material Facts (“Facts”); submitted
with his Opposition to Defendant’s Motion for Summary Judgment (“OMSJ”) (# 37); however, they are
summarized as follows.
Dr. Mohammed A. Hussain is dark skinned, fifty eight year old male and a practicing Muslim, born in India
and naturalized as a citizen of the United States. (Facts 1) In 1978, Dr. Hussain joined the VAMC as a
physician, assigned to the position of Assistant Chief of Radiation Therapy Services. (Facts 5)
There is religious tension between various faiths and there were religious alliances within the VAMC. The
Hospital Administrator, Mr. Garfunkel, and the Chief of Staff, Dr. Fletcher, established the “Jewish Society,”
which organizes an annual holocaust symposium on the hospital premises. (Facts 16) Dr. Spagnolo was
appointed Chief of Staff in 1998, by the VA Central Office, and hung a large portrait of Pope John Paul II in his
office. (Facts 16) After a year of tension, Mr. Garfunkel removed Dr. Spagnolo as Chief. (Facts 16)
At staff meetings, Drs. Finkelstein and Krasnow openly expressed their support for Israel over Palestine.
(Facts 16) They referred to themselves as the “chosen people” and conducted an annual symposium on
the holocaust at work. (Facts 16) Mr. Garfunkel and/or Dr. Fletcher were reputed to refer to Palestinian
Muslims as “uncivilized” and “violent nomads.” (Facts 16)
For the entire twenty-seven years of his service with the VAMC, Dr. Hussain was the only Asian or Indian
doctor in a managerial or supervisor position, within the Radiation and/or Oncology Departments, later
merged as the Radiology Service Division. (Facts 11) Dr. Hussain was the only Muslim, of any rank,
profession or position in the Radiation or Oncology Departments. (Facts 11) To the best of Dr. Hussain’s
knowledge, out of at least 2,500 employees at VAMC, he was the highest ranking Muslim at VAMC. (Facts
11)
For years, there have been major shortages of staff, equipment and resources the VAMC, reducing the
hospital’s ability to properly treat veterans. (Facts 19, 51, 52) Dr. Hussain repeatedly requested upgraded
resources, both in terms of equipment and personnel, to no avail. (Facts 19, 50) In 1997, the Regional
Office of the Veteran’s Administration created a Task Force to assess the shortages of staff and equipment
at the VAMC, particularly the Radiation Therapy Services Department. (Facts 19) Dr. Hussain risked his
own livelihood by becoming a “whistleblower” and reporting the unacceptable conditions. (Facts 50)
On June 25, l997, Dr. Hussain was appointed Acting Chief of Radiation Therapy Services when the former
Chief retired, but he was not compensated as a Chief. (Facts 21-22) VA regulations regarding probationary
status limits an appointment to an “Acting” position to 90 days; however, Dr. Hussain served as Acting Chief
for four and a half years. (Facts 23-24)
On or about June 1, 1998, Mr. Garfunkel hired Dr. Klemens Barth, a White, non-Muslim male, to work in the
radiology department as a contract employee (Facts 25) Dr. Barth began supervising Dr. Hussain (Facts
27), although, as an independent contractor, VA regulations prohibited him from supervising federal
employees (Facts 27). Dr. Barth was paid $200,000 to perform similar duties that Dr. Hussain had
performed, for four years, at a salary of $ 140,000 -- a difference $60,000 per year. (Facts 35)
On November 29, 2000, Dr. Hussain filed an internal EEO complaint with the Agency, alleging denial of the
promotion to the permanent position of Chief of Radiation Therapy Services, on the basis of race, national
origin, religion and age. (Facts 37) On February 14, 2001, Dr. Hussain filed a discrimination charge with
the Equal Employment Opportunity Commission ("EEOC") for failure to promote him, on the same bases.
(Facts 38) Immediately after Dr. Hussain’s filed his EEOC charge, Dr. Hussain received his first negative
evaluation in twenty-six years of service, rating him deficient in all areas. (Facts 62)
Dr. Hussain’s EEO charge brought specific attention to the fact that all of the managing doctors in the
Radiation/Oncology Departments, other than Dr. Hussain were, and had always been, White. (Facts 43)
They were all male. (Facts 43) In June of 2001, Dr. Barth hired Dr. Manning, an African-American, non-
Muslim female, approximately ten years younger than Dr. Hussain, for the newly created position of radiation
therapy staff physician, purportedly providing Dr. Hussain with the assistant that he had been requesting for
years. (Facts 42) Although Dr. Hussain was purportedly Dr. Manning’s direct supervisor, he was completely
excluded from the hiring process and was not permitted to supervise her. (Facts 42)
Dr. Manning was hired at $165,000 per year (Facts 44) The VA had refused to allocate more than $60,000
per year for the position when it authorized Dr. Hussain to fill it. (Facts 44) Dr. Manning, as an assistant to
Dr. Hussain, was paid a salary of $25,000 more per year than her boss, who had almost three decades of
seniority over her with the VAMC. (Facts 46)
In sharp contrast to the denial of Dr. Hussain’s request to teach at a local medical school one day per week,
Dr. Barth was permitted to teach one day per week with no reduction in pay. (Facts 9) Similarly, in June of
2001, when Dr. Manning was hired, she was permitted to work a four day week to teach one day per week at
Georgetown University. (Facts 9) On December 20, 2002, within a year and a half of hiring Dr. Manning as
Dr. Hussain's assistant, Mr. Garfunkel, Dr. Fletcher and Dr. Barth appointed Dr. Manning Chief of the
Radiation Therapy Section, making Dr. Manning Dr. Hussain's supervisor. (Facts 49)
After filing his EEO complaint, Dr. Hussain was excessively scrutinized, denied his civil service rights, limited
in his clinical privileges, threatened with termination, denied medical leave, undermined as a supervisor and
otherwise harassed as a means of creating such a hostile work environment, constructively discharging him
into early retirement (Facts 61-76), after 27 years of devoted service, rated, by the Agency, as “outstanding
and/or excellent” (Facts 61)
Procedural History
On February 24, 2003, Dr. Hussain filed his Complaint, under Title VII of the Civil Rights Act of 1964, alleging
discrimination on the basis of religion (Muslim), national origin (East Indian) and retaliation. On September
17, 2003, the district court dismissed claims against the discriminating officials personally, but upheld his
Title VII claims against the Agency. On November 6, 2003, Dr. Hussain filed a Second Amended Complaint.
The Agency did not timely answer the Second Amended Complaint – nor did the Agency timely request an
extension of time to file its Answer. The Agency did not request the right to file a late Answer until June 21,
2004 -- five months after the Answer was due.
The Agency filed its motion for an enlargement of time to file an Answer [# 27] to the Second Amended
Complaint [# 22] – six days after it filed its MSJ. The Agency also filed three motions for enlargements of
time to file a MSJ [#s 23, 24 and 25]. The Scheduling Order set April 26, 2004 as the due date for dispositive
motions. The district court granted the Agency’s first two motions for enlargements of time, which extended
the Agency’s time to file by two months, even though Dr. Hussain opposed the second motion. [# 24, page
2]. The second extension allowed the Agency to file its MSJ no later than June 8, 2004. [Minute Orders dated
4/14/04 and 5/24/04.] Instead of meeting its twice-extended June 8, 2004 deadline, the Agency filed a third
motion for an enlargement of time, opposed by Dr. Hussain. [# 25, page 2] Without a decision on its third
motion for an enlargement of time, the Agency filed its MSJ on June 18, 2004, ten days late. [# 26; see
discussion Pl.’s Motion for an Enlargement of Time to Respond to Def.’s MSJ, at 2-4, # 30] The court never
decided Defendant’s third motion.
In contrast to the court’s acceptance of the Agency’s untimely motions and Answer, the district court denied
Dr. Hussain’s July 9, 2004 Motion to Reopen Discovery because “the public” had expended funds to file of
the Agency’s MSJ [# 36, Tr. of July 22, 2004 at 6:2-3, 23:4-11, hereinafter, # 36] The district court
acknowledged that the undersigned was inheriting a case that is “perhaps” in “an extremely prejudiced
state” due to the denial of discovery [Id. at 23:16-21]. The court stated that denying Dr. Hussain discovery may
seem “very harsh” [Id. at 17:24-25], but advised Dr. Hussain to sue Mr. Shaw for malpractice. [Id. at 6:11-
15]
Dr. Hussain notified the court that he planned to file a Fed. R. Civ. P. Rule 56(f) affidavit with the Opposition,
asking the court to delay a decision on the MSJ until Dr. Hussain had had discovery, to obtain material
documents and testimony solely in the possession of the Agency [Id. at 16:17-22, 22:13-15]; however, the
court forbade Dr. Hussain from filing a Rule 56(f) affidavit with his Opposition to the MSJ, or a separate Rule
56(f) motion. [Id. at 16:17-25, 19:7-13, 21: 20-23, 22-24, 22:13-25, 25:7-8.]
Even without discovery, on August 30, 2004, Dr. Hussain filed 45 page Opposition (“OMSJ”), with a 31 page,
78 paragraph Statement of Undisputed Material Facts and an 18 page, 57 paragraph Statement of Disputed
Material Facts, accompanied by two volumes of Exhibits, labeled A through WW, supporting his version of the
material facts and disputing the material facts alleged by the Agency, particularly with respect to
assessments of his management accomplishments, abilities and the resources allocated to him, as
contrasted with the far superior resources and funding allocated to his replacements. (# 37, OMSJ at 8, 20)
On October 28, 2004, only 20 days after the Agency filed its October 8, 2004 Reply (# 39), the trial court
issued a thirty-two (32) page decision granting the Agency’s MSJ (# 43)
ARGUMENT
I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING DR. HUSSAIN’S MOTION TO REOPEN
DISCOVERY
A. Standard of Review for Decision not to Modify the Court’s Scheduling Order
A Court of Appeals reviews a decision of the trial court regarding modifications of the Court’s schedule
based upon whether the trial court abused its discretion. Atchinson v. District of Columbia, 73 F.3d 418, 424
(D.C. Cir. 1996). The court sets and modifies its scheduling order, taking into account the needs and due
diligence of the parties, the practicalities of obtaining certain evidence, the harm, surprise or unfairness to
either party, and in the interests of justice. Canady v. Erbe Elektromedizin GmbH, 307 F. Supp. 2d 2 (D.D.C.
2004).
B. The Trial Court Erroneously Held that Dr. Hussain had an Administrative Hearing
As discussed below, even without discovery, Dr. Hussain produced sufficient evidence to survive the Agency’
s MSJ; however, even if the district court deemed his evidence insufficient to allow this case to proceed to a
jury, its grant of summary judgment to the Agency, without discovery, was tantamount to a default judgment,
or dismissal. Such a penalty is to be imposed only in the most severe contempt and/or default cases. The
court imposed the harshest penalty possible on Mr. Shaw and his innocent client, Dr. Hussain, while
waiving, extending and ignoring the Rules of the Court where the Agency violated them.
The district court attempted to diminish the impact of denying Dr. Hussain’s motion to re-open discovery by
claiming that that Dr. Hussain “had an administrative hearing” [# 36, at 9:21]; however, Dr. Hussain has
never had any hearing in any forum on the merits of his case. The court also erroneously stated that Dr.
Hussain had “an opportunity to obtain discovery at the administrative level.” (November 28, 2004 Order at 8)
In the EEOC proceedings, the Agency violated several orders by EEOC Administrative Judge to produce
discovery and witnesses for depositions and the discontinuation of the administrative proceedings without
this discovery. [OMSJ at 38, # 36 at 22:8-9] When the Administrative Judge took an indefinite leave of
absence, Dr. Hussain abandoned the administrative process with the expectation that he would be able to
conduct discovery in his federal litigation, which constituted de novo proceedings. (OMSJ at 3, 9)
The Agency represented that its MSJ was based upon evidence produced in discovery at the administrative
level. [# 36, at 16:9-14.] This statement was misleading. In its motions for enlargements of time [#s 23, 24,
25, and 27], the Agency clearly stated that it needed additional information from its own client to respond to
the Complaint, as well as to draft its MSJ. OMSJ at 38-39. In fact, the Agency relied primarily on affidavits that
it obtained from its own employees after the administrative process had terminated and relied only minimally
on the partial discovery that was conducted before the EEOC. (OMSJ at 39)
The court’s reliance on the erroneous factual conclusion that Dr. Hussain had an administrative hearing or
full administrative discovery, constitutes reversible error.
C. Penalties Should be Commensurate to the Level of Degree of Wrongdoing
Several factors should be considered where a party must suffer a penalty as a result of an attorney’s
violation of the Rules of schedules of the Court.
A District court may order sanctions, including a default judgment, for misconduct, either pursuant to Rule 37
(b) (2) or pursuant to the Court’s inherent power to protect its integrity and protect abuse of the judicial
process.
Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir. 2001). Where the attorney’s failure to comply is not
due to willful bad faith, however, the harshest sanction of dismissal of the action or preclusion of evidence
which is tantamount to dismissal is inappropriate. Id.
There are three bases customarily invoked to justify dismissal or a default judgment: 1) prejudice to the
other party; 2) prejudice to the judicial system such as to cause “an intolerable burden on a district court by
requiring the court to modify its own docket and operations to accommodate the delay; and 3) the need to
sanction conduct that is disrespectful to the court and to deter similar conduct in the future. Webb v. District
of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998). The factors applied to contempt proceedings should be
considered in determining whether the trial court abused its discretion in imposing the ultimate penalty of
summary judgment on Dr. Hussain, as a penalty for his former counsel’s benign neglect.
The Court said that the Agency would be harmed if discovery were reopened because “the public” had paid
to file its MSJ (# 36 at 6:2-3, 23:4-11); however, because of electronic filing, the out of pocket filing costs to
the public were “zero.” OMSJ at 41. The Agency did not waste time drafting the MJS because the Agency
could have resubmitted when discovery was complete and it would be able to supplement it if new discovery
added to its arguments. Id. Moreover, Rule 56(f) specifically anticipates circumstances under which
discovery will be re-opened after a party has filed a motion for summary judgment.
The Agency’s own “unclean hands” more than justified any minor inconvenience to the Agency as a result of
re-opening discovery. The judicial system would not have been unduly burdened by re-opening discovery. In
fact, the court would not have had to modify its schedule at all. There was no valid scheduling order at the
time that Dr. Hussain requested that discovery be enlarged. The Agency had already destroyed the court’s
Scheduling Order through its motions for repeated enlargements of time to file a MSJ and its filing of its
Answer to the Second Amended Complaint five months late.
The court denied Dr. Hussain discovery to punish Mr. Shaw, calling Mr. Shaw’s inaction “willful action in
contravention of the court’s orders” (Id. at 18:23-24), despite its concession that Mr. Shaw’s failure to timely
conduct discovery may have been “unintentional” (Id. at 18:22). The court abused its discretion by
administering punishment for benign neglect that was appropriate for willful contempt of court. Even in
contempt proceedings, the penalty should not be greater than necessary to deter future misconduct. In
addition to being berated in open court, Mr. Shaw was terminated as Dr. Hussain’s counsel (# 40). In fact,
Dr. Hussain had already hired the undersigned at the time of the ruling. Mr. Shaw’s future misconduct was
therefore more than sufficiently deterred. There was no justification for continuing to punish Dr. Hussain
while there was still time to correct Mr. Shaw’s error by reopening discovery.
The court acknowledged that the undersigned was inheriting a case in “perhaps” “an extremely prejudiced
state” [# 36, at 23:16-21], noting that the denial of discovery may seem “very harsh” to Dr. Hussain [# 36, at
17:24-25] and that “unfortunately, the client does suffer when the lawyer falls down on the job” [Id. at 19:12-
13], however, the district court did not apply the Rules “harsh[ly]” to the Agency. The court could certainly have
again modified its already defunct Scheduling Order, but refused to do so for Dr. Hussain.
D. The Agency has “Unclean Hands”
1. The Agency Filed its Motion for Summary Judgment Ten Days Late
Mr. Shaw correctly asserted that the government did not stand before the district court with “clean hands” [#
36, at 6:16-17, 9:12-18]. The Agency filed three consecutive motions for enlargements of time to file a MSJ
[#s 23, 24 and 25], with no special justification. After failing to meet even one of the extended deadlines, the
Agency misrepresented to this Court that it had timely filed all of its motions [# 36, at 10:25 to 11:1]. The
Agency actually filed its MSJ on June 18, 2004 [# 26], ten days after its second extension of time to June 8,
2004. [# 24]
The Agency had no right to simply disregard its third deadline and assume that a third motion for an
enlargement of time would be granted, over Dr. Hussain’s objection, particularly when Dr. Hussain had
objected to even the second enlargement of time. Despite its late filing, the Agency’s MSJ was accepted by
the Court and Dr. Hussain was required to answer it.
The Agency exhibited particular bad faith by opposing Dr. Hussain’s motion for an enlargement of time,
necessitating a conference call, on July 12, 2004. The Agency argued that Dr. Hussain had missed his July
8, 2004 deadline, set by the court when it granted Defendant’s Second Motion for an Enlargement of Time to
File a Dispositive Motion. The Agency ignored its own proposed Order, in its Third Motion for an
Enlargement of Time to File a Dispositive Motion, proposing that Dr. Hussain be permitted to respond by July
19, 2004. (# 25, discussed in Plaintiff’s First Motion for an Enlargement of Time to Respond to Defendant’s
Motion for Summary Judgment, # 31 at 2) In other words, for purposes of filing its own MSJ, the Agency
pretended that the court had granted its third motion for an enlargement of time; however, for purposes of Dr.
Hussain’s response, the Agency attempted to hold Dr. Hussain to the July 8, 2004 date set by the May 24,
2004 Order granting the Agency’s second motion for an enlargement of time, set on the premise that the
Agency would file its MSJ by June 8, 2004. The Agency sought to have it both ways, enlarging its own time to
file its MSJ by ten days and shortening Dr. Hussain’s response time from 30 to 20 days. This type of
behavior has been typical of the Agency’s counsel (OMSJ at 42-45); however, the district court chastised only
Dr. Hussain’s counsel for “shenanigans” in its courtroom. (# 36 at 3:8-9)
2. The Agency Withheld its Answer to the Second Amended Complaint, in Bad Faith, Filing Five Months
Late, to Deprive Dr. Hussain of Discovery
The Agency filed a motion for an enlargement of time to file an Answer [# 27] to the Second Amended
Complaint [# 22] – six days after it filed its MSJ. The Agency late filed its motion to file the Answer late five
months after the Answer was due, and seven months after the Second Amended Complaint was filed
(November 6, 2003). After it filed its MSJ, the Agency openly informed the court that it had “anticipated” filing
its overdue Answer to the Second Amended Complaint simultaneously with its MSJ, and claimed, as “good
cause” for filing its Answer even beyond the filing of its MSJ, that it was unable to complete drafting both on
the same day [# 27, page 2]. The Agency offered no explanation for what it was doing on all of the days in the
preceding seven months, during which it failed to file its Answer, or why it needed, or had any right, to
withhold its Answer until it filed its MSJ. At most, both documents involved only re-interviewing its own
employees, since it had conducted its own internal investigation and collected relevant documents during
years of administrative proceedings.
“Discovery is generally related to matters raised by a Complaint and an Answer.” United States v. American
Tel. and Tel. Co., 461 F. Supp. 1314, 1347, 1349 (D.D.C. 1978). Plaintiffs typically await an Answer to a
Complaint before noticing unnecessary, expensive depositions, or wasting limited interrogatories on
questions that the defendant might well admit in an Answer. By deliberately withholding its Answer, the
Agency deprived Dr. Hussain of the ability to appropriately plan its discovery. The Agency’s conduct indicates
an overall scheme to deprive Dr. Hussain of his discovery, as it has done on the administrative level. (OMSJ
at 45)
The Agency argued that it had a right to withhold its Answer for the entire duration of the discovery period and
beyond because Dr. Hussain filed his Second Amended Complaint five days late, on November 6, 2003,
instead of November 1, 2003; however, it specifically relied on the Second Amended Complaint in its MSJ
and expressly declined to move to strike it. [#25, page 2] Again, the Agency attempted to have it “both ways –
relying on the Second Amended Complaint, yet, claiming that there was never any due date for answering it.
The Agency must not be permitted to take these inconsistent positions and benefit from its wrongdoing.
E. The District Court Demonstrated Bias in Applying Rules, Orders and Standards
The district court liberally granted the Agency enlargements of time, allowing it, without excuse or
explanation, to file is Answer to the Second Amended Complain five months late, and two months beyond
the original Scheduling Order to draft a dispositive motion – which, Where the court held the Agency to so
lax a standard of meeting the “good cause” requirement for three enlargements of time, the same liberal
standard should have been applied to Dr. Hussain’s request for an enlargement of discovery. The trial court
abused its discretion by stringently holding Dr. Hussain – but not the Agency -- to the Rules and Orders of
the Court.
II. THE DISTRICT COURT IMPROPERLY GRANTED SUMMARY JUDGMENT
A. Standard of Review for Summary Judgment
An appellate Court reviews a grant of summary judgment de novo. Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir.
1994) Pursuant to Fed. R. Civ. P. 56, a party is only entitled to summary judgment where the evidence in the
record shows that there is no genuine issue as to any material fact and the moving party is entitled to a
judgment as a matter of law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255 (1986). Rule 56(c) requires
that, for purposes of summary judgment, the evidence of the non-movant is to be believed and all justifiable
inferences drawn in his/her favor. Id.; Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 148
(2000).
B. The Court Erred by Holding that the Facts are Undisputed
Under Rule 56(c), a judgment should only be entered for the moving party:
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a
judgment, as a matter of law.
At the time that the Defendant filed its MSJ, the only “pleading” in the file was the Complaint. There were only
records in the file, exclusively in control of the Agency, that the Agency has chosen to produce and affidavits
that Agency counsel drafted for the Agency’s employees. There were no answers to interrogatories,
admissions, responses to document requests, or depositions in this federal litigation.
The court erroneously accepted, as fact, the Agency’s statements that it, in good faith, determined that Drs.
Barth and Manning were more objectively qualified for the unadvertised positions/promotions they were
given, than was Dr. Hussain. [November 28, 2004 Order at 23-24]. The court ignored the fact that the Agency
refused, for four years, to appoint Dr. Hussain to the position permanently, when he had absolutely no
competition for the job and was performing the duties alone. Clearly, the Agency was determined to deny Dr.
Hussain these positions, whether there were other “more qualified” candidates or not. The court deemed it
not “relevant” that Dr. Hussain had 26 years of experience with the Agency. [Id. at 24], in Radiology, and had
been the Acting Chief for 4 years, as contrasted with the one and a half year that Dr. Manning had with the
hospital -- as Dr. Hussain’s “assistant.” How can the experience of performing the very job for which he
applied, for four years, be “irrelevant” and not even raise a material question of disputed fact for a jury as to
whether Agency’s statements are pre-textual?
Dr. Hussain filed a 45 page Opposition (“OMSJ”), with a 31 page, 78 paragraph Statement of Undisputed
Material Facts and an 18 page, 57 paragraph Statement of Disputed Material Facts, accompanied by two
volumes of Exhibits, labeled A through WW, supporting his statements of facts, particularly with respect to
the Agency’s assessments of Dr. Hussain’s qualifications for the unadvertised positions/promotions for
which he was rejected, as well as his management accomplishments, abilities and the resources allocated
to him, as contrasted with the far superior resources and funding allocated to his replacements.
Despite Dr. Hussain’s extensive evidence that the Agency’s stated legitimate, non-discriminatory reasons
were false and/or misleading, particularly when assessed in light of the treatment and resources provided to
his comparators (OMSJ at 17-22), the district court completely disregarded Dr. Hussain’s version of the facts
and accepted the Agency’s version, usurping the authority of the jury to make such factual determinations.
The court characterized Dr. Hussain’s evidence as “his own perception of himself,” rather than of his
employer (October 28, 2004 Order at 17); however, Dr. Hussain produced the very performance evaluations
that his employer administered to him, over a 19 year period, rating him as “excellent.” (OMSJ at 18-19) A
reasonable jury could certainly conclude from this proof that the Agency’s stated reasons for his non-
selection and forced retirement were false and pre-textual.
1. The District Court Erred by Accepting the Agency’s Denial of Discriminatory Intent, at Face Value,
without Cross-Examination
Federal Courts strongly disfavor summary judgment in employment discrimination cases, where motive and
intent are at issue. Intent and motive must be ascertained through cross-examination of the decision-
makers and other witnesses regarding the Defendant’s purportedly non-discriminatory reasons for the
adverse action. The inconsistencies in the statements of the Agency’s witnesses indicate that the Agency’s
stated reasons for the adverse actions are pre-textual (Facts 49) and must be subject to cross-examination
before a jury. OMSJ at 17-23.
As evidence that Drs. Barth and Manning were better managers than Dr. Hussain, the Agency presented
written statements of biased and conflicting witnesses. (OMSJ at 17-22) In addition, Dr. Barth specifically
characterized the circumstances under which Dr. Hussain worked, on call 24 hours per day, 7 days per
week, 365 days per year, for 4 years, as “unbearable” (OMSJ at 20). Though Dr. Hussain bore them, his
efforts were unrewarded.
On October 28, 2004, only twenty (20) days after the Agency filed its October 8, 2004 Reply (# 39), making its
MSJ ripe for a decision, the trial court issued a thirty-two (32) page decision granting the Agency’s MSJ (#
43). The district court usurped the province of the jury and accepted, as undisputed fact, the statements of
the discriminating Agency officials, Dr. Fletcher and Mr. Garfunkel, supported by the biased beneficiaries of
the discriminatory conduct, of Drs. Barth, Manning and Patel, without questioning theirs statements or their
motives. Dr. Hussain is entitled to a jury determination on these material facts, while jurors observe the
witnesses’ demeanor under cross-examination.
Dr. Barth has reason to be biased, or have a conflict of interest in evaluating Dr. Hussain. Dr. Hussain had
filed an EEO charge challenging Dr. Barth’s selection as Chief. (OMSJ at 6-7, 14-15, 25-36) Dr. Barth was
the beneficiary of the VA’s discriminatory conduct when he was appointed Chief of Radiology Services, a
position which Dr. Hussain had performed in an Acting capacity for four years and sought on a permanent
basis. (OMSJ at 13, 15-16) Similarly, Dr. Manning was Dr. Hussain’s competitor for the position of Chief of
Radiation/Oncology Service.
Dr. Hussain must be permitted to depose Drs. Manning, Patel, Barth, Mr. Garfunkel, regarding their affidavit
accusations. The Agency’s witnesses were not confronted by comparative evidence regarding complaints
about other doctors and/or administrators or the context of the complaints made about the Radiation Therapy
Service and/or Oncology departments. (OMSJ at 37) The witnesses were not questioned about the 1997 VA
Regional Office Task Force Report or Recommendation, or as to why the Regional Office removed referrals
from additional hospitals from VAMC. (OMSJ at 19-22) The need for cross-examination, before a jury, is
particularly strong where, as here, the stated “legitimate, non-discriminatory reasons” are general,
conclusory, vague and subjective. (OMSJ at 17-22, 37)
2. The District Court Ignored Evidence of Religious Alliances and Animus
The district court completely ignored the undisputed evidence that the doctors at the VA had formed alliances
based upon religious affiliation, and that the alleged discriminating officials, in particular, were allied on the
basis of religion, having established and operated “The Jewish Society.” (Facts 16) When a Catholic Chief
of Staff, Dr. Spagnolo, was hired, he immediately hung, in his VA office, a portrait of the Pope. (Facts 16)
Mr. Garfunkel and Drs. Finkelstein and Krasnow expressed anti-Muslim/Arab sentiment, particularly making
references to the Jewish-Muslim conflict in the Middle East. (Facts 16) The “Jewish Society” and references
to themselves as “the chosen people” during staff meetings must be explored. This conduct, in a federal
government workplace, arguably raises questions of whether the VA doctors have violated the First
Amendment guarantees of separation of Church and State. It is certainly material to the questions of hostile
work environment and discrimination.
The court ignored evidence of antagonism between Dr. Spagnolo and the doctors in the Jewish Society,
which culminated in the dismissal of Dr. Spagnolo, after complaints by the very decision-makers in this
case. (OMSJ at 3, 36) The district court further ignored evidence that Dr. Patel, a Hindu, specifically
disparaged Dr. Hussain to co-workers, thereby extending the “holy war” in India to the VA. (Id.) The court
erroneously held that Dr. Patel’s bias against Muslims was irrelevant (Id), ignoring the fact that the decision-
makers relied upon Dr. Patel’s assessments of Dr. Hussain’s patient rounds, as well as his effectiveness
as a manager.
Instead of addressing the background of religious alliances and animosity among doctors at the VAMC, the
district court only acknowledged secondary evidence of religious animus offered by Dr. Hussain and did so
only by dismissing it as hearsay. (October 28, 2004 Order at 19) Where Dr. Hussain had to be subjected to
a colleague repeating references to Arab Muslims as “uncivilized and violent nomads” in his workplace
(OMSJ at 3), because Drs. Finkelstein and Fletcher had so injected this animus into the workplace, it is not
hearsay. Furthermore, even the statement were hearsay, in terms of admissibility in court, it is likely to lead
to admissible testimony in court, where the colleague who related the comment would subpoenaed to
testify. Moreover, if Dr. Hussain had been afforded discovery, he could have deposed the colleague and
there would not even have been an arguable hearsay objection.
III. THE TRIAL COURT EXHIBITED BIAS, REFERRING TO THE AGENCY AS “THE TAXPAYERS” AND
“THE PUBLIC”
The district court exhibited extreme bias by repeatedly referring to the Agency as “the public and “the
taxpayers,” expressing concern for any costs expended by the U.S. government in litigating this case, even
for printing out electronically filed exhibits. (# 36 at 6:2-3, 23:4-11; OMSJ at 41) In addition to this reference in
the July 22, 2004 hearing, during a September 9, 2004 telephone status conference, the court ordered Dr.
Hussain to provide Defendant with a hard copy of its exhibits A-WW, in addition to the courtesy copy provided
to chambers, stating that “the taxpayers” should not have to pay for printing out the electronically filed
exhibits. Conversely, the court had not required the Agency to provide Dr. Hussain with hard copies of its
voluminous exhibits and the undersigned had to download each electronically filed exhibit in order to
respond to the Agency’s MSJ, which is a tremendously time-consuming ordeal.
The court’s statements were particularly peculiar, since Dr. Hussain does not have the vast resources
available to the U.S. government for photocopying, printing and other costs. Dr. Hussain is a working
person, depending upon his retirement benefits and his joint income with his wife to pay legal fees. Dr.
Hussain, also a “taxpayer,” was a hard-working government employee whom the Agency harassed into early
retirement. He as also a public servant for twenty-right years, treating, healing and comforting U.S. veterans.
The trial court’s bias in favor of the U.S. government, and its portrayal of the government as the party with
limited resources, implies that the trial court would have viewed any ultimate award in favor Dr. Hussain as
an imposition upon the “public.” It appears that the district court “short-cut” the judicial process to “save”
“the taxpayers” any money that a jury might be award to Dr. Hussain or that the government would expend in
order to continue to litigate this case. In doing so, the court deprived Dr. Hussain of due process and
procedure under the Rules of the Court and controlling federal judicial holdings. Dr. Hussain is entitled to
adjudicate his claims on the merits, before a jury. He respectfully requests that this Court allow him to do
so.
CONCLUSION
Dr. Hussain respectfully moves this Court to reverse the trial court’s orders of July
22, 2004 and November 28, 2004 and remand the case for discovery and a trial on the merits.
Respectfully submitted,
Dawn V. Martin, Esquire
D.C. Federal Bar No. 412384
1090 Vermont Avenue, N.W., Suite 800
Washington, D.C. 20005
DVMARTINLAW@yahoo.com
www.firms.findlaw.com/dvmartinlaw
| Law Offices of Dawn V. Martin Hussain v. Principi Dr. Hussain's Appeal: Motion for Summary Reversal |
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