Home Up Empire Strikes Back Reply to Suit Trial Delay Request Federal Appeal

 

Text of US Department of Justice's February 1, 2000 Reply to Caryl Leventhal's Complaint

Many people feel that the way a complaint is answered reveals the intentions of the opposition.  This assumption rests in the logic that it displays the psychological intentions of the defendant's lawyer towards possible settlement.  In point of fact, the best it does is furnish some indication as to the the lawyer's judicial approach and style.

    For example,  some lawyers will "deny" virtually everything.  On the other hand, some will give in on obvious points so as not to antagonize the judge.  It should also be noted that in "lawyer-speak," the frequently used term "denies" does not unequivocally mean what it does to the rest of the population.  To a responding lawyer, "denies" could sometimes mean that it will have to be determined.  They may very well know that the specifically numbered allegation in the complaint is factual.  They may even have possession of evidence to substantiate the allegation.

    In answering Caryl Leventhal's Complaint, several important points were admitted to, although not in their entirety.  Examples appear below followed by full Answer:

THE UNANSWERED QUESTIONS: Why did judge Shira Scheindlin keep from the jury and court record, evidence and testimony of the rampant terrorist friendly corruption Caryl Leventhal was attempting to stop (You can find it by going to the Sworn Deposition of Brenda Grant).

Why did Judge Shira Scheindlin refuse to allow Caryl Leventhal a short time to secure a new attorney when the one she had was issued a letter of admonition by the courts on September 26, 2000 (the day he was to represent Caryl Leventhal in court concerning her complaint against the US Department of Justice) "for conduct that adversely reflects on his fitness as a lawyer."  (On January 6, 2004, Caryl's former lawyer will be suspended from practicing law under charges of "conduct involving dishonesty, fraud, deceit or misrepresentation."

Why did Eric B. Fisher, Deputy US Attorney place winning a case over information from this whistleblower that could warn the American people of terrorism?  Why did Alan R. Kaufman, Chief of the US Attorney's (Southern District) Criminal Division threaten The Leventhal family with arrest and prosecution if they didn't censor this website to place the US Department of Justice in a better light?  Why are they working to place America at risk?

ITEM 7 IN COMPLAINT: In May 1995, plaintiff was offered employment at INS as Supervisory Applications Clerk (G6) in Section 245. At that time, she was pressed for a starting date by Robert Brouillet, INS Supervisory Personnel Management Specialist. Five working days before plaintiff was to begin, Mr. Brouillet called and said that she couldn't start because of "points" due other candidates, although no civil service test was involved.

RESPONSE: Denies the allegations in paragraph 7, except admits that in May 1995 plaintiff was offered employment in Section 245 at INS.

ITEM 10 IN COMPLAINT: Still the offer was reinstated only after an extraordinary and hostile second INS investigation in the Summer of 1995 conducted by Steven Smith, Security Officer of INS in Vermont. INS demanded, inter alia, that plaintiff sign a release form opening her income tax records open to public scrutiny. Plaintiff was informed that not complying would result in her never getting the position she was previously offered.

RESPONSE: Denies the allegations in paragraph 10, except admits that plaintiff was asked to sign a release with respect to her income tax records.

OBSERVATION: It is agreed by both sides that in May 1995, Caryl Leventhal was made an offer of employment in Section 245 at INS.  It is also agreed by both sides that Caryl didn't begin employment at INS 26 Federal Plaza, NY NY until late October of 1995.  The time period between being pressed for a starting date and actually beginning employment was FIVE MONTHS.  Between May 1995 and October 1995 -- many months after Caryl Leventhal passed an in-depth pre-employment screening -- it is agreed that Caryl was "asked" [US Attorney's word] to sign a public release of her income tax records.  These are highly unusual, probably unprecedented conditions and employment criteria, for the relatively low level position of Supervisory Applications Clerk, Section 245.  
ITEM 11 IN COMPLAINT: At this time and for all times mentioned herein, plaintiff was completely open about having Multiple Sclerosis, including at her former place of employment. Further, plaintiff sent a certified letter to Leonard Klein, Deputy Director, Office of Personnel Management (OPM), Washington, DC. Plaintiff informed Mr. Klein of her condition, prior to beginning work at INS in late October 1995. Plaintiff wanted this information to be available for open review in her personnel files.

RESPONSE: In response to paragraph 11, denies knowledge or information sufficient to form a belief as to whether or not plaintiff told her previous employer that she suffered from Multiple Sclerosis ("MS").  Denies knowledge or information sufficient to form a belief as to plaintiff's intentions in writing to Leonard Klein.  Denies that plaintiff was completely open about suffering from MS.

OBSERVATION: The US Attorney might be correct in not [as yet] having information as to whether or not Caryl's previous employer of some three and one-half years knew she suffered from Multiple Sclerosis.  On the other hand, the most "open thing" Ms. Leventhal could do about  publicizing her having Multiple Sclerosis prior to beginning employment at INS and Section 245 was informing the second highest personnel officer in the United States Government.  It is difficult to imagine her doing this and remaining silent for the following eight months, given her treatment at work.
ITEM 12 IN COMPLAINT: Plaintiff was assigned to Section 245. Her title was "Supervisory Applications Clerk." The section was almost exclusively African American. The exceptions were a small number of Hispanics, one Asian and two older white people hired much earlier. Upon information and belief, plaintiff was the first non-African American to hold the position of Supervisory Application's Clerk in Section 245 in decades.

RESPONSE: Denies the allegations in paragraph 12, except admits that plaintif was assigned to Section 245.

OBSERVATION: Verification of the allegations will be obtained during Interrogatories.  These are a series of written questions requiring a response by the US Attorney.  It is a part of the Discovery process.  Since the US Government racially classifies employees, this information is easily obtainable, although possibly not readily forthcoming.

ITEM 36 IN COMPLAINT: Ms. Grant forced plaintiff to give Yom Kippur day off to plaintiff's non-Jewish lead Clerk, Delores Filbert. It was allegedly done because Ms. Filbert's daughter worked for a Jewish company that was closed that day.

RESPONSE: Denies the allegations in paragraph 36, except admits that Delores Filbert's leave was approved for the day of Yom Kippur.

ITEM 37 IN COMPLAINT: When plaintiff requested permission to take the Yom Kippur holiday off to observe it, Ms. Grant sent her a memo dated February 26, 1996 questioning plaintiff's "wisdom" for taking the same day off as her Lead Clerk Ms. Filbert, copy of this memo is annexed as Exhibit 2.

RESPONSE: Denies the allegations in paragraph 37, and avers [writer's note: "avers" is lawyer-speak for "agrees"] that Ms. Grant sent a memorandum to plaintiff, dated February 26, 1996, asking plaintiff whether it is a "good idea to take off the same day as your lead clerk." ...

OBSERVATION: No comment necessary except to state that Ms. Leventhal was subsequently verbally denied the right to take off Yom Kippur in observance of her faith.
ITEM 43 IN COMPLAINT: From June 10, 1996 through June 13, 1996 plaintiff and her husband, Michael Leventhal phoned plaintiff's Supervisors at INS several times to inform them of the seriousness of her exacerbation of Multiple Sclerosis. Plaintiff was yelled at by both Grant and Stewart, both stating that plaintiff would be marked "AWOL" if she didn't return to work. Mr. Leventhal was hung up on when he pleaded with Ms. Grant and Stewart to stop yelling at plaintiff when she called in sick.

RESPONSE: Denies the allegations in paragraph 43, except admits that during June 1996 plaintiff and her husband made several telephone calls to Ms. Stewart and Ms. Grant.
ITEM 44 IN COMPLAINT: During her illness, plaintiff sent certified letters up the chain of command at INS 26 Federal Plaza and further sent certified letters to both Hon. Janet Reno, Attorney General and Ms. Doris Meisner, Bureau Chief, INS. Plaintiff wrote that if nobody helped her, she would expose the corruption and inefficiency in Section 245.

RESPONSE: In response to paragraph 44, admits that plaintiff sent letters to various persons in the INS and that, in those letters, plaintiff threatened to expose purported corruption.  Denies knowledge or information sufficient to form a belief as to whether these letters were written during plaintiff's illness.
ITEM 46 IN COMPLAINT: From June 10, 1996 to August 7,1996, plaintiff sent certified letters explaining her condition and complaining about her treatment. These letters went to Brenda Grant, Agatha Stuart, Gwen McPherson, Edward McElroy and others in her chain of command. Via certified mail, plaintiff sent doctor's notes and MRI reports from neurologists confirming the serious nature of her condition.

RESPONSE: Admits the allegations in paragraph 46, except denies knowledge or information sufficient to form a belief as to the seriousness of plaintiff's medical condition.
ITEM 47 IN COMPLAINT: Plaintiff was marked AWOL for 264 hours despite the aforementioned telephone calls, certified letters, doctor's notes and MRI reports, detailing and confirming the seriousness of her condition.

RESPONSE: Denies the allegations in paragraph 47, except admits that plaintiff was considered AWOL for at least 264 hours.

OBSERVATION: In response to item 43 above, US Attorney admits management receiving telephone calls from both Caryl Leventhal and her husband.  In response to 46 above, the US Attorney admits that doctor's notes and MRI reports from neurologists were received from plaintiff.

ITEM 48 IN COMPLAINT: Ms. Grant sent a memorandum, dated July 24, 1996, to INS New York Deputy District Director, Mary Ann Gantner, recommending the termination of plaintiff, due, inter alia, to the aforesaid AWOL hours. Ms. Grant mentions nothing about plaintiff being seriously ill despite the fact that everyone in the chain of command, she included, was aware of plaintiff's dire circumstances. Also in this memo Ms. Grant refers to plaintiff's request for time off to observe Yom Kippur as "peculiar judgment." One wonders why Ms. Grant would refer to observance of the highest holiday in the Jewish religion as "peculiar." ...

RESPONSE: Denies the allegations in paragraph 48, except admits that by memorandum, dated July 24, 1996, Ms. Grant recommended plaintiff's termination ...

OBSERVATION: The memorandum in question is now a formal part of Caryl Leventhal's Amended Complaint.  It confirms virtually everything stated in item 48 of her complaint.
ITEM 49 IN COMPLAINT: On August 13, 1996, plaintiff received a certified letter of termination dated August 8, 1996 written by defendant Edward J. McElroy - District Director. Among the reasons for termination were her showing "poor dedication" to her job. In a critical medical emergency, that was known throughout the chain of command, plaintiff was terminated without warning...

RESPONSE: Denies the allegations in paragraph 49, except admits that Mr. McElroy sent plaintiff a certified letter of termination on or about August 13, 1996.  Further admits that plaintiff was terminated for poor dedication to her job, among other reasons ...

The final portion of an answer to a complaint includes strategies for a defense.  They appear as follows:

As an explanation, the defenses listed by the US Attorney are what might be called judicial "boilerplate."  If the US Department of Justice believed that any of them would stand up to court scrutiny, they would have quickly made a motion to dismiss Caryl Leventhal's complaint.

FIRST DEFENSE:

The complaint fails to state a claim on which relief can be granted [Writer's Note: This means that while a good deal of "bad stuff" might have been done to Caryl Leventhal, she has no recourse to relief under existing law.  This is untrue.  The Civil Rights Act of 1964, subsequent extensions of this legislation and the Rehabilitation Act, were written to compensate for this type of discriminatory behavior].

SECOND DEFENSE:

The Court lacks subject matter jurisdiction over the plaintiff's claims [Writer's Note:  This is untrue.  The Office of Federal Operations gave Ms. Leventhal written approval to file in US Federal Court.  Information is supplied in the Amended Complaint].

THIRD DEFENSE

Punitive damages are not available in employment discrimination actions against the Government [Writer's Note:  This might be true and must be researched further.  When the right to sue the US Government was approved, a good deal of protection was built in to shield the government and give it an advantage.  Thus, options open in filing against a private sector abuser might not be available.  On the other hand, this defense only applies to punitive damages].

FOURTH DEFENSE

Plaintiff has failed to exhaust her administrative remedies [Writer's Note: During the prerequisite Administrative Process, there are points where you are given permission to "jump off" and file in US Federal Court.  Permission was granted and is supplied in the Amended Complaint.].

FULL TEXT OF US ATTORNEY'S ANSWER TO COMPLAINT:

MARY JO WHITE

United States Attorney for the

Southern District of New York

By: ERIC B. FISHER (EF-7758)

Assistant United States Attorney

100 Church Street, 19th Floor

New York, New York 10007

Tel.: 212-637-2701

 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

 

---------------------------------x

 CARYL B. LEVENTHAL,

 Plaintiff,

                                                                                       ANSWER

- against -.

                                                                                       99 Civ. 10405 (SAS)

HON. JANET RENO, Attorney General

of the United States,

 Defendant.

----------------------------------x

                Defendant, Janet Reno, Attorney General of the United States of America, by her attorney, Mary Jo White, United States Attorney for the Southern District of New York, answers the amended complaint (the "complaint") on information and belief as follows:

               1.               The allegations in paragraph 1 state conclusions of law to which no response is required.

               2.               Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 2, except admits that the Immigration and Naturalization Service ("INS") employed plaintiff at its office at 26 Federal Plaza, New York, New York.

               3. Admits the allegations in the first three sentences of paragraph 3. Admits that Mr. McElroy, Ms. Grant and Ms. Stewart were employed by the INS. The remaining allegations in paragraph 3 state legal conclusions to which no response is required.

               4.               The allegations in paragraph 4 state conclusions of law to which no response is required. Defendant avers that no exhibits were attached to the version of the amended complaint served on the Government.

               5.               Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 5.

               6.               Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 6.

               7.               Denies the allegations in paragraph 7, except admits that in May 1995 plaintiff was offered employment in Section 245 at INS.

               8.               Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 8.

                9.               Denies the allegations in paragraph 9.

               10.               Denies the allegations in paragraph 10 of the complaint, except admits that plaintiff was asked to sign a release with respect to her income tax returns.

               11. In response to paragraph 11, denies knowledge or information sufficient to form a belief as to whether or not plaintiff told her previous employer that she suffered from Multiple Sclerosis ("MS"). Denies knowledge or information sufficient to form a belief as to plaintiff s intentions in writing to Leonard Klein. Denies that plaintiff was completely open about suffering from MS.

               12. Denies the allegations in paragraph 12, except admits that plaintiff was assigned to Section 245.

               13. Admits the allegations in paragraph 13, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning the race of Agatha Stewart and Gwen McPherson's respective spouses.

               14. Denies the allegations in paragraph 14.

               15. Denies the allegations in paragraph 15, except denies knowledge or information sufficient to form a belief as to plaintiff s motivation for bringing photographs to work and denies knowledge or information sufficient to form a belief as to the persons depicted in plaintiff s photographs.

               16. Denies the allegations in paragraph 16.

               17. Denies the allegations in paragraph 17.

               18. Denies the allegations in paragraph 18, except admits that plaintiff often did not "know[] what was going on" in her workplace.

               19. Denies the allegations in paragraph 19.

               20. Denies the allegations in paragraph 20, except denies knowledge or information sufficient to form a belief as to whether plaintiff was mocked by her subordinates.

               21. Denies the allegations in paragraph 21.

               22. Denies the allegations in paragraph 22.

               23. Denies the allegations in paragraph 23.

               24. Denies the allegations in paragraph 24.

               25. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 25.

               26. Denies the allegations in paragraph 26, except denies knowledge or information sufficient to form a belief as to whether Ms. Grant and Ms. Filbert suffer from disabilities and as to their respective religious affiliations.

               27. Denies the allegations in paragraph 27.

               28. Denies the allegations in paragraph 28.

               29. Denies the allegations in paragraph 29, except denies knowledge or information sufficient to form a belief as to any pain or worsening medical condition on the part of the plaintiff, or the reasons therefor.

               30. Denies the allegations in paragraph 30, except denies knowledge or information sufficient to form a belief as to whether plaintiff felt isolated or intimidated in her workplace.

               31. Denies the allegations in paragraph 31, except denies knowledge or information sufficient to form a belief as to whether plaintiff occasionally searched the eighth and tenth floors, looking for empty wagons to assist her with distributing files.

               32. Denies the allegations in paragraph 32.

               33. Denies the allegations in paragraph 33, except denies knowledge or information sufficient to form a belief as to plaintiff's religious practices or those of her family.

               34. Denies the allegations in paragraph 34.

               35. Denies the allegations in paragraph 35.

               36. Denies the allegations in paragraph 36, except admits that Delores Filbert's leave was approved for the day of Yom Kippur.

               37. Denies the allegations in paragraph 37, and avers that Ms. Grant sent a memorandum to plaintiff, dated February 26, 1996, asking plaintiff whether it is a "good idea to take off the same day as your lead clerk." Further avers that plaintiff did not attach any exhibits to the version of the amended complaint that was served on the Government.

               38. Admits the allegations in paragraph 38.

               39. Denies the allegations in paragraph 39.

               40. Denies the allegations in paragraph 40, except denies knowledge or information sufficient to form a belief as to the extent of plaintiff's physical pain.

               41. Denies the allegations in paragraph 41 of the complaint, except admits that plaintiff received a "very negative Intermediate Review."

               42. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph                42.

               43. Denies the allegations in paragraph 43, except admits that during June 1996 plaintiff and her husband made several telephone calls to Ms. Stewart and Ms. Grant.

               44. In response to paragraph 44, admits that plaintiff sent letters to various persons in the INS and that, in those letters, plaintiff threatened to expose purported corruption. Denies knowledge or information sufficient to form a belief as to whether these letters were written during plaintiff's illness.

               45. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 45, except denies that the INS "mishandled" the hiring of plaintiff.

               46. Admits the allegations in paragraph 46, except denies knowledge or information sufficient to form a belief as to the seriousness of plaintiff's medical condition.

               47. Denies the allegations in paragraph 47, except admits that plaintiff was considered AWOL for at least 264 hours.

               48. Denies the allegations in paragraph 48, except admits that by memorandum, dated July 24, 1996, Ms. Grant recommended plaintiff's termination. Admits that the excerpted quotation is found in the INS's Administrative Manual. Avers that no exhibits were attached to the version of the amended complaint served on the Government.

               49. Denies the allegations in paragraph 49, except admits that Mr. McElroy sent plaintiff a certified letter of termination on or about August 13, 1996. Further admits that plaintiff was terminated for poor dedication to her job, among other reasons. Avers that no exhibits were attached to the version of the amended complaint served on the Government.

               50. Denies the allegations in paragraph 50, except admits that Mr. McElroy wrote a memorandum, dated September 6, 1996, to John Chase and that a portion of that memorandum is excerpted in paragraph 50 of the complaint. Avers that no exhibits were attached to the version of the amended complaint served on the Government.

               51. Denies the allegations in paragraph 51.

               52. Denies the allegations in paragraph 52.

               53. Denies the allegations in paragraph 53.

               54. Denies the allegations in sentence one of paragraph 54. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations in the second sentence.

               55.               Denies the allegations in paragraph 55.

               56.               Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 56, except denies the allegations in the last sentence of paragraph 56.

               57.               In response to paragraph 57, admits that plaintiff wrote a discrimination complaint on or about September 2, 1996. To the extent that plaintiff's allegation that her complaint of discrimination was "accepted" is a legal conclusion, no response is required. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in the last sentence of paragraph 57.

               58. Denies the allegations in paragraph 58.

               59. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in the first sentence of paragraph 59. Denies the remaining allegations in paragraph 59.

               60. In response to paragraph 60, denies that the information available to Mr. Leventhal was preliminary and vague. Admits that Mr. Leventhal wrote to the INS requesting additional information about the EEO process.

               61. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph  61.

               62. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 62, except denies that plaintiff or her husband were denied access to information about the complaint process and further denies that the INS created any obstacles to plaintiff's use of the complaint process.

               63.               Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 63.

               64.               In response to the allegations in paragraph 64, defendant repeats and realleges its responses to paragraphs 1 through 63 as if fully set forth herein.

               65.               Denies the allegations in paragraph 65.

               66.               Denies the allegations in paragraph 66.

               67.               In response to the allegations in paragraph 67, defendant repeats and realleges its responses to paragraphs 1 through 66 as if fully set forth herein.

               68.               Denies the allegations in paragraph 68.

               69.               Denies the allegations in paragraph 69.

 

FIRST DEFENSE

 

               70.               The complaint fails to state a claim on which relief can be granted.

 

SECOND DEFENSE

 

               71.               The Court lacks subject matter jurisdiction over plaintiffs claims.

 

THIRD DEFENSE

               72.               Punitive damages are not available in employment discrimination actions against the Government.

 

FOURTH DEFENSE

               73.               Plaintiff has failed to exhaust her administrative remedies.

 

               WHEREFORE, defendant demands judgment dismissing the complaint and granting such other and further relief as this Court deems proper, including costs and disbursements.

 

Dated:    New York, New York

                              January 31, 2000

                                             MARY JO WHITE

                                             United States Attorney for the

                                             Southern District of New York

                                             Attorney for the Defendant

                                            

                                             By:___________________________

                                             ERIC B. FIS14ER (EF-7758)

                                             Assistant United States Attorney

                                             100 Church Street, 19th Floor

                                             New York, New York 10007

                                             Tel. No.: (212) 637-2701

 

To:         Michael R. Bressler, Esq. (MB-4603)

               Attorney for Plaintiff

               36 West 44th Street, Suite 1100

               New York, New York 10036

               (212) 861-0090

 

 

CERTIFICATE OF SERVICE

 

1, Eric B. Fisher, an Assistant United States Attorney for the Southern District of

 

New York, hereby certify that on February 1, 2000,1 caused a copy of the foregoing Answer to

 

be served by overnight mail, postage prepaid, upon the following:

 

Michael R. Bressler, Esq. (MB-4603)

Attorney for Plaintiff

36 West 44`" Street, Suite 1100

New York, New York 10036

 

Dated:    New York, New York

                              February 1, 2000

 

 

 

                                                            ERIC B. FISHER (EF-7758)

                                                            Assistant United States Attorney

                                                            Tel.: (212) 637-2701

 

Written and Copyright © by:  LTC Michael G. Leventhal

Copyright 2000 Reproduction with written permission.  Contact: Michael @Justice-Denied.net

 

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