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 REPLY TO DEFENDANT’S OPPOSITION
TO APPELLEE’S MOTION FOR SUMMARY REVERAL

Dr. Hussain respectfully replies to the Agency’s Opposition to Appellant’s Motion for Summary Reversal of
the district court’s orders of October 28, 2004, granting summary judgment to Agency, and of its July 22,
2004 denial of Dr. Hussain’s motion for an enlargement of time to conduct discovery.  Dr. Hussain
incorporates, by reference, all arguments in his Motion for Summary Reversal and his Opposition to
Appellee’s Motion for Summary Affirmance.  In order to avoid repetition for the Court, in reading the cross
dispositive motions, Appellant has referenced specific page numbers in his Opposition to Appellee’s
Motion for Summary Affirmance for discussions relevant to the issues herein, rather than duplicate those
arguments in this Reply.  
      ARGUMENT
I.        The Agency Failed to Address Dr. Hussain’s Claims of Hostile Work Environment and Constructive
Discharge Claims

The Agency has failed to address federal employment discrimination law holding that where the employer
has created a hostile work environment, acts that do not necessarily constitute individual adverse actions
may, together, create a claim of hostile work environment and may even constitute constructive discharge.  
As discussed in Dr. Hussain’s Motion at 18 and Opposition, at 13, 15-20, where an employee resigns
because the working conditions have become so intolerable that a reasonable person in the employee’s
position would have felt compelled to resign, the employee has been constructively discharged and make
seek the same remedy that he/she could have sought if discharged.  Pennsylvania State Police v. Suders,
542 U.S. 2342, 2351, 2354 (2004).   
Only weeks ago (February 17, 2005), in Evans v. Principi, 2005 U.S. Dist. LEXIS 3571 (D.D.C. 2005), the
same district court, for the District of Columbia, held that the same Defendant in the present case, the U.S.  
Department of Veteran Affairs (hereinafter, “VA”), was not entitled to summary judgment on Plaintiff male
nurse’s claims of hostile work environment for two reasons:
First and foremost, all of the central issues are in dispute, thus precluding summary judgment.  Second,
drawing all reasonable inferences in favor of Plaintiff, if he can prove his allegations, there is no question
that he can establish a hostile work environment claim.  Plaintiff claims that Jackson, among other things,
(1) "immediately demonstrated strong disdain and hatred for him as the only male nurse in the unit," Pl.'s
Mot. at 1; (2) "verbally disciplined him falsely, berated him, made false accusations against him, screamed
and yelled at him openly and frequently; [and] told him at least twice a week for over two years that he did
not fit in and [that] he should quit, [that] he was not wanted there and [that he] should not have been there in
the first place," id.; (3) "segregated him from herself and other female nurses," id.; (4) "chastised him for
what she allowed other female nurses to get away with," id. at 2; (5) conducted a more detailed audit of
Plaintiff's work than of any of the other female nurses, see id.; and (6) "refused to interview him and another
highly experienced male nurse for the Community Nurse position they [were] qualified for and told [him] and
the other male applicant that she had preselected a female nurse for the position." Id. Thus, it is clear that a
reasonable juror could conclude, by a preponderance of the evidence, that the conduct Plaintiff alleges gave
rise to a hostile work environment.  

Accordingly, for the foregoing reasons, Defendant is not entitled to summary judgment on Plaintiff's hostile
work environment claim.

2005 U.S. Dist. LEXIS 3571 at * 12-13.
The above list of discriminatory actions to not, individually, rise to level of adverse actions within the
personnel system; however, the court clearly and correctly held that, together, they constitute a hostile work
environment.  In the present case, like the Evans case brought against the same Agency, the VA, Dr.
Hussain was similarly subjected to a hostile work environment because the VA similarly: (1) demonstrated
disdain and disrespect from his supervisors; (2) disciplined and falsely accused Dr. Hussain of
misconduct and/or incompetence, openly undermining his authority with subordinates and telling him that
he should quit; (3) separated Dr. Hussain from his colleagues by hiring new doctors and pitting them
against him, as competitors (Drs. Barth and Manning); (4) chastised Dr. Hussain, instead of subordinates,
when they failed to follow his instructions, even where patient health and safety were in jeopardy; (5)
conducted a more detailed audit of Dr. Hussain’s work than was conducted of other doctors; (6) refused to
interview, or otherwise consider, Dr. Hussain to permanently fill the position of Chief of Radiation Therapy
Services that he filled on an “Acting” basis for four years, then pre-selected both Drs. Barth and Manning to
promote over Dr. Hussain, with no opportunity to compete for the positions.   
In addition, as detailed in Dr. Hussain’s OMSJ, and his Motion and Opposition, Dr. Hussain was subjected
to limitations on his credentials to practice medicine, although it was ultimately determined that there was
no basis for such limitation, and to threats of being reported to a data base of doctors sued for medical
malpractice, although Dr. Hussain was cleared of all malpractice charges, while other doctors at the
hospital associated with the case were found to have malpracticed.  Dr. Hussain was also unjustifiably
denied medical leave, which he had accumulated and was entitled to take, after working for four years
without a vacation or even a day when he was not “on call.”  
The Evans court properly denied the VA summary judgment; however, Judge Huvelle deviated from the
analysis properly applied by Judge Kessler in Evans, in accordance with the well-established, controlling
case law, and improperly granted summary judgment to the VA in the present case.  Dr. Hussain presents
even a far more compelling case against the VA than did the male nurse, Mr. Evans, against the same
agency, of hostile work environment.  Dr. Hussain respectfully requests that this Court correct that error and
allow him to proceed to trial, as Judge Kessler permitted the Evans case to proceed to a jury.  
II.        The Agency has Failed to Address the Legal Analysis for Dr. Hussain’s Retaliation Claim

An adverse action is defined as “any action reasonably likely to deter protected activity,” including a
reduction in a performance appraisal.  Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997).   Where
the adverse treatment closely follows the protected activity, Plaintiff has established a prima facie case of
retaliation.  Cones v. Shalala, 199 F.3d 512, 520 (D.C. Cir. 2000); Brown v. Brody, 199 F.3d 446, 452-53 (D.
C. Cir. 1999).  As the Chief Judge of the District Court has determined, when adverse treatment occurs “on
the heels of” the protected activity, a prima facie case is established.  Martin v. Howard University, 1999 U.S.
Dist. LEXIS 19516, at *18, (D.D.C. 1999) (non-renewal of law professor’s contract, less than one month
after professor first reported sexual harassment/stalking by a non-employee on campus and the same day
as her last complaint).  
Retaliation occurs when an employer responds to protected activity in a manner that is "'more disruptive
than a mere inconvenience or an alteration of job responsibilities' [or] changes in duties or working
conditions that cause no materially significant disadvantage." Kim v. Nash Finch Co., 123 F.3d at 1060.  
In the context of Title VII, an adverse action is not restricted to classic adverse personnel actions such as
termination, demotion or loss of a tangible job benefit.  Retaliatory harassment may take form of
interrogation, reprimands, surveillance, unwarranted or unfavorable evaluations, or deprivation of normal
benefits or rights of position, such as overtime, vacations, in-house dispute resolution procedures, office
privileges and client access.  Lex K. Larson, Employment Discrimination § 34.04, at 34-57 to 34-62 (2d ed.
1995).  
Dr. Hussain engaged in a protected activity when he filed his internal EEO complaint on February 14, 2001.  
Immediately after he filed his EEOC charge, and continuing until his forced retirement, in 2003, the Agency
engaged in a series of retaliatory acts that created such a hostile work environment for Dr. Hussain that he
was forced to retire.  See OMSJ, at 22-45.
III.        Federal Courts Require Litigation of Disputed Facts where Motive and Intent are at Issue in
Employment Discrimination Cases

On page 2, footnote 1 of its Opposition, the VA criticizes Dr. Hussain for bringing to the Court’s attention that
“federal courts disfavor summary judgment in employment discrimination cases where emotive and intent
are at issue” and for citing a string of twenty-one cases, from various circuits, representative of the federal
bench on this subject.  The VA calls it “interesting” that the string includes no case from the D.C. Circuit, but
does not cite a case from the D.C. Circuit to the contrary.  Certainly, it is appropriate to provide the Court with
decisions from other circuits that are on point and include the specific language that provides direction in
legal analysis.
In Evans v. Principi, 2005 U.S. Dist. LEXIS 3571, at * 10, the court held that, in deciding motions for
summary judgment in Title VII cases:
“the court must draw all inferences in favor of the non-moving party, and it may not make credibility
determinations or weigh the evidence.”  Reeves v. Sanderson Plumbing Prod., Inc. 530 U.S. 133, 150, 147
L. Ed. 2d 105, 120 S. Ct. 2097 (2000).  See Washington Post Co. v. United States Dep’t of Health and
Human Servs., 275 U.S. App. D.C. 101, 865 F.2d 320, 325 (D.C. Cir. 1989)  Ultimately, the court must
determine “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.”

Despite the undisputed fact that the federal bench, including federal courts within the D.C. Circuit, has
repeatedly made it clear that it does disfavor summary judgment in employment discrimination cases,
without cross examination of the defendant’s witnesses and observation of their demeanor, where motive
and intent is at issue, the VA states that “it is difficult to conceive or a set of facts in an employment
discrimination dispute that does not involve motive or intent.”  Def.’s Opposition at 2, fn. 1.  Of course,
disparate impact employment discrimination cases do not involve motive and intent.  In addition, there are
certainly employment discrimination cases where a plaintiff’s lack of qualifications for a position, as
compared to the selectee, performance problems and/or misconduct is undisputed and would, alone,
justify an adverse action such that discriminatory motive and intent would not be at issue.
Even if every employment discrimination case that involved disputed facts and issues of motive and intent,
required trial, with jury observation of the witnesses’ demeanor under cross examination, the interests of
justice and the eradication of illegal employment discrimination, would require providing these plaintiffs
with their days in court rather than substituting our trial and jury system with “trial by affidavit” by district court
judges, with no opportunity for cross examination.
If the standards used by the district court in the case at bar are deemed acceptable by courts of appeals, a
defendant in an employment discrimination will simply be able to assert that it did not discriminate and the
trial judge will be able to dispose of the case on his or her docket by simply accepting the defendant at its
word, with no analysis of the purported legitimate, non-discriminatory reason asserted by the defendant, no
cross-examination of its accused discriminating officials whose conclusory assessments are being
accepted at face value, even when they have offered statements that conflict with their own previous
statements, statements of other witnesses of the defendant, and with the testimony and documents
produced by the plaintiff.  Under these standards, not only would no plaintiff ever be able to win an
employment discrimination case, but no employment discrimination plaintiff would even be provided with a
day in court to have his or her case heard by a jury of his or her peers.
Short-cutting the judicial process with summary judgment, while short-changing both the plaintiff and the
interests of justice, will do nothing to serve the interests of judicial economy.  To the contrary, preparing and
deciding motions for summary judgment, particularly when they are likely to be appealed, can certainly be
far more time consuming than simply providing the parties with the trial that the plaintiff requested, leaving
the parties to present their cases on the merits and obtaining a jury decision.   In this case, Dr. Hussain
could have had a trial, expending less attorney and court hours (particularly the Court of Appeals) than the
summary judgment and appeal processes have taken to date, even assuming that the case is decided on
the pending dispositive motions rather than the full briefing process.  
The VA states that summary judgment cannot be defeated where the plaintiff has “a mere scintilla of
evidence.”  Dr. Hussain has no quarrel with this representation of the law; however, to characterize the
evidence that Dr. Hussain has produced – even without discovery  – is to completely misrepresent the
record, as discussed at length in Dr. Hussain’s Motion and Opposition.   
As set forth in Dr. Hussain’s Motion and Opposition, the Agency’s version of the facts is a story unsupported
by the evidence, even on its face; but even if a jury could conclude that it was true, summary judgment must
only be granted where no reasonable juror could find otherwise.   The characters and timing of events in
this case leave much room for a jury to conclude otherwise.  
IV.           Dr. Hussain’s Nineteen Years of “Excellent” Evaluations Precludes Summary Judgment

As discussed on pages 2-3 of Dr. Hussain’s Motion for Summary Reversal (herinafter, “Motion,” pages 5
and 16, and his Opposition to Appellee’s Motion for Summary Affirmance (hereinafter, “Opposition”) for
nineteen years, the VA rated Dr. Hussain’s performance as “excellent.”  These evaluations create a triable
issue of fact with respect to Dr. Hussain’s performance that precludes summary judgment.  
As discussed briefly in Dr. Hussain’s Opposition, and expanded herein, the Tenth Circuit’s decision in
Platero v. Williams, 98 Fed. Appx. 819 (10th Cir. 2004), is instructive.  The plaintiff in Platero, a Navajo
woman over forty, alleged discrimination, on the basis of race, gender and age, when she was terminated
due to a  RIF (reduction in force), after nineteen years of employment.  The district court had granted
summary judgment to the defendant after it offered a legitimate explanation for terminating plaintiff, which
consisted of a “RWRR” (“Right Way Right Results”) assessment, written by several supervisors.  The Tenth
Circuit characterized the RWRR assessment as:
a single paragraph string of conclusory subjective judgments wholly without grounding in concrete factual
reference.  Indeed, as the district court acknowledged, the level of reference is in some instances so vague
that it is impossible to determine in a meaningful way what the criticism even means.  We have repeatedly
stressed that subjective judgments are viewed with skepticism in the pretext inquiry.  

98 Fed. Appx. at 821.
… .
“A plaintiff can show pretext by revealing ‘weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proferred legitimate reason for its action [such] that a reasonable factfinder
could rationally find them unworthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reason.’” ….  Accordingly, this court has recognized on numerous occasion
that a Title VII plaintiff can defeat summary judgment by demonstrating that an evaluation offered to justify
her termination conflicts with other assessments of her work performance.

It could be that the performance evaluation, not the RWRR, is inaccurate and, thus, that the discrepancies
evidence here might be resolved in favor of defendant’s position. But that just reflects the existence of the
very dispute that should not have been preempted by summary judgment.  It is also possible that with
additional evidence defendant could show that the discrepancies are merely artifacts of difference (but still
legitimate) purposes and standards operative in the RWRR context.  No such evidence has been proffered
and, in any event, absent a conclusive showing it would just create another issue for trial.   …  In sum, there
is no basis in our record to factually discredit or legally discount the discrepancies between plaintiff’s
performance evaluation and her RWRR.

The district court appears to have dismissed out of hand any argument for pretext based on
inconsistencies between the RWRR and the plaintiff’s performance evaluation because “the annual
evaluations were all performed by one supervisor, …while the RWRR assessment, not evaluation, was all
performed by a difference individual.”  …  Defendant takes up this point, arguing that in circumstances
giving rise to an inference of discrimination, an employee may be terminated and the inference of
discrimination defeated as a matter of law based on conclusory subjective criticisms that are inconsistent
with evaluations by the employee’s own supervisor, provided the criticism comes from someone else (the
very person whose allegedly discriminatory action requires justification).  No Tenth Circuit authority is cited
supporting this facially dubious notion, which would render our pretext cases discussed above practically
meaningless.  Indeed, one of those cases recognized a triable issue of pretext based on discrepancies
among evaluations clearly carried out by several difference people…  Further, defendant’s position is not
even supported by the cases cited outside of this circuit, where a drop in the plaintiff’s performance rating
was used to justify an allegedly discriminatory action was not abruptly created by the very person taking the
action by arise in the ordinarly course following the plaintiff’s transfer to and subsequent evaluation by a
different supervisor.  



The district court was also critical of plaintiff for not developing the record regarding potential explanations
for the inconsistencies between the RWRR and her evaluation.  For reasons similar to those we expressed
above for not faulting the plaintiff for obscurities in the defendant’s proffered justification, … we think this
criticism of plaintiff inappropriately shifts the McDonnell Douglas burden.  Once the plaintiff establishes
facially material inconsistencies regarding the defendant’s rationale for the challenged employment action,
a genuine issue of pretext arises and it is not the plaintiff’s burden to prod the defendant into offering self-
serving explanations of the inconsistencies.  … [W]e hold that, on the record developed thus far, the
numerous facial inconsistencies between plaintiff’s performance evaluation and the RWRR assessment
give rise to a triable issue of pretext precluding summary judgment.

98 Fed. Appx. at  821-823.

As discussed in Dr. Hussian’s Opposition at 2-3, 9, Motion at 4, 16.  Dr Hussain’s nineteen years of
performance evaluations, these evaluations alone are enough to defeat a motion for summary judgment,
leaving a jury to assess the employer’s stated, legitimate, non-discriminatory reasons for the adverse
action against the performance evaluations.  
V.        The VA has not Addressed Dr. Hussain’s Four Years as Acting Chief of Radiation Therapy Services

In addition to Dr. Hussain’s nineteen years of excellent evaluations and four years as the Acting Chief of the
Radiation Therapy Services Division, performing the work of two doctors, under “unbearable” conditions,
the Agency has not addressed the facts stated in Dr. Hussain’s Opposition, pages 3, 13, 16-17 and Motion
at 3, 15, 17, that the VA Agency left Dr. Hussain in the position of Acting Chief for four years, working
“unbearable” hours (even in the words of Dr. Barth, Facts  21), alone in the section, being “on call” 24 hours
per day, 7 days per week, 365 days per year, while he begged for assistance and received none.  
Clearly, if Dr. Hussain had been regarded as a mediocre physician who could only function following the
orders of Dr. Lunzar, Mr. Garfunkel, the hospital Administrator, would not have left him in this position,
alone, for four years.  In those four years, despite the horrible working conditions, Dr. Hussain received no
patient complaints, nor was he ever found liable for any malpractice – though other doctors at the hospital
were deemed to have mal-practiced.  
VI.        Dr. Hussain’s Documented Implementation of “Brachytherapy” at the VA, His Documented Requests
for Equipment and Staff  Training and Discipline, Demonstrates that the VA’s Claims are False and Pre-
textual

The VA has not addressed the facts stated in Dr. Hussain’s (Opposition, pages 14-15; see also 4-8, 12-13)
and his Motion at 16-17, that Dr. Manning’s statements regarding Dr. Hussain are self-serving, contradict
her own statements made to the EEO counselor and elsewhere, contradict documents and other testimony
offered by other witnesses statements submitted by the VA, and, most of all, that she was hired to replace
Dr. Hussain and did replace him, after being hired purportedly as his assistant, at a substantially higher
salary than her boss, and became his supervisor after only a year with the hospital.   
The VA has not addressed the facts stated in Dr. Hussain’s Opposition, page 5, supported by the exhibits to
his Opposition to Defendant’s Motion for Summary Judgment, that he repeatedly requested updated
equipment, staff training and discipline, permission to teach at both Georgetown and Howard University
Hospitals, where he was extended teaching positions, and that he instituted and performed, at the VA, the
highly successful, specialized and sought after procedure of “brachytherapy,” or prostate radio-active seeds
implant.    
The VA has failed to offer any evidence to rebut Dr. Hussain’s evidence that he was an active member of the
faculty, and has completely failed to offer any credible evidence for its claim that Dr. Hussain  “rarely, if ever,
uttered a word”  at Board meetings.  The VA has failed to explain its own letters of appreciation to Dr.
Hussain for performing duties on important Committees and even chairing some of these committees.
VII.        The Agency has not Addressed Dr. Hussain’s Evidence of Religious Animus
The VA has never addressed the open and peculiar religious alliances at the VA, a federal hospital and
government employer, that demonstrate religious animus.  The VA ignores that the decision-makers openly
established and maintained a “Jewish Society” at the hospital, and espoused anti-Muslim sentiment, nor
did the hospital address the tension between the doctors/administrator belonging to the “Jewish Society”
and former Chief of Staff Spagnolo, who hung a portrait of the Pope in his office upon his appointment.  
These peculiar circumstances certainly require exploration with respect to religious animus.
VIII.        The VA has not Addressed the District Court’s Excuse of its own Late Filings while Imposing the
Greatest Sanction Possible upon Dr. Hussain for his Former Counsel’s Failure to Timely Conduct Discovery

On page 12 of its Opposition, the Agency states that “Appellant concedes that discovery was taken during
the administrative proceeding.”  The Agency has mischaracterized statements made by Dr. Hussain’s
former counsel, Tony Shaw.  Mr. Shaw told the court that some discovery did take place at the administrative
level in the EEOC proceedings, that he was reviewing that discovery to determine what additional discovery
needed to be conducted (# 36 at 8-9), but that “that’s when the matter fell between the cracks on my part”
with Mr. Shaw admitting to his own fault with respect to pursuing discovery. (# 36 at 9)   
Dr. Hussain, through both Mr. Shaw and the undersigned, has made it plain that discovery was
discontinued at the administrative level because the Agency defied the Administrative Judge’s order to
produce discovery and that Dr. Hussain made a decision to proceed to Federal District Court, with de novo
proceedings, since the Administrative Judge had taken indefinite leave before he could compel compliance
with his discovery orders.  Motion at 8; MSJ at 38, 3, 9; Docket # 36 at 22:8-9.
As indicated in the transcript of the July 22, 2004 hearing, Mr. Shaw and Agency counsel, Ms. Abel, engaged
in a dispute as to their communications regarding their understanding of whether they had informally
agreed that discovery would be continued.  In addition, the VA’s deliberate withholding of its Answer to the
Second Amended Complaint for months after its due date, implied that discovery would take place after the
Answer was filed, since the Answer to a Complaint is generally the starting point for framing discovery
requests.  
As discussed in Dr. Hussain’s Motion, at 12-13, the Agency withheld its Answer until after it had filed its
Motion for Summary Judgment – although – it relied upon in its Motion for Summary Judgment.
As discussed in Dr. Hussain’s Motion for Summary Reversal, pages 7-14, his Opposition at 20, and this
Reply page 8, fn. 4 of, the district court imposed the greatest sanction possible on Dr. Hussain, denial of
discovery to rebut the Agency’s Motion for Summary Judgment, because Dr. Hussain’s former counsel,
Tony Shaw, failed to timely conduct discovery or to timely request an extension of discovery.  As discussed
in Dr. Hussain’s motion, the severe sanction of denying Dr. Hussain discovery was unduly prejudicial and
constituted an abuse of discretion.
CONCLUSION
Dr. Hussain respectfully moves this Court to deny the Agency’s motion.
Respectfully submitted,


Dawn V. Martin, Esquire
Law Offices of Dawn V. Martin
     D.C. Federal Bar No. 412384
     1090 Vermont Avenue, N.W., Suite 800
     Washington, D.C. 20005
     DVMARTINLAW@yahoo.com                         
Law Offices of  Dawn V. Martin
Hussain v. Principi
Dr. Hussain's Reply to VA's Opposition to Summary Reversal