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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------X     99 Civ. 10405 (SAS)

CARYL B. LEVENTHAL,

Plaintiff,

-against-

HON. JANET RENO, ATTORNEY
GENERAL OF THE UNITED STATES,

Defendant.

---------------------------------------------X

PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT'S MOTION IN LIMINE

Michael R. Bressler, Esq. (MB-4603) Attorney for Plaintiff 36 West 44"
Street, Suite 1100 New York, NY 10036 (212) 921-5941

INTRODUCTION

     Defendant has moved to preclude certain evidence from introduction at
trial. The following is plaintiff's response. Specifically, plaintiff asserts that
she should be permitted to include evidence of crank phone calls, the death
threat, and her treatment during the administrative process, in general. Further,
plaintiff concedes defendant's argument about the mention of a casual
relationship between her treatment on the job and exacerbation of multiple
sclerosis. However, plaintiff should not be precluded from testifying as to her
physical condition at all relevant times as it goes to plaintiff's state of mind.

ARGUMENT POINT ONE

PLAINTIFF SHOULD BE PERMITTED TO INTRODUCE EVIDENCE OF
THREATENING TELEPHONE CALLS TO PLAINTIFF AND HER
HUSBAND AS WELL AS THE ADMINISTRATIVE PROCESS,
GENERALLY

     Defendant has moved to preclude "any reference at trial to alleged
threatening calls to plaintiff and her husband." Plaintiff opposes this motion
and further moves that plaintiff be permitted to introduce evidence regarding
the administrative process at trial.

     Defendant alleges that evidence about the alleged telephone calls are
irrelevant and are hearsay. Def. Memo, p. 3. That is, the phone calls have no
bearing whatsoever on plaintiff's claims of workplace discrimination. Further
defendant argues that under FRE 403, even if the calls were deemed to be
relevant their introduction should be excluded as their probative value is
substantially outweighed by the danger of unfair prejudice to the INS. Id., p. 4.
Plaintiff respectfully refers this Court to the annexed affidavit of 
Michael G. Leventhal, husband of plaintiff. As Mr. Leventhal details,
plaintiff's mistreatment throughout the administrative process was part of
plaintiff's continuing discriminatory treatment. Thus, the administrative
process and the phone calls are relevant. This case is brought against the
United States Department of Justice ("DOJ"). This includes the Immigration
and Naturalization Service ("INS") as well as the INS Counsel's Office.
Further, plaintiff's access to and utilization of INS's Equal Employment Office
process ("INSEEO") is one of the terms, conditions, and privileges of her
employment. Being mistreated by DOJ throughout this procedure, as Mr.
Leventhal shows, demonstrates a continuing hostile work environment. As the
Supreme Court held in Harris v. Forklift Systems, 510 U.S. 17, 21 (1993):
"The phrase 'terms, conditions, or privileges of employment' evinces a
congressional intent to 'strike at the entire spectrum of disparate treatment . .
."' In sum, the INSEEO process is a term, condition, and privilege of
employment for plaintiff, a former INS employee. The death threat coincided
with the time that INS personnel were being interviewed by the INSEEO
investigator. M. Leventhal Aff. T 4; M. Leventhal, Def. Ex. A, pp. 15-16. Mr.
Leventhal noted at his deposition, included as Defendant's Exhibit A:

After the affidavits in November of 1997 or when they began, we started to
get crank phone calls. This went on for months. Very similar to the fact and I
am not accusing anything to the fact that when Brenda Grant began her
deposition one day before, we received seventeen hang-ups. We received
hang-ups for a few days after that. It just stopped. (pp. 15-16) (emphasis
added). Mr. Leventhal demonstrates a strong nexus between key events in
plaintiff's action at the administrative level and in this court proceeding
and the crank calls (including the death threat). Thus, they demonstrate hostile
acts directed towards plaintiff for asserting one of the privileges of her
employment: the right to make a complaint of discrimination. As such, they
are relevant.

Further, introduction of the crank calls, the death threat, and the administrative
process, in general, in this case does not give rise to unfair prejudice which
outweighs its probative value, per FRE 403. While knowledge about the death
threat may inflame the passions of the jury, it is just one of very many pieces
of evidence that it will weigh in rendering a verdict in this case. The death
threat is certainly relevant to determine plaintiff's mental condition and
damages. It is respectfully submitted, that in this case probative value is not
substantially outweighed. A reasonable jury can access for itself what weight
to give a death threat or a crank call. There is no basis to believe that the mere
mention of death threat will nullify defendant's efforts at asserting and proving
their defenses or discrediting plaintiff and her witnesses, etc.

In light of all of the above, this Court should deny defendant's motion to
preclude evidence of the crank calls, death threat, and administrative process.
POINT TWO

PLAINTIFF SHOULD BE PERMITTED TO TESTIFY TO HER OWN
MEDICAL CONDITION

Plaintiff concedes that it would be improper for her to testify that her Multiple
Sclerosis was exacerbated. However, plaintiff should be permitted to testify as
to her subjective medical condition to determine her state of body and mind
during the events at issue in this case and currently.
CONCLUSION

In light of the above, this Court should deny defendant's motion in limine to
the extent indicated herein.

Respectfully submitted,

AFFIDAVIT OF MICHAEL G. LEVENTHAL

MICHAEL R. BRESSLER, ESQ. Attorney for Plaintiff
36 West 44th Street, Suite 1100 New York, NY 10036 (212) 921-5941
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------X     99 Civ. 10405 (SAS)

CARYL B. LEVENTHAL,
          AFFIDAVIT OF MICHAEL G. LEVENTHAL
     Plaintiff,

-against-

HON. JANET RENO, ATTORNEY
GENERAL OF THE UNITED STATES,

     Defendant.
--------------------------------------------X

SOUTHERN DISTRICT OF NEW YORK: SS.:

MICHAEL G. LEVENTHAL, being duly sworn, deposes and says:
     1.   I am over eighteen years of age. I am not a party this action. I
am the husband of plaintiff.

     2.   From October 1996 until June 1999, I served as the Legal
Representative for Caryl B. Leventhal in her discrimination complaint against
the Immigration and Naturalization Service within the INS Administrative
Complaint process.

     3.   I found that the Administrative Complaint process strenuously
attempted to discriminate against Caryl Leventhal by keeping the bases of
racial, religious and retaliation from being accepted, although admitting that it
was properly filed. It wasn't until June 22,1998 that USDOJ accepted
discrimination racial and religious. That was only after the Hon. William
Michael McCauley, USEEOC ALJ wrote them an Order of Remand on May
21, 1998 wherein he firmly supported Caryl Leventhal's position.

     4.   Beginning October 1997, Caryl Leventhal began receiving
crank calls. They included guttural sounds or just hang-ups. They began at the
time INS personnel at 26 Federal Plaza were being interviewed by Mr. Peter
Schilling, Contract INSEEO
investigator relative to her INS/EEO complaint. They lasted for months and
caused Caryl Leventhal to live in fear. So much so that we had a professional
burglar alarm system installed in her apartment.

     5.   On April 8, 1998 I received a call from Larry Zieff, INS Deputy
Regional Counsel. In early conversation, Mr. Zieff said "The Justice
Department won't defend discrimination. In continued conversation, he
candidly stated that while the complaint file indicated that Caryl was badly
treated, they were not going to allow the bases of racial or religious
discrimination to get through. He said that it would leave them open to the
respondent (Brenda Grant) filing a discrimination suit against INS if they
backed Caryl and that would cause them more problems than Caryl's
complaint. When I asked him if any other cases of a white person claiming
racial discrimination against a black had ever gotten this far, he said "one just
did."

     6.   On April 26, 1998, after months of crank calls, Caryl Leventhal
and myself received a death threat at 1:30 in the am. It went something to the
effect of "You let up you f-----g Jew, you and your looney wife. We're going to
get you Nazi Style. It continued with killing us by using 800 mg. of Prozac
and sending us "back to our future. The chamber. The gas chamber."

     7. On April 26, 1998, I wrote a Certified letter to Larry Zieff, Deputy
Regional Counsel. In depth, I talked wrote about months of crank phone calls
and told him about the death threat (which we had on tape.)

      8.   Several days later, Mr. Zieff called me at my office at the Association
of the Bar. In a very echanical way, Mr. Zieff said, "The Justice Department
doesn't sanction this type of behavior." I told Mr. Zieff, "Larry, I know what
these people are thinking... middle age, urban, Jewish, Punky, but you'd better
get on the horn to 26 federal and stop these people because if they continue to
upset my wife and get within legal range, I would shoot them.

       9.   Within a few days, all crank calls and death threats stopped.

      10.  I firmly believe that the INS Regional Counsel's office felt that it was
in their interests to see Caryl Leventhal intimidated so she would either get too
sick to continue with her complaint or drop the complaint out of fear. I also
firmly believe that friends of the respondants made the call to "frighten the
Jews." I would like to reaffirm that this was going on when an active federal
court battle was occurring within the court of Judge William Michael
McCauley USEEOC.

       11.  Beginning with the crank calls that began in October 1997 and far
more so since the death threat of April 26, 1998, Caryl Leventhal has been
living in a constant state of fear. She is afraid to leave our home unless
accompanied by myself or our dog Lula who is Half Rotweiler, half
Doberman. Caryl can't go to sleep without reading from a check list that she
has created. It includes: "Michael, is the door locked? Michael, is the alarm
on? Michael, where's Lula (our dog), Michael, are the trigger locks off the
guns." Frequently she tells me she feels as if she is on "Death Row" awaiting
execution.

       12.  And then, her nightmares begin, several time per week.

       13.  Caryl alternately suffers from depression (clinically diagnosed by a
Neurologist in July 1996 and confirmed by her therapist in 1999) and anger.
She can't sleep at night and is always tense and nervous.

       14.  I have only given you an encapsulation of what went on in the
Administrative Complaint process. I have left out much documented
discrimination and obstruction of justice directed against Caryl. This portion
and much more appears in Caryl Leventhal's website www.Justice-Denied.net
under the section entitled "Admin Process." I affirm that everything written is
true. Most of it can be substantiated by documented evidence.

       15.  As stated in my deposition, I firmly believe the Administrative
Complaint process is "rigged" and prejudicial. It only works if they want it to.

       16.  At Caryl Leventhal's request, I designed the website
www.JusticeDenied.net for her for Chanukah 1999. She wanted it because she
felt "the world should know what's been going on all these years," and "maybe
they will be less likely to kill us."
       

       17.  Caryl feels (and I strongly concur through personal experience) that her
discrimination by personnel in INS and USDOJ began in May 1995 when a
legitimate offer was made and then rescinded and lasts to this day. It continues
to this day. In March 2000 Eric Fisher, Assistant US Attorney obtained copies
of all letters (including the April 26, 1998 letter reporting a death threat). In
August 2000 he was given a copy of the death threat recording. Both Caryl
and myself mentioned this in our depositions, but nothing has ever been done
short of the Assistant US Attorney attempting to have this solid evidence
precluded from Caryl's trial.
       

       18. As Caryl's husband and someone who has a very close and loving
relationship with her, Caryl's feelings of five plus years of continuing
discrimination and cover-up are very real and very brutal. Caryl feels that her
government has turned its back on her and obstructed justice. As a decorated
military officer, I sadly have to 
agree.

       19.  Caryl and I believe that excluding evidence from the jury relative to
her prejudicial harassment would be a grave travesty of justice. I believe that
the US Attorney is only interested in continuing to hide the truth of Caryl's
agony from the public records. I believe that the actions of INS and the US
Attorney's office sheds dishonor on my government, our founding fathers and
the judicial system. And I believe the judicial system is the glue of our liberty
and the final arbiter of justice for the American people.

       20.  MICHAEL G. LEVENTHAL, UNDER PENALTY OF PERJURY,
AFFIRM ALL ABOVE STATEMENTS TO BE TRUE. I AFFIRM IT
UNDER MY OATH AS A MILITARY OFFICER, MY PERSONAL CODE
OF CONDUCT AND WITH ALL HUMILITY, AFFIRM IT BEFORE MY
G-D.

MICHAEL G. LEVENTHAL

Sworn to September 18, 2000

Notary Public

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