I became aware of a recent article at LegalNews.com regarding the lawsuit I filed against Al-Azhar Pacha and which currently is in the Michigan Supreme Court. The article states that I could not be reached for comment, although in reality I was not approached. I just posted my comment, which has been submitted for review. I trust the site will be impartial and post my comment. Regardless, hereby I reproduce beforehand my comment 'as is':
I am the plaintiff/appellant in this lawsuit. I was never approached for comment on this topic, but I will be happy to dismantle some of the egregious inaccuracies authored by the Michigan Court Of Appeals (and of course, by defendant Al-Azhar Pacha).
Neither my communications to Al Pacha contained any threats whatsoever nor is it true that Al Pacha "interpreted" my communications as such. The opinion released by the Michigan Court Of Appeals is replete with errors of law and distortion of the facts.
Case law explains that the qualified privilege is premised on moral and social obligations. The privilege is not intended for advancing a defendant's pecuniary ambitions. The typical scenario where qualified privilege is applied is that where the publisher of defamatory statements does not have any business ambitions regarding the prospective employer. When a defendant has business ambitions on the entity to which the publication is made, the qualified privilege is stricken. See 360 Construction Co. Inc. v. Atsalis, 915 F.Supp.2d, 883, 897, 899 (E.D. Mich. 2012). In my lawsuit, the courts unduly ignored Al Pacha's incentive to defame me: At the same meeting where Al Pacha calumniated me, he offered the client/university to provide it with a replacement who would perform the functions for which the university had made me the offer of employment.
The Court Of Appeals unduly trivialized matters for the sake of perpetuating Al Pacha's unlawful conduct. An elaboration of the facts and legal context is essential in order to realize the blatant fraud committed by the Court Of Appeals. As the saying goes, "the devil is in the details". The public is welcome and strongly encouraged to read the latest briefs of the case as well as the transcript of Al Pacha's deposition testimony. These files are available at http://www.oneclubofjusticides.com/p/viggers-v-pacha_74.html. Other records of the case are available upon request.
LACK OF MICHIGAN'S APPELLATE INTEGRITY
Unfortunately, not all offenses of defamation by an employer can be averted by the employee's count to 10. Some rotten employers resort to defamation unjustifiably, and that was the situation here.
My lawsuit against Al Pacha is strikingly similar to Mareck v. Johns Hopkins University, 60 Md.App. 217 (1984); 482 A.2d 17. In Mareck, after failed negotiations between the parties, co-defendant Galambos defamed Mareck by allegedly "interpreting" Mareck's statement "as a hostile threat [...] with a clear negative thrust". Al Pacha went beyond that by falsely imputing to me specific statements of threat without even framing his narrative as "interpretation".
I praise the Maryland Court of Special Appeals for its integrity in its comprehensive review of a case that presents overwhelming analogies with mine. By contrast, here the Michigan Court Of Appeals distorted and omitted crucial facts while also ignoring the applicable law. The Michigan Court Of Appeals rendered the Michigan judicial system embarrassingly subpar to that of Maryland and several other jurisdictions I cite in my brief in the Michigan Supreme Court. The opinion released by the Michigan Court Of Appeals is a textbook case of judicial fraud.
The Michigan legislature enacted in MCL 423.452 all the conditions that an employer has to meet in order to be immune from civil liability for his defamatory disclosure. The Michigan Supreme Court has made it clear that when the legislation prescribes in detail the conditions, parties, things affected, specific limitations, and exceptions, that statute in the legislature supersedes its common-law counterpart (source: Hoerstman Gen Contracting, Inc. v. Hahn, 474 Mich. 66, 74; 711 N.W.2d 340 (2006), cited on page 17 of my brief in the Michigan Supreme Court). MCL 423.452 is more recent, much more specific, and detailed than the blurry and incomplete elements of common-law "qualified privilege".
Here, Al Pacha violated the vast majority or all of the conditions in MCL 423.452 when he made his defamatory statements. For obvious reasons, Al Pacha's attorneys dislike the application of MCL 423.452 in this lawsuit. However, counsel Brouwer was utterly unable to articulate in her appellate brief how being:
"immune from liability under the common-law qualified privilege defense to claims of defamation and tortious interference" (Al Pacha's Appellee's Brief, page 27, in the Court Of Appeals)
is any different from the enactment in MCL 423.452 of being:
"[conditionally] immune from civil liability for the disclosure".
Whether under MCL 423.452 or under a common-law qualified privilege, one key issue is whether the defamer genuinely believed the communications he or she uttered; not what the judges' personal interpretation thereof is. Courts are tasked with assessing circumstantial evidence to ascertain the defendant's mental state at the time he or she made the defamatory statements: if evidence supports a finding "actual malice", the privilege or immunity is void. Here, the Court Of Appeals impermissibly ignored a multitude of inconsistencies and fraudulent acts that Al Pacha incurred during his unlawful acts and thereafter.
As explained above, courts strike a qualified privilege when the defamer is motivated by pecuniary interests or other ulterior motives. Here, Al Pacha met with the university to calumniate me and simultaneously he offered the university to provide it with a replacement for what the university selected me. Thus, it is noteworthy that Al Pacha could not even dissimulate his ulterior motive: a continued profit from the university's funds.
CIRCUMSTANTIAL EVIDENCE OF AL PACHA'S ACTUAL MALICE
Unlike the Mareck court, here the Court Of Appeals neglected to assess the context with seriousness.
My dissatisfaction with Al Pacha was not because of how the green card process "was being handled". It was because Al Pacha demanded conditions which were unreasonable, given his being erratic, dilatory, and deliberately ignorant during the "green card" negotiations. Had Al Pacha had to deal with an uncooperative employer like him back when he was not yet an immigrant, today he would be stuck in his native India. The irony of Al Pacha's vexatious conduct prompted my mention of the proverb "what goes around comes around".
Al Pacha made no reference whatsoever to the proverb "what goes around comes around" when he spoke to the university employees. Instead, Al Pacha uttered false statements of fact to portray me as a person willing to violate one of the university's guidelines regarding the university's vendor contracts decision-making. A review of my emails demonstrates that Al Pacha made his defamatory statements with actual malice, for he knew that his narrative to the university was false.
Another circumstantial aspect that proves actual malice is what courts call "[the defendant's] purposeful avoidance of the truth". It is inaccurate for Al Pacha and the Court Of Appeals to portray as mutually exclusive my two options (H-1B with the university and green card with Al Pacha). During the "green card" negotiations in 2015, I directed Al Pacha's attention to a recent decision by the USCIS Administrative Appeals Office. The AAO's decision states that a professional is eligible for a "green card" regardless of the number of offers of employment he or she retains and even if each of those offers of employment is from different employers. Instead of considering the AAO's decision -or at least forwarding the URL link to his attorney for validation purposes-, Al Pacha hung from his attorney's wrong or outdated advice as "legal ground" for his false accusations with the university. Because the true and updated information was readily available to Al Pacha and he deliberately ignored that information, Al Pacha purposefully avoided the truth so that he could build upon his fallacious "legal" context the false accusations he made. The Court Of Appeals turned a blind eye to Al Pacha's purposeful avoidance of the truth.
Al Pacha always knew of -and admitted in writing- my impeccable ethics, and therefore he could not genuinely "interpret" my emails in year 2015 as "direct threats". My frustration (or what Al Pacha calls "disgruntlement") prompted me to send him one or more emails in year 2011 with a similar tone of my two emails in 2015. Al Pacha didn't interpret the email(s) from 2011 as "threatening". The fact is that a year later it was me, not him, who decided to end the employment relationship. Back then, I didn't commit any "act for which ALPAC may be held liable". Not back then, and not ever during my employment with Al Pacha. The fact is that six months later I was rehired by him upon request by the university.
Why would Al Pacha falsely accuse me in 2015 of "threatening" him? Because Al Pacha in 2015 was unable to lure me into declining my prospective position at the client/university (the aforementioned failed negotiations), whence Al Pacha's only option consisted of defaming me for the sake of preserving his source of revenue from the university.
Al Pacha did not even express to the university his alleged "concern" that I "may sabotage the university's systems". Al Pacha's belated "sabotage" argument is what his lawyers spoon-fed him in preparation for his overdue deposition. However, there is no actual evidence of him having or expressing to the university his alleged "concern". Regardless, it is inept and disingenuous for Al Pacha to speculate or "fear" that I would risk my prospective employment at the university (by sabotaging the university's systems) so that this unimportant intermediary could be held liable to my prospective employer.
It is false that Al Pacha "explained" me on July 30, 2015, that the termination was because of his "fear" that I "would to something to do harm his business with the university". Al Pacha barely mentioned "the string of emails" and the proverb "what goes around comes around" on July 30. That was all his explanation. Moreover, while terminating me, Al Pacha called the university to announce my termination "effective immediately". During the phone call, Al Pacha made comments falsely suggesting that his decision was made impromptu. That was Al Pacha's theatrical stunt to prevent me from discovering that in the prior days he had made defamatory statements and subsequent arrangements with the University of Michigan. Al Pacha's theatrical stunt reflects his consciousness of guilt, which constitutes additional proof of Al Pacha's actual malice.
It took me over three months to discover that Al Pacha had defamed me. Then in court, Al Pacha avoided his deposition for three months. When I was finally allowed to take his deposition, I gave Al Pacha several opportunities to articulate his alleged "interpretation" of the proverb "what goes around comes around", as this was his belated pretext for his defamatory statements. Al Pacha's answers regarding his "interpretation" were: "I don't recall", "I don't know", "[I] explain it to a kid at the age that the kid can understand and comprehend that phrase", "Right now I don't have a kid here so I don't know", and "You are not a kid". These incompetent answers disprove counsel Brouwer's allegation that Al Pacha waited 20 days because "he wanted to make a thoughtful decision".
Apropos of Al Pacha's delay of 20 days, Al Pacha uttered his false and defamatory statements within six hours of Law Enforcement serving upon my stepmother, María Viggers, the Personal Protection Order I requested against her.
The stepmother María Viggers had been harassing and threatening the university employees since March of 2015 in her attempt to sabotage my employment. María Viggers' course of conduct prompted the university to indefinitely suspend in April of 2015 my process for H-1B visa sponsorship and therefore my hire process. While calumniating me with the university, María Viggers insisted to gather from the university who my direct employer Al Pacha) was.
The stepmother María Viggers has a notorious history of violating restraining orders and interfering with others' employment. It is very possible that right after receiving the Personal Protection Order (1) María Viggers may have contacted my employer, and/or (2) María Viggers may contacted the university, thereby prompting arrangements between the university and Al Pacha for a cover up of the situation to make it look like an employer-employee conflict. It would be otherwise unflattering for the university to admit that it severs its relations with a central victim (me) of harassment as opposed to reporting the harasser, María Viggers, for violation of the Personal Protection Order against her.
The strange coincidence in the timing of the events (six hours) outweighs Al Pacha's pretext for waiting 20 days (the "thoughtful decision"), more so given his omission of the proverb when speaking with the university and his subsequent inability to articulate his interpretation of the proverb. The University of Michigan has not been forthcoming in my lawsuit against María Viggers either: the University of Michigan repeatedly made fraudulent statements; produced perjurious and/or amnesic witnesses; produced many blank and heavily redacted pages to hide crucial evidence; and disavowed a court ruling that authorized me to take the deposition testimony of a central witness whom the university terminated few months later. Also in the lawsuit against María Viggers, the Michigan Court Of Appeals resorted to a variety of severely flawed excuses to deprive me of justice.
ADDITIONAL EVIDENCE OF AL PACHA'S ACTUAL MALICE
A defamer's refusal to retract defamatory statements that have been proved false constitutes proof of actual malice. All the university employees at deposition testified that Al Pacha attributed to me an elaborated statement of threat. The university employees consistently testified to those same details. The statement of threat that Al Pacha attributed to me during that meeting is objectively verifiable as false.
During Al Pacha's deposition, I asked him to confirm whether he made that statement. Al Pacha's answer was "Not that I recollect". Hence, it is inexplicable why at all times Al Pacha has been refusing to retract that statement despite my requests therefor. Here, not only the Court Of Appeals ignored Al Pacha's inexplicable refusal as proof of actual malice, but the Michigan courts have been disavowing their moral duty to protect the good name of law-abiding civilians.
Proof of actual malice is also inextricably linked to the concept of fraud. The Michigan Supreme Court in Bank of Am. v. First Am. Title Ins. Co., 499 Mich. 74, 878 N.W.2d 816 (2016), defined "silent fraud" as the suppression of facts "where circumstances establish a legal duty to make full disclosure. Such a duty of full disclosure may arise when a party has expressed to another some particularized concern or made a direct inquiry". When I made a direct, particularized inquiry to Al Pacha (few days prior to discovering his defamatory statements), Al Pacha concealed from me a number of interactions he had with the university in preparation for terminating me.
The Court Of Appeals simply took dictation of the unsupported allegations Al Pacha's attorneys made in court. That sort of secretarial job by the Court Of Appeals falls short of being an actual "appellate review". By ignoring so much evidence, the Court Of Appeals and the trial court ended up treating a qualified privilege as an absolute one.
OBSCENELY BIASED JUDICIARY
An interesting fact is that few minutes before the trial court closed my lawsuit, the presiding judge Carol Kuhnke lectured me that Michigan loves employers "and anybody who's powerful, okay? [...] if you're not in those groups, then you just kinda have to try and stay out the way" (hearing transcript of August 17, 2016, page 21, lines 7-12). Judge Carol Kuhnke made her impudent remark four months after she denied my motion for recusal.
Judge Carol Kuhnke's rogue expression on the bench is the extreme opposite of the "equal protection of the laws" enacted in Article I.2 of the Michigan Constitution. Judges with this aberrant mindset are morally unable to recognize when a qualified privilege has been abused.
The judges incurred several other irregularities in my lawsuit. For brevity, in this comment I am only addressing some of the items discussed in this article.
The points presented here illustrate (1) the extent to which some courts suppress Michigan laws and the evidenced facts so that those courts accommodate a perpetrator's unlawful conduct, and (2) the importance that everybody be acquainted with the laws so as to pinpoint when the judiciary indulges in flagrant fraud.
My litigation experience in Michigan courts leaves me wondering how many seemingly "trivial" cases are in fact grossly mischaracterized by certain appellate panels.
Alfonso Ignacio Viggers