DeCinto v. Westchester County Medical Center Petition for a Writ of Certiorari to the US Court of Appeals for the Second Circuit

    No. 87-J?2^

1st th e

(Emtrt nf tlu MnttP& States
O ctober T erm , 1987

A n t h o n y  J. D e C in tio ,

v.
Petitioner,

W estchester Cou nty  M edical Ce n t e r ;
C ounty  of W estchester,

Respondents.

PETITION FOR A W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

J ulius L eY onne C hambers 
R onald L . E l lis*

99 Hudson Street
New York, New York 10013
(212) 219-1900

D onald L . S apir 
A n n e  Golden

S ilverman  & S apir 
14 Mamaroneck Avenue 
White Plains, New York 10601 
(914) 328-0366

Attorneys for Petitioner
^Counsel of Record



QUESTIONS PRESENTED
1. Does an individual who invokes 

local administrative procedures mandated 
by Title VII forego his rights under 
other federal statutes and the 
Constitution?

2. Is a claimant precluded from 
exercising his rights in federal court 
under the Reconstruction Civil Rights 
Acts when a state fair employment agency 
dismisses his charge without the benefit 
of discovery and without providing an 
adversarial hearing?

i



PARTIES IN THE COURT BELOW
All parties in this matter are set 

forth in the caption.

ii



TABLE OF CONTENTS

Page
QUESTIONS PRESENTED................. i
TABLE OF CONTENTS....................iii
TABLE OF AUTHORITIES................ iv
CITATIONS TO OPINIONS BELOW........... 2
JURISDICTION .......................  2
STATUTES INVOLVED ...................  3
STATEMENT OF THE CASE................. 4

1. Proceedings Below .......... 4
2. Statement of Facts............6

REASONS FOR GRANTING THE WRIT. . . .  13
I. THE DECISION BELOW CONFLICTS

WITH DECISIONS OF THIS COURT 
CONCERNING THE INDEPENDENT 
RELATIONSHIP BETWEEN TITLE VII 
AND THE RECONSTRUCTION CIVIL 
RIGHTS A C T S ................... 14

II. THE DECISION OF THE SECOND
CIRCUIT CONFLICTS WITH THIS 
COURT'S DECISION IN UNIVERSITY 
OF TENNESSEE V. ELLIOTT AND 
DECISIONS BY OTHER COURTS OF 
APPEAL ON THE PROPER APPLI­
CATION OF FEDERAL PRECLUSION 
PRINCIPLES................... .. .19

111



a. The New York State Division
of Human Rights was not 
acting in a judicial 
capacity. ..................21

b. The SDHR proceedings in 
this case did not afford 
Mr. DeCintio a full and 
fair opportunity to
litigate his claim........ 24

c. The procedure at SDHR 
failed to provide Mr.
DeCintio with adequate 
process protection........ 2 9

d. New York State would not 
have given preclusive 
effect to the determina­
tion........................ 33

CONCLUSION...........................4 5
TABLE OF AUTHORITIES

Cases Page
Alexander v. Gardner Denver, 415

U.S. 36, (1974)............. 14,30
Brown v. State Human Rights Appeal 

Board, 73 A.D. 2d 606 
(1979)...................  39,41,42

Buckhalter v. Pepsi-Cola General 
Bottlers, Inc., 820 F.2d 
892 (1987)...................  22,23

Burnett v. Grattan, 468 U.S.
42 (1984).....................  15

City of Pompano Beach v. Federal
IV



Aviation Administration,
774 F .2d 1529 (11th Cir.
1 9 8 5 )  . 26

DeCintio et al. v. Westchester
County Medical Center, 84 Civ.
5566 (S.D. N.Y., June 10,
1986) )....................... 8,13

Delgado v. Lockheed-Georgia Co.,
A Division of Lockheed Corp.,
815 F .2d 641 (11th Cir.
1 9 8 7 )  . 26

Eastman Kodak Co. v. State
Division of Human Rights,
44 A. D. 2d 888 (1977)........  38

Engel v. Calgon Corp., 114 A.D.
2d 108, (1986).................  37

Gregory v. New York State Human 
Rights Appeal Board, 64 
A. D. 2d 775 (1978)......... 41,42,43

Haring v. Prosise, 462 U.S. 306
(1983).........................  29

Hendel v. New York State Division 
of Human Rights, 114 A.D. 2d 
897 (1985)...................  39,43

In re Shiplokoff's Claim, 18 A.D.
2d 1123 (1963).................  36

Jwayyed v. New York Telephone 
Company, 42 A.D. 2d 663 
(1973).........................  39

Jensen v. Old Westbury Zoning
Board of Appeals, 515 N.Y.S.
2d 283 (1987).................  37

v



Johnson v. Railway Express, 421 U.S.
454 (1975).....................  14

Jones v. Alfred H. Mayer Co., 392
U.S. 409 (1968)...............  15

Kremer v. Chemical Construction Co.
456 U.S. 461 (1982)........... 18

Manhasset Board of Education v.
New York State Human Rights
Appeal Board, 106 A.D. 2d
364 .......................... . 38

McDonald v. City of West Branch,
466 U.S. 284 (1984)........... 30

McDonnell-Douglas Corp. v. Green,
411 U.S. 792 (1973)........... 26

Montana v. United States, 440
U.S. 147 (1979 ...............  20

Parklane Hosiery Co. v. Shore, 439
U.S. 322 (1979)............... 24,28

Rashid v. American Elec. Power 
Service Corp., 646 F.
Supp. 251 (S.D. N.Y. 1986)... 38

Ryan v. New York Telephone Co.,
62 N.Y. 2d 494 (1984) . . .34,35,37

SamHammer v. Home Mutual
Insurance Company, 120 App. Div.
2d 59 (1986)  ............. 37

State Division of Human v. New
York State Drug Abuse Control,
Commission, 59 App.Div. 2d
332 (1977)....................... 38

V I



Texas Dept, of Community Affairs v.
Burdine, 450 U.S. 248 (1981). . 26

Turney v. Ohio, 273 U.S. 510
(1927).......................  32,33

United States v. Utah Construction 
& Mining Co., 384 U.S. 394 
(1966).......................  20,25

University of Tennessee v. Elliott,
___, U.S. ___ , 106 S.Ct. 3220
(1986)........................passim

Venes v. Community School Board of 
District 26, 43 N.Y. 2d 520 
(1978).........................  35

Statutes

28 U.S.C. § 1254 (1)..................  3
Equal Pay Act, 29 U.S.C. § 206(d). . 8
29 U.S.C. § 215(a)(3).........  4,5
42 U.S.C. § 1 9 8 1 ................. 3,5
42 U.S.C. § 1983 ...............  3,5
42 U.S.C. § 2000e et. seq. . . . passim
29 C.F.R. § 1601.75.......  10,19
29 C.F.R. § 1601.76 ...........  18
29 C.F.R. § 1601.77.............  18

vil



Other Authorities
4 K. Davis, Administrative Law 

Treatise, § 213 (2ded.
(1983).......... ............... 21

118 Cong. Rec. 3371 (1972)........  15
H.R. Rep. No. 92-238, 92nd Cong.,

1st Sess. 19 (1971)............. 15
S. Rep. No. 92-415 (1971)........... 15
Annual Report, New York State 

Division of Human Rights,
1985-1986 .....................  17

Restatement Second of Judgments,
§ 83 (1982)...................  22

viii



NO. 87-

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1987

ANTHONY J. DeCINTIO,
Petitioner,

v.
WESTCHESTER COUNTY MEDICAL CENTER;
COUNTY OF WESTCHESTER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

The petitioner, Anthony J.DeCintio, 
respectfully prays that a writ of 
certiorari issue to review the judgment 
and opinion of the United States Court of 
Appeals for the Second Circuit entered in 
this proceeding on June 8, 1987.



2
CITATIONS TO OPINIONS BELOW 

The opinion of the court of appeals 
is reported at 821 F.2d 111 and is set 
out in the appendix to this petition at 
pages la-42a.1 The judgment of the 
district court and the ruling granting 
respondent's motion to dismiss is 
unreported and is set out in the appendix 
at pages 43a-47a. The appendix (48a-53a) 
also includes the determination by the 
New York State Division of Human Rights.

JURISDICTION
The judgment of the court of appeals 

affirming the district court's dismissal 
of all non-Title VII claims was entered 
on June 8, 1987. On August 26, 1987,
Justice Marshall entered an order 
extending the time for filing a petition 
for writ of certiorari to and including

1 The Second Circuit issues no 
separate judgment after the opinion.



3
October 6, 1987. The jurisdiction of
this Court is invoked under 28 U.S.C. 
§1254(1).

STATUTES INVOLVED
This case involves 42 U.S.C. §§ 1981

and 1983. Section 1981 provides:
All persons within the juris­
diction of the United States 
shall have the same right in 
every State and Territory to 
make and enforce contracts, to 
sue, be parties, give evidence, 
and to the full and equal bene­
fit of all laws and proceedings 
for the security of persons and 
property as is enjoyed by white 
citizens, and shall be subject 
to like punishment, pains, 
penalties, taxes, licenses, and 
exactions of every kind, and to 
no other.

(R.S. § 1977)
Section 1983 provides:

Every person who, under color 
of any statute, ordinance, 
regulation, custom, or usage, of any 
State or Territory or the District 
of Columbia, subjects, or causes to 
be subjected, any citizen of the 
United States or other person within 
the jurisdiction thereof to the 
d e p r i v a t i o n  of any rights, 
privileges, or immunities secured by



4

the Constitution and laws, shall be 
liable to the party injured in an 
action at law, suit in equity, or 
other proper proceeding for redress. 
For the purposes of this section, 
any Act of Congress applicable 
exclusively to the District of 
Columbia shall be considered to be a 
statute of the District of Columbia.

STATEMENT OF THE CASE 
1• Proceedings Below

The petitioner, Anthony J. DeCintio, 
brought this action on December 6, 1985, 
in the United States District Court for 
the Southern District of New York against 
his former employer, the Westchester 
County Medical Center, and the County of 
Westchester. The action was brought 
under Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. § 2000e et seq. . 42 
U.S.C. §§ 1981 and 1983, the Fair Labor 
Standards Act, 29 U.S.C. § 215(a)(3), and 
the Fourteenth Amendment to the United 
States Constitution and alleged that the 
respondents had retaliated against Mr.



5
D e C i n t i o  because he had filed 
discrimination charges against them. The 
Medical Center and the County moved to 
dismiss under Rule 12(b)(1) and (6) of 
the Federal Rules of Civil Procedure or, 
in the alternative, for summary judgment 
under Rule 56. By memorandum endorsement 
filed March 5, 1986, the district court
granted the motion, and judgment was 
entered March 6, 1986.

The petitioner appealed to the 
United States Court of Appeals for the 
Second Circuit which, relying on
University of Tennessee v. Elliott. ___
U.S. ____, 106 S. Ct. 3220 (1986),
reversed with respect to Title VII claims 
but affirmed with respect to § 1981, §
1983, the Fair Labor Standards Act and 
the Fourteenth Amendment. The court of 
appeals held that rules of preclusion 
applied to the determinations of the New



6
York State Division of Human Rights. 
Since the Division had made a finding of 
"no probable cause," the court held that 
Mr. DeCintio was "precluded from 
relitigating the retaliatory discrimi­
nation issue in a federal action." 
Appendix at 29a.

2 . Statement of Facts -̂
Anthony J. DeCintio was employed as 

a staff respiratory therapist in the 
Respiratory Therapy Department of the 
Westchester County Medical Center, which 
is operated by the County of Westchester, 
from May 12, 1980 until February 7, 1985. 
In April, 1982, the job of Assistant 
Chief Respiratory Therapist was created 
in the Respiratory Therapy Department, 2

2 The district court did not 
conduct a trial or make findings of fact. 
The facts herein are taken from the 
submissions to the court. Since the 
action was dismissed summarily by the 
district court, the allegations of the 
petitioner must be taken as true.



7
and assigned to the Neonatal Unit. A 
new "special requirement" of registration 
by the National Board of Respiratory 
Therapy was added to this position. 
Neither DeCintio nor any of the other 
staff respiratory therapists, most of 
whom were male, was so registered. A 
woman, alleged to be the girlfriend of 
the Chief Respiratory Therapist and who 
met this "requirement," was hired for the 
position before the posting period 
required by the applicable collective 
bargaining agreement had expired.

Based upon these events, DeCintio, 
on behalf of himself and others similarly 
situated, filed a charge of sex 
discrimination with the Equal Employment 
Opportunity Commission against the 
Medical Center and the County on May 17, 
1982, asserting, in essence, that the 
"special requirement" of registration was



8
concocted to enable the Chief Respiratory 
Therapist to hire his alleged girlfriend 
rather than one of plaintiffs. DeCintio 
filed similar charges with the New York 
State Division of Human Rights on June 3, 
1982. Thereafter, on or about August 6, 
1984, DeCintio and six other male staff 
respiratory therapists filed a complaint 
in the United States District Court for 
the Southern District of New York based 
upon the same facts ("DeCintio I") (id.) . 
After a trial on the merits, Judge 
Charles L. Brieant found that DeCintio 
and the other males had been unlawfully 
discriminated against by the Medical 
Center and County in violation of Title 
VII, 42 U.S.C. § 2000e et seq. . and the 
Equal Pay Act, 29 U.S.C. § 206(d) 
(DeCintio et al. v. Westchester County 
Medical Center. 84 Civ. 5566 (S.D.N.Y., 
June 10, 1986)).



9
The complaint in the instant action 

("DeCintio II") alleges that after 
DeCintio filed his charges of sex dis­
crimination, respondents began to harass 
him and ultimately, in February, 1985, 
suspended him without pay. Respondents' 
stated reason for the suspension was 
based upon two incidents of alleged 
misconduct and incompetence. DeCintio 
contends that either his actions in both 
situations were in accordance with 
Medical Center policy or that he had 
acted in the same manner as other 
employees who were not disciplined.

A hearing was held pursuant to § 75 
of the New York State Civil Service Law 
and concluded May 14, 1985. The hearing 
officer, who was selected and compensated 
by the defendant County, found DeCintio 
guilty of all charges, and on June 26, 
1985, DeCintio was discharged.



10
On November 9, 1984, Mr. DeCintio

filed a verified complaint with the New 
York State Division of Human Rights 
("SDHR") charging the respondents with 
retaliation. SDHR is a "certified 706 
agency" and is authorized to accept 
complaints on behalf of the Equal 
Employment Opportunity Commission 
("EEOC").3 On February 19, 1985, the

3 Section 706(c) of Title VII 
provides that where a qualifying state or 
local agency exists, "no charge may be 
filed . . . by the person aggrieved 
before the expiration of sixty days after 
state proceedings have been commenced ... 
unless such proceedings have been earlier 
terminated." To qualify as a "706 agency 
the state must have a fair employment law 
which proscribes employment practices 
based upon race, color religion, sex or 
national origin and the local agency must 
have authority to remedy the violation. 
29 C.F.R. § 1601.70(a). The agency
becomes certified if (1) it has been a 
706 agency for four years; (2) the 
agency's work product has been evaluated 
favorably within the previous twelve 
months; and (3) the agency's findings 
under EEOC worksharing contracts have 
been accepted in at least 95% of cases in 
those twelve months. 29 C.F.R. §
1601.75(b).



11
County and Medical Center, through their 
attorney, sent a letter response to a 
Request for Information from SDHR in 
which they generally denied any 
harassment or retaliatory conduct. On 
July 13, 1985, Mr. DeCintio filed another 
complaint with SDHR charging retaliation, 
specifically citing his suspension. On 
July 22, 1985, the county's attorney sent 
another letter to SDHR, denying any 
harassment or retaliation and summarizing 
the results of the § 75 hearing.

On August 30, 1985, SDHR wrote Mr. 
DeCintio, informing him that if he did 
not respond by September 11, 1985, a 
decision would be made based on the 
information in the file. In response Mr. 
DeCintio submitted an affidavit with 
three exhibits to SDHR. This affidavit 
described the events and actions for 
which he was suspended and discharged and



12
stated, inter alia, that:

1) Although one of the incidents in 
question occurred on May 23, 1984, he was 
not disciplined until it was raised as a 
reason for his suspension on February 7, 
1985;

2) He had acted in accord with 
Medical Center policy;

3) Medical Center administrators 
had expressed overt animus toward him and 
had accused him of being the "ringleader" 
of the complainants in DeCintio I .
Mr. DeCintio also submitted an affidavit
from a former Chief Respiratory Therapist
stating that Mr. DeCintio had acted in
accord with Medical Center policy and
should not have been disciplined.

No further submissions were made by 
the County and Medical Center before 
SDHR. On November 27, 1985 SDHR
summarily dismissed both complaints filed 
by Mr. DeCintio. There was no adver­
sarial hearing or even a confrontational 
meeting conducted by the division. No 
affidavits or other sworn statements were



13
submitted by respondents.

REASONS FOR GRANTING THE WRIT 
This case presents important issues 

concerning the access to federal courts 
of individuals who avail themselves of 
the statutory mechanisms set up by Title 
VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et sea. In establishing
the remedial scheme under Title VII, 
Congress stressed that it was not 
designed to affect rights under other 
statutes. By granting preclusive effect 
to findings by local deferral agencies 
the court below has done precisely what 
Congress said should not be done. As the 
discussion which follows demonstrates, 
giving preclusive effect to the 
determinations of mandatory deferral 
agencies forces complainant to make an 
election of remedies between Title VII 
and other federal statutes, contrary to



14
congressional intent.
I. THE DECISION BELOW CONFLICTS WITH 

DECISIONS OF THIS COURT CONCERNING 
THE INDEPENDENT RELATIONSHIP BETWEEN 
TITLE VII AND THE RECONSTRUCTION 
CIVIL RIGHTS ACTS.
In Johnson v. Railway Express. 421 

U.S. 454 (1975) this Court held that
Title VII and 42 U.S.C. Section 1981 were 
"separate, distinct, and independent." 
Id. at 461. Relying on the legislative 
history of Title VII, this Court held 
that a pending EEOC claim would have no 
proscriptive effect on a claim under 
1981:

We are disinclined, in the face of 
congressional emphasis upon the 
existence and independence of the 
two remedies, to infer any positive 
preference for one over the other, 
without a more definite expression 
in the legislation Congress has 
enacted, as, for example, a 
proscription of a § 1981 action
while an EEOC claim is pending.

Id. Thus the Court reaffirmed its
position in Alexander v. Gardner Denver, 
415 U.S. 36, 48 (1974), stating that



15
"Title VII manifests a congressional 
intent to allow an individual to pursue 
independently his rights under both Title 
VII and other applicable state and 
federal statutes."4 Rather than honoring 
the "independence of the[se] avenues of 
relief," the decision below would force 
an aggrieved individual to choose between 
the two statutory schemes. Although the 
decision below addresses only the

4 Congress noted that "the remedies 
available to the individual under Title 
VII are co-extensive with the 
individual's right to sue under ... §
1981 ... and that the two procedures
augment each other and are not mutually 
exclusive." H.R. Rep. No. 92-238, 92nd 
Cong., 1st Sess. 19 (1971). See also S.
Rep. No. 92-415, p. 24 (Title VII would 
not "affect existing rights granted under 
other laws.") and 118 Cong. Rec. 3 371- 
3373 (1972) (Senate rejection of
amendment which would have prevented 
claimant from suing under § 1981); See
also Burnett v. Grattan. 468 U.S. 42, 49 
(1984) (Reconstruction-era Civil Rights 
Acts independent of other federal 
statutes) ; Jones v. Alfred H. Mayer Co. , 
392 U.S. 409, 416-417 (1968) (Title VIII
of 1968 Civil Rights Act "had no effect 
upon § 1982).



16
preclusion issue, the practical effect of 
the ruling will either force individuals 
to choose between Title VII and non- 
Title VII statutes or so undermine the 
Title VII procedural scheme that 
Congressional intent would be defeated.

Under Title VII, Congress sought to 
encourage full use of state remedies. 
However, if the decision below is allowed 
to stand, aggrieved individuals would 
frequently choose to avoid or abandon 
state proceedings in order to escape the 
possibility of precluding their access to 
federal court on non-Title VII claims. 
The net effect of these uncertainties 
would most likely be an increased 
caseload for the federal court system.5

5 Persons seeking advice about 
complaints of discrimination are 
routinely advised to file charges with 
the appropriate state or local deferral 
agency. If a "no probable cause" finding 
without the benefit of a hearing will 
foreclose some federal claims, full



17
Since resort to state and local 
proceedings is mandatory under Title 
VII,6 the claimant would have to forego 
such proceedings and go directly to 
federal court or request that the agency 
abandon its processing prior to an 
adverse determination.

resort to the administrative mechanism 
would be ill-advised. In the New York 
State Division of Human Rights, for 
example, for 1985—86, 6705 complaints
based on employment discrimination were 
resolved. Annual Report, New York State 
Division of Human Rights, 1985-1986. 
Without the benefit of a hearing, 4269 
(63.7%) of these charges resulted in 
findings of "no probable cause." Of the 
233 cases scheduled for a hearing, only 
78 actually went to hearing and probable 
cause was found in 25 of those cases. 
Thus probable cause was found in less 
than 0.4% of the cases resolved. These 
statistics take on compelling signifi­
cance if a finding of no probable cause 
means preclusion of a claim.

6 Of course in non-deferral states, 
the claimant files directly with the 
EEOC. Since decisions by the EEOC are 
not given preclusive effect, the ruling 
of the lower court would create the 
anomalous situation of giving claimants 
more protection for their non-Title VII 
federal claims in such states.



18
Finally, the ruling by the lower 

court is logically inconsistent with the 
statutory scheme of Title VII. The 
"congressional directive that the EEOC 
should give 'substantial weight' to 
findings made in state proceedings" 
conflicts with a rule giving preclusive 
effect to the findings of FEP agencies 
because "EEOC review of discrimination 
charges previously rejected by state 
agencies would be pointless if the 
federal courts were bound by such agency 
d e c i s i o n s ." Kremer v. Chemical
Construction Co. . 456 U.S. 461, 470 n.7
(1982).7 While the findings of the state

7 In fact, the findings of state 
agencies are, in effect, the findings of 
the EEOC. Under its worksharing
agreements with such agencies, the EEOC 
will automatically accept the findings of 
such agencies unless specifically 
requested by the complainant to conduct a 
substantial weight review of such 
findings. See 29 C.F.R. §§ 1601.76,
1601.77. Moreover, in order to be
certified by the EEOC as a designated 706



19
agency would be given only "substantial 
weight" for Title VII purposes, the lower 
court would give those same findings 
preclusive effect for other statutory 
claims.
II. THE DECISION OF THE SECOND CIRCUIT 

CONFLICTS WITH THIS COURT'S DECISION 
IN UNIVERSITY OF TENNESSEE v. 
ELLIOTT AND DECISIONS BY OTHER 
COURTS OF APPEAL ON THE PROPER 
APPLICATION OF FEDERAL PRECLUSION 
PRINCIPLES.
The court below applied the doctrine 

of preclusion without analyzing the 
situation as outlined in University of 
Tennessee v. Elliott. Preclusion is not 
a rigid doctrine. Its application
depends on the surrounding facts and 
circumstances. "Redetermination of
issues is warranted if there is reason to 
doubt the quality, extensiveness, or

agency, an agency's "findings and 
resolutions ... [must] have been accepted 
by the Commission in at least 95% of the 
cases processed by the 706 agency in the 
past 12 months." 29 C.F.R. § 1601.75



20
fairness of procedures followed in prior 
litigation." Montana v. United States. 
440 U.S. 147, 164 n. 1 (1979) The Court
in Elliott set forth certain criteria 
which had to be met before an agency 
decision would be entitled to some 
preclusive effect. Thus preclusion would 
only apply when the agency was (1) acting 
in a judicial capacity (2) to resolve 
disputed issues of fact (3) properly 
before it (4) which the parties have had 
an adequate opportunity to litigate. 
United States v. Utah Construction & 
Mining Co. . 384 U.S. 394, 422 (1966).
Only after these criteria have been met, 
should the federal court "give the 
agency's factfinding the same preclusive 
effect to which it would be entitled in
the State's courts." Elliott. ____ U.S.
at ____, 106 S. Ct. at 3227. The court
below reached the inquiry into state law



21
before analyzing the threshold criteria 
outlined in Elliott.
a. The New York State Division of Human 

Rights was not acting in a judicial 
capacity.
The court below appears to have 

assumed that SDHR was "acting in a 
judicial capacity." While this Court did 
not define that phrase in Elliott. the 
ruling of the Second Circuit clearly 
conflicts with the Seventh Circuit's 
analysis and the general approach by 
courts and commentators.8

8 S e e  e . g . . 4 K. Davis,
Administrative Law Treatise, § 21.3, pp.
51-52 (2d ed. 1983) :

When an agency conducts a trial type 
hearing, makes findings, and applies 
the law, the reasons for treating 
its decisions as res judicata are 
the same as the reasons for applying 
res judicata to a decision of a 
court that has used the same 
procedure. But the formality may be 
diminished in any degree, and when 
it is sufficiently diminished, the 
administrative decision may not be 
res judicata. The starting point in 
drawing the line is the observation



22
In Buckhalter v. Pepsi-Cola General 

Bottlers, Inc.. 820 F.2d 892 (1987), the 
Seventh Circuit held that the proceedings 
must be comparable to a trial to sustain 
a finding that an agency acted in a 
judicial capacity:

In view of the fact that the HRC 
judicial proceedings were conducted 
in the same manner as a trial in 
Illinois state court, we are 
convinced that the HRC was acting in 
a judicial capacity.

that res judicata applies when what 
the agency does resembles what a 
trial court d o e s . Such a
resemblance or lack of it applies to 
determinations of law as well as to 
determinations of fact. [emphasis 
added]

See also Restatement (Second) of judg­
ments, § 83, p. 269 (1982):

Where an administrative forum has 
t h e  e s s e n t i a l  p r o c e d u r a l  
characteristics of a court . . . its 
determinations should be accorded 
the same finality that is accorded 
the judgment of a court.



23
Id. at 896.9 The court then cited one of 
its previous decisions in which it held 
that

[T]he United States Patent Office's 
Trademark Trial and Appeal Board was 
acting in a judicial capacity 
because ... the parties had the 
b e n e f i t s  of "an a d v e r s a r y  
proceeding. Both parties . . . were 
represented by attorneys before the 
Board; both presented evidence and 
submitted briefs."

Id. (emphasis added)
The determination by SDHR in this

case fell far short of rising to the
level of an adjudication. There was no
hearing. There were no legal arguments
presented, no opportunity to rebut
evidence, no arguments by opposing
parties. SDHR never even brought the
parties together for a confrontational

9 The proceedings in Buckhalter 
were presided over by an administrative 
law judge who "made extensive findings of 
fact and conclusions of law, and applied 
the proper burden of proof for a claim of 
employment discrimination as set forth by 
the Supreme Court." Id.



24
meeting. This obviously does not qualify
as "acting in a judicial capacity". To
the extent that the Second Circuit would
allow the rules of preclusion to apply,
it conflicts with the Seventh Circuit.
b. The SDHR proceedings in this case 

did not afford Mr. DeCintio a full 
and fair opportunity to litigate his 
claim.
In Parklane Hosiery Co. v. Shore. 

439 U.S. 322, 331 (1979), this Court 
noted that p r e c l u s i o n  would be 
inappropriate where "the second action 
affords . . . procedural opportunities 
unavailable in the first action that 
could readily cause a different result." 
In federal court, Mr. DeCintio would have 
been entitled to all the rights 
guaranteed by the Federal Rules of Civil
Procedure. He could have conducted
discovery. He could have presented
evidence in the form of documents or live
witnesses. He would have been entitled



25
to cross-examine witnesses presented by
the defendants. The absence of these
safeguards severely prejudiced his
presentation. Under these circumstances,
Mr. DeCintio did not have a full and fair
opportunity to litigate his claims.

By allowing preclusion to agency
determinations without a hearing, the
Second Circuit conflicts with the
Eleventh Circuit, whose rule is that
there can be no full and fair opportunity
where there is no hearing:10

The administrative decision approved 
by the Supreme Court in Utah 
Construction. supra, was the result 
of a full adversary proceeding with 
testimony, cross-examination, 
exhibits, briefs, and arguments.... 
It follows that an agency proceeding 
which does not afford an opportunity 
to present live witnesses or to 
cross-examine opposing witnesses

1 0  Although the Seventh and 
Eleventh Circuits focus on different 
elements from Utah Construction, both 
recognize that an agency determination is 
inadequate in the absence of an adversary 
hearing.



26
does not meet the test that the 
parties were afforded a full 
opportunity to litigate.

City of Pompano Beach v. Federal Aviation
Administration. 774 F.2d 1529, 1538-39
n.10 (11th Cir. 1985), Accord. Delgado v.
Lockheed-Georgia Co. , A Division of
Lockheed Coro. . 815 F.2d 641, 647 (11th
Cir. 1987).

In McDonnell-Douglas Corp. v. Green. 
411 U.S. 792 (1973) and Texas Dept, of
Community Affairs v. Burdine. 450 U.S. 
248 (1981), this Court set forth the
order and burden of proof in an 
individual case of employment discrimi- 
ination. After the complainant has made 
out a prima facie case and the defendant 
has "articulated" a reason for its 
action, the plaintiff must still have an 
opportunity to show that the proffered 
reason "is applied alike" to other 
employees. 411 U.S. at 804. In the



27
absence of an adversarial hearing and 
adequate discovery, the complainant is 
e f f e c t i v e l y  d e p r i v e d  of this 
opportunity.11 He will be unable to 
develop comparative evidence or to 
present statistical data on the treatment 
of members of the protected group.

Mr. DeCintio, for example, filed an 
affidavit with SDHR stating that there 
had been more than an eight-month gap 
between the occurrence of one of the 
incidents and the discipline he received 
for his actions. Mr. DeCintio had no 
opportunity to question the respondents 
about this discrepancy. Mr. DeCintio

11 Without the discovery tools 
afforded by the federal courts, the 
complainant would have difficulty 
developing the information to demonstrate 
that other persons are similarly 
situated. The complainant would be 
particularly prejudiced in cases 
involving retaliation where he must be 
able to place the employer's actions in 
the context of earlier events.



28
also alleged that he had acted in accord 
with Medical Center policy and he was 
supported by a second affidavit. Mr. 
DeCintio further alleged that other 
employees had acted "in the same manner" 
and had not been disciplined. He had no 
opportunity to develop this evidence.

SDHR did .not even require the 
respondents to submit sworn statements. 
Mr. DeCintio was thus not afforded a full 
and fair opportunity to show that the 
profferred reason was pretextual. Since 
the federal court would have provided 
procedural safeguards not afforded Mr. 
DeCintio at SDHR, the Second Circuit's 
rule of preclusion conflicts with 
Parklane Hosiery, supra. The application 
of preclusion in the absence of a hearing 
conflicts with the Eleventh Circuit rule.



29
c. The procedure at SDHR failed to 
provide Mr. DeCintio with adequate due 
process protection.

Although in most cases, the federal 
courts should apply the preclusion rules 
of the host state, there are circum­
stances where this practice is 
inappropriate:

As a general matter, even when 
issues have been raised, 
argued, and decided in a prior 
proceeding, and are therefore 
preclusive under state law,
[r]edetermination of the issues 
[may nevertheless be] warranted 
if there is reason to doubt the 
quality, extensiveness, or 
fairness of procedures followed 
in prior litigation.

Haring v. Prosise. 462 U.S. 306, 317-318
(1983)(emphasis added).

In deciding whether certain agency's 
decisions should be entitled to 
preclusive effect this Court has looked 
to see whether the proceedings provided 
procedural safeguards comparable to those 
provided by a federal district court.



30
Thus the Court has held that unappealed 
arbitration decisions will not bar a 
subsequent suit under either Title VII or 
§ 1983 because arbitration is not an 
adequate substitute for a judicial 
proceeding in protecting federal rights. 
Alexander v. Gardner-Denver. 415 U.S. 36 
(1974); McDonald v. City of West Branch. 
466 U.S. 284 (1984). As discussed above, 
the petitioner was deprived of the 
plenary procedural safeguards routinely 
afforded in federal district court. More 
than that, however, he was also deprived 
of a truly objective decisionmaker 
because of the SDHR's pecuniary interest 
in expedited disposition.

Pursuant to its yearly worksharing 
agreements with the EEOC, SDHR is paid a 
bounty or stipend of $400 for each 
acceptable resolution of a covered 
complaint. The contracts with the EEOC



31
contain a quota of resolutions which are 
supposed to be met by SDHR within the 
fiscal year. SDHR is thus under
considerable pressure to resolve large 
numbers of cases in order to meet its 
quota. In recent years, the EEOC stipend 
has become a significant portion of the 
SDHR's budget.12 At the same time that 
SDHR has become more dependent on funds 
from EEOC, and therefore faced more 
pressure to resolve cases quickly, its 
staffing levels have been reduced.13 In

12 In fiscal year 1986-87, SDHR
depended on federal funds for more than 
2 0% of its budget. Out of a budget of 
$9,250,000, federal funds accounted for 
$2,300,000. The EEOC quota stipend
totaled $1,500,000, requiring SDHR to 
resolve approximately 3700 cases to 
collect the full amount.

13 In fiscal year 1982-83, the 
Division had a contractual obligation to 
resolve $700,000 worth of cases. On 
January 1, 1983, SDHR had 91 Human Rights 
S p e c i a l i s t s  (including Regional 
Directors). Although the contractual 
obligation has doubled, the number of 
staffing specialists has been signifi-



32
addition, SDHR has had to cope with a 
significant backlog of cases, which as of 
March 31, 1986, totaled almost 10,000
cases.

Because of SDHR's substantial 
financial interest in resolving a large 
number of cases each year, giving 
preclusive effect to its determinations 
is a violation of due process. Turney v. 
Ohio. 273 U.S. 510 (1927). In Turney,
this Court held that the conviction of a 
defendant by a judge who was to receive 
part of the fine violated due process 
because the judge had "a direct, personal 
substantial pecuniary interest in 14

cantly reduced (On December 31, 1986
there were 66 Human Rights Specialists, a 
reduction of 27.5% from January 1, 1983). 
Id.

14 For fiscal year 1987-88, New 
York State has provided more than 
$300,000 specifically to reduce the 
backlog of cases. In only three of the 
last ten years has SDHR resolved more 
complaints than have been filed.



33
reaching a conclusion against [Turney]."
273 U.S. at 52 3 . The Judge in Turney was
entitled to $12 from Turney's fine. Here
SDHR gets a bounty of $400 for each
resolution. Although the bounty is not
contingent upon ruling against a
complainant, SDHR gets paid for
resolutions, not for investigations.
Since investigations take time and
hearings take even more time, SDHR has a
significant incentive to process charges
quickly and with minimal effort. That is
what happened to Mr. DeCintio's charge.

d. New York State would not have 
given preclusive effect to the 
determination.
The Second Circuit attempted to 

interpret University of Tennessee v. 
Elliott, supra, in light of Ryan v. New 
York Telephone Co., 62 N.Y. 2d 494, 478
N .Y .S .2d 823 (1984). While Elliott does
hold that, when certain criteria are met,



34
preclusion may apply to a state agency 
decision if the decision would be 
entitled to preclusive effect in the 
state's own courts, the Second Circuit 
failed to note the determinative factors 
in Ryan which would have meant no 
preclusion in this case. Specifically, 
petitioner asserts that because of (1 ) 
the procedural deficiencies prevalent in 
all SDHR proceedings and (2) the 
inadequate "investigation” performed by 
the SDHR Regional Director in the instant 
litigation, New York Courts would not 
allow this SDHR proceeding to preclude 
his federal claims.

Although the preclusive effect to be 
given SDHR "no probable cause" findings 
has never been faced by New York Courts, 
an analysis of the relevant cases shows 
that preclusion would not apply in the 
present case. First, the court in Venes



35
v. Community School Board of District 26,
43 N .Y .2d 520, 524, 420 N.Y.S.2d 807, 809
(1978), held that preclusion does not
apply to all administrative proceedings:

"We need not decide whether such a 
generalization would be valid today, 
in light of the proliferation in 
both number and type of admini­
strative agency hearings in recent 
years. Rather, we hold that in each 
case, the doctrine of res judicata 
is to be applied to an agency 
determination only if such appli­
cation is consistent with the nature 
of the particular administrative 
adjudication." [Emphasis added]

In Ryan the court explained that
preclusion should apply to administrative
decisions "rendered pursuant to the
adjudicatory authority of an agency to
decide cases brought before its tribunal
employing procedures substantially
similar to those used in a Court of Law."
62 N . Y . 2d at 499, 478 N.Y.S.2d at 826



36
(emphasis added).15 Ryan also required 
that the complainant have "a full and 
fair opportunity in the prior admini­
strative proceeding to contest the issue 
now said to be controlling." Id. 62 
N .Y .2d at 501, 478 N.Y.S.2d at 826.

SDHR proceedings do not meet these 
criteria and, unlike the aministrative 
proceeding in Ryan,does not provide the 
complainant with an adversarial hearing, 
presided over by an administrative law 
judge, In re. Shiolokoff's claim. 18 App. 
Div. 2d 1123, 238 N. Y.S. 2d 1003 (1963), 
and a court-appointed attorney. N.Y. 
Labor Code §538(1)(e).

Further, the procedures in Ryan 
provided plaintiffs the opportunity to

15 The actual holding in Ryan i.e. , 
that the agency must be acting in a 
judicial capacity, is thus consistent 
with the Seventh Circuit's decision in 
Buckhalter. supra, and inconsistent with 
the Second Circuit's ruling in this case.



37
present witnesses, testify on their own 
behalf and cross-examine the defendant 
and the defendant's witnesses. Cases 
since Ryan have relied on several 
characteristics in evaluating the 
preclusive effect of agency decisions: 
an adversarial hearing; entitlement to 
counsel; and opportunities for 
plaintiffs to present evidence and 
witnesses, to testify on their own behalf 
and to confront and cross-examine the 
defendant and the defendant's witnesses. 
See e.g.. Jensen v. Old Westburv Zoning 
Board of Appeals. 515 N.Y.S.2d. 283, 284
(1987) (hearing held before the Zoning 
Board of Appeals); Engel v. Calgon Coro., 
114 App. Div. 2d 108, 498 N.Y.S.2d 877,
878 (1986) (hearing held before
Unemployment Insurance Appeal Board); 
Sam-Hammer v. Home Mutual Insurance
Company. 120 App. Div. 2d 59, 507



38
N .Y .S .2d 499, 500 (1986) (hearing held 
before State Trooper Disciplinary Hearing 
Board; plaintiff represented by counsel 
and given an opportunity to cross-examine 
adverse witnesses); Manhasset Board of 
Education v. New York State Human Rights 
Appeal Board. 106 App. Div. 2d 364, 482 
N .Y .S .2d 495, 496 (1984) (hearing held 
before Unemployment Insurance Appeal 
Board).

In marked contrast, SDHR proceedings 
do not even require that an evidentiary 
hearing be held before a complaint is 
dismissed for lack of probable cause. 
State Division of Human Rights v. New 
York State Drug Abuse Control Commission. 
59 App. Div. 2d 332, 399 N.Y.S.2d 541, 
5 4 4 - 5 4 5 (1977); Eastman Kodak Co. v. 
State Division of Human Rights, 44 App. 
Div. 2d 8 8 8 ; 355 N.Y.S.2d 676-677 (1977); 
Rashid v. American Elec. Power Service



39
Corp. . 646 F. Supp. 251, 252 (S.D.N.Y.
1986) . Instead, the courts have only 
required that once a complaint is filed, 
"the Regional Director of the office in 
which it is filed must make a prompt and 
fair investigation to determine whether 
there is probable cause to believe that 
the charged parties have committed 
illegal discrimination" before dismissing 
such complaint. Hendel v. New York State 
Division of Human Rights. 114 App. Div. 
2d 897, 898, 495 N.Y.S.2d 135, 136
(1985) . Further, the manner of the in­
vestigation is left totally to the 
discretion of the Regional Director and 
the investigation may consist of either a 
written or oral inquiry. Brown v. State 
Human Rights Appeal Board. 7 3 App. Div. 
2d 606, 422 N .Y .S .2d 441, 442. Finally,
the plaintiff has no right in an SDHR 
p r o c e e d i n g  to cross-examine the



40
r e s p o n d e n t  and the respondent's 
witnesses. Jwavved v. New York Telephone 
Company, 42 App. Div. 2d 663, 345
N.Y.S.2d 233, 235 (1973).

E a c h  of t h e s e  p r o c e d u r a l  
deficiencies occurred in the present SDHR 
proceeding. Mr. DeCintio was denied an 
adversary hearing. Instead, the Regional 
Director opted for an "investigation" 
which consisted solely of his reviewing 
papers submitted to him by both parties. 
Mr. DeCintio was therefore barred from 
confronting and cross-examining the 
respondents and their witnesses. The
respondents presented no sworn testimony, 
only letters from their attorney. Rather 
than "employ[ing] procedures substan­
tially similar to those used in a court 
of law," SDHR did not even remotely 
approximate a court proceeding and its 
determination would not have been given



41
preclusive effect by New York courts.

Even assuming arguendo that New York
courts would grant preclusive effect to
some SDHR dec i s i o n s  without an
adversarial hearing, such a rule would
not apply to the proceeding in the
instant litigation because of the
inadeguacy of the Regional Director's
investigation. While the method of
investigation is left to the discretion
of the Regional Director (Brown v. State
Human Rights Appeal Board, supra) , New
York courts have held that:

The Legislature intended that before 
determining whether there is 
probable cause for a complaint, the 
Commissioner should give a com­
plainant full opportunity to present 
on the record, though informally, 
his charges against his employer or 
other respondent, including the 
right to submit all exhibits which 
he wishes to present and testimony 
of witnesses in addition to his own 
testimony.

Gregory v. New York State Human Rights. 
Appeal Board. 64 App. Div. 2d 775; 407



42
N.Y.S. 2d 256, 257 (1978) . The claimant
must be given the opportunity to rebut 
evidence submitted in opposition by the 
defendant, Brown v. State Human Rights 
A p o e a 1 B o a r d  . s u p r a  . and the 
i n v e s t i g a t i o n  m u s t  i n c l u d e  a 
confrontation conference between the 
plaintiff and defendant, unless the 
plaintiff's complaint lacks merit as a 
matter of law. Gregory, supra, 407 N.Y.S 
2d at 257-258. The Regional Director's 
investigation in the present case was 
inadequate given the above standards. 
The "investigation" consisted solely of 
the Regional Director reviewing papers 
and affidavits submitted by the 
petitioner, Mr. DeCintio, and general 
denials made without personal knowledge 
by the respondents' attorney. There was 
no confrontation at SDHR.

Far from being entitled to



43
preclusive effect, it is doubtful whether 
such an investigation could even sustain 
a finding of no probable cause if 
appealed to the state court. Gregory v. 
New York State Human Rights Appeal Board. 
supra. and Hendel v. New York State 
Division of Human Rights. supra. In 
Gregory, the court reversed the SDHR's 
finding of no probable cause where the 
investigation consisted only of the 
Regional Director interviewing the 
parties and their witnesses stating, "no 
conference with all principals present 
was ever held. Neither was he [the 
plaintiff] given the opportunity to rebut 
the respondent's answers to his 
complaint." 407 N.Y.S.2d at 258. In 
Hendel. the court overturned the finding 
of no probable cause noting that "the 
'investigation' consisted of no more than 
an examination of the papers submitted by



44

the parties. There was no conference." 
495 N .Y .S .2d at 136.

Mr. DeCintio elected not to appeal 
the SDHR findings of no probable cause 
because he intended to pursue his federal 
statutory remedies and believed that 
SDHR's adverse findings would not 
prejudice exercise of his federal 
rights.16

In summary, the court of appeals 
ruling that a no probable cause finding 
by the New York State Division of Human 
Rights precludes non-Title VII claims in 
federal court conflicts with decisions in

16 SDHR also shares this belief and 
includes the following advisory in its 
determinations:

PLEASE TAKE FURTHER NOTE that a 
complainant who seeks judicial 
review, and who receives an adverse 
decision therein, may lose his or 
her right to proceed subsequently in 
federal court under Title VII, by 
virtue of Kremer vs. Chemical 
Construction Co., 456 U.S. 461 
(1982) .



45
this Court and in at least two other 
circuits. Given these conflicts and the 
recurrence and importance of the issue, 
certiorari should be granted to resolve 
the issue in the present case.

CONCLUSION
For the foregoing reasons certiorari 

should be granted and the decision of the 
court below reversed with respect to non- 
Title VII claims.

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS*

99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

DONALD L. SAPIR 
ANNE GOLDEN

SILVERMAN & SAPIR 
14 Mamaroneck Avenue 
White Plains, N.Y. 10601 
(914) 328-0366

Attorneys for Petitioner
*Counsel of Record



A P P E N D I X



- la -
UNITED STATES COURT OF APPEALS, 

SECOND CIRCUIT
No. 152, Docket 86-7260
Argued Sept. 15, 1986 
Decided June 8 , 1987.

ANTHONY J. DeCINTIO,
Plaintiff-Appellant, 

v.
WESTCHESTER COUNTY MEDICAL CENTER; 
County of Westchester,

Defendants-Appellees.

Anne Golden, White Plains, N.Y. 
(Silverman & Sapir, Donald L. Sapir, 
White Plains, N.Y., of counsel), for 
plaintiff-appellant.

Colleen Lundwall Kellman, Asst. Co. 
Att., White Plains, N. Y. (Henry J. 
Logan, Westchester Co. Atty., Kenneth E. 
Powell, Deputy Co. Atty., White Plains, 
N.Y., of counsel), for defendants- 
appellees.

Before OAKES, MINER and MAHONEY, 
Circuit Judges.
MAHONEY, Circuit Judge:

Plaintiff appeals from a judgment of



2a
the United States District Court for the 
Southern District of New York dismissing 
his complaint.1 This retaliation case 
was brought to redress the alleged 
deprivation of rights secured to 
plaintiff by Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. § 2000e et 
seq. (1982)), 42 U.S.C. §§ 1981 and 1983 
(1982), the Fair Labor Standards Act (29 
U.S.C. S 215(a)(3) (1982)), and the 
fourteenth amendment.

Background
Anthony DeCintio was one of several 

Westchester County Medical Center staff 
respiratory specialists who sued the 
medical center and the county under Title 
VII, alleging sex discrimination. That

1 Since, as will appear, matters 
outside the pleading were presented to 
and not excluded by the district court, 
the motion to dismiss was in effect 
treated as one for summary judgment and 
disposed of as provided in Fed.R.Civ.P. 
56, pursuant to Fed.R.Civ.P. 12(b)(6).



3a
case was recently decided, adversely to 
DeCintio, by this court. DeCintio v. 
Westchester County Medical Center. 807 
F.2d 304 (2d Cir. 1986). Appellant
alleges in this action that appellees 
retaliated against him, by suspending and 
firing him, because he was the 
"ringleader" of the disaffected 
respiratory specialists.

Appellees counter that DeCintio was 
fired for violating hospital policy on 
two occasions. Specifically, the
hospital charges DeCintio with failure to 
respond properly to an emergency 
situation on May 23, 1984 when he refused 
to deliver a ventilator to the emergency 
room as requested by nurse Stephen 
Marchwinski. The patient in question was 
in critical condition. The hospital also 
charges DeCintio with failure to respond 
properly, on February 6 , 1985, to several



4a
respiratory therapy "stat" pages 
emanating from the emergency room where 
nurses and doctors were caring for a 
critically ill patient.2

One day after the February 6 

incident, DeCintio was suspended without 
pay for thirty days. A hearing was 
t h e r e a f t e r  h e l d  p u r s u a n t  to 
N.Y.Civ.Serv.Law § 75 (McKinney 1983 &
Supp.1987). The hearing officer found 
DeCintio guilty of misconduct and 
incompetence based on the May, 1984 and 
February, 1985 incidents, and recommended 
that appellant be "terminated from 
employment." The hearing officer's 
r e c o m m e n d a t i o n  was acce p t e d  by 
Westchester County Medical Center 
Commissioner Bernard M. Weinstein, who

2 In addition, DeCintio allegedly 
failed to order two respiratory 
therapists, who were on lunch break, to 
respond to the calls.



5a
informed appellant of his immediate 
dismissal by letter dated June 26, 1985.

On November 9, 1984, and July 13,
1985, appellant filed complaints with the 
New York State Division of Human Rights 
("SDHR") charging the medical center with 
retaliation. SDHR dismissed both
complaints for lack of probable cause on 
November 27, 1985. The instant action
was commenced on December 6 , 1985.

Unsworn Statements
At the outset, we are faced with an 

attack on the procedural bona fides of 
certain written statements attached to 
appellant's sworn affidavit submitted in 
opposition to the motion to dismiss 
(which, as indicated in note 1 supra. was 
in effect treated as a motion for summary 
judgment). No objection was made to the 
form of such statements below. On
appeal, however, appellees contend that



6a
Fed.R.Civ.P. 56(e) precludes their 
consideration, below and here, in 
opposition to appellees' motion.

The first statement is a typed 
declaration that:

The persons who have signed 
this paper are willing to appear 
before a Federal Judge and tell him 
that:

1) They are members of the 
Respiratory Therapy Department at 
the Westchester County Medical 
Center.

2) Each and every one of them
has responded to "stat calls" and
personal notifications o f an
emergency situation in the same
manner as Mr. DeCintio has so
responded.

3) Mr. DeCintio has been 
suspended and terminated from



7a
employment at the Westchester County 
Medical Center for so responding.

4) None of the persons signing 
below has been disciplined by the 
hospital administration for acting 
likewise.

5) The hospital administration 
has been made aware of the way we 
have responded since we have been 
employed by them.
The statement is signed by six 

individuals. A second identical typed 
statement signed by five individuals was 
also attached to appellant's sworn 
affidavit.

A third statement signed by one C. 
Follini states that Assistant Personnel 
Director Jeffrey Sweet told Follini, "I 
know Tony [appellant] is the ringleader . 
. . but he won't be around much longer, 
we will get him out."



A fourth statement signed by 
respiratory therapist Peter Piazza 
charges that Mr. Sweet, in the course of 
a discussion about the legal action 
brought against the hospital, told Piazza 
that "in the past year I have personally 
fired three members of the Respiratory 
Therapy Department, and no amount of 
fighting back will enable them to come 
back, ever again." Whereupon Associate 
Hospital Director Edward Stolzenberg 
allegedly interjected, "everyone in the 
Respiratory Therapy Department can be 
fired and completely replaced." This 
conversation is asserted to have occurred 
during DeCintio's suspension but prior to 
his termination.

Appellees are now objecting for the 
first time that the statements attached 
to appellant's sworn affidavit are not 
themselves sworn or certified as required



9a
by Fed.R.Civ.P. 56(e), which provides in 
pertinent part:

Rule 56. Summary Judgment . . . .
(e) Form of Affidavits; Further 
Testimony; Defense Required. 
Supporting and opposing affidavits 
shall be made on personal knowledge, 
shall set forth such facts as would 
be admissible in evidence, and shall 
show affirmatively that the affiant 
is competent to testify to the 
matters stated therein. Sworn or 
certified copies of all papers or 
parts thereof referred to in an 
affidavit shall be attached thereto 
or served therewith.

Fed.R.Civ.P. 56(e) (emphasis added).
This court has ruled, however, that

Rule 56(e) defects are waived where, as
here, no motion to strike is directed to
them below. In Re Teltronics Services,
Inc. . 762 F .2d 185, 192 (2d Cir. 1985).3
As best we have been able to ascertain,

3 In an earlier case, we determined 
that even if a motion to strike is made, 
it will be ineffective unless it 
identifies the defects in the affidavit 
under attack with adequate specificity.
Perma Research and Development Co,__v.
Singer Co.. 410 F.2d 572, 579 (2d Cir.
1969) .



10a
the courts that have considered the 
question are in unanimous accord. See, 
e.g. , Davis v. Sears, Roebuck and Co. , 
708 F .2d 862, 864 (1st Cir. 1983); Scharf 
v. United States Attorney General, 597 
F .2d 1240, 1243 (9th Cir. 1979); Williams 
v. Evangelical Retirement Homes. 594 F.2d 
701, 703-04 (8th Cir. 1979); Associated
Press v. Cook, 513 F.2d 1300, 1303 (10th
Cir. 1975); Klingman v. National 
Indemnity Co.. 317 F.2d 850, 854 (7th
Cir. 1963) . See also 6 J. Moore & J. 
Wicker, Federal Practice f56.22[l], at 
56-1330 (1986); 10A C. Wright, A. Miller
& M. Kane, Federal Practice and Procedure 
§ 2738, at 507-09 (1983).4

4 There is also authority for the 
proposition that a non-movant's papers 
will be examined less stringently on a 
motion for summary judgment than those of 
the movant. Lew v. Kona Hospital, 7 54 
F.2d 1420, 1423 (9th Cir. 1985); Maiorana 
v. MacDonald. 596 F.2d 1072, 1080-81 (1st 
Cir. 1979); Washington v. Cameron, 411 
F . 2d 705, 709-10 (D.C. Cir. 1969). See



11a
[1, 2] It would be especially 

inappropriate to disregard unsworn 
attachments to appellant's affidavit in 
opposition to the motion for summary 
judgment in this case, since the district 
court considered unsworn and uncertified 
attachments to the affidavits provided by 
both sides. In particular, the district 
court appears to have been heavily 
influenced by the report of Hearing 
Officer Herbert Morris,5 which was 
attached as Exhibit C to appellees' 
moving affidavit and was not sworn or 
certified, as Rule 56(e) requires. See 
Mitchell v. Beaubouef.581 F.2d 412, 415 
(5th Cir. 1978) . It would be unfair to

also 10A C. Wright, A. Miller & M. Kane, 
Federal Practice and Procedure § 2738 n. 
31, at 484 (1983).

5 Mr. Morris conducted the hearing 
pursuant to Section 75 of the Civil 
Service Law which resulted in appellant's 
dismissal.



12a
preclude consideration of appellant's 
unsworn statements, which were clearly 
considered below (although deemed by the 
district court "hardly probative of 
anything"), where the judgment entered 
against appellant and before us on this 
appeal gave considerable weight to 
similarly defective documents tendered by 
appellees. Had appellees objected below 
to the introduction of appellant's 
unsworn statements, appellant could 
presumably have taken steps to meet that 
objection.6 We conclude that the failure 
to complain below had the consequence of 
waiving the objection, and the unsworn 
statements are properly before us.

As will appear, at least with these 
statements taken into account, appellant

6 One can gather as much from the 
s t a t e d  w i l l i n g n e s s  of nume r o u s  
signatories to "appear before a Federal 
Judge" and tell their stories.



13a
was entitled to the denial of summary 
judgment as to aspects of his Title VII 
claim, but not as to the balance thereof 
or as to any of his other claims.

Title VII Claim
University of Tennessee v. Elliot,
U.S. ____, 106 S.Ct. 3220, 92

L.Ed.2d 635 (1986), establishes the basic 
proposition that appellant is entitled to 
a trial de novo on his Title VII claim, 
since he did not seek state court review 
of the SDHR administrative proceedings 
adjudicated against him. As was there 
stated, after reviewing the legislative 
language and history of Title VII and 
pertinent Supreme Court precedents, 
"Congress did not intend unreviewed state 
administrative proceedings to have 
preclusive effect on Title VII claims." 
106 S.Ct. at 3225.

[ 3, 4 ] To make out a prima facie



14a
case of retaliation under Title VII, 
appellant must show: protected
participation or opposition under Title 
VII known by the alleged retaliator; an 
employment action disadvantaging the 
person engaged in the protected activity; 
and a causal connection between the 
p r o t e c t e d  a c t i v i t y  a n d  t h e  
disadvantageous employment action. Grant 
v. Bethlehem Steel Coro.. 622 F . 2d 43,46
(2d Cir. 1980). Proof of causal
connection can be established indirectly 
by showing that the protected activity 
was followed closely by discriminatory 
treatment, Davis v. State University of 
New York. 802 F.2d 638, 642 (2d Cir.
1986) , or through other evidence such as 
disparate treatment of fellow employees 
who engaged in similar conduct, Simmons 
v. Camden County Board of Education, 757
F .2d 1187, 1188-89 (11th Cir.), cert.



15a
denied. ____ U.S. ____, 106 S.Ct. 385, 88
L.Ed.2d 338 (1985), or directly through
evidence of retaliatory animus directed 
against a plaintiff by the defendant. 3 
A. Larson & L. Larson, Employment 
Discrimination §87.31 (1986 & Supp.
1987); see also Hochstadt v. Worcester 
Foundation for Experimental Biology, 
Inc., 425 F.Supp. 318, 328-29 (D. Mass.), 
aff^d, 545 F .2d 222 (1st Cir. 1976). 
Once a plaintiff has established his 
prima facie case, the employer must show 
a legitimate non-discriminatory reason 
for the alleged mistreatment. Grant, 622 
F. 2d at 46. The employee is then
afforded an opportunity to prove that the 
employer's proffered reason for its 
conduct is pretextual. Choudhurv v. 
Polytechnic Institute of New York. 735 
F .2d 38, 44 (2d Cir. 1984).

In the instant case, appellant



16a
brought before the district court 
evidence that he was a plaintiff in a 
Title VII action then pending against 
appellees, and that appellees (through 
their supervisory personnel) knew of 
appellant's activities. DeCintio further 
showed that he was fired within one year 
of the filing of the original Title VII 
action. Finally, DeCintio profferred, 
through party admissions of Jeffrey Sweet 
and Edward Stolzenberg, and through the 
statements of fellow employees that they 
were not disciplined for engaging in 
identical behavior, direct and indirect 
evidence of a causal connection between 
protected activity and retaliation. In 
this connection, the district court's 
statement that the hospital's failure to 
discharge other employees for their 
similar derelictions is "hardly probative 
of anything" is not supported by the



17a
authorities. Hill v. Coca Cola Bottling 
Co.. 786 F.2d 550, 553 (2d Cir. 1986).

[5] Appellees offered evidence
showing that DeCintio was fired for gross 
misconduct. According to De Cintio's 
sworn affidavit, however, he acted 
properly and in accordance with hospital 
policy in both the May and February 
incidents, a conclusion partially 
corroborated by the sworn affidavit of 
Robert Burns, Chief Respiratory Therapist 
at the medical center from November 1982 
to February 1984.7 Even if there were no

7 With respect to his conduct 
during the May 1984 incident, DeCintio's 
affidavit states that the request for the 
ventilator was made without proper 
authorization from a doctor, in 
contravention of hospital policy. The 
Burns affidavit confirms DeCintio as to 
the pertinent hospital policy. With 
respect to the February 1985 incident, 
DeCintio's affidavit stated that he 
responded to the "stat" pages from 
Stephen Marchwinski by sending an 
assistant, Jose Gomes, to the emergency 
room. The affidavit further indicates 
that therapists Gloria Drenga and Michael



18a
dispute as to the impropriety of 
DeCintio's conduct, the evidence of 
retaliatory animus on the hospital's part 
would suffice to defeat the summary 
judgment motion. Rodriquez v. Board of 
Education. 620 F.2d 362, 367 (2d Cir.
1980) . We therefore hold that there are 
genuine issues of material fact with 
respect to appellant's Title VII claim, 
and that the grant of summary judgment on 
this claim in favor of appellees was

Garayua, who were under DeCintio's 
supervision and were taking a lunch 
break, did not answer any of the "stat" 
calls from Nurse Marchwinski in 
accordance with hospital policy, 
reflected in a memorandum posted on the 
departmental bulletin board which stated 
that therapists should not work during 
lunch hour because they would not be 
paid. The Burns affidavit states that 
the memorandum in question was written 
and posted by Burns at the direction of 
Assistant Hospital Administrator Pradeep 
Gupte.



19a
accordingly inappropriate.8 In doing so, 
we do not deprecate the burden which 
plaintiff will face at trial in 
establishing that the grounds for 
defendants' dismissal of plaintiff were

8 The district court found no 
evidence that Jeffrey Sweet, an employee 
of the hospital alleged to have expressed 
retaliatory animus against appellant, had 
any impact upon the decision of Hearing 
Officer Morris or upon Medical Center 
Commissioner Weinstein, who discharged 
appellant based upon Morris's hearing 
report. In the event, however, that 
appellees were motivated by retaliatory 
animus in instituting the Section 75 
proceeding, Title VII would be violated 
even though there were objectively valid 
grounds for the proceeding and the 
resulting discharge. Hill v. Coca Cola 
Bottling Co.. 786 F.2d 550, 553 (2d Cir. 
1986) , applies this rule to racial 
discrimination violative of 42 U.S.C.
§ 2000e-2(a) (1982); we deem the same 
r u l e  to a p p l y  to r e t a l i a t o r y  
discrimination violative of 42 U.S.C.
§ 2000e3(a) (1982). In terms of the 
traditional analysis in this area, the 
issue in either case would be whether the 
asserted basis for the hospital's action 
was pretextual. McDonnell Douglas Corp. 
v. Green. 411 U.S. 792, 804-05, 93 S.Ct. 
1817, 1825, 36 L.Ed.2d 668 (1973); 
Choudhurv v. Polytechnic Institute of New 
York. 735 F .2d 38, 44 (2d Cir. 1984).



20a
pretextual, given the gravity of the 
life-threatening situations upon which 
those grounds were based.

Other Claims
[6] Appellees maintain that

appellant's claim for relief under 28 
U.S.C. § 1983 is barred by collateral
estoppel.9 10 Although the parties have 
focused most of their attention on the 
preclusive effect of the Section 75 
proceeding, they have also discussed 
DeCintio's retaliation complaint before 
the SDHR, which resulted in a finding of 
no probable cause.

9 Our analysis of appellant's 
section 1983 claim is equally applicable 
to all of his claims which are not based 
on Title VII. See note 13, infra.

10 Collateral estoppel is an 
affirmative defense that must usually be 
pleaded. Fed.R.Civ.P. 8(c); 18 C. 
Wright, A. Miller & E. Cooper, Federal 
Practice & Procedure § 4405 (1981). 
Appellees' Affidavit In Support Of Motion 
To Dismiss Or For Summary Judgment sets 
forth in detail DeCintio's charges before



21a
Appellees contend that DeCintio is 

precluded from litigating the retaliatory 
discharge question because the Section 75 
hearing was decided adversely to him. 
Appellant counters that he did not have a 
full and fair opportunity to litigate the 
issue, since the Section 75 proceeding 
was almost exclusively concerned with 
whether the charges of misconduct 
levelled against him were true.

University of Tennessee v. Elliott 
establishes that:

SDHR as well as the facts behind his New 
York Civil Service Law § 7 5 hearing. 
DeCintio has assumed throughout the 
litigation that appellees were raising 
the collateral estoppel issue. We 
conclude that the issue is properly 
before us. W. E. Hedger Transportation 
Coro, v. Ira S. Bushev & Sons, Inc., 186 
F . 2d 236, 237 (2d Cir. 1951); see also 
American Furniture Co. v. International 
Accommodations Supply, 721 F.2d 478 (5th 
Cir. 1981). The lower court's failure to 
rule against appellant on collateral 
estoppel grounds does not preclude our 
doing so. LaRocca v. Gold, 662 F.2d 144, 
148 (2d Cir. 1981) .



22a
[W]hen a state agency "acting in a 
judicial capacity . . . resolves
disputed issues of fact properly 
before it which the parties have had 
an a d e q u a t e  o p p o r t u n i t y  to 
litigate," [United States v. 1 Utah 
Construction & Mining Co. , supra. 
384 U.S., [394], at 422, 86 S.Ct.
[1545] at 1560 [16 L.Ed.2d 642
(1966)], federal courts must give 
the agency's factfinding the same 
preclusive effect to which it would 
be entitled in the State's courts.

____ U.S. at ____ , 106 S.Ct. at 3227.11
[7] Here, DeCintio had an adequate

opportunity to litigate the retaliation
issue in his Section 75 hearing, although
he appears on the record before us not to
have availed himself significantly of
that opportunity, in view of a provision
of New York law which became effective on
September 1, 1984 and established a
prohibition against retaliatory action by

11 As indicated supra, p. 115, 
Elliott explicitly excluded Title VII 
claims from the operation of this rule, 
based upon the language and legislative 
history of Title VII. See also note 13, 
infra.



23a
public employers, which prohibition could 
be asserted as a defense in a Section 75 
proceeding. N.Y. Civil Service Law § 75- 
b (McKinney Supp. 1987). Preclusion is 
therefore appropriate if the courts of
New York would so rule. Migra v ._Warren
City School District Board of Education, 
465 U.S. 75, 83-85, 104 S.Ct. 892, 897- 
98, 79 L.Ed.2d 56 (1984). In any event, 
furthermore, the retaliation issue was in 
fact litigated in the proceeding before 
SDHR.

The rule of University of Tennessee 
v. Elliott accordingly requires that we 
give to these administrative proceedings 
the preclusive effect which they would be 
accorded by the courts of New York. In 
this regard, Rvan v. New York Telephone 
Co. , 62 N.Y.2d 494, 467 N.E.2d 487, 478 
N.Y. S . 2d 823 (1984), establishes that
under New York law:



24a
[T]he doctrines of res judicata and 
collateral estoppel are applicable 
to give conclusive effect to the 
quasi-judicial determinations of 
administrative agencies . . . when
r e n d e r e d  p u r s u a n t  to the 
adjudicatory authority of an agency 
to decide cases brought before its 
tribunals employing procedures 
substantially similar to those used 
in a court of law. . . .
• • • •

Of course, the issue must have 
been material to the first action or 
proceeding and essential to the 
decision rendered therein . . . and
it must be the point actually to be 
determined in the second action or 
proceeding such that "a different 
judgment in the second would destroy 
or impair rights or interests 
established by the first" . . . .

In t h e  a p p l i c a t i o n  of 
collateral estoppel with respect to 
administrative determinations, the 
burden rests upon the proponent of 
collateral estoppel to demonstrate 
the identicality and decisiveness of 
the issue, while the burden rests 
upon the opponent to establish the 
absence of a full and fair 
opportunity to litigate the issue in 
prior action or proceeding.

62 N .Y .2d at 499-501, 467 N.E.2d at 489-
91, 478 N .Y .S .2d at 825-27 (citations
omitted).

The evidence presented to the



25a -
district court showed that the sole basis 
of DeCintio's complaints to SDHR was the 
alleged retaliatory discrimination of 
appellees. The November 1984 complaint 
charged the medical center with general 
harassment and retaliation, and the 
F e b r u a r y  1985 complaint charged 
r e t a l i a t i o n  based on DeCintio's 
suspension. The SDHR Regional Director, 
following an "investigation and , 
review of related information and 
evidence with named parties," found no 
probable cause to support DeCintio's 
complaint, because, inter alia, "[tjhere
is no evidence that Respondent retaliated 
against Complainant." In his Rule 3(g) 
Statement of Material Disputed Facts, 
DeCintio stated that:

11. The continuing harassment 
and other retaliatory conduct 
referred to in the complaint filed 
by plaintiff with the New York State 
Division of Human Rights on or about 
November 9, 1984 was fleshed out



26a
d u r i n g  the c o u r s e  of the 
administrative proceedings and 
includes the conduct set forth in 
the complaint filed by plaintiff 
with this court.
Also in the record is a letter brief 

to the district court from appellant's 
attorneys, the same attorneys who 
represented appellant before the SDHR, 
stating that:

In the instant case, the 
retaliatory conduct complained of by 
plaintiff was actually investigated 
by the State Division and EEOC as is 
made abundantly clear by the 
a f f i d a v i t s  of plaintiff and 
plaintiff's former supervisor, 
Robert Burns, which were submitted 
to the State Division as part of its 
investigation. The determination of 
the EEOC was based upon the record 
and investigation made by the State 
Division.
The SDHR does not make a probable 

cause determination until the complainant 
has had "full opportunity to present on 
the record, though informally, his 
charges against his employer or other 
respondent, including the right to submit



2 "7 a.
all exhibits which he wishes to present 
and testimony of witnesses in addition to 
his own testimony." State Division of 
Human Rights v. New York State Drug Abuse 
Control Commission. 59 A.D.2d 332, 336,
399 N . Y . S . 2d 541, 544 (4th Dept. 1977).
Only where the record indicates "that 
there was a thorough inquiry during which 
the complainant was afforded a full 
opportunity to present her contentions," 
or where a complaint "lacks merit as a 
matter of law," will an SDHR dismissal 
based on lack of probable cause be 
upheld. Flah's Inc, v. Schneider. 71 
A. D.2d 993, 420 N.Y.S.2d 283, 284 (2d
Dept. 1979). See also the discussion of 
SDHR procedures in Kremer v. Chemical 
Construction Corp.. 456 U.S. 461, 483-85, 
102 S.Ct. 1883, 1898-99, 72 L.Ed.2d 262



28a
(1982).12

Given the foregoing, it is apparent 
that appellant would be precluded under 
New York law from relitigating the 
retaliation issue brought before the 
SDHR. The retaliation issue was
obviously material to the SDHR proceeding 
and "essential to the decision rendered 
therein." Ryan at 62 N.Y.2d 500, 467
N . E . 2d 490, 478 N.Y.S.2d 826. Far from
establishing that he did not have a full

12 In view of these subsequent 
cases, and the ruling in Emil v. Dewey, 
49 N .Y .2d 968, 406 N.E.2d 744, 428
N .Y .S .2d 887 (1980), that the mere filing 
of a complaint with SDHR "precludes the 
plaintiff from commencing an action in 
court based on the same incident," see 
also. Spoon v. American Agriculturalist. 
Inc. . 103 A . D . 2d 929, 478 N.Y.S.2d 174
(3d Dept. 1984) , the question raised by 
this court in Mitchell v. National 
Broadcasting Co., 553 F.2d 265, 273 n. 10 
(2d Cir. 1977), as to the finality of an 
SDHR determination of no probable cause 
should be deemed resolved in favor of 
finality. See Kirkland v. City of
Peekskill. 651 F.Supp. 1225, 1230 n. 2
(S.D.N.Y. 1987).



29a
and fair opportunity to litigate, 
DeCintio admits to having "fleshed out" 
the issues at the SDHR hearing. We hold 
that DeCintio is precluded from 
r e l i t i g a t i n g  t h e  r e t a l i a t o r y  
discrimination issue in a federal action 
based on 42 U.S.C. § 1983.13

13 The same analysis applies to 
DeCintio's claims under 42 U.S.C. § 1981, 
29 U.S.C. § 215(a)(3), and the fourteenth 
amendment; Elliott precludes recovery. 
The holding in Elliott as to the 
preclusive effect of administrative 
rulings specifically applied to an action 
brought under the first, thirteenth and 
fourteenth amendments and 42 U.S.C. §§ 
1981, 1983, 1985, 1986 and 1988 (commonly 
referred to as the Reconstruction Civil 
Rights Statutes). See Elliott v.
University of Tennessee, 766 F.2d 982, 
987 (6th Cir. 1985), affirmed in mart and
reversed in part, ____ U.S. ____, 106
S.ct. 3220, 92 L . Ed. 2d 635 (1986).
Moreover, nothing in the statutory 
language of the Reconstruction Civil 
Rights Statutes or 29 U.S.C. § 215 (a)(3) 
calls for the kind of exception to 
collateral estoppel principles that 
Elliott fashioned for Title VII actions. 
The Title VII exception was based 
substantially upon the wording of 42 
U.S.C. § 2 000e-5(b), which requires the
Equal Employment Opportunity Commission 
to give "substantial weight" to the



30a

Conclusion
The district court's dismissal of 

appellant's Title VII claim is reversed 
and remanded for further proceedings 
consistent herewith.14 The district 
court's dismissal of appellant's other 
claims is affirmed.

MINER, Circuit Judge, dissenting:
Because the record is clear that

findings of state or local authorities 
c h a r g e d  w i t h  e n f o r c i n g  a n t i -  
discrimination laws. The Supreme Court 
thought "it would make little sense for 
Congress to write such a provision if 
state agency findings were entitled to 
preclusive effect in Title VII actions in 
federal court." Elliott. U.S. at
____, 106 S.Ct. at 3225.

14 The district court is reversed 
only as to the question of DeCintio's 
suspension and dismissal. DeCintio's 
allegations that he was improperly denied 
promotions, refused transfer to the day 
shift, and disciplined for arguing with a 
female employee were buttressed by no 
supporting material and were amply 
refuted by opposing affidavits and 
documents.



31a -
DeCintio was dismissed from his hospital 
employment for gross derelictions of his 
professional duty and for no other 
reason, I would affirm the summary 
judgment entered in favor of Westchester 
County Medical Center.

W i t h o u t  q u e s t i o n ,  D e C i n t i o  
established a prima facie case of 
retaliation against the Medical Center by 
showing that he filed a Title VII claim 
of discrimination and thereafter was 
dismissed from his position. See Grant 
v. Bethlehem Steel Corp.. 622 F.2d 43, 46 
(2d Cir. 1980). It then became incumbent 
upon the Medical Center to carry the 
burden of demonstrating a legitimate, 
nondiscriminatory motive for the 
discharge. Davis v. State University of 
New York, 802 F.2d 638, 642 (2d Cir.
1986) . The employer carried that burden 
by submitting convincing evidence that



32a
DeCintio's behavior in two life- 
threatening situations was not worthy of 
any respiratory therapist, let alone the 
Assistant Chief of the Respiratory 
Therapy Department, a position to which 
DeCintio was promoted after the filing of 
his original Title VII claim with the 
EEOC.

The situation on May 23, 1984
involved a one year old child who was 
brought to the Medical Center in severe 
respiratory distress. The Head Nurse in 
the Emergency Department, Stephen 
Marchwinski, testified at the hearing 
held pursuant to section 75 of the New 
York Civil Service Law that he called the 
Respiratory Department and told DeCintio, 
who was the day supervisor there, that he 
needed a pediatric ventilator. When 
DeCintio told him that a physician's 
order was necessary before a ventilator



33a
could be brought to the Emergency Room, 
the Head Nurse went to the Respiratory 
Department and renewed his request in 
person. According to the Head Nurse, 
DeCintio responded that only a doctor 
could order the equipment and then 
advised the other therapists not to 
respond. Another member of the
Respiratory Department provided the 
equipment without further demand for 
authorization. In an affidavit submitted 
to the State Division of Human Rights, 
DeCintio substantially admitted these 
allegations: "Because of the apparent
lack of a doctor's order and because I 
knew Mr. Marchwinski frequently attempted 
to order equipment on his own, contrary 
to hospital policy, I declined to get a 
ventilator without such an order and 
without specification of the type of 
ventilator needed." Joint App. at 89.



34a
His conduct on that occasion can only be 
characterized as shocking.

The incident of February 6, 1985
involved a patient who had been brought 
to the E m e r g e n c y  Department by 
helicopter. A ventilator provided for 
the patient malfunctioned, and Dr. John 
Savino, Chief of Trauma, ordered Head 
Nurse Marchwinski to place a "stat" call 
to the Respiratory Department for another 
ventilator. A "stat" call indicates that 
there is an emergency and that immediate 
attention is required. According to 
Marchwinski, the call went unanswered, 
and he proceeded to the Respiratory 
Department, where he found some 
therapists on lunch break. He then 
located DeCintio, who said he would take 
care of the situation. When no
assistance was forthcoming, Dr. Savino 
proceeded to the Respiratory Department



35a
and restated the need for a ventilator in 
no uncertain terms. Eventually, the 
equipment was provided. DeCintio
complains that "he was disciplined not
because he himself failed to answer
'stat' pages but because he, as a
supervisor, had failed to order other
staff respiratory therapists on their 
lunch break to do so." Brief for 
Plaintiff-Appellant at 4. "DeCintio
contends that in not giving that order he 
acted in accordance with Hospital 
policy." Id. The policy purportedly 
prohibited Respiratory Department 
employees from working during their lunch 
hour. The contention was and is
ludicrous, and DeCintio understandably 
was suspended from his employment the 
following day. Dr. Savino believed this 
his patient's life was endangered in the
incident.



36a
To support his claim that there are 

genuine issues of material fact regarding 
his discharge, DeCintio submitted two 
identical, unsworn statements by members 
of the Respiratory Therapy Department. 
The statements were signed by a total of 
eleven department members, who asserted 
that they were "willing to appear before 
a Federal Judge" and testify: that each 
had responded to "stat" calls in the same 
manner as DeCintio; that the hospital was 
aware that they had so responded; and 
that none had been suspended or 
terminated for so responding. The 
statements have no probative value, 
however, because the signatories do not 
indicate, in any way, any knowledge of 
how DeCintio responded to "stat" calls on 
any particular occasion. It makes no 
sense to say that each therapist 
responded to each call in the same manner



37a
as DeCintio. Moreover, little credence 
can be given to allegations presented to 
the court in the form employed in these 
statements.

Two other unsworn statements were 
submitted in opposition to the motion for 
summary judgment. In a statement dated 
August 8, 1985, Christopher Follini, a 
technician in the Respiratory Therapy 
Department, asserted that he went to the 
office of Jeffrey Sweet, Assistant 
Personnel Director of the Medical Center, 
to discuss certain charges brought 
against him. At that meeting, alleged to 
have taken place in October of 1984, Mr. 
Sweet is said to have told Mr. Follini 
that DeCintio was a "ring leader" who 
"won't be around much longer." The 
second statement was given by Peter A. 
Piazza, a staff respiratory therapist, 
who related a conversation that took



38a
place in Mr. Sweet's office on April 26, 
1985. During that conversation, Mr. 
Sweet is alleged to have expressed 
general dissatisfaction with the 
Respiratory Therapy Department, stated 
that he had never lost a case, and 
asserted that three people he had fired 
would never return to employment. During 
the same conversation, Associate Hospital 
Director Edward Stolzenberg is alleged to 
have said that the Respiratory Therapy 
Department could be taken over by the 
Nursing Department and that all personnel 
in Respiratory Therapy could be fired and 
replaced. Mr. Piazza expressed his 
"belief" that the comments "directly 
relate[d] to the well-being of Mr. 
Anthony J. DeCintio."

The Follini statement raises no 
triable issue of retaliatory animus. 
Sweet's comment to Follini made no



- 39a -
reference to retaliation, and, in light 
of DeCintio's previous unprofessional 
conduct, Sweet's desire to terminate the 
employment of DeCintio was quite 
understandable. Moreover, DeCintio's
employment continued for an additional 
four months, until the second incident, 
providing further evidence of a lack of 
retaliatory animus. As to the Piazza 
statement, we have nothing other than the 
belief of Piazza that Sweet and 
Stolzenberg were referring to DeCintio in 
the conversation of April 26, 1985. Even 
if they were referring to him, DeCintio 
already was under suspension for his 
life-endangering conduct, and it hardly 
would have been unusual for hospital 
administrators to concern themselves with 
the reorganization of the Respiratory 
T h e r a p y  D e p a r t m e n t  u n d e r  the
circumstances.



40a
A motion for summary judgment 

requires the court to undertake "the 
threshold inquiry of determining whether 
there is a need for a trial —  whether, 
in other words, there are any genuine 
factual issues that properly can be 
resolved only by a finder of fact because 
they may reasonably be resolved in favor 
of either party." Anderson v. Liberty
Lobby, Inc. , ____ U.S. ____, ____ , 106
S.Ct. 2505, 2511, 91 L.Ed.2d 202, 213 
(198 6) . We have held that "the salutary 
purposes of summary judgment —  avoiding 
protracted, expensive and harassing 
trials —  apply no less to discrimination 
cases than to commercial or other areas 
of litigation." Meiri v. Paeon. 759 F.2d 
989, 998 (2d Cir.)(conclusory allegations 
of discrimination insufficient to defeat 
defendants' motion for summary judgment 
in Title VII case), cert, denied. ____



-4 1 a
U.S. ____, 106 S.Ct. 91, 88 L. Ed. 2d 74
(1985) .

Here there are no genuine material 
issues of fact that can "reasonably" be 
resolved in DeCintio's favor to support 
his claim of retaliation. This simply is 
a case where a health professional was 
derelict in his duties and was fired for 
his derelictions. Even a retaliatory- 
motive "does not establish a Title VII 
violation unless it was causally related 
to the adverse action, not merely in the 
mind of the employer." Davis, 802 F.2d
at 645 (Newman, J ., concurring). 
DeCintio was wholly unable to demonstrate 
a causal relationship between the 
termination of his employment and any 
retaliatory intent on the part of the 
Medical Center. He therefore is unable 
to satisfy the "but for" test. Id.

To summarize: DeCintio's conduct on



42a
two separate occasions, which jeopardized 
the lives of persons for whose care his 
employer was responsible, established a 
legitimate, nondiscr iminatory, non- 
retaliatory motive for his discharge. He 
has failed to show that, even if there 
was a retaliatory motive behind his 
discharge, there was a causal relation 
between that motive and the discharge. 
Finally, there is no factual basis for a 
claim that the reasons given for the 
discharge were pretextual in nature. 
Grant. 622 F.2d at 46. As to all these
matters, the evidence "is so one-sided
that [defendants] must prevail as a
matter of law." Anderson, U.S. at

r 106 S . Ct. at 2512, 91 L.Ed.2d at
214.



43a
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK

ANTHONY J. DeCINTIO,
Plaintiff,

-against-
WESTCHESTER COUNTY 
MEDICAL CENTER; COUNTY 
OF WESTCHESTER,

85 CIVIL 
9551-CLB
JUDGMENT

____________Defendants r ;
Defendant(s) having moved for an 

order pursuant to Rule 12(b)(1) and (6) 
F.R.Civ.P., and the said motion having 
come before the Honorable Charles L. 
Brieant, United States District Judge, 
and the Court thereafter on March 5th, 
1986, having handed down its endorsement, 
granting the said motion, it is

ORDERED, ADJUDGED AND DECREED: That
the complaint be and it is hereby 
dismissed.

/s/Ravmond F. Burghardt 
Clerk

March 6th, 1986
Dated: White Plains, N.Y.



44a

DISTRICT COURT RULING ON 
M C E m s a f R IE a a R  ( m i M m N Y I C T N l i E M B N T

Endorsement

ANTHONY J. DeCINTIO, )
Plaintiff )

)vs. ) 85 Civ. -
) 9551-CLB

WESTCHESTER COUNTY )
MEDICAL CENTER; COUNTY )
OF WESTCHESTER, )

)Defendants )
_____________________________ )

The within motion is granted and the
action is dismissed. Ordinarily, in an
e m p l o y m e n t d i s c r i m i n a t i o n case,
motivation is an issue of fact, and if
there is evidence supporting plaintiff's 
claim that the conduct of the employer 
concerning which he complains was 
invidiously motivated, then the issue 
must be tried. Here, however, their is



45a
no evidence that the disciplinary 
proceedings invoked against plaintiff 
were merely pretextual, and brought to 
harass or retaliate against him for 
a s s e r t i n g  prior claims of sex 
discrimination in employment.

Plaintiff, employed in defendant's 
hospital as a respiratory therapist in 
the competitive class under the New York 
Civil Service Law, was accused of 
specific acts of serious misconduct, 
under § 75 New York Civil Service Law, on 
specific dates, May 23, 1984 and February 
6, 1985 in that he failed on two separate 
occasions to respond to an emergency 
situation in an appropriate manner. He 
received an evidentiary hearing before 
Hearing Officer Herbert Morris, and as a 
result of the hearing was discharged by 
Commissioner Weinstein. More than
adequate evidence to support the findings



46a
of the Hearing Officer is described in 
his report.

While this Court agrees with 
plaintiff's position that he can 
relitigate the findings of the Hearing 
Officer de novo in this case, before he 
may do so, he must come forward on this 
motion with some evidence that the 
charges were pretextual. There is no 
showing that Jeffrey Sweet had any impact 
in the decisions of Morris or Weinstein, 
and he denies the hearsay statements 
attributed to him. That others say they 
were not discharged for their own similar 
derelictions is hardly probative of 
anything.

The Clerk shall enter final 
judgment.

So Ordered.
Dated: White Plains, New York

March 5, 1986



47a

Charles Brieant/s/ 
Charles L. Brieant 

U.S.D.J.



48a
EEOC DETERMINATION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 
New York District Office 

90 Church Street, Room 1501 
New York, New York 10007

Anthony J. De Cinto
55 Mamaroneck Road Charge No.:
Scarsdale New York 10583 021-85-0853

C h a r g i n g
Party

Westchester Company Medical 
Center

Valhalla, New York 10721 Respondent

DETERMINATION
Under the authority vested in me by the 
Commission's Procedural regulations, I 
issue on behalf of the Commission, the 
following determination as to the merits 
of the subject charge.
Respondent is an employer within the 
meaning of Title VII and the timeliness, 
deferral and all other jurisdictional 
requirements have been met.
The New York State Division of Human



49a
Rights has concluded that there is not 
reasonable cause to believe that the 
charge is true and the Commission adopts 
this determination as its own.
This determination concludes the 
Commission's Processing of the subject 
charge. Should the charging party wish 
to pursue this matter further, he or she 
may do so by filing a private action in 
Federal District Court within 90 days of 
receipt of this letter and by taking the 
other procedural steps set out in the 
enclosed NOTICE OF RIGHT TO SUE.

On behalf of the Commission:

Edward M e r c a d o / s / ______
Mar-7 1986 Edward Mercado
Date District Director
Enclosure: Notice of Right to Sue



50a
DETERMINATION BY NEW YORK 

STATE DIVISION OF HUMAN RIGHTS
NEW YORK STATE: EXECUTIVE DEPARTMENT
DIVISION OF HUMAN RIGHTS

COMPLAINANT 
Anthony J. DeCintio 

VS
Westchester County 

RESPONDENT (S)

Case No. 
3EO-84-99786E 
021-85-0853 

3EOR—85—104216E

DETERMINATION AND ORDER 
AFTER INVESTIGATION

On November 9, 1984, and July 13, 1985,
Anthony J . DeCintio filed a verified 
complaint with the State Division of 
Human Rights, charging the above-named 
respondent (s) with an unlawful 
discriminatory practice relating to 
employment in violation of the Human 
Rights Law of the State of New York.

After investigation and following a



5la
review of related information and
evidence with named parties, the Division
of Human Rights has determine in the
above-entitled complaint that there is no
probable cause to believe that the
respondent (s) engaged in the unlawful
discriminatory practice complained of.

This determination is based on the 
following: The investigation
revealed that complainant was 
s u s p e n d e d  and s u b s e q u e n t l y  
terminated for failure to act 
properly during an emergency 
situation. Complainant was treated 
in the manner proscribed by the 
Civil Service Rules and Regulations 
and a hearing was held. Complainant 
was found guilty of misconduct and 
incompetence by the hearing officer 
and termination was recommended. 
There is no evidence that Respondent 
retaliated against Complainant 
because he had filed charges of 
discrimination.
The Complaint is, therefore, ordered 

dismissed and the file is closed.
Any party to this proceeding may 

appeal this Determination to the New York 
State Supreme Court in the County wherein



52a
the unlawful discriminatory practice took 
place by filing directly with such Court 
a Notice of Petition and Petition within 
sixty (60) days after service of this 
Determination. A copy of the Petition 
and Notice of the Petition must also be 
served on all parties including the 
Division of Human Rights. DO NOT FILE 
THE ORIGINAL PETITION AND NOTICE OF 
PETITION WITH THE STATE DIVISION OF HUMAN 
RIGHTS.

PLEASE TAKE FURTHER NOTICE that a
complainant who seeks state judicial
review, and who receives an adverse
decision therein, may lose his or her
right to proceed subsequently in federal
court under Title VII, by virtue of
Kremer vs. Chemical Construction Co., 456
U.S. 461 (1982).
Dated and Mailed: NOV 27 1985
Anthony J. DeCintio STATE DIVISION OF 
55 Mamaroneck Road HUMAN RIGHTS



53a
Scarsdale, NY

By John Lind 
Anne Golden, Esq. John Lind,
Silverman & Sapir Director
14 Mamaroneck Avenue 
White Plains, NY 10601
Antoinette M. McCarthy
Sr. Asst. County Attorney
Room 600, Mechaelian Office Bldg.
148 Martine Avenue
White Plains, NY 10601

Regional



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