DeCinto v. Westchester County Medical Center Brief of Respondents in Opposition to Petition for Writ of Certiorari to the US Court of Appeals for the Second Circuit

    L~ L~.l S

No. 87-574

In the

Bnpvzmz (Cnurt uf tij* United States
October Term, 1987

ANTHONY J. D eC IN TIO ,
Petitioner,

— vs. —
W ESTC H ESTER  COUNTY M ED IC A L C EN TER ; 

COUNTY OF W EST C H EST ER ,
Respondents.

B R IE F  OF R ESP O N D EN TS W EST C H EST ER  
COUNTY MEDICAL CENTER AND COUNTY OF 
WESTCHESTER IN OPPOSITION TO PETITION FOR 
WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SECOND CIRCUIT

Henry j .  L ogan 
W estchester  C ounty  Attorney 
Attorney for Respondents

Westchester County Medical Center 
and County of Westchester 

P.O. Box and Address 
600 Michaelian Office Building 
148 Martine Avenue 
White Plains. New York 10601 
(914) 285-2673

K en n eth  E. Pow ell 
Deputy County Attorney 
Counsel of Record



1

QUESTION PRESENTED

Whether, in the factual circumstances 
presented, an adverse determination of 
the New York State Division of Human 
Rights unreviewed in the State Courts 
dismissing claims of retaliation is 
entitled to collateral estoppel effect 
upon non-Title VII retaliation claims 
later asserted in federal court?



11

PAGE
QUESTION PRESENTED................. i
TABLE OF CONTENTS..................ii
TABLE OF AUTHORITIES...............iii
STATEMENT OF THE CASE..............1
SUMMARY OF ARGUMENT................4
ARGUMENT

THE PETITION FOR A 
WRIT OF CERTIORARI
SHOULD BE DENIED...............6

A. The Court below merely 
applied preclusion 
principles under University 
of Tennessee v. Elliot........6

TABLE OF CONTENTS

B. The Petition seeks review of
an interlocutory judgment...... 7

C. The issue raised in Petition
is no longer apparently 
presented due to an 
amendment to the complaint 
after remand................... 8

D. The case does not raise the 
issue of the procedures 
utilized by the New York 
State Division of Human
Rights ( SDHR) ....... ............ 9



Ill

TABLE OF CONTENTS (con't.)
PAGE

E. Petitioner was accorded a
four day disciplinary trial 
under New York Civil Service 
Law §75 prior to the adverse
determination of the SDHR...... 10

CONCLUSION..........................12
Appendix............................Al
Amended Complaint.................. Al

TABLE OF AUTHORITIES
CASES
City of Pompano Beach v.
Federal Aviation Administration,
774 F. 2d 1529 ( 11th Cir. 1985)"..... 9
DeCintio v. Westchester 
County Medical Center,
807 F.2d 304 (2d Cir. 1986)
cert, denied, U.S.___ ,
56 U.S.L.W. 3223 (U.S. Oct. 5,
1987 ) (No. 86-1946)................2
DeCintio v. Westchester 
County Medical Center,
821 F.2d 111
(2d Cir. 1987)............... 3 , passim
Delgado v. Lockheed Co.,
A Division of Lockheed Corp. 
315 F. 2d 641 (11th Cir. 1987) 
reh. den., en banc 820 F.2d 
1231 (11th Cir. 1987)....... 9



IV

TABLE OF AUTHORITIES (con't.)
PAGE

International Controls Corp.
vT Vesco, 556 F.2d 665
(2d Ci r. 1977 ) cert. denied,
434 U.S. 1014 ( 1973)...............8
Johnson v. Railway Express
Agency, Inc. 421 U.S. 454 (1975)....6
Kremer v. Chemical Construction
Corp., 456 U.S. 461 (1982)
reh. den., 458 U.S. 1133 ( 1982 )..... 10
University of Tennessee 
v. Elliot, US __,
106 S.Ct. 3220 ( 1986 )............ 3,4,6
Washer v. Bullit County,
110 U.S. 558 ( 1884 )................8
CONSTITUTION
Fourteenth Amendment to
the United States Constitution..... 2
STATUTES
Title VII of the Civil 
Rights Act of 1964, 42 U.S.C.
§2000e e_t seq................ 2, passim
42 U.S.C. §§1981, 1983....... 2, passim
29 U.S.C. § 215 ( a) (3)............... 2
New York Civil Service 
Law §75 (McKinney 1983 &
Supp. 1987)....................  1,5,10
New York Civil Service 
Law §76 (McKinney 1983 &
Supp. 1987 )........................ 11



1

STATEMENT OF THE CASE
On February 7, 1985, Petitioner, 

an Assistant Chief of Respiratory 
Therapy at Westchester County Medical 
Center (WCMC), was suspended without 
pay for thirty days under New York 
Civil Service Law §75, pending 
resolution of misconduct and 
incompetence charges.

On June 26, 1985, following a four 
day disciplinary trial, Petitioner was 
discharged from employment having been 
adjudged guilty of jeopordizing lives 
of patients in the Emergency Room of 
WCMC on May 23, 1984 and February 6, 
1985 .

On November 27, 1985, the New York 
State Division of Human Rights (SDHR), 
after an investigation, dismissed 
Petitioner's human rights complaint 
which had charged that WCMC retaliated 
against him for earlier instituting



2

complaints alleging sex discriminat­
ion. The EEOC adopted the determinat­
ion.*

On December 6, 1985, Petitioner 
commenced suit in District Court 
alleging WCMC retaliated against him 
in violation of Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. §§1981, 
1983, the Fair Labor Standards Act, 29 
U.S.C. §215(a)(3), and the Fourteenth 
Amendment.

On March 5, 1986, the District 
Court dismissed the complaint finding 
Petitioner's discharge grounded on his 
serious misconduct and that no genuine 
triable issue of fact was presented.

On June 8, 1987, a divided Second 
Circuit Court of Appeals reversed in

"^Petitioner was ultimately unsuccessful 
in his sex discrimination complaint. 
DeCintio v. Westchester County Medical 
Center, 807 F.2d 304 (2d Cir. 1986) 
cert, denied, U.S. , 56 U.S.L.W. 
3223 (U.S. Oct. 5, 1987) (No. 86-1946).



3

part and affirmed in part. Applying 
University of Tennessee v. Elliott,
____U.S. ____, 106 S.Ct. 3220 (1986),
the majority concluded Petitioner was 
entitled to further proceedings upon 
his Title VII claim, but the remainder 
of his suit was precluded by the 
adverse administrative determination 

of the SDHR.
The dissent would have affirmed 

the dismissal of all claims "[b]ecause 
the record is clear that DeCintio was 
dismissed from his hospital employment 
for gross derelictions of his 
professional duty and for no other 
reason • • •11 DeCintio v. Westchester
County Medical Center, 821 F.2d 111, 
118 (2d Cir. 1987).

This petition for a writ of
certiorari ensued.



4

The petition seeks review of an 
issue addressed by this Court last 
year in University of Tennessee v. 
Elliot, supra, concerning the 
collateral estoppel effect of 
administrative adjudications.

No warrant exists for the Court to 
either re-examine that decision or to 
review an application of the doctrine 
of collateral estoppel to a specific 
factual circumstance. This is 
especially so when, as here, review is 
sought of an interlocutory order on an 
issue which, on the facts, may become 
academic upon further proceedings, if 
it has not already become so due to an 
amendment to the complaint after 
remand.

The determination of the New York 
State Division of Human Rights (SDHR)

SUMMARY OF ARGUMENT



5

accorded preclusive effect upon 
Petitioner's non-Title VII claims is 
not the only determination involved in 
this case. Prior to the SDHR 
determination, Petitioner was accorded 
a four day disciplinary trial under 
New York Civil Service Law §75 which 
the SDHR took into account in its 
determination.



6

ARGUMENT
THE PETITION FOR A WRIT 

OF CERTIORARI SHOULD BE DENIED
A. The Court below merely applied 
preclusion principles under University 
of Tennessee v. Elliot_______________ _

At bar, the Second Circuit applied 
preclusion principles under this Court's 
very recent decision in University of 
Tennessee v. Elliot, supra.

Dismissal of Petitioner's non-Title 
VII retaliation claim (and the remand 
of his Title VII claim) merely con­
stituted the application of that pre­
clusion doctrine under the facts of this 
individual case and does not raise 
important issues requiring review by 
this Court.*

*Johnson v. Railway Express Agency, 
Inc., 421 U.S. 454 (1975) is in accord 
with the ruling below holding that 
pursuit of administrative remedies 
under Title VII does not toll the 
statute of limitations under §1981. 
Procedural choices thereby presented 
are both "natural" and "valuable."
Id. at 462.



7

B. The Petition seeks review of an 
interlocutory judgment________

The judgment of the Second Circuit 
Court of Appeals is interlocutory and 
the non-final nature of the'case 
strongly militates against the grant 
of a writ of certiorari.

When proceedings in the District 
Court are concluded, the petition may 
be rendered academic. Though 
remanding the Title VII claim, the 
majority of the Second Circuit 
apparently placed minimal credence 
upon it. 821 F.2d at 116. The 
dissent considered further proceedings 
unnecessary due to the absence of 
genuine triable issues of fact and 
would have affirmed the dismissal of
all claims.



8

C. The issue raised in the petition 
is no longer apparently presented due 
to an amendment to the complaint after 
remand_______________________________

Subsequent to remand below, 
Petitioner amended his complaint 
apparently rendering the original 
complaint of no legal effect. Washer 
v. Bullit County, 110 U.S. 558, 562 
(1884); International Controls Corp. 
v. Vesco, 556 F.2d 665, 668 (2d Cir. 
1977) cert. denied, 434 U.S. 1014 
(1978). The amended complaint, a copy 
of which is set forth in the Appendix 
to this brief, alleges no express 
§1981 or §1983 claim, unlike the 
original complaint. As a result, that 
issue upon which a grant of a writ of 
certiorari is sought, is apparently no 
longer presented in this case.



9

D. The case does not raise the issus 
of the procedures utilized by the New 
York State Division of Human Rights 
SDHR _______

Petitioner's contention that he 
was denied an opportunity to present 
his case before the SDHR is at 
variance with his position in the 
lower Courts. As established in the 
Second Circuit1s . opinion, Petitioner 
below affirmatively argued that he 
"fleshed out" his claim of retaliation 
before the agency which, he admitted, 
actually investigated his complaint 
821 F.2d at 117, 118.*

*Contrary to the argument in the 
Petition, no conflict exists between 
the disposition below and City of 
Pompano Beach v. Federal Aviation 
Administration, 774 F.2d 1529 (11th 
Cir. 1985) or Delgado v. Lockheed Co., 
A Division of Lockheed Corp., 815 F.2d 
641 (11th Cir. 1987) reh. den., en 
banc 820 F.2d 1231 (11th Cir. 1987). 
Neither involved an SDHR determination 
nor the concessions present here.



10

Petitioner's misgivings* over the 
procedures of the New York State 
Division of Human Rights are contrary 
to this Court's analysis of the 
procedures of that agency in Kremer v. 
Chemical Construction Corp. 456 U.S. 
461, 485-6 (1982) reh. den., 458 U.S. 
1133 (1982).

E. Petitioner was accorded a four day 
disciplinary trial under New York 
Civil Service Law §75 prior to the 
adverse determination of the SDHR_____

Prior to SDHR proceedings,
Petitioner was accorded a four day
disciplinary trial under New York
Civil Service Law §75.

In that proceeding, Petitioner was
found guilty of serious misconduct.

*The unsworn statements of other 
respiratory therapists submitted by 
Petitioner for the first time in 
District Court, and around which much 
of the Second Circuit's opinion 
revolves, were never presented by 
Petitioner to the SDHR.



11

Petitioner did not invoke remedies 
under New York Civil Service Law §76 
according him a right to judicial or 
administrative review of his discharge 
from employment.

Although the Second Circuit did 
not rely upon any preclusive effect of 
the civil service determination, 
Respondents argued below that such 
determination, in and of itself, was 
entitled to collateral estoppel effect 
under New York State law.

In any event, the SDHR reasonably 
took this disciplinary proceeding into 
account in arriving at its no probable 
cause determination. The SDHR 
determination states:

This determination is based on the 
following: The investigation
revealed that complainant was 
suspended and subsequently 
terminated for failure to act



12

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.

Appendix to Petition, p. 51a.

CONCLUSION
For the foregoing reasons, the 

petition for a writ of certiorari 
should be denied.

Respectfully submitted,

HENRY J. LOGAN 
Westchester County Attorney 
Attorney for Respondents 
600 Michaelian Office Building 
148 Martine Avenue 
White Plains, New York 10601 
(914) 285-2673

/
By <r

KENNETH E. POWELL 
Deputy County Attorney 
Counsel of Record

White Plains, New York 
October 30, 1987



APPENDIX



Al

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK
ANTHONY J. DeCINTIO

x

Plaintiff,
AMENDED

- vs. - COMPLAINT
85 Civ.

WESTCHESTER COUNTY MEDICAL 95 51(CLB) 
CENTER; COUNTY OF WESTCHESTER,

Defendants.
--------------------------------- x

I. Nature of Claim

1. This is a proceeding for 
declaratory and preliminary and 
permanent injunctive relief and for 
damages to redress the deprivation of 
rights secured to plaintiff by Title 
VII of the Civil Rights Act of 1964, 
42 U.S.C. §2000e et seg.

2. By this proceeding, plaintiff 
also seeks similar relief pursuant to 
42 U.S.C §1985, the Fair Labor 
Standards Act, 29 U.S.C. §215(a)(3), 
and the Fourteenth Amendment to the
United States Constitution.



A2

II . Jurisdiction

3. The jurisdiction of this court 
is invoked pursuant to 28 U.3.C. 
§§1331, 1343, 2201, and 2202, tnis 
being a suit authorized and instituted 
under the Civil Rights Act of 1964.

4. The jurisdiction of this court 
is also invoked pursuant to 28 U.S.C. 
§1337 and 29 U.S.C. §216, this being a 
suit authorized and instituted 
pursuant to the Fair Labor Standards 
Act, 29 U.S.C. §§215(a)(3) and 216(b).

5. The jurisdiction of this Court 
further arises under 28 U.S.C. §1331 
and 42 U.S.C. §1985, this being a 
civil action arising under the 
Fourteenth Amendment to the United 
States Constitution and the laws of 
the United States of Amercia.



A3

III. Plaintiff
6. Plaintiff, Anthony J. DeCintio 

was employed by defendants in and 
about April, 1982, as a Staff 
Respiratory Therapist.

IV. Defendants
7. Defendant, Westchester County 

Medical Center ("Hospital"), is a 
public health care facility located in 
Valhalla, New York, operated by 
defendant Westchester County 
("County"). At all times hereinafter 
mentioned, defendants had and still 
have employees subject to the 
provisions of Section 6 of the Fair 
Labor Standards Act, 29 U.S.C. §206, 
in their establishment in which 
plaintiff was employed.

A. First Cause of Action
8. In June, 1982, and 

subsequently, plaintiff filed charges 
of sex discrimination against



A4

defendants, based upon substantially 
the same facts as the complaint in 
this action.

9. Thereafter, defendants began to 
harass plaintiff by treating him more 
harshly than similarly situated 
employees and denying him benefits, 
terms, and conditions of employment 
provided to similarly situated 
employees.

10. Specifically, plaintiff was 
denied promotions for which he was 
qualified; defendants refused to 
transfer him to the day shift as he 
requested until he filed a grievance, 
although other employees were freely 
transferred to other shifts at their 
request; and in October, 1984, 
plaintiff was disciplined over an 
argument with another employee, while 
the other employee, whose conduct was 
more egregious, was not disciplined.



A5

11. During the first week of 
February, 1985, immediately after 
plaintiff received a letter from the 
Equal Employment Opportunity 
Commission ("EEOC") stating that it 
had received a copy of the charge of 
retaliatory harassment he had filed 
with the New York State Division of 
Human Rights, defendants suspended 
plaintiff without pay. Defendants' 
purported reason for doing so was 
based upon two insignificant incidents 
of alleged misconduct and/or 
incompetence. In actuality, 
plaintiff's actions during those 
incidents either conformed to the 
policies of defendant Hospital or were 
the same as or substantially more 
trivial than similar actions of other 
employees, for which those other 
employees were not disciplined.



A6

12. Thirty days after plaintiff 
had been suspended without pay, when 
defendants were required by New York 
Civil Service Law to reinstate him, he 
was reassigned to a position where his 
skills were not needed and where no 
respiratory therapist had ever been 
assigned previously, although the 
Hospital's Respiratory Therapy 
Department where he had previously 
been assigned was seriously 
understaffed.

13. After a hearing before a 
hearing officer selected and paid by 
defendant County, who found plaintiff 
guilty of all charges in June, 1985, 
his employment was terminated on June 
26, 1985.

14. Upon information and belief, 
upon numerous occasions after June, 
1982, when plaintiff first filed 
charges of sex discrimination,



A7

representatives of defendants stated 
both to him and to others that he 
would lose in this litigation and 
other proceedings against defendants 
and that they would get rid of him.

15. Upon information and belief, 
defendants' motivation in harassing, 
suspending, and dismissing plaintiff 
arose from wilful retaliation against 
him because of his filing of charges 
and instituting litigation against 
them, and defendants' allegations of 
misconduct and/or incompetence were a 
mere pretext.

16. Defendants' retaliatory 
actions against plaintiff violated 
§704(a) of Title VII of the Civil 
Rights Act of 1964, 42 U.S.C.
§2000e-3(a).

17. As a result of defendants' 
harassing, suspending, and dismissing



A8

him, plaintiff has suffered lost wages 
and benefits.

B. Second Cause of Action
18. Plaintiff restates and 

realleges the allegations of paragraph 
1 through 17 of this complaint as 
though fully set forth herein.

19. Defendants' retaliatory 
actions against plaintiff violated 
§15(a)(3) of the Fair Labor Standards 
Act, 29 U.S.C. §215(a)(3) .

20. As a result of defendants' 
harassing, suspending, and dismissing 
him, plaintiff has suffered lost of 
wages and benefits.

C. Third Cause of Action
21. Plaintiff repeats and 

realleges the allegations of paragraph 
1 through 17 and 19 through 20 as 
though fully set forth herein.



A9

22. Defendants' retaliatory 
actions against plaintiff violated the 
due process clause of the fifth 
amendment to the United States 
Constitution, as applied to defendants 
by the fourteenth amendment to the 
United States Constitution, and 
violated 42 U.S.C. §1985.

23. As a result of defendants' 
harassing, suspending, and dismissing 
him, plaintiff has suffered 
irreparable injury to his professional 
reputation, emotional and mental 
anguish, and lost wages and benefits.

VI. Relief
WHEREFORE, plaintiff prays that 

the Court award judgment to him as 
follows:
A. On the First Cause of Action:

(a) Enjoin defendants from 
continuing to retaliate against



A10

plaintiff and order his reinstatement 
with back pay to the date of his 
dismissal and for the month during 
which he was suspended without pay.
B. On the Second Cause of Action:

(a) Enjoin defendants from 
continuing to retaliate against 
plaintiff and order his reinstatement 
with back pay to the date of his 
dismissal and for the month during 
which he was suspended without pay.

(b) Award plaintiff liquidated 
damages in an amount equal to his lost 
wages.
C. On the Third Cause of Action:

(a) Enjoin defendants from
continuing to retaliate against 
plaintiff and order his reinstatement 
with back pay to the date of his 
dismissal and for the month during 
which he was suspended without pay.



All

(b) Award plaintiff compensatory 
damages in the amount of $500,000.00 
for his emotional and mental anguish 
and the injury to his reputation.

(c) Award plaintiff $1,000,000.00 
in punitive damages for defendants' 
wilful and malicious actions in 
retaliation against him.

Together with plaintiff's 
attorney's fees, costs, and such other 
and further relief as the Court may 
deem just and proper.

Dated: White Plains, New York
September 8, 1987

SILVERMAN & SAPIR
By Donald L. Sapir__________
A Member of the Firm 
Attorneys for Plaintiff 
14 Mamaroneck Avenue 
White Plains, New York 10601 
(914)328-0366



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