DeCintio v. Westchester County Medical Center Reply Memorandum for the Petitioner

    Hh 3
No. 87-574

I n  t h e

iatpmm' (Emtrt of tiro luttpfc States
O ctober T eem , 1987

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

v.
Petitioner,

W estchester  C o u nty  M edical Ce n t e r ;
C o u n ty  oe W estchester ,

Respondents.

ON p e t it io n  fo r  a  w r it  oe ce rtio r ar i to  t h e  u n it e d  states

COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY MEMORANDUM FOR THE PETITIONER

J u liu s  L eY onne  C ham bers  
R onald L . E l l is*

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

D onald L . S apir  
A n n e  G olden

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

Attorneys for Petitioner

^Counsel o f Record



TABLE OF CONTENTS

Page

I. The Election of Remedies
Issue ....................... 1

II. The Interlocutory Judgment
Issue ....................... 4

Conclusion .................... ... 8

TABLE OF AUTHORITIES
Cases Page
Alexander v. Chicago Park District,

773 F.2d 850 (7th Cir. 1985) ... 4
Alexander v. Gardner-Denver, 415

U.S. 36 (1974)................. 4
Day v. Wayne County Board of 

Auditors, 749 F.2d 1199 
(6th Cir. 1984)   4

Hussein v. Oshkosh Motor Truck Co.,
816 F.2d 348 (7th Cir. 1987) ... 7

Johnson v. Railway Express Agency,
Inc., 421 U.S. 454 (1975) ....1,4,5

Keller v. P.G. County, 44 F.E.P.
Cases 1065 (1987)   7

l



Kennedy v. General Motors Corp.,
664 F.Supp. 122 (S.D.N.Y.
1987)   2

Kirkland v City of Peekskill, 651 
F.Supp. 1225 (S.D.N.Y.), 
aff'd. 44 F.E.P. Cases 1410 
(2d Cir. 1987)   2

Lowe v. City of Monrovia, 775 F.2d
998 (9th Cir. 1986)   4

ll



NO. 87-574

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1987

ANTHONY J. DeCINTIO,
Petitioner,

v.
WESTCHESTER COUNTY MEDICAL CENTER; 
COUNTY OF WESTCHESTER,

Respondents.

On Petition For A Writ Of Certiorari To 
The United States Court Of Appeals 

For The Second Circuit

REPLY MEMORANDUM FOR THE PETITIONER

I.
THE ELECTION OF REMEDIES ISSUE 
The Respondents' attempt to dismiss 

in a footnote this Court's decision in 
Johnson v. Railway Express Agency, Inc., 
421 U.S. 454 (1975). This shows a



2
fundamental misunderstanding of what is
happening in Second Circuit courts.
Since the decision by the court of
appeals, at least two other cases in the
circuit have held that findings by the
SDHR can block a claimant's access to
federal court. Kirkland v__City__of
Peekskill. 651 F.Supp. 1225 (S.D.N.Y.),
aff'd. 44 F.E.P. Cases 1410 (2d Cir.
1987); Kennedy v. General Motors_Corp. ,
664 F.Supp. 122 (S.D.N.Y. 1987).
Moreover, the district courts in these
cases have indicated that the mere filing
of a charge with SDHR is an irrevocable
election of remedies:

the New York State Court of 
Appeals has since held that the 
very filing of a complaint with 
the [SDHR], even without any 
action on the part of the 
agency, constitutes a binding 
election of remedies which 
'precludes the plaintiff from 
commencing an action in court 
based on the same incident,'
... unless the complaint is 
dismissed on the grounds of



3
administrative convenience .... 
Hence, the [SDHR's] dismissal 
of [plaintiff's] complaints was 
final and entitled to 
preclusive effect.

651 F.Supp. at 1230 n.2; Accord. 664
F.Supp. at 127 n.9.

This has serious implications for 
the approximately 7000 employment
complaints filed with SDHR each year. 
None of these individuals realize that 
they may have foreclosed their rights 
under the Reconstruction Civil Rights 
Acts and other non-Title VII federal 
statutes. None of these individuals 
realize that they have forfeited their 
rights to a jury and to compensatory and 
punitive damages because Title VII is 
their exclusive remedy. None of these 
individuals realize that SDHR, to which 
many of them have been directed, can 
provide no confrontation, no hearing and 
no relief and yet bar non-Title VII



4
federal claims. This result contradicts 
Johnson v- Railway Express_AgencyJ— Inĉ . 
and other cases in this Court and in 
other circuits concerning the 
independence of Title VII. See., e. g.., 
Alexander v. Gardner-Denver, 415 U.S. 36
(1974) ; Lowe v. City of Monrovia, 775 
F.2d 998 (9th Cir. 1986);
Chicaao Park District, 773 F.2d 850 (7th
Cir. 1985) ; Lav v. Wayne County Board.of
Auditors, 749 F.2d 1199 (6th Cir. 1984).

II.
THE INTERLOCUTORY JUDGMENT ISSUE 
This action is not interlocutory in 

the sense suggested by Respondents since 
the Second Circuit has, in fact, rendered 
its final judgment. Although Mr. DeCintio 
may go through the proceedings in the 
district court, win his Title VII claim, 
appeal and ask the Second Circuit to

the other claims andreconsider on



5
petition to this Court again, the delay 
in resolution of the issues raised will 
create a morass of other legal issues for 
pending cases which would have to be 
resolved. First, there are approximately 
7 000 claims filed and resolved by SDHR 
each year. Have these claimants already 
forfeited their rights under non-Title 
VII statutes by the act of filing a 
charge? Should they withdraw from SDHR 
prior to a finding? Prior to a hearing? 
If any of these individuals file an 
action under one of the Reconstruction 
Civil Rights Acts to avoid statute of 
limitations problems, can that action be 
voided by a "no probable cause" finding 
by S DHR?1

1 Johnson v. Railway Express makes 
it clear that filing with EEOC will not 
toll the statute of limitations. If, 
however, a charge is pending in SDHR, 
should the federal court decline to 
proceed? Or, should the court cease its 
proceedings once SDHR had rendered a "no



6
While the vast majority of these 

cases are now resolved in SDHR, claimants 
seeking legal advice in the Second 
Circuit must now be told that filing with 
SDHR may adversely affect their rights 
under other federal statutes. Rather 
then risking the administrative 
mechanism, some of these aggrieved 
persons will opt to proceed directly to 
court, particularly where the non-Title 
VII statute provides rights or remedies 
unavailable under Title VII.2

Even if the claimants were 
ultimately allowed to bring their claims 
in the future, there would be additional 
issues to resolve. For example, what if

probable cause" finding since, 
presumably, that finding precludes non- 
Title VII claims in the Second Circuit?

2 A claimant under Title VII is not 
entitled to a jury trial nor compensatory 
and punitive damages while these would be 
available pursuant to the Reconstruction 
Civil Rights Acts.



7
a party desires a jury trial, but is only 
allowed to proceed under Title VII. If 
the court, sitting without a jury, makes 
findings, is the individual bound by 
those findings and thus deprived of the 
jury trial right? If the individual is 
not bound by the findings, does this mean 
that all of the court's time and effort 
expended is a nullity and a simple waste 
of judicial resources?3 Any delay in 
addressing these issues could mean a 
significant number of useless proceedings 
in the Second Circuit.

3 See, e.q.. Keller v. P.G. County. 
44 F.E.P. Cases 1065, 1067 (4th Cir.
1987)("[T]he denial of the plaintiff's 
demand for a jury trial of her § 1983
cause of action violated her seventh 
amendment right to a jury trial, and the 
judgment of the district court is 
void."); Accord. Hussein v. Oshkosh Motor 
Truck Co.. 816 F.d 348 (7th Cir. 1987).



8
CONCLUSION

For the foregoing reasons the 
petition for a writ of certiorari should 
be granted.

Respectfully submitted,

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



Hamilton Graphics, Inc,— 200 Hudson Street, New York, N.Y.— (212) 966-4177