Anthony J. Decintio v. Westchester County Medical Center County of Westchester, Defendants

821 F.2d 111, 8 Fed. R. Serv. 3d 447, 1987 U.S. App. LEXIS 7509, 44 Fair Empl. Prac. Cas. (BNA) 33, 43 Empl. Prac. Dec. (CCH) 37,157

• Court: Court of Appeals for the Second Circuit
• Decided: June 8, 1987
• Docket: 152, Docket 86-7260
• Status: Published

Opinions

MAHONEY, Circuit Judge:

Plaintiff appeals from a judgment of 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. § 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 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 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 thereafter held pursuant 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 recommendation was accepted by Westchester County Medical Center Commissioner Bernard M. Weinstein, who 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 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 of an emergency situation in the same manner as Mr. DeCintio has so responded.

3) Mr. DeCintio has been suspended and terminated from 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 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, 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 U 56.22[1], at 56-1330 (1986); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2738, at 507-09 (1983).⁴

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 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 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.

To make out a prima facie 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 protected activity and the disadvantageous employment action. Grant v. Bethlehem Steel Corp., 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. 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 fade 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. Choudhury v. Polytechnic Institute of New York, 735 F.2d 38, 44 (2d Cir.1984).

In the instant case, appellant 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 authorities. Hill v. Coca Cola Bottling Co., 786 F.2d 550, 553 (2d Cir.1986).

Appellees offered evidence showing that DeCintio was fired for gross misconduct. According to DeCintio'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 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. Rodriguez 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 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 pretextual, given the gravity of the life-threatening situations upon which those grounds were based.

Other Claims

Appellees maintain that appellant’s claim for relief under 28 U.S.C. § 1983 is barred by collateral estoppel.⁹ 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.¹⁰

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:

[W]hen a state agency “acting in a judicial capacity ... resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,” [United States v.] 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

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 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, Ryan 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:

[T]he doctrines of res judicata and collateral estoppel are applicable to give conclusive effect to the quasi-judicial determinations of administrative agencies ... when rendered pursuant 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 the application of collateral estoppel with respect to administrative determinations, the burden rests upon the proponent of collateral estoppel to demonstrate the identically 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 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 February 1985 complaint charged retaliation 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 during the course 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 affidavits of plaintiff and plaintiffs 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 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 (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 and fair opportunity to litigate, DeCintio admits to having “fleshed out” the issues at the SDHR hearing. We hold that DeCintio is precluded from relitigating the retaliatory discrimination issue in a federal action based on 42 U.S.C. § 1983.¹³

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.

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).

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

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).

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, 754 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 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.

6 . One can gather as much from the stated willingness of numerous signatories to "appear before a Federal Judge” and tell their stories.

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 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.

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 rule to apply to retaliatory discrimination violative of 42 U.S.C. § 2000e-3(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); Choudhury v. Polytechnic Institute of New York, 735 F.2d 38, 44 (2d Cir.1984).

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 De-Cintio’s charges before SDHR as well as the facts behind his New York Civil Service Law § 75 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 Corp. v. Ira S. Bushey & 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).

11 . As indicated supra, pp. 114-115, 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.

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).

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 part 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. § 2000e-5(b), which requires the Equal Employment Opportunity Commission to give "substantial weight" to the findings of state or local authorities charged with enforcing anti-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.