holding that “proof of causal connection can be established” by “evidence such as disparate treatment of fellow employees who engaged in similar conduct,” and that plaintiff had done so in that case by offering evidence that he was a plaintiff in a Title VII action, that his employment was later terminated, and that “fellow employees ... were not disciplined for engaging in identical behavior”
How later courts described this case
- holding that “proof of causal connection can be established” by “evidence such as disparate treatment of fellow employees who engaged in similar conduct,” and that plaintiff had done so in that case by offering evidence that he was a plaintiff in a Title VII action, that his employment was later terminated, and that “fellow employees ... were not disciplined for engaging in identical behavior”
- holding that DHR “no probable cause” determination precluded § 1981 claim where plaintiff failed to “establish[ ] that he did not have a full and fair opportunity to litigate” before the DHR
- holding that a § 1983 claim seeking damages for alleged violation of Fourteenth Amendment rights was precluded when a dispositive issue had been fully litigated before a state agency
- stating that all the courts that have considered the issue have held that Rule 56(e) defects are waived on appeal when no motion to strike is filed below
Written by the judges who cited it.
The opinion
MINER, Circuit Judge,
dissenting:
Because the record is clear that 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.
Without question, DeCintio 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 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 *119 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 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, De-Cintio 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. 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 Emergency 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 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 that his patient’s life was endangered in the incident.
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 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 *120 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 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 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 Therapy Department under the circumstances.
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., 477 U.S. 242 ,-, 106 S.Ct. 2505, 2511 , 91 L.Ed.2d 202, 213 (1986). 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. Dacon, 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, — 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 two separate occasions, which jeopardized the lives of persons for whose care his employer was responsible, established a legitimate, nondiscriminatory, 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 , 477 U.S. at -, 106 S.Ct. at 2512 , 91 L.Ed.2d at 214 .