Opposition Brief — DeCintio v. Westchester County Medical Center

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: Supreme Court, U.S.

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No. 86-1946 9 oe

JOSEPM PF SPANIOL, JR.

CLERK

IN THE

Supreme Court of the United States

Ocroser Term, 1986

ANTHONY J. DeCINTIO, PETER A. PIAZZA,

MICHAEL A. GARAYUA, JOSE P. GOMES,

ANGEL A. GARAYUA, WINSTON P. DAVID

and DANIEL SAMUELS,

Petitioners,

vs.

WESTCHESTER COUNTY MEDICAL CENTER;

COUNTY OF WESTCHESTER,

Respondents.

BRIEF OF RESPONDENTS WESTCHESTER

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. Locan

Westchester County 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

KENNETH E. POWELL

Deputy County Attorney

Counsel of Record

QUESTIONS PRESENTED

1. Do male petitioners, who were

subjected neither to sexual harassment

Or circumstances different from

Similarly situated women, have a claim

for a violation of the sex

discrimination provisions of Title VII

of the Civil Rights Act of 1964, when

an individual woman, with a recognized

Superior professional credential, is

claimed to have been hired to a newly

created position due to a voluntary

romantic engagement with a

middle-level supervisor, where

top-level management established the

requirement for the position and made

the hiring decision for non-

discriminatory reasons unaware of any

motive of that supervisor?

2. Do male Staff Respiratory

Therapists at a hospital, have a claim

for violation of the Equal Pay Act,

ii

when the hospital employer creates for

non-discriminatory reasons not

involving gender, a new higher-paying

respiratory therapy position ina

newly-opened Intensive Care Unit for

Criticaliy ill mewborns, and hires a

woman with superior skills for that

position who possesses a recognized

Superior professional credential,

which the Staff Therapists do not

possess, and which commands a higher

salary in the marketplace?

3. Whether the District Court's

findings were clearly erroneous that

petitioners were qualified to provide

respiratory therapy services in the

Neonatal Intensive Care Unit of

Westchester County Medical Center, had

performed equal work under similar

working conditions requiring equal

skill, effort and responsibility, and

that there existed a romantic

iii

relationship between John Ryan and

Jean Guagenti at the time of hire?

4. Assuming the correctness of

the District Court findings, whether

an employer under the Equal Pay Act

and Title VII of the Civil Rights Act

of 1964 is liable when a middle-level

Supervisor arranges for the hiring of

an employee with whom he is

romantically engaged where the

top-level management is unaware of the

motive of the supervisor and acts for

non-discriminatory reasons?

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED....

TABLE OF CONTENTS......

TABLE OF AUTHORITIES...

CITATIONS OF OPINIONS

BELOW. e*e7eee eeeseee#ee#see?es#se#seee#e#

STATEMENT OF THE CASE...

SUMMARY OF ARGUMENT....

ARGUMENT

THE PETITION FOR A

WRIT OF CERTIORARI

SHOULD BE DENIED.....

A. The Petition does not

present special or important

reasons warranting review....

B. There is no conflict

between the Court of Appeals

decision below and decisions

of this Coie canc sac edaenee ee ©

C. No sexual harassment

claim was raised by Petitioners.

D. There is no conflict

SMOG CHO CICCULERs aaccscessecve

E. This case is encumbered

by serious factual issues.......

CA al b4- 6 6-04 S 64 Oe ee

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TABLE OF CONTENTS

PAGE

APPENULA cc ccccccccceceeceesese Al

A. Defendants’ Pre-Trial

SEACOMENC oc cccccccsccccces Al

B. Excerpts from Testimony

of Dr. Harry Dweck.....ec- A4

TABLE OF AUTHORITIES

PAGE

A. CASES

Ammons v. Zia, 448 F.2d 117

[2UEen Gale APtaleocecseeceeseve 12

Corning Glass Works v.

Brennan, 417 U.S. 188

(1D TE) ccccceseebeessesccoceocoes 8,10

County of Washington v.

Gunther, 452 U.S. 161

(1981) *eneeee eeenereeeeeeeeeneeeeee 10

DeCintio v. Westchester

County Medical Center,

807 F.2d 304 (2d Cir.

ro | -PPPE were rere rarryrerrrrerrrs 4 passim

King v. Palmer, 778 F.2d 878

(DeCe. CALs LIBS) ccccccccscccese 12,13,14

Laffey v. Northwest

Airlines, Inc., 56/7 F.2d 429

(D.C. Cir. 1976) cert denied

434 U.S. 1086 (1978) .....2e0ee., 12

Ee

vi

PAGE

Los Angeles Department

of Water and Power v.

Manhart, 435 U.S. 702 (1978)...8

Meritor Savings Bank,

FSB v. Vinson, 106 S.Ct.

39D ULIES) cccccccccccccccecces 8,10

Orahood v. Board of

Trustees of the University

of Arkansas, 645 F.2d 651

[OGm Gabe SEORP ee ccsoseccscocce 12

Orr v. MacNeill and

Sons, Inc., 5ll F.2d 166

(Sth Cir. 1975)

cert denied 423 U.S. 865

Ot, } Ferrrrrrr TRYTrrrerrrrrTe 12

Shultz v. Weaton Glass

Company, 421 F.2d 259

(3rd Cir. 1970) cert denied

SVS Veco FSS LAPIS) ccoeccoccoce 12

Trans World Airlines v.

Hardison, 432 U.S. 63 (1977)..8

United States Postal

Service, Request No. 05830088

(EEOC Oct. 31, 1984), aff'd

App. No. 01820227 (EEOC Oct.

Se L19B2) cccccccccccscccccccece 13

B. STATUTES

Equal Pay Act, 29 U.S.C.

SSOS CEPT Ad ccccvocesecceseecesecses ii passim

vii

TABLE OF AUTHORITIES

PAGE

Title VII of the Civil

Rights Act of 1964,

42 U.S.C. §2000-e(2)(a).......i passim

C. RULES

EEOC Guidelines, 29 C.F.R.

§§1604.11(g), 1604.11(a)

(APOOd coscoee TUTTCTUCTETTTTTE See

Department of Labor

Equal Pay Regulations,

SD CePeRe. PALE GBOGcccccccceseeed

CITATIONS OF OPINIONS BELOW

Respondents accept the Petition's

Citation of the opinions below except

that certain findings made by the

District Court, referred to by number

in the District Courts findings [Pet.

App. B, pp. A 27-29], are not included

in Petitioners’ Appendix. These

additional findings, other than

Stipulated facts, are reproduced in

Appendix A to this Brief.

——

caine

1

STATEMENT OF THE CASE

In April of 1982, Westchester

County Medical Center ("WCMC") opened

a regional Neonatal Intensive Care

Unit ("Neonatal ICU") for the

treatment of critically ill newborns.

WCMC decided to add to the

Neonatal ICU an Assistant Chief of

Respiratory Therapy position at a

higher Salary than staff respiratory

therapists. Specifications for the

new position included a "special

requirement" that the applicant be

registered with the National Board of

Respiratory Therapists ("NBRT").*

On April 26, 1982, Jean Guagenti,

*Registration by the NBRT is a

credential which may be obtained by a

respiratory therapy practitioner, and

requires successful performance of an

examination administered by that Board

together with previous experience as a

respiratory therapy care practitioner.

807 F.2d at 305, n.l.

a female respiratory therapist

registered by the NBRT, was hired for

the new position by the Westchester

County Commissioner of Hospitals on

the recommendation of John Ryan, the

Program Administrator of the

Respiratory Therapy Department.*

Male petitioners, none of whom

were then registered by the NBRT,

filed complaints with the EEOC and New

York State Division on Human Rights

charging sex discrimination, which

complaints were dismissed based on a

lack of credible evidence that the

NBRT registry requirement was

pretextual.

*The statement at page 3 of the

Petition that Ryan made the decision

to adopt the NBRT registration

requirement and to hire Guagenti is

not completely accurate. Ryan,

according to the District Court,

Originated the idea for registration

(Pet. App. B pp. Al6, 23) and

recommended hiring Guagenti to the

Commissioner of Hospitals.

Thereafter, petitioners commenced

this action in the District Court

alleging that they had been

disqualified from promotion due to a

sexual relationship between Ryan and

Guagenti, in violation of the Civil

Rights Act of 1964, 42 U.S.C.

§2000-e(2) and the Equal Pay Act, 29

U.S.C. §206(d)(1). None of the female

Staff Respiratory Therapists were

parties to the suit.

After a bench trial, the District

Court held that the provisions of both

Title VII and the Equal Pay Act were

violated, finding that a romantic

relationship existed between Ryan and

Guagenti when she was hired, that the

registration requirement for the

Assistant Chief position was a pretext

by Ryan to secure the position for

Guagenti, and that Petitioners

performed substantially the same work

as Guagenti. The Court awarded

$19,374.30 in total to Petitioners and

$43,513.00 in legal fees.

The District Court also concluded

that top administrators of WCMC were

unaware of Ryan's motive, which

related onty to him, and had

non-discriminatory reasons for their

actions, to wit: to upgrade the

therapist assigned to the Neonatal

ICU, and, in addition, to begin a

process to upgrade the entire

Respiratory Therapy Department. Pet.

App. B. p.A29, Res. App. A, p.A3.

The Court of Appeals for the

Second Circuit reversed. 807 F.2d 304

(2d Cir. 1986). The Court of Appeals

concluded that discrimination on the

basis of sex under Title VII of the

Civil Rights Act of 1964 or the Equal

Pay Act, did not encompass disparate

treatment premised not upon one's

gender, but upon a voluntary romantic

relationship between the employer and

the person preferentially hired.

In so reversing, the Second

Circuit did not embrace the District

Court's findings, but assumed for

purposes of its opinion the

correctness of the District Court's

findings.* 807 F.2d 308.

On March 9, 1987, Petitioners'

petition for rehearing with a

suggestion for re-hearing in banc, was

aGenied,

*The statements made in the petition

at pages 9 and ll that the Court of

Appeals left the District Court's

findings "undisturbed" is an

incomplete explanation of the Court of

Appeals' treatment of those findings.

SUMMARY OF ARGUMENT

This case is not of special

importance and the Court of Appeals'

decision conflicts neither with

decisions of this Court nor other

Circuits. Moreover, this case is

encumbered with serious, multiple, and

unsettled factual issues as

underscored by the Second Circuit's

refusal to embrace as its own the

District Court findings.

Unraised below, Petitioners may

not argue a hybrid species of sexual

harassment in this Court.

Petitioners' contentions with respect

to the gender-based purview of the sex

Giscrimination provisions of Title VII

and the Equal Pay Act, are best

addressed to Congress,

ARGUMENT

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED

A. The Petition does not present

special or important reasons

warranting review.

Petitioners assert that the Court

of Appeals for the Second Circuit

erroneously applied the sex

discrimination provisions of Title VII

of the Civil Rights Act of 1964 and

the Equal Pay Act.

This Court, however, has never

regarded its function as merely to

correct a legal error perceived by a

disappointed litigant in a lower Court

decision. To the extent Petitioners

seek clarification or a change of

federal statutory law, that role is

best left to Congress.

As recognized by the Second

Circuit's opinion, Petitioners here

asserted non-gender-based claims which

are beyond the purview of Title VII

and the Equal Pay Act. 607 F.2d at

306, 308. The Court drew upon

Opinions of this Court in Meritor

Savings Bank, FSB v. Vinson, 106 S.Ct.

2399 (1986), Los Angeles Department of

Water and Power v. Manhart, 435 U.S.

702, 707, n.13 (1978), Trans World

Airlines v. Hardison, 432 U.S. 63

(1977) and Corning Glass Works v.

Brennan, 417 U.S. 188, 195 (1974) in

Support of its analysis.

Nor do the regulations of federal

agencies administering the Equal Pay

Act and Title VII Support Petitioners’

Claims. 29 C.F.R. Part 800 et seg.;

29 C.F.R. §1604.11(q). Petitioners

were not discriminated against on the

basis of their gender. 807 F.2d at 308.

Contrary to Petitioners'

contention that the Court erroneously

applied Title VII analysis to the

| ci,

9

Equal Pay Act, the Court below found

that the case was not gender-based and

it is gender-based wage differentials

for equal work that is the subject of

the Equal Pay Act. The Act proscribes

wage discrimination "on the basis of

sex" and excludes differences based

"on any other factor other than sex."

29 U.S.C. §206(d)(1)(iv).

Petitioners' analysis is also

inconsistent. When it suits their

purposes, Petitioners invoke a pretext

argument borrowed from their Title VII

claim to overcome the non-gender--based,

non-discriminatory reasons for the

creation of the disputed job

position. Petition pp. 9, 10.

B. There is no conflict between the

Court of Appeals decision below and

decisions of this Court

Contrary to Petitioners'

suggestions, there is no conflict

Bi)

10

between the decision of the Court of

Appeals for the Second Circuit and

decisions of this Court in County of

Washington v. Gunther, 452 U.S. 161

(1981) and Corning Glass Works v.

Brennan, 417 U.S. 188 (1974); each

involved gender-based claims of

discrimination in wages not presented

here.

‘Nor is there any conflict between

the lower Court's disposition and

Meritor Savings Bank, FSB v. Vinson,

106 S.Ct. 2399 (1986) which recognized

certain forms of sexual harassment

claims under Titie VII, not relevant

here.

C. No sexual harassment claim was

raised by Petitioners.

Petitioners were not subjected to

sexual advances (807 F.2d at 308) and

made no “hostile environment" claim

below. No mention of sexual

harassment in any form appears in

either the District Court or Court of

Appeals' decisions. Rather,

Petitioners claimed that a Supervisor

displayed favoritism toward an

individual woman with whom he had a

voluntary romantic -engagement.

As stated by the Second Circuit:

"Guagenti's special relationship to

Ryan" was the gravamen of Petitioners'

claim. "That relationship forms the

basis of appellee's sex discrimination

Claims." 807 F.2d at 308.

After the Second Circuit rendered

its opinion, Petitioners in a motion

for rehearing belatedly attempted to

introduce a hybrid species of a

hostile environment theory. Beyond

untimeliness, the new theory

disregards that sexual harassment is

based on unwelcome sexual conduct. 29

C.F.R. §1604.11(a) (1986).

12

D. There is no conflict among the

Circuits

There is no conflict among the

Circuits on the Equal Pay Act issue

Petitioners seek to raise.*

Petitioners cite the Title VII

decision of the District of Columbia

Court of Appeals in King v. Palmer,

778 F.2d 878 (D.C. Cir. 1985) to show

a Title VII conflict among the

Circuits, justifying a grant of a writ

of certiorari. The conflict is

illusory.

After King v. Palmer was decided

*The Circuits generally construe Title

VII and the Equal Pay Act

harmoniously. Orahood v. Board of

Trustees of the University of

Arkansas, 645 F.2d 651, 654 (8th Cir.

1981); Laffey v. Northwest Airlines,

Inc., 567 F.2d 429, 446 (D.C. Cir.

1976) cert denied 434 U.S. 1086

(1978); Orr v. MacNeill and Sons,

Inc., 511 F.2d 166, 170 (5th Cir.

1975) cert denied 423 U.S. 865 (1975);

Ammons v. Zia, 448 F.2d 117, 119 (10th

Cir. 1971); Shultz v. Weaton Glass

Company, 421 F.2d 259, 266 (3d Cir.

1970) cert denied 398 U.S. 905 (1970).

13

by a three-judge panel, six other

judges of that Court, denying a

suggestion for a rehearing in banc and

a motion by the United States

regarding the filing of an amicus

brief, emphasized that the

applicability of Title VII to the

facts before that Court had never been

raised and therefore was not properly

the subject of a rehearing in banc.

778 F.2d at 883.*

*Tne EEOC decision in United States

Postal Service, Reg. No. 05830088

cited by Petitioner (Petition p. 21)

is distinguishable in several respects

from the case at bar. Like King v.

Palmer, it is premised on an existing

employer-employee relationship, not

resent here at time of hire with

respect to Guagenti. Further, in

United States Postal Service, there

were requests for sexual favors or

sexual advances. At bar, there was no

snowing of such requests or advances

initiated by Ryan, nor "submission" to

such requests or advances by Guagenti.

14

As a result, it is apparent that

King v. Palmer is not even precedent

within the D.C. Circuit, and, if a

comparable case arises, that Circuit ©

must treat the issue as if presented

for the first time.

In any event, King v. Palmer

involved a hostile environment claim

not presented here. 778 F.2d at 880,

883.

E. This case is encumbered by serious

factual issues.

In order to address any issues of

the case, the Court would be drawn

into unsettled and multiple factual

issues.

In its opinion below, the Second

Circuit declined to embrace as its own

the District Court's findings of fact,

prefacing its rendition of facts with

"[e]ven assuming the appellees'

allegations are true and the district

court's findings are correct,

15

appellees have not set forth a

cognizable Title VII claim for sex

Giscrimination." 807 F.2d at 308.

Concluding its opinion, the Second

Circuit again noted that "[bJecause

that determinatic. is dispositive of

this appeal, we need not address the

other issues raised by appellants."

807 F.2d at 308. These other issues

included arguments that the District

Court's findings were clearly

erroneous.

The District Court findings are

inconsistent with the findings made by

the EEOC and the New York State

Division on Human Rights, which

agencies dismissed Petitioners'

administrative complaints for lack of

credible evidence, prior to District

Court proceedings. 80/7 F.2d at 306.

16

Insofar as the proof of a sexual

relationship is concerned, neither

John Ryan nor Jean Guagenti was called

as a witness at trial. The finding by

the District Court is based on

conjectural evidence of interest and

flirtation between the two after Jean

Guagenti was hired and during a

previous period of employment.*

The testimony of Dr. Harry Dweck,

Chief of the Division of Neonatal

Perinatal Medicine at New York Medical

College and Director of the WCMC

Neonatal ICU, highlights the sharp

factual issues regarding Petitioners'

claimed qualifications and performance

of equal work.

*Evidence that Ryan and Guagenti began

living together some months after she

was hired and later planned to marry,

is not dispositive of whether a

relationship existed at time of hire,

nor proves the sexual nature of the

relationship at that time.

aon

Qe WAS

17

Although Dr. Dweck's testimony was

cited favorably by the District Court

(Pet. App. B, pp. A24, 25, -26, 28,

33), the District Court's findings are

contrary to Dweck's testimony.

Dr. Dweck testified that the Staff

Respiratory Therapists were not fully

competent to provide services to

Critically ill newborns; some actually

refused to respond to pages from the

Neonatal ICU for this stated reason;

when they came, they set up

respirators, but did not know how to

run them for newborns; unlike

Petitioners, Jean Guagenti was capable

of providing the necessary services to

newborns; to reach the necessary

degree of competence, weeks of

training would be necessary for the

Staff Therapists.

18

Relevant excerpts of Dr. Dweck's

testimony are included in Appendix B

to this brief (A4-14).

——

19

oo. \

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

White Plains, NY 10601

(914) 285-2673

By bret § Lveth

Kenneth E. Powell

Deputy County Attorney

Counsel of Record

White Plains, N.Y.

July 1, 1987

APPENDIX A

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

es ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee 4

ANTHONY J. DE CINTIO,

PETER A. PIAZZA,

MICHAEL A. GARAYUA, DEFENDANTS

JOSE P. GOMES, PRE-TRIAL

ANGEL A. GARAYDA, STATEMENT

WINSTON P. DAVID,

DANIEL A. SAMUELS,

Plaintiff,

- against -

WESTCHESTER COUNTY

MEDICAL CENTER;

COUNTY OF WESTCHESTER,

Defendants.

ee ee ee ee ee ee ee ee ee ee ee ee ee eee ee ee ee ee ee ee ee ee ee ee ee ee ce ee p 4

A. STIPULATED FACTS:

1. Annexed is a copy of

"Stipulated Facts" submitted to the

Court under separate cover.

B. REQUEST FOR FINDINGS OF FACT:

1. The National Board for

Respiratory Care ("NBRC") administers

two examination systems for

respiratory care practitioners; The

Certification Examination for Entry

A2

Level Respiratory Therapy

Practitioners and the two-part

Registry Examination for Respiratory

Therapist.

2. The Certification Examination

for Entry Level Respiratory Therapy

Practitioners is designed to test the

knowledge and skills required for all

Respiratory Therapy personnel upon

entry into the profession.

3. Omitted - not found by

District Court.

4. In April, 1982, the "Special

Requirement" for the existing title of

Assistant Chief Respiratory Therapist

(Assistant Chief) was revised to

require registration by the National

Board of Respiratory Therapy (NBRT)

5. In April, 1982, the title of

Assistant Chief, as revised April l,

1982, was allocated to staff the

Perinatal Unit.

i ee oe ae

6. In April, 1982, none of the

Plaintiffs could meet the "Special

Requirement".

7. Omitted, not found by District

Court.

8. The revision was motivated by

two non-discriminatory purposes, i.e.,

to upgrade the position allocated to

staff the Perinatal Unit and, by

creating a Registered Respiratory

Therapist position, and eventually

raise the competency of the entire

Respiratc.y

Therapy Department.

9, Omitted, not found by District

Court.

HARRY DWECK,

called as a witness by the defendant,

having been duly sworn, testified as

follows:

DIRECT EXAMINATION

BY MS. MC CARTHY:

Q. Dr. Dweck would what is your

speciality?

A. Neonatology, pediatrician.

Q. Are you board certified?

A. Yes in pediatrics and the

subspecialty of neonatology by the

American Board of Pediatrics.

Q. When did you become affiliated

With the Westchester County Medical

Center?

A. I believe it was some time around

1979.

2. Are you employed by the Center?

A. Yes.

Q. Are you also affiliated with the

New York Medical School?

A5

A. Yes, I am a faculty member

full-time there.

(Joint Appendix in Court of

Appeals, page 388a).

Q. were you familiar with the

respiratory therapists, the staff

respiratory therapists on the staff in

March, February and March 1982?

A. Yes, several of them.

Q. Had you reached a determination in

your opinion as to whether or not any

of them were competent to work with

neonates at that time?

A. At March of 82, absolutely. y

Q. What was your determination?

A. None of them were fully competent

in caring for new-borns in any way,

Shape or form.

A6

Q>- With whom did you discuss your

opinion?

A. It was on multiple levels but

primarily with the administrators of

the hospital.

A. Are you familiar with Mr. Armet?

A. Very much so.

Q. Did you express that opinion to

Mr. Armet?

A. Very clearly.

(Joint Appendix in Court of

Appeals pages 390a to 39la).

CROSS EXAMINATION:

BY MR. SAPIR:

Q. You are not familiar with the

competency or incompetency of the

a nea ee,

A7

plaintiffs in this case, are you?

THE COURT: As of 1982 and 1983.

Q. As of 1982.

A. As of 1982, there were numerous

occasions when respiratory therapists

who were on call were called to the

unit, and either refused to come

because they said they didn't know

anything about new-borns, and they

didn't want to go up to the unit, or

they came to the unit and were unable

to help us.

Q. Isn't it true that your statement

that none of the then staff

respiratory therapists were competent

was based upon experience you had had

with certain staff respiratory

therapists?

A. I said were not fully competent,

No. 1 and No. 2, yes it was based on

my experience preceding the opening of

A8

the unit by approximately a year and a

half.

(Joint Appendix in Court of

Appeals pages 396a to 397a).

2. Hadn't there been services given

to infants at the medical center

before the opening of the neonatology

unit?

A. Yes, for a year and a half.

Q. And hadn't respiratory therapists

on staff at the hospital provided

services?

A. No, not fully by any means.

2. Not fully?

A. No.

Q. What do you mean by not fully?

A. They directly would bring up the

respirator but woudd do little more

than that. Occasionally they would be

A9

setting up the tubing. The

respirators were basically run by

myself and the nurses and residents. -

THE COURT: When you say run, you mean

including setting it up and getting it

going?

THE WITNESS: Frequently, yes, and

that was true for a good deal of the

time during the two shifts. I don't

know whether this is volunteering or

not, but during the two shifts and the

weekends when the single respiratory

therapist was not on duty.

Q. But were there occasions when

staff respiratory therapists were

called in to provide those services?

A. By all means, and sometimes they

did provide them.

Q. Did you require that those persons

be registered therapists? Do you know

that I mean by registered?

A. Yes.

Q. Did you require they be registered?

A. Did I require it? That was not

under my purview or authority.

THE COURT: Maybe I can cut it short.

It's been represented to the court

during the time this trial has been

dribbling along that Ms. Guagenti ran

this service during the daytime up

until the time that you ordered her

terminated; and that during the other

two shifts, persons who were not

registered therapists provided

whatever services were required in

that particular care unit.

Is that a valid statement of fact?

THE WITNESS: No, it is not. They did

not provide whatever services were

required. They provided some

services, and sometimes they provided

little or no service, as for example,

the times when they refused to come.

All

THE COURT: Apart from people who

refused to come, or let me put it

differently: What if anything apart

from refusal to come, which ought to

be justification for a discharge, what

if anything detemined what services

the non-registered therapists provided

during the time when Ms. Guagenti was

not on duty through 1983 or '82,

whenever it was that you terminated

her?

THE WITNESS: I think it probably

would be of value in order to clarify

this if I may, to speak of some of the

responsibilities of what a respiratory

therapist --

THE COURT: I am more concerned with

what occurred during the time when --

THE WITNESS: When Ms. Guagenti was

not in the unit.

THE COURT: In the beginning period of

this service, what if anything was

done by non-regis-ered people?

THE WITNESS: There are two primary

functions the respiratory therapists

Carried out within the unit. One was

to set up hoods wherein supplemental

oxygé€n was given to babies who had

respiratory distress and required

additional oxygen. That was very easy

and almost any one of them could have

provided that.

But the second was in those babies

who were critically ill and who had

respiratory failure and stopped

breathing or for some reason or other

required artifical ventilation. It

was in setting up ventilators and in

maintaining ventilators where many of

them did not know how the respirator

fully functioned.

THE COURT: That went on 24 hours a

Al13

THE WITNESS: That went on on the 16

nours a day when Ms. Guagenti was not

there.

THE COURT: Went on ali around the

clock?

THE WITNESS: The respirators did, yes.

THE COURT: The need to install or set

up a respirator?

THE WITNESS: Went on 24 hours a day

yes.

THE COURT: I gather when she was not

there?

A. The respiratory therapists either

frequently delivered the ventilator

and then either they with our help set

it up ourselves, meaning my component,

the physicians in addition to the

nurses.

THE COURT: How many times would

someone have to do this with your help

in order to be able to do it?

8 Wa en aR ANN i ah aes ES

tr bbe siti aman’ some

THE WITNESS: Very frequently.

THE COURT: A lot?

THE WITNESS: Yes.

THE COURT: Eow long does it take to

learn how to do it?

THE WITNESS: In terms of setting up

the ventilator, I think anybody with

average intelligence could probably

learn it after two or three times

being demonstrated as to how to set it

up. As to what to do with it once

it's set up and to have it function,

that takes weeks, in my estimation.

(Joint Appendix in Court of

Appeals pages 398a to 402a).