# Opposition Brief — Konarski v. New York Medical College, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 905

## Text

5) Supreme Court, U.S.
¥7-//2°7 “a FILED

No. 87- FEB 5 4998

JOSEPH F. SPANIO
IN THE CLERK ahi

Supreme Court of the United States

Ocroser TerM, 1987

STANISLAW KONARSKI, M.D.,
Petitioner,
— against —

NEW YORK MEDICAL COLLEGE, INC.,
KARL P. ADLER, M.D., PHILIP HENIG, M.D..,
and KURT ALTMAN, M.D.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
NEW YORK SUPREME COURT, APPELLATE DIVISION,
FIRST DEPARTMENT

RESPONDENTS’ BRIEF IN OPPOSITION

SARAH L. REID
Counsel of Record for
Respondents
101 Park Avenue
New York, New York
10178
(212) 808-7800
Of Counsel:

KeLLeY DryE & WARREN

RICHARD J. CONCANNON

SANDRA K. ROTTER

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QUESTIONS PRESENTED

Should this Court in the exercise of its discretion grant review
on a writ of certiorari where: (i) there are no special or impor-
tant reasons therefor as required by Rule 17; (ii) Petitioner
presented his case below as essentially one for breach of an
employment contract, fraud and violation of state constitutional
law and did not even brief a Fourteenth Amendment claim un-
til appeal; and (iii) the New York State courts below properly
rejected any Fourteenth Amendment claim since (a) the Respon-
dent New York Medical College, a private not-for-profit corpora-
tion, is not a state actor under settled law and (b) in any case,
Respondents’ decision to eliminate all part-time employment in
its ambulatory care center in favor of full-time commitments was
a rational means of achieving the legitimate purpose of
reorganization in order to improve medical services?

TABLE OF CONTENTS

Page
Gustine PRESENTED ................... i
Thee GP AUTMOMITIES................... iii
cic cea cseceaen. 2
cy uke csccbeses essa. 2
STATEMENT OF THE CASE.... ............ 2
REASONS FOR DENYING CERTIORARI ...... 6
ey vias voda te cccsse: 15
I eg ee ne A-l

TABLE OF AUTHORITIES
Cases

Baker v. Wade, 769 F.2d 289 (5th Cir. 1985),

cert. denied ___ U.S. ___, 106 S.Ct. 3337, 92
i ee I na fs ed hg ewer ns

Bannerjee v. Papadakis, No. 83 Civ. 2262

eT. Gels BOD. 5 oc cee cnc

Blum v. Yaretsky, 457 U.S. 991 (1982) ..........

Bowers v. Hardwick, ____ U.S. ___, 106 S-Ct.

2841, 92 L. Ed. 2d 140 (1986) ...............

Briscoe v. Bock, 540 F. 2d 392 (8th Cir. 1976) ...

Burton v. Wilmington Parking Authority, 365

ue Free. oe eee

Butterworth v. Bowen, 796 F. 2d 1379 (11th Cir.
PEELS RAE PS EP LPR Said

Cohen v. President and Fellows of Harvard
College, 568 F. Supp. 658 (D. Mass. 1983)
aff'd, 729 F. 2d 59 (Ist Cir.), cert. denied 469

GS i oes a

De Santis v. Pacific Telephone and Telegraph

Co., 608 F.2d 327 (9th Cir. 1979)............

Doe v. Casey, 796 F.2d 1508 (D.C. Cir. 1986),
cert. granted, sub. nom. Webster v. Doe, ___
U.S. ___, 107 S.Ct. 3182, 96 L.Ed.2d 671

SG san Gee ee

Page

12

11

12

13

Doe v. Devine, 545 F. Supp. 576 (D.D.C. 1982),
aff'd, 703 F.2d 1319 (D.C. Cir. 1983)

Gerena v. Puerto Rico Legal Services, Inc., 697
F.2d 447 (1st Cir. 1983)

Giannatassio v. Stamford Youth Hockey Ass'n.
Inc., 621 F. Supp. 825 (D. Conn. 1985)

Granfield v. Catholic Univ. of America, 530 F.2d
1035 (D.C.Cir.), cert. den. sub. nom.
Broderick v. Catholic Univ. of America, 429

U.S. 821 (1976)

Graseck v. Mauceri, 582 F. 2d 203 (2d Cir.
1978), cert. denied sub. nom. Graseck v.
Middlemiss 439 U.S. 1129 (1979)

Greco v. Orange Memorial Hospital Corp., 513
F. 2d 873 (5th Cir.), cert. denied, 423 U. S.
EN a bya eons £0 haw

High Tech Gays v. Defense Industrial Security
Clearance Office, 668 F. Supp. 1361 (N.D.
Es nso Ki eebk nes weeks

ee oe

Johnson v. Southwest Detroit Community Mental
Health Services, 462 F. Supp. 166 (E.D. Mich.
PE ors 54 Saba ed hes cd oe

Kaczanowski v. Medical Center Hospital of
Vermont, 612 F. Supp. 688 (D. Vt. 1985)

Lefcourt v. Legal Aid Society, 445 F.2d 1150 (2d
EE os bs gkko aes

ae yew PS Pe ee ee yee ee

Sa eeepn in @ ew i e

ee bow 6°8 8 bea

Page

14

10

11

11

10, 11

8, 10,

~l
Go

10

10

10

—“ ena... eee

vii

Lubin v. Crittenden Hospital Ass’n., 713 F.2d 414
(8th Cir. 1983), cert. denied, 465 U. S. 1025
CL PONS Theda RR Ke Ne odes CVC eC eNS oc

Miller v. Indiana Hospital, 562 F. Supp. 1259
Pe SE eC INS yew be Wied CES kad ds's

Modaber v. Culpeper Memorial Hosp., Inc., 674
fH | ¢ to % (eee

Perry v. Sindermann, 408 U.S. 593 (1972) .......

Personnel Administrator of Massachusetts v.
Feeney, 442 U.S.256 (1979) .................

Rakow v. New York Medical College, et al., No.
4598/81 (Sup. Ct. N.Y. Co. March 25, 1981) ..

Rendell-Baker v. Kohn, 457 U.S. 830 (1982) .....

Rich v. Secretary of the Army, 735 F.2d 1220
SE SEE anda viene She wdewed okesccs

Sament v. Hahnemann Medical College and
Hospital, 413 F. Supp. 434 (E.D. Pa. 1976),
aff'd mem. 547 F.2d 1164 (3d Cir. 1977)......

Schlein v. Milford Hospital, 561 F. 2d 427 (2d
Ge a oti ees oe ceed aN aie s bie nk us

Wilson v. New York Medical College, et al., No.
14016/80 (Sup. Ct. N.Y. Co. September 19,
RR tr ee ene e tere ee oe

Constitutional Provisions

United States Constitution,
Fourteenth Amendment. .....................

10, 11

passim

No. 87-

IN THE

Supreme Court of the United States

OctTosBer TERM, 1987

STANISLAW KONARSKI, M.D.,

Petitioner,
— against —
NEW YORK MEDICAL COLLEGE, INC.,

KARL P. ADLER, M.D., PHILIP HENIG, M.D.,
and KURT ALTMAN, M.D.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
NEW YORK SUPREME COURT, APPELLATE DIVISION,
FIRST DEPARTMENT

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents New Yu.k Medical College, Karl P. Adler, M.D.,
Philip Henig, M.D., and Kurt Altman, M.D. respectfully re-
quest that this Court deny the Petition for a Writ of Certiorari
seeking review of the decision of the New York Supreme Court,
Appellate Division, First Department affirming dismissal of the

complaint and summary judgment against Petitioner Stanislaw
Konarski, M.D.

OPINIONS BELOW

The opinion of the New York Supreme Court Appellate Divi-
sion, First Department (Petition at 13a-l4a) is reported at 129
A.D.2d 1018 (1st Dep’t 1987). Denial of leave to appeal that deci-
sion to the New York Court of Appeals was issued in an
unreported decision by the Appellate Division on June 9, 1987
(Petition at 15a-16a), and by the New York Court of Appeals at
70 N.Y. 2d 606 (1987). The decision of the trial court, New York
Supreme Court, New York County, Special Term, Part 1, entered
on October 7, 1985, is unreported (Petition at la-12a).

JURISDICTION

The order denying leave to appeal to the Court of Appeals was
entered on September 15, 1987 by that Court. The jurisdiction
of this Court is invoked under 28 U.S.C. §1257(3).

STATEMENT OF THE CASE

The Petition for Certiorari arises out of the termination of the
part-time at-will employment at Metropolitan Hospital Center
(“Metropolitan Hospital”) of Stanislaw Konarski, M.D. (“Peti-
tioner”) by Respondent New York Medical College (“Medical Col-
lege”) pursuant to a reorganization program in July 1981 (R. 9-10,
57-58): At various times thereafter, Petitioner has labeled such
termination as age discrimination (a charge rejected by the Equal
Employment Opportunity Commission)’, a breach of contract
although he concedes he has no written contract, fraud, and an
amorphous claim that the individual Respondents herein, his col-
leagues and superiors, were members of a “homosexual clique”

‘ Numbers in parentheses preceded by the letter “R” are page references to the
Record on Appeal, available from Respondents if requested by the Court.

? On July 1, 1982, Petitioner filed with the Equal Employment Opportunity
Commission (“EEOC”) a charge of discrimination solely on the basis of age
concerning the termination of his part-time employment by the Medical Col-
lege at Metropolitan Hospital (R. 10, 114-15). By letter dated November 30,
1982, the EEOC discontinued processing the charge (R. 10, 118).

which caused his discharge because he was heterosexual.’ Peti-
tioner primarily relied on the New York State discrimination laws
to support that claim below.

Respondents’ position has been, and the courts so found, that
Petitioner’s termination was prompted by the development of a
new program in health care designed for the working poor at
Metropolitan Hospital, which obligated Respondents to recruit
full time physicians rather than part time physicians into the
Hospital’s General Internal Medicine Ambulatory Care Center
(R. 9-10, 50, 51, 53). The termination of Petitioner occurred
simultaneously with the termination of a number of other physi-
cians, all of whom were part time (R. 10, 116). Out of considera-
tion to Petitioner, Respondent Philip Henig, M.D. (“Dr. Henig”)
the Director of Ambulatory Care, offered Petitioner a comparable
position in the Hospital’s Medical Screening Clinic, which Peti-
tioner rejected, (R. 10, 51-52). Petitioner also rejected the offer
to work full-time in the Ambulatory Care Center (R. 10, 65, 111).

In June 1984, a year and a half after the EEOC discontinued
its processing of his charge, Petitioner filed this suit in the Supreme
Court, New York County. (The verified complaint is set forth
at R. 32-45.) The complaint, as amplified by the briefing on the
motion to dismiss and for summary judgment, contained claims
for interference with employment, fraud, breach of an unspecified
contract and an implied covenant of fair dealing, and discrimina-
tion pursuant to an unnamed statute. The alleged discrimination
was based on Petitioner's claim that his part-time, at-will employ-
ment was terminated because Respondents Kurt Altman, M.D.
(“Dr. Altman”) and Dr. Henig were homosexuals who retaliated
against him because he was heterosexual, by persuading Karl P.
Adler, M.D. (“Dr. Adler”) to terminate Petitioner’s employment
because of complaints Petitioner had made to them concerning

* At his deposition Petitioner's proof that the individual Respondents were
homosexual consisted of statements such as “[b]ecause of his attitude, behavior,
hostilities . . . he spoke in a hostile way about his wife to everybody” (R. 498-99).
The trial court properly characterized such allegations as “stuff and nonsense”
(Petition at 6a).

ne
.

4

favorable treatment accorded a fellow employee-physician on the
basis of his (homo)sexual preference.

Respondents answered the complaint and denied each of Peti-
tioner’s claims, asserting in part that:

— the Medical College is a private, not-for-profit cor-
poration that is affiliated through the New York
City Health and Hospitals Corporation
(“NYCHHC”) with Metropolitan Hospital (R. 47).

— the Medical College makes all decisions relating to
the terms and conditions of employment of physi-
cians employed at Metropolitan Hospital (R. 48).

— Petitioner became a part-time employee of the
Medical College at Metropolitan Hospital pursuant
to the affiliation agreement with the New York City
Health and Hospitals Corporation (“NYCHHC”)
in 1968 (R. 49).

— the employment agreement between the Medical
College and Petitioner was terminable at the will
of either party without notice (R. 57).

At the conclusion of Petitioner’s examination before trial, in view
of the admissions made by Petitioner which demonstrated that
he had no cause of action, Respondents moved to dismiss the com-
plaint and for summary judgment.*

The trial court granted the motion, and in response to the brief-
ing by the parties cited several grounds in its decision. (The trial
court’s decision is annexed to the Petition at la-8a.) First, the court
ruled that there could have been no breach of contract by
Respondents because Petitioner had no written agreement with

* The New York City Health and Hospitals Corporation, Metropolitan Hospital
Center and Richard D. Levere, M.D. had already been dismissed from this ac-
tion by orders of the New York Supreme Court entered September 20 and 27,
1984. No appeal was taken from either order.

the Medical College as to the terms of his employment and was
therefore an employee at-will (Petition at 4a). Second, the court
held that a cause of action for discrimination based on sexual
preference does not exist in New York (Petition at 5a). Third, the
court found that even if such a cause of action did exist, Peti-
tioner had utterly failed to establish a factual basis for his claim
of discrimination against him because he was heterosexual and
the court refused to “construe pleadings so liberally as to allow
stuff and nonsense to state a cause of action” (Petition at 5a-6a).

Fourth, the court found that a claim of fraud against the
Medical College with respect to Petitioner’s termination could
not lie because Petitioner's deposition admissions revealed that
the element of reliance, necessary in an action for fraud, was com-
pletely missing (Petition at 6a-7a). Fifth, the court ruled that
Respondents had no duty as a matter of iaw to deal with Peti-
tioner, an employee at-will, fairly or in good faith so that his
part-time salary was at all times the equivalent of his fellow physi-
cians (Petition at 7a). Finally, the court held that even if allega-
tions against the individual Respondents were proven, no action
could lie against them for interference with Petitioner’s employ-
ment (Petition at 7a-8a).

Petitioner appealed the decision of the trial court to the Ap-
pellate Division of the Supreme Court, First Department, where,
for the first time, he briefed a Fourteenth Amendment claim.
That court affirmed, without opinion, the order of the trial court.
(The order of the Appellate Division is annexed to the Petition
at 13a-l4a.) Petitioner then moved in the Appellate Division for
leave to appeal to the Court of Appeals of New York, and the
motion was denied with costs. (The order of the Appellate Divi-
sion is annexed to the Petition at 15a-l6a.) Petitioner then mov-
ed in the Court of Appeals for leave to appeal in that Court, and
that motion, too, was denied with costs. (The order of the Court
of Appeals is annexed to the Petition at 17a-18a.) Petitioner then
filed the present Petition requesting that this Court review the
decisions below.

REASONS FOR DENYING CERTIORARI
I

The present case lacks any issue which warrants review by this
Court. At core, the action presents a contractual issue, namely
whether a private employer has the right to determine the staff
allocations of its full and part-time at-will employees. Petitioner's
belated attempts to imbue this issue with constitutional dimen-
sions in order to seek access to this Court should be dismissed.

Respondents have now spent almost six years answering Peti-
tioner’s various charges. At each level, those charges have been
rejected, and thereafter Petitioner’s theories have changed — often
as his counsel changed.* The present Petition now takes those same
allegations, adopts a wildly expansive interpretation of the Four-
teenth Amendment, and for the first time relies on a provision
of the affiliation agreement between the Medical College and
the NYCHHC which was never mentioned below. The Petition
reflects but the latest transformation of a case which has proven
to be a veritable chameleon in making its way through the courts.

To the extent that Petitioner’s claims are now based on his in-
terpretation of §5.07 of the affiliation agreement, those claims
are improperly asserted. While the lengthy agreement was sub-
mitted into the record by Respondents at the trial level (R.
226-357), no claim was focused on any specific provision therein,
and it is unrealistic to assume that any one provision was con-
sidered by the courts below. The provision should not now be
considered. Butterworth v. Bowen, 796 F.2d 1379, 1387 (lth Cir.
1986). Similarly Petitioner’s reliance now on provisions of the N.Y.
Unconsolidated Laws should be rejected since those provisions
were also not briefed below.

Finally, Petitioner has utterly failed to make any showing that
special or important reasons are presented on this record which

* Petitioner has been represented by three different counsel at various times in
this action.

-

would justify review by this Court. The decisions of the New York
State courts are in complete accord with the well-settled law of
that State. No federal constitutional issues need be considered
to supplement those decisions. Review by this Court would be
futile since, even if this Court were to rule on Petitioner’s state
action claim, it is clear the substance of Petitioner’s unusual Four-
teenth Amendment claim must fall. The interests of justice re-
quire an end to this action which has bordered on the frivolous
since its inception.

II

Petitioner contends that the state courts below improperly
found that the Medical College, a private not-for-profit institu-
tion, is not a state actor for Fourteenth Amendment purposes,
and that the courts failed to properly apply the Burton v. Wilm-
ington Parking Authority, 365 U.S. 715 (1961), “symbiotic rela-
tionship” standard. Significantly, Petitioner does not contend that
the challenged activity meets either the “nexus” or “public func-
tion” test put forth in Jackson v. Metropolitan Edison Co., 419
U.S. 345 (1974), a: .1 apparently concedes that under these tests,
the termination ur his employment cannot be deemed state
action.®

In order to meet the “nexus” test, there must be “a sufficiently
close nexus between the [NYCHHC] and the challenged action
of the [Medical College] so that the action of the latter may be
fairly treated as that of the State itself.” Jackson, supra 419 U.S.
at 351 (1974).’ Under the “nexus” approach, “the government can

* Petitioner’s reliance on Perry v. Sindermann, 408 U.S. 593 (1972) is misguid-
ed. First, that case did not even address the issue of state action. Second, while
the Court found that Professor Sindermann had not yet had the opportunity
to prove his charge of discrimination, the trial court in the present action ruled
that such “discovery . . . would be both purposeless and an unwarranted intru-
sion upon the individual privacy” of Respondents (Petition at 6a) on these facts.

” In 1984 the NYCHHC and Metropolitan Hospital were dismissed on default
from this action without appeal. It is puzzling that Petitioner failed to make
(footnote continued)

be held responsible for the private act only when it has compell-
ed the act by law or when it has ‘provided such significant en-
couragement, either overt or covert, that the choice must in law
be deemed to be that of the (government).” Miller v. Indiana
Hospital, 562 F.Supp. 1259, 1277 (W.D. Pa. 1983) (quoting Blum
v. Yaretsky, 457 U.S. 991, 1004 (1982)). The “nexus” approach
is not satisfied in the present action since neither Metropolitan
Hospital nor the NYCHHC was in any way involved in the deci-
sion of the Medical College to terminate Petitioner’s position.

In addition, it is clear Petitioner cannot meet the requirements
of the “public function” test. The Medical College's provision of
medical staff for a city hospital cannot be termed an “exercise
by a private entity of powers traditionally exclusively reserved
to the State.” Jackson, supra 419 U.S. at 352. The Circuits are
clearly in agreement that health care, though an essential public
service, is not a service traditionally exclusively reserved to the
state. Lubin v. Crittenden Hospital Ass’n., 713 F.2d 414, 416 (8th
Cir. 1983), cert. denied, 465 U.S. 1025 (1984); Modaber v.
Culpeper Memorial Hosp., Inc., 674 F.2d 1023, 1026 (4th Cir.
1982); Schlein v. Milford Hospital, 561 F.2d 427, 429 (2d Cir.
1977); Greco v. Orange Memorial Hospital Corp., 513 F. 2d 873,
881-82 (5th Cir.), cert. denied, 423 U. S. 1000 (1975).

In his assertion that the Medical College maintains a “symbiotic
relationship” with the New York state government, Petitioner relies
on three factors: the existence of an affiliation agreement between.
NYCHHC and the Medical College for provision of certain medical
staff at Metropolitan Hospital, the fact that the allegedly
discriminatory conduct occurred on public property, and the pro-
vision of public funding to the Medical College. Each of these
factors, however, is insufficient for a finding of state action.

Petitioner incorrectly interprets the Burton ruling, and ignores
subsequent law limiting its application. The Burton Court

any effort to keep the unquestioned state agency in this action, but now seeks
to rely on its presence as the basis for claiming a private institution is a state actor.

specifically declined to undertake the “impossible” task of
“fashion{ing] and apply[ing] a precise formula for recognition
of state responsibility under the Equal Protection Clause.” Bur-
ton, supra 365 U.S. at 722. The Court limited its holding to the
facts of the case, stating that “the conclusions drawn from the
facts and circumstances of this record are by no means declared
as universal truths on the basis of which every state leasing agree-
ment is to be tested.” Id. at 725. Instead, the Court advocated
sifting through the facts and weighing the circumstances in each
case to determine whether the degree of state participation in
the discriminatory action of a private actor is of the type the Four-
teenth Amendment was designed to condemn.

Cases subsequent to Burton have explicitly held that the existence
of an affiliation agreement or receipt of funds between NYCHHC
and a private corporation such as the Medical College does not
transform a corporation or its employees into “state actors”. See,
e.g., Bannerjee v. Papadakis, No. 83 Civ. 2262 (E.D.N-Y. June 30,
1986) (doctor employed by private hospital to work in city hospital
pursuant to NYCHHC agreement is employee of private hospital,
and its employment decision does not constitute state action);
Rakow v. New York Medical College, et al., No. 4598/81 (Sup.
Ct. N.Y. Co. March 25, 1981) (court held that a dispute between
New York Medical College and its employee who worked at
Metropolitan Hospital is a dispute between a private employer
and employee because the only relationship between the Medical
College and NYCHHC is that the Medical College provides
medical services to Metropolitan Hospital pursuant to an agree-
ment with NYCHHC); Wilson v. New York Medical College, et
al., No. 14016/80 (Sup. Ct. N-Y. Co. September 19, 1980) (fact that
NYCHHC funded the Medical College’s operation of city-owned
hospital does not provide a basis for imposing liability on
NYCHHC for employment practices of the College).*

Other circuits have arrived at similar results when dealing with
like arrangements. In Sament v. Hahnemann Medical College

* For the convenience of the Court, copies of these decisions are annexed hereto
in the Appendix.

10

and Hospital, 413 F.Supp. 434 (E.D. Pa.1976), affd mem. 547
F.2d 1164 (3d Cir. 1977), the court held that the contract of defen-
dant medical school to provide staff to a city hospital in return
for a dollar for dollar reimbursement by the city did not con-
stitute state action even under the Burton approach. The court
noted the lack of evidence that the state “maintains a
‘stranglehold” on the private entity or that it had a potentially
significant input in the entity’s policies. Id. at 441. See also Kac-
zanowski v. Medical Center Hospital of Vermont, 612 F.Supp.
688 (D. Vt. 1985) (no state action present when private hospital
also serving as teaching hospital for state university denies plain-
tiffs staff privileges).

Petitioner argues that the “mutual benefits” conferred by the
affiliation agreement on each party renders the Medical College
a state actor. This contention is apparently a misinterpretation
of the “mutual benefit theory” as a factor. In Burton, it was con-
ceded that the private entity, and, in turn, the government,
benefitted directly from the discriminatory activity in the form
of increased business and profits. 365 U.S. at 724. Subsequent
cases interpreting Burton have required a showing that the
government directly profit from the challenged conduct. See
Rendell-Baker v. Kohn, 457 U.S. 830, 843 (1982); Gerena v. Puerto
Rico Legal Services, Inc., 697 F.2d 447, 451 (Ist Cir. 1983); Greco,
supra 513 F.2d at 880; Johnson v. Southwest Detroit Communi-
ty Mental Health Services, 462 F.Supp. 166, 171 (E.D. Mich.
1978). There is no conceivable benefit which NYCHHC could
have gained from the alleged discriminatory termination of Peti-
tioner’s employment.

Petitioner’s reliance on a second element, the fact that the situs .
of the private conduct is public property, does not establish suf-
ficient state involvement to constitute state action. See Graseck
v. Mauceri, 582 F.2d 203, 208 (2d. Cir. 1978), cert. denied sub.
nom. Graseck v. Middlemiss, 439 U.S. 1129 (1979) (the use of
public office space by private legal aid corporations under similar
affiliation agreements with the government did not detract from
the private nature of their actions); Lefcourt v. Legal Aid Socie-
ty, 445 F.2d 1150, 1154 (2d Cir. 1971). Lubin, supra 713 F.2d

Mast oe

11

at 416 (actions by private hospitals leasing public property and
public buildings did not amount to state action) ; Greco, supra
513 F.2d at 882-83.

The third factor, receipt of public funds by a private entity,
does not convert an otherwise private decision into a state act.
See Blum v. Yaretsky, supra 457 U.S. at 1011; Rendell-Baker v.
Kohn, supra 457 U.S. at 840. This is so even if the private entity
receives as much as 90 percent of its budget from public fun-
ding. See Rendell-Baker, id. Even a finding of direct reimburse-
ment of a private entity’s salaries does not establish state action.
See Bannerjee, supra at A-10; Cohen v. President and Fellows
of Harvard College, 568 F.Supp. 658, 661 (D. Mass. 1983) affd,
729 F.2d 59 (Ist Cir.), cert. denied 469 U.S. 874 (1984).

A factor further distinguishing Burton is that the alleged
discrimination here was on the basis of sexual preference. The
less stringent “symbiotic relationship” state action standard has
been limited consistently to cases involving racial discrimination.
See, e.g. Lubin v. Crittenden Hosp. Ass’n, supra 713 F.2d at 416;
Graseck v. Mauceri, supra 582 F.2d at 208 n.17; Schlein v. Milford
Hospital, supra, 561 F.2d at 428 n.5 (2d Cir. 1977); Briscoe v.
Bock, 540 F.2d 392, 396 n.3 (8th Cir. 1976); Granfield v. Catholic
Univ. of America, 530 F.2d 1035, 1046 (D.C. Cir.), cert. den. sub.
nom. Broderick v. Catholic Univ. of America, 429 U.S. 821 (1976);
Greco v. Orange Memorial Hosp. Corp., supra 513 F.2d at 879-80;
Giannattasio v. Stamford Youth Hockey Ass'n, Inc., 621 F.Supp.
825, 828 (D. Conn. 1985).

“{R]acial discrimination is so peculiarly offensive and
was so much the prime target of the Fourteenth
Amendment that a lesser degree of involvement may
constitute ‘state action’ with respect to it than would
be required in other contexts.”

Sament v. Hahnemann Medical College & Hospital, supra 413
F.Supp. at 439 n.13.

12

Iii

Assuming, arguendo, that the Medical College's decision to teér-
minate Petitioner’s employment could by some definition be term-
ed state action, Petitioner’s claim of a constitutional violation re-
mains unsubstantiated. Petitioner failed to make out a prima facie
case of discrimination in the courts below. The trial court, con-
cluding that Petitioner’s allegations were “stuff and nonsense”
(Petition at 6a), noted that he had offered

no admissible evidence as to the sexual orientation of
the individual defendants, relying instead upon his own
feelings and inferences. One colleague on the staff of
the hospital is thought to be homosexual because he
has frequently been heard to complain about his wife

(Petition at 5a-6a). The appellate courts accepted this finding.

Petitioner concedes that the issue of whether homosexuals con-
stitute either a suspect class or quasi-suspect class “need not be
decided in the case at bar” (Petition at 22). Respondents agree.
While the circuit courts are nearly unanimous in holding that
homosexuals do not constitute either a suspect or quasi-suspect
class,’ this Court has not addressed the issue, see, Bowers v. Hard-
wick, ____ U.S. ___, 106 S.Ct. 2841, 2850 n.2 (Blackmun, J.,

* Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) cert. denied, ___. U.S. _._,
106 S.Ct. 3337, 92 L.Ed. 2d 742 (1986)(“[plaintiff] has not cited any cases
holding, and we refuse to hold, that homosexuals constitute a suspect or quasi-
suspect classification”); Rich v. Secretary of the Army, 735 F.2d 1220, 1229 (10th
Cir. 1984) (“[a] classification based on one’s choice of sexual partners is not
suspect”); De Santis v. Pacific Telephone and Telegraph Co., 608 F.2d 327, 333
(9th Cir. 1979) (“[t]he courts have not designated homosexuals a ‘suspect’ or
‘quasi-suspect’ classification so as to require more exacting scrutiny of classifica-
tions involving homosexuals”). One court, without relying on any prior case
law concerning classifications based on sexual orientation, has recognized
homosexuality as a quasi-suspect class. High Tech Gays v. Defense Industrial
Security Clearance Office, 668 F. Supp. 1361 (N.D. Cal. 1987). This holding
appears to be an anomaly in the law and conceptually inconsistent with this
Court's recent holding that the Federal Constitution does not confer a fundamen-
tal right upon homosexuals to engage in sodomy. Bowers v. Hardwick, ___
U.S. ___., 106 S.Ct. 2841, 92 L. Ed. 2d 140 (1986).

13

i

dissenting), 92 L. Ed.2d 140 (1986), and need not address it here.
The most exacting judicial scrutiny will fail to unearth in the
record of this case any evidence that Petitioner was dismissed for
being a heterosexual or for any reason other than the Medical
College's legitimate need to improve patient care at Metropolitan
Hospital. Any determination by this Court that sexual orienta-
tion is or is not a suspect class would therefore be superfluous.”

Se eee ee ee en ee

acne) nelle ut

Petitioner asserts that the test of minimal scrutiny, the rational
basis test, governs his termination." Under this test, there can be
no doubt that the dismissal of Petitioner by the Medical College
was justified. In pursuing its legitimate interest of improving pa-
tient care through reorganization, the Medical College eliminated
all part-time positions in the department in which Petitioner
worked. This streamlining was an undeniably rational means of
achieving its legitimate end.

$ Moreover, the Fourteenth Amendment’s equal protection
prescription only prohibits purposeful discrimination. Personnel
Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979).
Petitioner must, therefore, provide proof that the Medical Col-
lege had a discriminatory purpose in dismissing him, which he
has failed to do on this Record.

Petitioner argues, in essence, that he was a victim of reverse
discrimination as a heterosexual in that the Medical College
favored retaining and/or hiring homosexuals over heterosexuals.

” Respondents understand that this court has granted certiorari in Doe v. Casey,
796 F.2d 1508 (D.C. Cir. 1986), cert. granted sub. nom. Webster v. Doe, ___
US. __, 107 S.Ct. 3182, 96 L.Ed.2d 671 (1987), a case which brings up for
review the question of heightened judicial scrutiny for a classification based
on sexual orientation.

" Petitioner claims “whatever the right answer may be as to whether civil
discrimination against homosexuals is unconstitutional, there can be one answer
as to whether civil discrimination against heterosexuals is unconstitutional” (Peti-
tion at 23, emphasis in original). This argument is a complete non sequitur:
the Fourteenth Amendment has traditionally protected disadvantaged minorities.

a

14

Petitioner cannot point, however, to a Medical College regula-
tion that embodies a policy of favoring homosexuals over
heterosexuals. Nor has the Petitioner presented any evidence of
a covert policy in place at the Medical College of discriminating
against heterosexuals. Given the uniform elimination of all part-
time positions in the department where Petitioner worked, it
strains credulity to suggest that he was singled out and dismiss-
ed for a discriminatory reason. In fact, Petitioner's claim is con-
tradicted by the fact that the Medical College offered him —
and he rejected — alternative positions of employment prior to
his dismissal. Since Petitioner has offered no proof of
discriminatory animus, his “equal protection challenge suffers
from a fatal threshold deficiency.” Doe v. Devine, 545 F. Supp.
576, 584 (D.D.C. 1982), affd, 703 F.2d 1319 (D.C. Cir. 1983).

IV

Petitioner's due process claim may be summarily rejected. It
has never been briefed below, and contrary to Petitioner's claim
now, it has not been preserved for review. The fact that Petitioner
was asked about the basis for claiming a right to a hearing at
one point in his deposition (R.662-663), without more, does not
preserve the issue.

15

CONCLUSION
The petition for a writ of certiorari should be denied.

Dated: New York, New York
February 3, 1988

Respectfully submitted,

SARAH L. REID

Counsel of Record for
Respondents

101 Park Avenue

New York, New York 10178

(212) 808-7800

Of Counsel:
KELLEY DRYE & WARREN
Richard J. Concannon
Sandra K. Rotter

APPENDIX

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

JOSEPHINE FLORENCE
BANNERJEE, M.D.,

Plaintiff,

— against — ORDER
83 CV2262
LYCOURGOS PAPADAKIS, M.D., et al.,

Respondent.

McLAUGHLIN, District Judge

Having carefully reviewed plaintiffs objections, I hereby
adopt the attached Report and Recommendation of United
States Magistrate Shira A. Scheindlin as the Opinion of this
Court. Accordingly, defendants’ motions for summary judgment
are granted. This disposes of the federal claims under the Civil
Rights Act and the Labor Management Relations Act, and I
decline to exercise jurisdiction over the pendent state claims.
The complaint is therefore dismissed in its entirety.

SO ORDERED

Dated: Brooklyn, New York
June 30, 1986

/s/ Joseph M. McLaughlin
JOSEPH M. McLAUGHLIN, USDJ

The Clerk shall make copies of this Order and shall serve them
upon the parties.

A-2

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

Bane Sp Se eg eaeee X
DR. JOSEPHINE FLORENCE
BANNEBJEE, M.D.,
Plaintiff,
aintiff, REPORT AND
ean RECOMMENDATION
g OF UNITED STATES
MAGISTRATE
LYCOURGOS PAPADAKIS, M.D., et al., rags pr
McLaughlin, J.
Defendants. ( J)
a es A ad sr all X

Plaintiff, Dr. Josephine Bannerjee (“Bannerjee”) was employed
as a pathologist at Greenpoint Hospital (“Greenpoint”) from
1974 to 1980 when she resigned. Plaintiff is now suing the
hospital and various other defendants, claiming that her resigna-
tion was fraudulently induced. She also claims that in causing
her to resign, defendants violated her civil rights. Plaintiff brings
this civil rights suit pursuant to 42 U.S.C. §§1983 and 1985
(“1983, 1985”). She also asserts violations of §301 of the Labor
Management Relations Act (“LMRA’”), 29 U.S.C. §185(a) (1985)
and New York’s common law of fraud.

In addition to Greenpoint, plaintiff is suing her immediate
supervisor Dr. Lycourgas Papadakis (“Papadakis”); Sydney
Gerstler (“Gerstler”), the Brooklyn Jewish Medical Center
(“BJMC”)-Greenpoint Administrative Officer and, Greenpoint’s
supervisory agency, the New York City Health and Hospitals
Corporation (“HHC”). Dr. Bannerjee is also suing the union that
represented her, the Association of Salaried Physicians (“ASP”
or “Union”)' and its former president Dr. Cosimo Basirico
(“Basirico”).? Plaintiff asserts that these defendants fraudulent-
ly caused her resignation because she informed HHC’s Inspector.
General that Papadakis had violated HHC rules and because
of her sex.°

A-3

HHC, Greenpoint, the Union and Basirico have moved to
dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and
12(b)(6) or, in the alternative, for summary judgment pursuant
to Fed.R.Civ.P. 56.* They urge that plaintiff has failed to establish
the essential elements of a civil rights claim, namely, state ac-
tion and an official policy or practice. In addition, defendants
assert that plaintiff's LMRA claim is time-barred. Finally, they
urge the court to dismiss plaintiff's pendent state claim. This
case was referred to me by the Honorable Joseph M. McLaughlin
for a Report and Recommendation on defendants’ motions.

I. STATEMENT OF FACTS

Greenpoint was a municipal hospital owned and operated by
HHC.* HHC entered into an Affiliation Agreement (“Agree-
ment”) with BJMC, a private, not for profit hospital.* BJ MC
hired and paid physicians and provided other medical services
at Greenpoint and in turn, BJMC was reimbursed for its ex-
penses by HHC.’ There is a dispute as to who employed the
physicians working at Greenpoint.

Plaintiff began working as a pathologist at Greenpoint in
1974. In 1978 she was promoted to Assistant to the Chief
Pathologist, Papadakis. Papadakis was plaintiffs direct super-
visor and was responsible for the overall performance of the
pathology department including, assigning work and schedul-
ing hours. Early in 1978, technicians at Greenpoint reported
to Gerstler, the BJMC administrator at Greenpoint, that
Papadakis was violating HHC rules by using Greenpoint facilities
for private practice and paying his secretary a full salary though
she only worked part time. Papadakis accused plaintiff of report-
ing the illegal conduct. Soon after, he began to decrease her
hours and send her memoranda in which he criticized her per-
formance. Complaint 421. Prior to this, plaintiff's competence
had never been questioned.

In November 1978, Papadakis reduced plaintiff's position from
full time to twenty hours per week. Plaintiff filed a grievance
and was represented by ASP, the sole bargaining agent for the
professional employees under the Agreement.® As a result,

A-4

plaintiff was reinstated to her full time position. Six months later,
plaintiff was notified that her hours were again being reducea,
this time to thirty hours per week. Although Bannerjee com-
plained to the Union, it took no action on her behalf.

On February 1, 1980, Papadakis further reduced plaintiff's
hours to twenty per week. She then filed a complaint with HHC’s
Inspector General, charging Papadakis with various violations
of HHC rules.® At the same time, ASP filed a demand for ar-
bitration to protest the latest reduction in plaintiffs hours.

The arbitration commenced in May, 1980. Papadakis and
Gerstler advised the arbitrator that there was no job for plain-
tiff beginning July 11, 1980 because of budget cutbacks. The
arbitration was adjourned so Gerstler could provide the ar-
bitrator with a copy of the HHC budget for Greenpoint. Plain-
tiffs Affidavit, December 6, 1985 418-20.

On September 3, 1980 plaintiff claims that Mr. Fernandez,
the HHC administrator at Greenpoint allowed her to review
the 1980-81 budget. According to plaintiff, there was no reduc-
tion in the pathology department’s budget. Id. at 421-22.

The arbitration reconvened on September 5, 1980. It was at-
tended by Papadakis, Basirico for ASP, Gerstler for the “Green-
point Affiliation”, David Diamond an administrator for BJMC,
plaintiff and her attorney. Papadakis and Gerstler informed Ban-
nerjee that Papadakis refused to work with her. Mr. Diamond
showed the arbitrator the 1980-81 budget which apparently
revealed that plaintiffs position, Assistant to the Chief of
Pathology, had been eliminated. Plaintiff did not challenge the
validity of the budget at the arbitration. Thereafter, a settle-
ment agreement was signed on September 5, 1980 by Basirico,
Gerstler and plaintiff whereby plaintiff agreed to resign her posi-
tion and withdraw all charges against Papadakis in return for
$19,000.00, favorable references and a purging of all derogatory
material from her personnel file.”

Plaintiff resigned soon after this arbitration. In December
1980, plaintiff was informed that in October 1980, the position

A-5

of Assistant to the Chief of Pathology at Greenpoint was filled.
Plaintiff's Affidavit, December 6, 1985 429. Plaintiff maintains
that after her termination, she was engaged in informal negotia-
tions with HHC and HHC’s attorneys, Corporation Counsel,
in an effort to revoke her resignation. Affidavit of Joan Goldberg,
attorney for Dr. Bannerjee, September 12, 1985.

III. DISCUSSION
A. Summary Judgment Standards

Defendants have moved for dismissal pursuant to Fed.R.Civ.P.
12(b)(1), (6) or in the alternative, for summary judgment pur-
suant to Fed.R.Civ.P. 56. Because I have considered matters out-
side the pleadings, the motion will be considered as one for sum-
mary judgment under Rule 56. See Fed.R.Civ.P. 12(b).

To prevail on their motions, defendants must prove “that there
is no genuine issue as to any material fact,” and that they are
“entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
See also Harlee v. Hagen, 538 F.Supp. 389, 393 (E.D.N.Y. 1982).
The court must “resolve all ambiguities and draw all reasonable
inferences” against the defendants. American International
Group, Inc. v. London American International Corp., 664 F.2d
348, 351 (2d Cir. 1981). In addition, all facts asserted by the ©
plaintiff, “if supported by affidavits or other evidentiary
material, are regarded as true” for the purpose of these motions.
10A Wright & Miller, Federal Practice and Procedure §2727
(Civil 2d 1983).

Nonetheless, the party who opposes the motion cannot
discharge her burden by alleging legal conclusions, nor is she
entitled to a trial only on the basis of a hope that she can pro-
duce some evidence at that time. See United Transportation
Union v. Long Island Railroad and Metropolitan Transporta-
tion Association, 509 F. Supp. 1300, 1303-1304 (E.D.N.Y.) revd
on other grounds, 634 F.2d 19 (2d Cir. 1980). Further, “[w]hen
a motion for summary judgment is made . . . an adverse party
may not rest upon the mere allegations or denials of his ple..ding,
but his response, by affidavits or as otherwise provided in this

A-6

Rule, must set forth specific facts showing that there is a genuine
issue for trial.” Fed.R.Civ.P. 56(e) (emphasis added). See also First
National Bank of Arizona v. Cities Service Co., 391 U.S. 253,
289, reh. denied, 393 U.S. 901 (1968); Quinn v. Syracuse Model
Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980).

B. Defendants’ Motions to Dismiss Plaintiff's §1983 Claim

To invoke federal jurisdiction pursuant to §1983 of the Civil
Rights Act, plaintiff must demonstrate that defendants deprived
her of her constitutional or federal statutory rights under color
of state law." 28 U.S.C. §1343(3)(1983)(emphasis added); Par-
ratt v. Taylor, 451 U.S. 527, 532 (1981); Patterson v. Coughlin,
761 F.2d 886, 890 (2d Cir. 1985) (appeal pending). Plaintiff
asserts that defendants deprived her of her first and fourteenth
amendment rights. 7

1. HHC’s and Greenpoint’s Motion

Plaintiff attempts to demonstrate state action based on three
separate theories. Her first theory is that she was an employee
of Greenpoint, a city hospital, which was governed by HHC,
a municipal corporation. She reasons that the actions of HHC
and Greenpoint constituted state action. Defendants deny that
they were Bannerjee’s employers or the employers of any of the
medical staff working at Greenpoint under the Agreement.
Rather, they insist that plaintiff and all medical personnel hired
under the Agreement, were employed by the private affiliate
hospital, BJMC.

Under the terms of the Agreement, BJMC provided medical
staff to work at Greenpoint and was then reimbursed for salaries
and benefits by HHC. Although HHC retained the overall
responsibility of administering Greenpoint’s facilities, BJMC had
control over personnel matters including, hiring, firing and
general employee-employer relations. Even plaintiff asserts that
“BJMC exercised direct control over the personnel services and
employee relations .. . .” Plaintiff's 9(g) Statement, 47.

Several cases have held that HHC’s funding of private affiliate
hospitals which in turn provide medical personnel at city

A-7

hospitals, does not convert employees of the affiliate into city
employees. See Fastenberg v. New York City Health and
Hospitals Corp., et al., No. 156477, (June, 1981, Sup.Ct. Bronx
Co.); See also Wilson v. New York Medical College, et al., No.
14016, (September 19, 1980, Sup.Ct. N.Y. Co.) (HHC may not
be heldiable for employment decisions of private affiliate). In
Rakow v. New York Medical College, et al., No. 4595, (August
25, 1981, Sup. Ct. N.Y. Co.), the court stated

there is no question that plaintiff is an employee of
the New York Medical College [a private hospital] and
not an employee of [HHC] under whose authority and
control the Metropolitan Hospital Center [city
hospital] operates. The only relation between the two
institutions is that New York Medical College provides
medical services pursuant to an agreement with the
[HHC].

Id. Cf. Scott v. Rockaway Community Corporation; 92 Misc.
2d 178, 179 (Sup. Ct. N.Y. Co. 1977) (“no liability for employ-
ment practices may be imposed upon New York City agencies
where the agencies do not exercise control over the practices of
private independent corporations... . ”)

Plaintiff claims that in Papadakis v. Brezenoff, et al., No.
81-2739 (E.D.N.Y. February 2, 1982), the Honorable Mark A.
Costantino determined that Dr. Papadakis, a defendant in this
case, was an employee of HHC/Greenpoint and thereby found
state action. Plaintiff urges the court to follow this determina-
tion and conclude that plaintiff too was a city employee. In
Papadakis, plaintiff alleged that the city and BJMC violated
§§1983, 1985 of the Civil Rights Act by terminating his posi-
tion at Greenpoint without a hearing. Defendants in that case
asserted that the court lacked jurisdiction over the termination
because there was no state action.

The court in Papadakis found state action, not because
Papadakis was a city employee, but because there was substan-
tial evidence that HHC and Greenpoint were extensively in-
volved in Papadakis’ termination, namely, HHC openly ordered

A-8

his removal and despite BJ MC’s requests, HHC would not per-
mit Papadakis to return to work. As discussed below, there is
no evidence of such extensive involvement by HHC in the case
at bar. Nowhere in Papadakis does the court hold that an
employee of an affiliate hospital is a city employee. The basis
for the finding of state action was entirely distinct.

As evidence that she was a city employee, plaintiff points out
that she filed her complaints about Papadakis with the Inspec-
tor General of HHC rather than with BJMC. Because plain-
tiffs charges against Papadakis were that he was using city
facilities for his private practice, it seems reasonable that plaintiff
would report this to the city, raather than to BJMC. Thus, plain-
tiff’s filing of charges with the Inspector General cannot alone
support her contention that she was a city employee.”

Plaintiff has not set forth specific facts in her affidavits or
otherwise, to support her claim that she is a city employee so
as to create a-genuine issue for trial. Fed.R.Civ.P. 56(e). She also
has failed to provide any legal basis for this contention. Thus,
I respectfully recommend that this court find, as a matter of
law, that plaintiff was not a city employee.

Even if this court were to conclude that plaintiff was a
municipal employee, plaintiff would still not satisfy the “state
action” requirement because she has failed to allege what ac-
tions, or lack thereof, were taken by defendants which resulted
in the alleged deprivation of her constitutional rights.”

Plaintiff claims that HHC and Greenpoint were involved in
her supposed “forced resignation” in two respects. First, she con-
tends that they failed to “protect her from retaliation by her
employer and in fact joined in an attempted cover-up .
Complaint 453." Second, she argues that HHC and/or Green-
point participated in the preparation of the “fraudulent” budget.

In Rookard v. Health and Hospitals Corp., 710 F.2d 41 (2d
Cir. 1983), the court held that in order to support a civil rights
action against HHC, a plaintiff must specify which official in
the municipal corporation was involved and the scope of that

A-9

official’s duties. Id. at 45. Plaintiff's evidence in opposition to
the summary judgment motions fails to name any individual
within HHC or Greenpoint who acted or failed to act to en-
courage plaintiff's resignation. In addition, Bannerjee presents
no facts to support the broad allegations against the defendants
that they failed to protect her from retaliation and participated
in the preparation of a fraudulent budget. See Black v. United
States, 534 F.2d 524, 527-528 (2d Cir. 1976) (a civil rights plain-
tiffs failure to provide factual support for her allegations war-
ranted a dismissal of the complaint).

Because plaintiff has failed to establish that she was a
municipal employee or that someone within defendants’
organizations acted or failed to act in derogation of her con-
stitutional rights, plaintiff's first theory fails to support a find-
ing of state action.

Bannerjee’s second theory is that even if she were employed
by the private affiliate, state action existed because there was
a “sufficiently close nexus between the State [HHC] and the
challenged action of the . . . [private] entity [BJMC] so that the
actions of the latter may fairly be treated as that of the State
itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351
(1974). See also Gilliard v. New York Public Library System,
597 F.Supp. 1069, 1074 (S.D.N-Y. 1984).

In order to claim that a private employer’s decision should
be treated as state action, a plaintiff must prove that the state
“has exercised coercive power or has provided such significant
encouragement, either overt or covert, that the [act] must be
in law deemed that of the state.” Blum v. Yaretsky, 457 U.S. 991,
1004 (1982). State involvement absent direct state responsibili-
ty for the alleged deprivation of rights cannot establish state
action. See Jackson v. Metropolitan Edison Co., 419 U.S. at 358.

In Weiss v. Willow Tree Civic Association, 467 F. Supp. 803
(S.D.N.Y. 1979), the court stated that plaintiffs must allege with
some particularity how the public defendants combined with
the private defendants to cause a deprivation of plaintiffs’ rights;
“vague or conclusory allegations of official participation are

A-10

insufficient .. . . ” Jd. at 811. Plaintiff in this case makes sweep-
ing allegations against defendants, without ever specifying what
in fact HHC/Greenpoint did or did not do in conjunction with
BJMC which coerced her to resign. Plaintiff's second theory of
asserting “state action” must be rejected because of her failure
to specifically allege direct state involvement.

Plaintiff next argues that the requisite state action nexus may
be established because HHC fully reimbursed BJMC for salaries
and benefits. The Supreme Court has held, however, that a
private entity's receipt of government funds or implementation
of government policy does not establish a sufficient nexus.
Rendell-Baker v. Kohn, 457 U.S. 830, 840-841 (1982). See also
Modaber v. Culpeper Memorial Hospital, Inc., 674 F.2d 1023,
1026 (4th Cir. 1982) (receipt of government funds did not make
private non-profit hospital’s every act “state action”); Schlein
v. Milford Hospital, Inc., 561 F.2d 427, 428-429 (2d Cir.
1977) (no state action unless state procedures and policies play
a direct role in private hospital’s decision to reject plaintiff's ap-
plication for staff privileges); Barrett v. United Hospital, 376
F. Supp. 791, 802 (S.D.N.Y.), affd mem., 506 F.2d 1395 (2d
Cir. 1974) (a pervasive regulatory scheme may indicate “signi-
ficant” state involvement but does not satisfy the “nexus”
requirement).

Plaintiff's final attempt to establish state action rests on the
theory that HHC is responsible for the affiliate’s acts because
the private hospital “exercised powers traditionally exclusively
reserved to the state.” Rendell Baker v. Kohn, 457 U.S. at 842.
Although health care is an essential public service, it is not a
service traditionally exclusively reserved to the state. Modaber
v. Culpeper Memorial Hospital Inc., 674 F.2d at 1026; see also
Schlein v. Milford Hospital inc., 561 F.2d at 429 (even though
the functions performed by a hospital are clearly affected by
a public interest, they are not activities traditionally associated
with the State’s sovereignty); Barrett v. United Hospital, 376
F. Supp. at 799 (court refuses to extend public function argu-
ment to a private hospital in the absence of a nexus between
the government and the violative activity alleged).

A-11

Because plaintiff has not demonstrated either the requisite
nexus between HHC and the affiliate or that the affiliate was
exercising powers exclusively reserved to the state, her second
and third theories fail to support a finding of state action. Thus,
it is respectfully recommended that HHC and Greenpoint’s mo-
tion to dismiss piaintiff's §1983 claim be granted.

2. The ASP and Basirico’s Motion

As noted above, a private party violates §1983 only to the ex-
tent its conduct involves state action. See Lugar v. Edmondson
Oil Co., Inc., 457 U.S. 922, 935 (1982); DeMatteis v. Eastman
Kodak Co., 511 F.2d 306, 311, modified on other grounds, 520
F.2d 409 (2d Cir 1975).

The only mention of the state’s involvement with the Union
and Basirico is found in paragraphs twelve and fifty-five of the
complaint. Paragraph twelve alleges that the ASP and Basirico
conspired with the other defendants “in the destruction of plain-
tiffs career.” Paragraph 55 states that all defendants “through
concerted action illegally and fraudulently pressured her to
resign in an attempt to remove the threat of discharge . . . from
defendant Papadakis.”

The complaint and affidavits leaves the Union’s and Basirico’s
involvement with the state “entirely to the court’s imagination.”
Bannerjee v. Papadakis, et al., 583 F. Supp. 757, 761 (E.D.N.Y.
1984) (court dismissed plaintiffs complaint in its entirety, against
two private defendants, BJMC’s president and its attorney). Ab-
sent particularized-allegations of how the state combined with
the ASP and Basirico, plaintiffs §1983 claim against these defen-
dants cannot stand. See Weiss v. Willow Tree Civic Association,
467 F. supp. at 811 (plaintiffs must allege with some particularity
how public defendants combined with private defendants to
cause a deprivation of plaintiff's rights). Accordingly, it is respect-
fully recommended that the court grant the ASP and Basirico’s
motion to dismis the §1983 claim.

C. Defendants’ Motions to Dismiss The §1985 Claim

Plaintiff asserts that defendants conspired to deprive her of
her fourteenth and first amendment rights in derogation of

A-12

§1985. Although some claims under this section may be sustained
without state action, Griffin v. Breckenridge, 403 U.S. 88 (1971),
claims premised on the first and fourteenth amendments require
a finding of state action. United Brotherhood of Carpenters and
Joiners of America v. Scott, 463 U.S. 825, 831-833 (1983) (an
action under 42 U.S.C. §1985(3) for violations of first and four-
teenth amendment rights requires proof of state involvement).

For the reasons set forth above, plaintiff has failed to
demonstrate state action. Thus, it is respectfully recommended
that defendants’ summary judgment motions to dismiss Ban-
nerjee’s §1985 claims be granted.*

D. Plaintiff's Request for Additional Discovery

Plaintiff asks the court to grant her additional discovery to
enable her to further substantiate her claims under the Civil
Rights Act. Affirmation of Joan Goldberg, September 13, 1983
at 414.

Plaintiff cannot defeat a motion for summary judgment mere-
ly by stating conclusory allegations and “amplifying them only
with speculation about what discovery might uncover.” Con-
temporary Mission Inc. v. U.S. Postal Service, 648 F.2d 97, 107
(2d Cir. 1981). See also Neely v. St. Paul Fire & Marine Insurance
Co., 584 F.2d 341, 344 (9th Cir. 1978); 1OA C. Wright & A.
Miller, Federal Practice and Procedure §2739 at 521-522 (Civil
2d 1983).

Plaintiff filed her action in June 1983. She had over two years
in which to gather evidence to support her contentions. At this
late date, it is unreasonable for plaintiff to be searching for ad-
ditional evidence to put meat on the bones of her allegations.
It is therefore respectfully recommended that the court deny
plaintiffs request for additional discovery.

E. Defendants’ Motions to Dismiss the §301 LMRA
Claims

Plaintiff alleges that HHC, Greenpoint, the ASP and Basirico
violated §301 of the LMRA. Section 301 regulates relationships

A-13

among employees, their unions and employers. Employees may
bring actions against their union for breach of its duty of fair
representation and against their employer for its breach of a col-
lective bargaining contract. Hines v. Anchor Motor Freight, Inc.,
424 U.S. 554, 561-62 (1976); Assad v. Mount Sinai Hospital, 703
F.2d 36, 40 (2d Cir.) vacated and remanded on other grounds
sub nom., 464 U.S. 806 (1983).

1. HHC and Greenpoint’s Motion

Because HHC and Greenpoint were not plaintiff's employers,
and, in addition, plaintiff made no allegation that these defend-
ants violated the collective bargaining agreement, it is recom-
mended that the court grant HHC and Greenpoint’s motion to
dismiss plaintiff's §301 claim.”

2. Union and Basirico’s Motion

Plaintiff alleges that the ASP, acting through Basirico, im-
properly handled her grievance, thereby breaching the duty of
fair representation it owed her. Complaint 444-45. The Union
argues that plaintiff's claim is barred by the pertinent statute
of limitations.

In Del-Costello v. IBT, 462 U.S. 151 (1983), the court held
that breach of the duty of fair representation suits arising under
§301 of the LMRA are governed by the six month statute of
limitations in §10(b) of The National Labor Relations Act, 29
U.S.C. §160(b)(1982). Id. at 169. Thus, for plaintiff's claim to
have been timely, it must have been filed within six months of
the date the cause of action accrued. In Del-Costello, the court
did not discuss when the cause of action accrues in a §301 case.
Defendants here claim that plaintiff's rights accrued on the date
of the arbitration proceeding at which plaintiff signed the set-
tlement agreement, September 5, 1980. Plaintiff did not com-
mence this action until June 1983.

In King v. New York Telephone Co., 610 F. Supp. 252, 254
(E.D.N-Y. 1985), the court held that §301 claims accrue no later
than the time when a plaintiff believed or reasonably should
have believed that a breach of the duty of fair representation

A-14

occurred. Even if Bannerjee did not believe the duty was
breached on the date of the arbitration, surely she should have
realized the alleged breach by December 1980 when she admits
she found out that a new pathologist had been hired to replace
her. Plaintiff's Affidavit, December 6, 1985 429. Thus, plain-
tiffs action accrued no later than December 1980.

Plaintiff claims that the six month statute of limitations was
tolled as a result of negotiations between HHC and herself con-
cerning her reemployment. In Solis v. Papageorge, et al.,
No. 83-4991 (E.D.N.Y. August 2, 1985), the Honorable I. Leo
Glasser held that-an-employer’s informal negotiations with the
union, conducted prior to litigation regarding plaintiffs
reemployment, can toll the six months statute of limitations.

In Solis, it was undisputed that the negotiations occurred. In
this case, HHC denies engaging in negotiations with plaintiff
at any time concerning reemployment. Although on a summary
judgment motion, the court is bound to review the record in
the light most favorable to the party opposing the motion, that
party must “set forth specific facts [in affidavits or other eviden-
tiary material] showing that there is a genuine issue for trial.”
Fed.R.Civ.P. 56(e). Plaintiff has not supplied the court with facts
to support her allegation that negotiations took place prior to
the commencement of litigation other than her attorney’s asser-
tions that they did in fact occur. The record includes no affidavits
or deposition testimony of an individual who allegedly
negotiated on HHC’s behalf. Plaintiff's own affidavit states

after litigation commenced Corporation Counsel con-
tinued to suggest to [plaintiffs attorney] that I send
my resume first to Woodhull Hospital and thereafter
to Coney Island Hospital. As late as May 1985 [my
attorney] advised me that one Elisa Huttner called
to suggest that I show my resume to Coney Island
Hospital.

Id. at 433. Even if these events did occur, they could not toll
the statute of limitations because they took place subsequent
to plaintiff's filing of her action.

A-15

Plaintiff's unsupported assertion that there were negotiations
prior to the onset of litigation is insufficient to create a genuine
issue for trial. It is respectfully suggested that no material ques-
tion of fact exists as to the tolling of the statute of limitations
under §30l.

Plaintiff next argues that Del Costello should not be applied
retroactively. The Second Circuit has squarely held however, that
in §301 cases, “a six-month statute of limitations applies both
retroactively and prospectively.” Welyczko v. U.S. Air, Inc., 733
F.2d 239, 241, (2d Cir.) cert. denied, 105 S.Ct. 512 (1984); See
also Assad v. Mt. Sinai Hospital, 725 F.2d 837, 838 (2d Cir. 1984)
(per curiam).

Plaintiff slept on her rights for two and one half years after
her cause of action accrued. Thus, the time limitations rule of
Del-Costello compels this court to respectfully recommend that
the Union and Basirico’s motion to dismiss plaintiffs §301 claim
be granted.

F. Pendent State Claims

Plaintiff also alleges common law fraud against these de-
fendants. The Second Circuit has held that if federal claims are
disposed of on summary judgment motions, the court should
refrain from exercising pendent jurisdiction. Kavit v. A.L. Stamm
& Co., 491 F.2d 1176, 1179 (2d Cir. 1974) (Friendly, J.). Because
it is recommended that summary judgment be granted to defend-
ants on all the federal claims, it is further recommended that
the court, in its discretion, not retain jurisdiction over any state
law claims that may remain against these defendants. United
Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).

III. CONCLUSION

Because plaintiff has failed to show the existence of a genuine
issue for trial either on her claims under the Civil Rights Act
of §301 of the LMRA, I respectfully recommend that defendants’
motions for summary judgment be granted. I also recommend
that this court not retain jurisdiction over plaintiffs pendent
state claims as to the moving defendants.”

A-16

A copy of his Report and Recommendation is being mailed
today to all parties, who are hereby advised that objections to
the report may be served and filed with the district court, with
a copy to me, within ten (10) days of receipt.

/s/Shira A. Scheindlin

Shira A. Scheindlin
United States Magistrate

Dated: Brooklyn, New York
May , 1986

A-17

FOOTNOTES
' The ASP is no longer in existence as a Union.
? Dr. Basirico died in January, 1985.

* The complaint is unclear as to the basis for plaintiffs charges
of discrimination. Paragraph 56 of the complaint states, “this
is a prime example of men joining together to protect one of
themselves to the extreme disadvantage of plaintiff who is
female.” Paragraph 55 states, “all the defendants through con-
certed action illegally and fraudulently pressured [plaintiff] to
resign . . . to remove the threat of discharge . . . from defend-
ant Papadakis.” Further, paragraph 53 notes that defendants
retaliated against her for her actions. In civil rights actions,
pleadings should be liberally construed. Windsor v. Bethesda
General Hospital, 523 F.2d 891, 893 (8th Cir. 1975); Holloway
v. Carey, 482 F. Supp. 551, 553 (S.D.N-Y. 1979). Thus, the court
construes the complaint as alleging both sex and “whistle blow-
ing” discrimination.

*In Bannerjee v. Papadakis, et al., 583 F. Supp. 757 (E.D.N.Y.
1984), Judge McLaughlin dismissed plaintiff's complaint against
Jay Kriegal, president of BJMC and David Diamond, attorney
for BJMC. Gerstler has never appeared in this action. Although
Dr. Papadakis has submitted a letter and an affidavit in con-
nection with these motions, he has not formally moved to dismiss
or for summary judgment. See footnote 18, infra.

* Greenpoint was closed in the fall of 1982.

* BJMC has filed for bankruptcy under Chapter XI of the
Bankruptcy Act, 11 U.S.C. §701 et seq.

’ The actual Affiliation Agreement between HHC and BJMC
was never signed. The parties agree, however, that HHC and
BJMC were operating under the terms of the unsigned Affilia-
tion Agreement.

* The Union claims that it was not certified as a collective
bargaining agent under the State Bargaining Act because it was
dealing with BJMC a private hospital. Transcript of Hearing
on Motions (“Tr.”) at 22.

A-18

It should be noted that the collective bargaining agreement
between Greenpoint, BJMC and ASP states that employees may
not be removed except for cause.

* Dr. Papadakis was in fact terminated from his position.
© The settlement agreement is attached to the complaint.

On September 18, 1980, plaintiff informed the Inspector
General that despite her promise in the settlerment agreement
to withdraw the charges against Dr. Papadakis, she in fact would
not withdraw the allegations.

4“ The statutory requirement of action “under color of state law”
under the civil rights statute and the “state action” requirement
of the Fourteenth Amendment are identical. Lugar v. Edmond-
son Oil Co., Inc., 457 U.S. 922, 929, 931 (1982). Thus, these terms
will be used interchangeably throughout this Report and
Recommendation.

2 In 453 of the Complaint, plaintiff asserts that HHC and Green-
point failed and refused to protect her from retaliation by her
employer (emphasis added). This indicates that she herself con-
sidered Papadakis or BJMC to be her employer.

' It must be noted that neither HHC nor Greenpoint were
represented at the arbitration proceedings.

* It seems unlikely that these defendants sought to terminate
plaintiff due to the accusations she made against Papadakis since
it was HHC that terminated Dr. Papadakis based on plaintiff's
complaints.

's Plaintiff cites Lombard v. Eunice Kennedy Shriver Center For
Mental Retardation, Inc., 556 F. Supp. 677, 678-9 (D. Mass.
1983) which held that a private organization’s contractual role
in providing medical care for involuntarily committed residents
of state mental institutions amounted to state action. There is
a distinct difference between providing hospital care to patients
who are not compelled to enter a particular hospital and pro-
viding care to patients who have been involuntarily committed
by the state to a particular state hospital.

A-19

'* Even if plaintiff had established state action, her §1985 claim
could not stand. Her complaint alleges nothing more than that
defendants conspired to force her to resign. This Circuit has
repeatedly held that complaints containing only conclusory,
vague or general allegations of conspiracy to deprive a person
of constitutional rights cannot withstand a motion to dismiss.
Contemporary Mission Inc. v. U.S. Postal Service, 648 F. 2d 97,
107 (2d Cir. 1981); Ostrer v. Aronwald, 567 F.2d 551, 553 (2d
Cir. 1977).

'’ Neither HHC nor Greenpoint were parties to the collective
bargaining agreement.

's It is further recommended that plaintiff's complaint against
Dr. Papadakis be dismissed sua sponte for failure to state a claim.
Dr. Papadakis was an employee of BJMC. No civil rights claim
or §301 claim would lie against him for the reasons set forth
in this opinion. It is well settled that the district court may
dismiss a complaint sua sponte for failure to state a claim.
Leonhard v. United States, 633 F.2d 599, 609 n.11 (2d cir. 1980)
(citing Robins v. Rarback, 325 F.2d 929 (2d Cir. 1963), cert.
denied, 379 U.S. 974 (1965) ); Dahlberg v. Becker, 581 F. Supp.
855, 863 (N.D.N.Y.), affd, 748 F.2d 85 (2d Cir. 1984), cert.
denied, 105 S.Ct. 1845 (1985).

A-20

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: SPECIAL TERM PART I

RAYMOND W. RAKOW, M_LD.,
Plaintiff, |
— against —

NEW YORK MEDICAL COLLEGE; JOSEPH A. :
CIMINO, M.D., as President, New York Medical

College; SAMUEL RUBIN, M.D., as Dean, New :

York Medical College; VICTOR TEICHNER,

M.D.., individually and as Chief of Service, Depart- :

ment of Psychiatry, Metropolitan Hospital Center;

ALFRED FREEDMAN, M.D., individually andas : INDEX
Chairman, Department of Psychiatry, New York NO.
Medical Colleges NEW YORK CITY HEALTH : 4595/81
AND‘ HOSPITALS CORPORATION; ABRAHAM

KAUVER, M.D., as President, New York City :

Health and Hospitals Corporation; CARLOS

LORAN, as Acting Executive Director, Metro- :

politan Hospital Center, MEDICAL BOARD

OF METROPOLITAN HOSPITAL CENTER; :
CAMILLE MALLOUH, M.D., as President of the

Medical Board, Metropolitan Hospital Center,

Defendants.

BLYN, J.:

Motion by plaintiff, brought on by order to show cause, seeks
an order enjoining, restraining and prohibiting defendants from
reassigning plaintiff from his position as Director of the Divi-
sion of Liason and Consultation in the Department of Psychiatry
at Metropolitan Hospital Center unless they first comply with
the procedures in the By Laws of the Medical Staff and Medical
Board, harassing, retaliating against or maligning plaintiff; or
subjecting him to increased surveillance or rules which have not

A-21

been applied to him before May, 1981 (sic); or consenting to or
condoning any of the foregoing activities on the part of other
individuals associated with or agents of New York Medical Col-
lege; permitting, condoning or ignoring the reassignment,
transfer, discharge, demotion, alteration in duties or functions,
or discipline of plaintiff without requiring compliance with the
procedures in the By Laws of the Medical Staff and Medical
Board.

There is no question that plaintiff is an employee of the New
York Medical College and not an employee of the Health and
Hospitals Corporation under whose authority and control the
Metropolitan Hospital Center operates. The only relation be-
tween the two institutions is that New York Medical College pro-
vides medical services pursuant to an agreement with the Health
and Hospitals Corp.

In light of these facts the By Laws and Regulations of the
Medical Staff and Medical Board of the Metropolitan Hospital
do not apply to the dispute between the plaintiff and his
employer New York Medical College.

What remains thus is the dispute between management of
a private hospital and an employee.

In considering an application for a preliminary injunction
one must look to the following elements.

1. Is there a likelihood of success in the underlying causes of
action (which seek a permanent injunction)?

2. Will plaintiff sustain irreparable harm if his application
is denied?

3. Is there an adequate remedy at law?

As to the first element the court does not believe that there
is a likelihood of success. Decisions as to the administration of
a private hospital are best left to management and the courts
should not interfere with internal management of such a
hospital.

A-22

As to the second item — the assignment to which plaintiff ob-
jects has already been made and thus there is no status quo to
maintain. If the plaintiff is seeking to undo what has been done
and asks the court to restore him to his previous status he is asking
for a writ of mandamus which is not available as to private
parties.

As to the third element plaintiff is seeking an award of
$1,500,000 and other dollar damages and thus has a remedy at

law.

For the foregoing reasons the motion for a preliminary in-
junction is denied.

This decision shall constitute the order of the court.

Dated: March 25, 1981

ARTHUR E. BLYN
J.S.C.

A-23
SUPREME COURT: NEW YORK COUNTY .
SPECIAL TERM PART I
OSWALD WILSON,
Petitioner, :

For a Judgment pursuant to Article 78 of °

the CPLR.

— against — _ Index No.
NEW YORK MEDICAL COLLEGE, sees
NEW YORK CITY HEALTH & coe i
HOSPITALS CORP. and NORMAN C. pp rntserbay
PFEIFFER, Se

Respondents.

—_— =_—- == «== «ass aes aes ome aoe aes oes cee cee cee cee cee cos coe x
FRAIMAN, J.:

Motions numbered 53 and 130 of the calendar of September
4, 1980 are consolidated for disposition. Petitioner was the Blood
Bank Supervisor at Lincoln Hospital in New York City. He was
discharged in May, 1980 and by this Article 78 proceeding he
seeks to be reinstated to his position. Respondents are the New
York Medical College (the College) of which Lincoln Hospital,
a municipal hospital, is an affiliate; the New York City Health
and Hospitals Corporation (HHC), which reimburses the Col-
lege for its expenses in providing medical services for Lincoln
Hospital; and Dr. Norman C. Pfeiffer, Chief of Pathology at
Lincoln Hospital, who allegedly was responsible for petitioner's
dismissal. Basis for the petition is the contention that petitioner
was dismisséd because he is black and his discharge was without
a hearing. Prior to commencing the instant proceeding petitioner
filed a complaint against the College with the New York State
Division of Human Rights in which he alleged that he was
discharged because of his race, and that complaint is currently
pending.

A-24

Respondents have cross-moved to dismiss the petition on the
ground that it fails to state a cause of action. With respect to
HHC, it contends that the petition must be dismissed as to it
because it has no authority over, or responsibility for, the Col-
lege’s hiring and firing of its staff. Petitioner concedes that at
the time of his discharge he was on the payroll of the College,
but argues that HHC is a proper party to this proceeding because
it reimbursed the College for his salary and that of the other
members of Lincoln pursuant to the affiliation agreement be-
tween HHC and the College, whereby the College undertook,
commencing July 1, 1979, to provide medical services at Lin-
coln. However, inasmuch as no evidence has been offered that
HHC was involved in any way in petitioner's dismissal, the fact
that HHC funded the College’s operation of Lincoln does not
provide a basis for imposing liability on HHC for the employ-
ment practices of the College. See Matter of Scott v. Rockaway
Corp., 92 Misc.2d 178 (Sup.Ct. N.Y.Co. 1977); Matter of Clan-
cy v. Trustees of Columbia University, 66 Misc.2d 356 (Sup.Ct.
N.Y. Co. 1971). Accordingly, the petition as to HHC is dismissed.

The petition against the College and Dr. Pfeiffer must also
be dismissed. As indicated above, prior to the commencement
of this proceeding, petitioner filed a complaint against the Col-
lege with the New York State Division of Human Rights, charg-
ing that he was dismissed because of his race. Section 297(9)
of the Executive Law permits an individual aggrieved by an

“unlawful discriminatory practice to bring an action in a court
of appropriate jurisdiction unless such person has filed a com-
plaint with the Human Rights Division. In such case, Section
300 provides that the proceeding before the Division, while
pending, shall be exclusive. Accordingly, the instant proceeding
cannot be maintained at this time. See Emil v. Dewey, 49 N.Y.2d
968 (1980). Settle judgment.

Dated: September 19, 1980.

s/

J.S.C.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1176%3A2. Public record. Not legal advice.