Appendix — Kayzakian v. Buck
Supreme Court brief1989
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No. 89-
a |
In The G Eee
JPREME COURT OF THE UNITED STATES
October Term, 1989
SOUGHIK KAYZAKIAN,
Petitioner,
Vv.
CHARLES R. BUCK, et al
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
UNITED STATES COURT OF THE
FOR THE FOURTH CIRCUIT
Counsel of Record
ee, 2035
(804) 272-
i Woodley, Jr.
. Of Counsel
WOODLEY, SIMON & WOODLEY
Richmond, Virginia 23219
_ Counsel for Petitioner
la
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 87-2187
SOUGHIK KAYZAKIAN, (’Sonia’)
Plaintiff-Appellant
v.
R. Sa Sued in his
Secreiany of Health "THEODORE
THORNTON in his individual
; THOMAS F. KRAJEWSKI, Sued
in his individual as well as
official ca A tendent,
Spri H Center;
JON/ - BOOK, Sued in his
i
TABLE OF CONTENTS
Opinion of the United States Court of
Appeals for me a Circuit,
December 20, 1988. .......
Decision of the United States Court ,*
Appeals for the Fourth Circuit o
Petition for Rehearing, June 19, 1989 .
Memorandum and Order of the United
States District Court for the
District of Maryland,
Complaint in Kayzakian v. Krajewski . . .
States District Court for the
Statutes and Rule Exerpts:
Title 42, United States Code... .
Rule 15(d), Federai Rules of
Civil Procedure
Page
la
7a
10a
103a
109a
109a
PETER T. PO Hospi ILO, Sued in
official
capé 5 Doce, Sea
Spangheld Hosplal Cen, Sued in his
* *« S$ .
Field Hos Genter, ETHEL MATTEGUNTA,
pe in RP individual as — as
re) ca Physician, Spring-
field Hospital Center
Defendants - Appellees
Appeal from the United States District Court for the
District of land , at Baltimore. Frank A. Kaufman,
Senior Distri ct Judge. (C/A No. 84-974)
Submitted: September 30, ae Decided: December 20,
Oe Rete OO ge ese n eta De
3a
lo HALL, PHILLIPS, and MURNAGHAN, Circuit
es.
Curran, Jr. David . Peay cme oe Daniel d O'Bnen OF FFICE
PER CURIAM:
Soughik ("Sonia") Kayzakian appeals from the district
court’s order dismissing her ciaims for relief under 42
U.S.C. $§ 1983, 1985, 1986, 1988, and 1997(d).
Appellant contends that Judge Kaufman improperly
failed to recuse himself and that the doctrine of res
judicata should not have teen applied to bar her claims.
Our review of the record and the district court’s opinion
discloses that this appeal is without merit.
Under 28 U.S.C. §144, when a party files a timely and
sufficient affidavit that the judge has a personal bias
against him or for an adverse party, the judge is required
to recuse himself. Kayzakian motion and affidavit,
however, were not sufficient. Appellant bases her charge
of bias only upon Judge Kaufman’s familiarity with her
prior case and the pre-trial decisions he made against
her. Where the source of the bias is not showr to be
4a
“outside the record or a related proceeding or [related to
the judge’s} experience on the bench," it is not sufficient
basis for disqualification. Shaw v. Martin, 733 F.2d 304,
308 (4th Cir. 1984) (emphasis added); United States v.
Carmichael, 726 F.2d 158, 160 (4th Cir. 1984).
Therefore, Judge Kaufman did not abuse his discretion
when he did not recuse himself, and this argument by
appellant presents no meritorious grounds for appeal.
Appellant also argues the doctrine of res judicata was
improperly applied to bar her claims. She contends
there is no identity of cause of action or privity between
the parties in the present case and her prior suit,
Kayzakian v. Krajewski, No. 84-1460 (4th Cir.)
(unpublished), cert. denied, 479 U. S. 1018, 93 (1986).
Analysis of the two cases shows that in both suits
appellant alleges the same conspiracy, seeks the same
relief, and relies on the same laws or statutes. This is
more than adequate to establish identity of cause of
action. Nash City Bd. of Educ. v. Biltmore Co., 640 F.2d
484 (4th Cir.), cert. denied, 454 U.S. 878 (1981). Merely
stating additional facts in the complaint or bringing the
claims pursuant to additional statutory authority, as
Sa
Kayzakian does in her present claim, does not change
the nature of the cause of action. Id. at 487-88.
Appellant names as defendants in this case eight new
individuals in addition to the nine defendants named in
her prior suit. She contends there is no identity of
parties between the two actions with respect to these
eight new defendants. In order to have identity of
parties between two actions, however, the parties need
not be exactly the same. Strangers to prior litigation can
| plead estoppel based on privity. Humphreys v. Tann, 487
| F.2d 666, 571 (6th Cir. 1973), cert. denied, 416 U. S. 956
| (1974); Zdanok v, Glidden Co., 327 F.2d 944, 954-56 (2d
| Cir.) cert. denied, 377 U'S. 934 (1964); Ligon v. State of
| Maryland, 448 F. Supp. 935 (D.C. Md. 1977); (citing
| Rachal v. Hill, 435 F.2d 59, 61-62 (5th Cir. 1970)).
Privity exists where a plaintiff attempts to relitigate the
same claim by naming different governmental entities
and employees as defendants. Mears v. Town of Oxford,
Md., 762 F.2d 368, 371 n.3 (4th Cir. 1985}; Miller v.
United States, 438 F. Supp. 514, 520-21 (E.D. Pa. 1977).
The eight new defendants are all employees, co-workers,
or administrators of the same governmental bodies as the
defendants listed in the prior action and are therefore in
j
6a
privity with them. Also, where, as in the present case,
the defendants’ involvement in the original conspiracy
was known to the plaintiff during the pendency of the
previous action, and the complaint in this second action
does not allege new facts, then privity will be found and
Tes judicata will apply. Manego v. New Orleans Board
of Trade, 773 F.2d 1,5-7 (1st Cir. 1985), cert. denied, 475
U.S. 1084 (1986). =
Because the facts and lega! contentions are
adequately presented in the materials before the Court,
appellant’s motion for leave to file a formal brief is
denied. We dispense with cral argument because the
dispositive issues recently have been decided
authoritatively.
AFFIRMED
(Wiener en ee
7a
-
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FILED
. No. 87-2187 JUN 19 1989
SOUGHIK KAYZAKIAN, (’Sonia’)
Plaintiff-Appellant,
versus
Charles R. Buck, Sued in his individual
capacity, Former Secre of Health;
Theodore Thornton, S in his individual
as well as official ity,
Pe
Leer R Malone, Sted i
ae Sa cence
Park, Sued in fnivigual ge well as ffi
Ethel latiegunte, Sued in ~~ individual as well
as Official capacity Physi
Hospital Center. —_
Defendants - Appellees
ORDER
Upon consideration of the supplemental briefs filed in
response to the order granting rehearing in this appeal,
the court has concluded that the petition for rehearing
was improvidently granted, and should have been denied.
It is accordingly ORDERED that the court’s order
of March 29, 1989, granting rehearing of this appeal is
withdrawn as improvidently granted, and the petition for
rehearing is hereby DENIED.
9a
Entered by the direction of Judge Phillips with the
concurrences of Judge Hall and Judge Murnaghan.
FOR THE COURT:
—Sciohn M. Greacen
= x + * ‘ PA
oro eee a he ? a ae eee rye ay "
“| - CGAP > * x
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10a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUGHIK (’SONIA’) KAYZAKIAN *
V. * CIVIL NO. K-84-974
CHARLES R. BUCK, ET AL. m
MEMORANDUM AND ORDER
In Kayzakian v. Krajewski, et al., Civil No.
K-82-3141, plaintiff's complaint was dismissed by this
Court with prejudice on March 20, 1984. Thereafter,
that dismissal was affirmed by the United States Court of
Appeals for the Fourth Circuit. Kayzakian v. Krajewski,
et al., unpublished slip op. No. 84-1460 (4th Cir. June
2, 1986), A writ of certiorari was then denied by the
Supreme Court. _- U.S. __, 93 L-Ed.2d 722 (1986),
For the reasons set forth by defendants in support
of their motion to dismiss, defendants’ said motion is
hereby granted. In the within case, defendants correctly
raise the application of the doctrine of res judicata.
That defense can be raised in support of a motion to
ty
r
lla
dismiss. Thomas v. Consolidation Coal Co., 380 F.2d 69,
75 (4th Cir.), cert. denied, 389 U.S. 1004 (1967).
FACTS
Plaintiff's allegations in both cases are fully and
adequately set forth in defendants’ memorandum filed in
support of their August 7, 1986 motion to dismiss.
DISQUALIFICATION
The undersigned Judge of this Court, despite
questions raised by plaintiff, has no doubt about his
ability to consider and determine fairly and impartially
the issues in this case. Plaintiffs dissatisfaction with the
results of the litigation in Civil No. R-82-3@4@ or with
the handling of this case are no basis for disqualification
of the said undersigned Judge.
APPOINTMENT OF COUNSEL
Plaintiff, in the first case, Civil No. K-82-3141, was
represented by several competent attorneys who
represented her diligently. Herein, in the second case,
plaintiff basically restates her claims in the earlier case.
Under the circumstances, none of plaintiffs allegations
herein present any legal or other issues which lead this
12a
Court to believe that it should appoint new counsel for
plaintiff.
LAW
In order for a case to be barred by res judicata,
the essential elements are.., (1) a final
j the merits in an earlier suit, (2
both {he
t on
an identity of the cause of action in both t
earlier and the later suit, and (3) an identity
‘ of parties or their privies in the two suits.
640
(1981). Plaintiffs within second action falls squarely
within that test. To begin with, plaintiff's first action,
Civil No. K-82-3141, was dismissed with prejudice. Thus,
a final judgment on the merits was entered in that case.
See Lawlor v. National Screen Service Corp., 349 U.S.
322, 327 (1955); Angel v. Bullington, 330 U.S. 183, 190
(1947); Gambocz v. Yelencsics, 468 F.2d 837, 840 (3d
Cir. 1972).
Second, plaintiff's cause of action in both suits is
identical. In each case, plaintiff alleges the same set of
operative facts, namely, the same retaliatory scheme of
harassment. See J. Aron and Company, Inc. v. Service
Transportation Co., 515 F. Supp. 428, 445-47 & n.23_—
13a
(D.Md. 1981) (Murray, J.) (discussing what constitutes
operative facts). While it is true that plaintiffs within
complaint alleges certain facts not contained in the
complaint filed in the prior action, those additional
factual allegations are part of the same transaction, and
present no distinct legal claim. Moreover, those
additional facts were known, or should have been known,
_ by plaintiff before judgment was entered in the prior
action. Accordingly, plaintiff is therefore barred from
asserting them now. See Lawlor, 349 US. at 328;
Manego v. Orleans Board of Trade, 773 F.2d 1, 5 (Ist
Cir. 1985), cert. denied, 106 S. Ct. 1466 (1986) (res
judicata bars relitigation of issues which either were
raised could have been raised in a prior action); J, Aron
and Company, Inc., 515 F. Supp. at 447 (mere shift in
proferred evidence is not enough) (quoting Restatement
of Judgments §61.1(a) comment b (Tentative Draft No. 5,
March 10, 1978)). Similarly, it is irrelevant that in her
second action plaintiff claims a right to relief under
statutes, theories or approaches not relied upon in the
first action. Manego, 773 F.2d at 6 (different legal
theory is not tantamount to different transaction); Nash
County, 640 F.2d at 488.
14a
Finally, there is an “identity of parties or their
privies." See Nash County, 640 F.2d at 493-94 & n.17.
The plaintiff in both actions is the same. All of the
defendants named in the first case are defendants named
in the second case along with eight additional defendants
not named in the first action (Buck, Thornton,
Karahasan, Leichtman, Roberts, Malone, Park and —
Mattegunda). These eight new defendants are in privity
with the defendants named in both cases, i.e., all
defendants in the second case are alleged to have been
involved in the harassment scheme complained of in
both suits. Plaintiff has lodged no claims in the second
case which are different in essence or in substance
against any of those additional defendants which were
not alleged in the first action. Accordingly, plaintiff's
within action against the original defendants and also the
additional defendants is barred. See Manego, 773 F.2d
at 6 (defendants considered in privity when their
involvement in trausaction was known by Plaintiff at the
time of the pendency of the prior suit and complaint in
second action did not allege new facts with regard to
them); Gambocz, 468 F.2d at 842 (additional defendants
considered in privity when in first action they were
15a
alleged to have participated in original conspiracy even
though they were not named parties); see also
Croatan Books, Inc. v. Baliles, 583 F. Supp. 857, 862-63
(E.D.Va. 1984) (agents of same government not acting
in an individual capacity are in privity with each other).
For the foregoing reasons, the within case, i.e.,
Civil No. K-84-974, is hereby dismissed with prejudice.
The Clerk is directed to send copies hereof to
plaintiff and to counsel of record. It is so ORDERED,
"this 23rd day of September 1987.
mor Uni tates District Judge
wv.
16a
[412]
TRANSCRIPT OF PROCEEDINGS
THE COURT: Hello.
MR. MARR: Hi, Your Honor.
THE COURT: Mr. Marr is on. And who else is
on? Ms. Meredith?
MS. MEREDITH: Yes, Your Honor.
MR. MARR: Yes, Your Honor.
THE COURT: All right. Now this is in Kayzakian
against Krajewski, Civil Number K82-3141.
I note the protective order granted by Judge Ramsey
on 11/25/83. I certainly would have granted it if I had
been here.
Ms. Meredith has written a letter to the Court on
12/5/83 concerning Mr. Mart’s attempt to amend the
complaint and reopen discovery.
I think Ms. Meredith’s position is totally sound and
Mr. Marr’s motion to amend and reopen discovery is
denied.
When Mr. Marr came into this case, he was told that
there had been extensive proceedings before he came in
which had involved counsel who preceded him and that I
17a
did not expect to permit a lot of new positions to be
taken and a lot of extensions to be granted.
Mr. Marr seems to have forgotten that many times
and has been already granted, frankly, much more
leeway than
[413] 3
I believe probably in retrospect should have been
granted to him.
Mr. Marr in his 12/5/83 letter talks about
amendments to the pleadings. Frankly, I do not even
think there is a formal motion to amend but I would
treat the formal motion just as I have indicated in any
event.
In the pretrial order, and I note we are already at
the pretrial order stage, at pages 14 and 15, Mr. Marr
sets forth his views with regard to the amendment
required by the pleadings. Well, the complaint is not
amended.
In the pretrial order, the parties have not set forth
any additional stipulations, although defendants have
requested plaintiffs to stipulate to certain facts.
18a
I cannot require that the parties stipulate to anything
and I can understand that Mr. Marr may have some
problem with his client in working out stipulations.
If in good faith and with all due efforts Mr. Marr
cannot work out those stipulations, I will permit the
defendants to specifically request admissions from —
plaintiff and plaintiff can have that same opportunity so
that those requests for admissions will tie both parties --
and the responses to them, which will have to be very
prompt, will have to tie the parties down.
Now, I would suggest that counsel get together and
make it perfectly clear to their respective clients that if
[420]
time.
MS. MEREDITH: Yes, Your Honor. My concern is
that my list of witnesses to some extent depends on what
way the Court rules on my motion in limine.
THE COURT: Let’s take your motion in limine up
first now. |
I am going off the record for just a minute. Please
stay on the line and talk among yourselves for a minute.
I need to interrupt for just a second.
(Proceedings briefly suspended.)
19a
THE COURT: Hello?
MR. MARR: Hi, Judge.
MS. MEREDITH: Yes.
“THE COURT: All right, we are back on the record.
Now, let’s take the motion in limine first. That
motion was filed December 5th. It has not been
responded to, nor was Mr. Marr required to respond to
it by today’s date.
What is your position with regard to it, Mr. Marr?
MR. MARR: Your Honor, I believe that there is
sufficient evidence of record at this particular juncture to
cause the COurt to take a wait and see attitude about it.
I believe that we will prove, if not by direct evidence,
by circumstantial evidence -
THE COURT: Now, let me interrupt.
MR. MARR: There’s a bunch of categories in the
[421]
motion in limine but I believe that our evidence will
show that in fact the evidence that we seek to have
introduced that defendants seek to exclude will in fact be
relevant, but I must confess that it must really abide a
play-out in the record.
20a
THE COURT: Ms. Meredith, I have not had a
chance, frankly, since this document came into the
Clerk’s office on the afternoon of Monday, December
Sth, these long documents - you filed a 40-some page
supporting document -- I have not had a chance to get
into these matters. ;
MS. MEREDITH: Yes, Your Honor.
THE COURT: Now, the other motions are a little
easier to look at and I have glanced through them, but
this long one I have not had a chance to work on.
What is it all about? Capsulize it for me in a second
or two. |
MS. MEREDITH: Well, Your Honor, the affidavit --
THE COURT: Ms. Meredith, you have got to move
that -- move in closer to that telephone and talk about
three times as loud or I have got to get you to come
4
over here.
MR. MARR: Your honor, in all fairness to Ms.
Meredith, I placed this call and I think she’s coming
through my phone to you so I guess she does have to
speak up a little louder.
[422]
21a
THE COURT: If it gets to be burdonsome, Ms.
Meredith, we will have to reset the call or —-
MS. MEREDITH: That’s fine, Your Honor. I'll
shout. Okay? Can you hear me know?
THE COURT: I hear you fine. It does not seem
like you are shouting. Now you are fine.
MS. MEREDITH: Okay. Well, I am shouting. I'll
continue to shout. | ;
MR. MARR: [I'll agree with that.
THE COURT: Go ahead.
MS. MEREDITH: Your Honor, the motion in
limine was filed as a result of my receipt of the affidavit
in Opposition to my motion for summary judgment, in
which a number of new issues which had not previously
been raised were set forth.
THE COURT: All right, what are they? Capsulize
them, please.
MS. MEREDITH: Aill right. Well, first of all is
evidence concerning general medical conditions and
general evidence of neglect at Springfield Hospital
Center, things like the fact that there are urine and feces
on the floor and the place smells bad and just very
general allegations of medical neglect anc of indifference
22a
to quality of patient care and quality of patient life at
the hospital, which are not the substance, even if true, of
Dr. Kayzakian’s alleged
[423]
protected speech.
THE COURT: But Dr. Kayzakian is talking about
more than alleged protected speech. She is talking
about alleged retaliatory action having been taken against
her because of certain things that she has complained
about.
Is that correct, Mr. Marr?
MR. MARR: That’s correct, Your Honor, and that’s
what the evidence will show.
THE COURT: All right. Now, let’s keep our
answers down to yes or no or something.
MR. MARR: All right. Yes, Judge.
THE COURT: All right, so we can move here now.
Now, I believe - and, Mr. Marr, I do not want - I
want total candor from you of the kind I have gotten in
every case you have ever been in, criminal or’civil. —
MR. MARR: Thank you, Judge.
THE COURT: But I -—
23a
MR. MARR: You'll have it this time too, I can
assure you.
THE COURT: I believe that I am right when I say
that almost from the start your client has contended that
she was retaliated against because she made certain
complaints about the way the hospital was operated.
MR. MARR: Correct.
MS. MEREDITH: Can I just —
[424]
THE COURT: No, Ms. Meredith, no, not till I call
on you.
MS. MEREDITH: Okay.
THE COURT: Mr. Mart, did you, however, or did
your client, however, before now ever raise these kinds
of complaints?
I recall specifically that she said that the caliber of
treatment that was given to patients by staff members
was deficient and that she was penalized and subjected
to harassment and so forth because she pointed out
those difficulties or alleged difficulties or alleged failures
on the part of the staff.
24a
But I do not recall one word about any allegations of
retaliation because of the kind of physical conditions of
the hospital that have just been indicated.
MR. MARR: Your Honor, she’s still not alleging
that she’s been retaliated against because of physical
conditions in the hospital, that is, the feces and the urine
and the odor and the atmosphere.
THE COURT: No, you miss, you miss, you miss
totally, Mr. Marr, what I am talking about.
MR. MARR: I'm sorry, Judge. I thought I grasped
your point.
THE COURT: The point is that if I understood it
from the start, what Dr. Kayzakian was saying was that
she
[425]
made certain complaints and she stated certain opinions
with regard to the kind of treatment that was given to
patients and that she was retaliated against because she
did make these criticisms and statements and so forth.
MR. MARR: Correct, Your Honor. Id only add
the phrase “treatment and lack of treatment."
THE COURT: All right, I wouid buy that.
MR. MARR: All right.
25a
THE COURT: Now, the only relevance that I can
see in the physical conditions that you have -- that have
been referred to by Ms. Meredith as being in the realm
of possible evidence that you want to produce is that I
do not see how such evidence would be relevant or
material in the slightest unless it related to complaints
made by Dr. Kayzakian and alleged retaliation for such
complaints.
Now, if there is any other relevance and materiality
ia such evidence, relevancy or materiality in such
evidence, you can tell me. Otherwise, I think Ms.
Meredith is right.
MR. MARR: Weil, I think that it would be relevant
for the jury to understand the general background and
conditions in which she was working and her efforts in
regard to improving patient care. I think it would be
relevant in that sense also.
THE COURT: No, I do not think that this - this
[426]
is not a case in which Dr. Kayzakian has alleged
wrongful discharge. This is a case in which Dr.
Kayzakian has complained she has been discriminated
against.
ee en
26a
Unless she is complaining that she was discriminated
against because of something that she said in connection
with those conditions, the answer is that I will grant that
motion in limine.
MR. MARR: Well, Your Honor -
THE COURT: Let’s move, Mr. Marr.
MR. MARR: Okay, but you’ve overlooked a very
important detail that’s in the record that I want to bring
your attention to.
THE COURT: What is that?
MR. MARR: Suit was filed before she terminated
her employment at Springfield and one of the things she
wants to do is amend her suit to include her forced
termination as a retaliation.
THE COURT: And the answer to that that motion
to amend has been denied.
MR. MARR: I understand that, Judge, but I just
wanted to put everything in context.
THE COURT: If you want to bring a separate
lawsuit with regard to those matters, I think, Ms.
Meredith, you have to understand that those would not
be res judicata.
If you do not want them in this lawsuit because,
27a
[427] |
as you have pointed out, bringing them in will lead to
another round of discovery, will lead to longer - will
lead to trial delay and so forth, I think I have to go
along with you.
But those are allegations which, as you point out,
have not been stated in the case by Mr. Marr.
And, Mr. Marr, obviously you cannot bring in
evidence, in support of the amended complaint, of
something that would be in an amended complaint if the
amended complaint is not being permitted to be filed
and if the evidence is not in support of allegations that
are in the complaint that is before the Court.
MR. MARR: Your Honor, the problem is those
things happened after the complaint was filed. That’s
why they’re not in the complaint.
THE COURT: And when did she leave the employ?
MR. MARR: She left the employ August -- well,
actually she didn’t go back to work after her examination
on the 11th and 12th.
THE COURT: Of what?
MR. MARR: Of July 1983, but the complaint was
filed in 1982, I believe in --
28a
THE COURT: Yes, I know, and you have had
plenty of opportunity between July 83 and December or
late November or early December of 1983 to seek to
amend the complaint.
[428]
MR. MARR: I did that and the Court said no*in a
phone conference.
THE COURT: You did that — that phone
conference took place in November, did it not?
MR. MARR: Your Honor, I don’t remember the
date, I'd have to check my records, but I think it was
earlier than November. I think it was back in
September.
MS. MEREDITH: In October.
MR. MARR: Well, whenever it was.
THE COURT: No, it makes a lot of difference. We
will tell you when it was in a second.
MR MARR: Okay.
MS. MEREDITH: It was October 17th, Your
Honor.
THE COURT: All right, and I said no on October
17th for the same reason I am saying no again now.
29a
The answer is that this case has had enough ups and
downs and [ told you when you came in, Mr. Marr, that
we were not going to have this kind of a performance.
So the answer is that the motion is limine with regard
to those physical conditions is going to be granted.
eee
[441].
MS. MEREDITH: The next one, Your Honor --
THE COURT: And by the way, let’s stop worrying
about opening statements, in view of Mr. Marr’s
undertaking. |
MS. MEREDITH: Yes, Your Honor.
The next one concerns evidence about patients other
than Bernard Finkelstein and Igor Frank, who are the
two patients that were referenced in the complaint.
THE COURT: Mr. Marr, unless you tie them in in
some way, you cannot get into them.
MR. MARR: Well, I intend to tie them in, Your
Honor.
THE COURT: How are you going to tie them in?
MR. MARR: It’s similar act evidence.
30a
THE COURT: The answer is no. It is not similar
act evidence whatsoever. You are making allegations of
discrimination -- ;
MR. MARR: Well, may I correct my statement,
Judge? What I mean is that it wasn’t just because of
these two patients about which Dr. Kayzakian
complained. We coniend the proof will show she
complained about a number of patients whom she
considered to be improperly treated and in effect was a
thorn in the side of the physicians and in an effort to
silence her, they engaged in this campaign of harassment.
MS. MEREDITH: Your Honor, that’s an attempt to
amend the complaint.
[442]
MR. MARR: No.
THE COURT: Exactly.That is an attempt to amend
the complaint through the back door or side door and
the answer is no.
That is exactly what you wanted to do when you
asked to amend the complaint. That is the same
amendment proposal over again. Let’s stop trying to
have end runs, Mr. Marr.
Next, Ms. Meredith.
3la
MR. MARR: Okay, so I can’t put in evidence about
other people?
THE COURT: No, sir, and the record will show,
Mr. Marr, that you had more than sufficient opportunity
to raise these allegations and you were told specifically
when you came in the case to raise them and raise them
quickly.
MR. MARR: The record will show that?
THE COURT: Yes, it will.
MR. MARR: All right. Well, I didn’t learn about
them, Judge, until I filed the response to the summary
judgment motion.
THE COURT: That is your problem with your
client. ,
MS. MEREDITH: Your Honor, the next point --
THE COURT: And, Mr. Marr, if you did not, then
your client obviously did not cooperate with you or your
predecessor counsel --
eee
[454]
TRANSCRIPT OF PROCEEDINGS
THE COURT: All right, we are on the record.
Hello.
32a
MS. MEREDITH: Hello. Yes Judge Kaufman.
THE COURT: Ms. Meredith, Mr. Marr is sitting
here.
MR. MARR: Hi, Kathy.
MS. MEREDITH: Hi, Mike.
THE COURT: And my law clerk is here, Ms.
Meredith, and the court reporter is here.
Now, just one second.
(Discussion off record between the Court and the law
clerk).
THE COURT: Now, there are a number of motions
before the Court, one of which is a summary judgment
motion and Mr. Marr is going to submit an affidavit, I
believe, or certainly he is going to have to do something
in connection with the pending summary judgment
motion.
I think I ruled on just about everything else that is
open, except that with regard to the pretrial evidentiary
rulings, I think that I expressed only tentative views and
I will finalize them at the time of the hearing.
I will also put on the record at that time that I have
denied Mr. Marr’s motion to amend the complaint and
to reopen discovery and that | did that the other day on
33a
the record when we last talked, which was on the 9th of
December.
wk
34a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUGHIK (‘SONIA’) KAYZAKIAN,
7410 — Roa 21
Sykesville, Md. 21 sa
Plaintiff
v.
THOMAS F. KRAJEWSKI, Sued in ' Ne
his individual as well as official
capacity
Superintendent
Springfield Hospital Center
Sykesville, Md. 21784
JONATHAN D. BOOK, Sued in his
individual as well as official
Capecey .
Springfield Hospital Center
Sykesville, Md. 21784
PETER T. POMPILO, Sued in his
individual capacity =i
4314 Roland Drive
Baltimore, Md. 21210
IRFRAN S. ESENDAL, Sued in his
individual as well as official
capacity :
Springhcid abd Oe Unit
e Ospi nter wr
Sykesville, Md. b1784
REZA G. BASSIRI, Sued in his
individual as well as official
ca city ° > > e
Director, ys Division
Springfield Hospital Center
Springfield, Md. 21784
DEUSDEDIT JOLBITADO, Sued in
35a
his individual as wel! as official
capacy, ;
Chair, Hospital Privileging
Committee
mmi
Springfield Hospital Center
Stkesville, Md. 21784
PHILIP P. TOWNSEND, Sued in his
individual as well as official
Personne Administrator
Springfield Hospital Center
Sykesville, Md. 21784
SPRINGFIELD HOSPITAL CENTER
Sykesville, Md. 21784
BRUCE L. REGAN, Sued in his
individual as well as officiai
ca
Director af Psychiatric Education
and Training ae
Mental Hygiene Administration
De ent of Health and
ental Hygiene
4th Floor, W. Preston Street
Baltimore, Md. 21201
Defendants
COMPLAINT OF VIOLATION OF CONSTITUTIONAL RIGHTS
NATURE OF CLAIMS
1. Plaintiff, a state psychologist, seeks a
declaratory judgment, restoration of full professional
privileges, retroactive promotion with backpay and
benefits, a permanent injunction, compensatory and
36a
punitive damages, attorney’s fees and costs for violation
of her First, Fifth and Fourteenth Amendment United
States Constitutional rights by defendant state officials of
the employing state mental hospital, as provided by 42
U.S.C. 1983, 1985 and Maryland tort law. Plaintiff seeks
relief for reprisals taken against her by Hospital officials
because she reported medical neglect of patients, which
reporting is required by law.
JURISDICTION
2. The jurisdiction of this Court is invoked
pursuant to 42 U.S.C. 1983, 1985, 28 U.S.C. 1331, 1332
and 1343. This is also a suit for declaratory judgment
authorized and instituted pursuant to 28 U.S.C. 2201 and
2202. The amount in controversy exceeds $10,000
exclusive of interest and costs.
The Court has pendent jurisdiction of plaintiff's tort
claims, which arise from the same nucleus of operative
facts as the federal claims.
3. The jurisdiction of this Court is invoked to ~
secure protection of and to redress deprivation of rights.
secured by the Constitution and laws of the United
States, as guaranteed by 42 U.S.C. 1983 and 1985, as
37a
well as the common law tort concepts recognized in
Maryland.
PARTIES
4. The plaintiff is a psychologist employed by
Springfield Hospital Center, which is a state mental
hospital. She is an American citizen domiciled in
Maryland, who is of Armenian national origin. She has
~a Ph.D. in Psychology and six years experience as a
psychologist.
5. The defendant officials, except Bruce Regan
and Peter Pompilo, are currently officials at the
Springfield Hospital Center, and are believed to be
domiciliaries of Maryland. They are sued in their official
capacities for purposes of equitable relief under 42
U.S.C. 1983 and 1985, and for possible tort damages
liability under Maryland law. They are also sued in their
individuai capacities for purposes of compensatory and
punitive damages under 42 U.S.C. 1983 and 1985 and
Maryland tort law. Defendants Krajewski, Book,
Esendal, Bassiri and Jolbitado are psychiatrists.
6. Defendant Peter Pompilo is a psychologist who
was Director of Psychological Services (plaintiff's
38a
department) until his retirement in June 1982. He is
sued in his individual capacity; his is a domiciliary of
Maryland.
7. Defendant Bruce Regan is Director of
Psychiatric Education and Training of the Maryland state
Mental Health Administration. He is sued both in his
official and individual capacity. He is believed to be a
domiciliary of Maryland.
8. Defendant Springfield Hospital Center
(hereinafter "the Hospital") is a state mental hospital
primarily for the care of chronic mental patients. It is
sued for purposes of equitable relief not barred by the
11th Amendment.
STATEMENT OF FACTS
9. Plaintiff began work as a Psychologist I at the
Hospital on August 20, 1980.
10. Based on her qualifications, plaintiff was
promoted to II about two weeks after she began work,
upon the recommendation of defendant Pompilo, then
head of her department.
11. Plaintiff was approved for full professional
privileges (i.e. right to practice at the Hospital without
supervision) in December 1980 by the Hospital
39a
Privileging Committee, upon the positive
recommendation of defendant Pompilo and the
department privileging committee. Defendant Krajewski
approved the privileging
12. Defendant Pompilo certified at the time of
plaintiff's privileging in December 1980 that she had the
knowledge and skills necessary to provide psychological
therapy.
13. Plaintiff's job duties at the Hospital were to
perform psychological diagnoses, to conduct individual,
group and family psychotherapy, to act as a consultant to
treatment teams comprised of somatic physicians,
psychiatrists, psychologists, social workers and nurses, and
to supervise interns. |
14. Plaintiff satisfactorily completed the required
probationary period for new employees in February 1981
and was appointed to a permanent position as a
Psychologist.
15. Plaintiff was appointed or elected to eight
Hospital committees prior to August 1981. She was
recommended by Hospital officials and approved for
membership in the Maryland Psychological Association
during this time.
— oe
40a
16. Plaintiff formulated a grant proposal for
training doctoral psychology students in the treatment of
chronic mental patients at the Hospital. The proposal
was approved and funded, and the grant was
administered by plaintiff, who trained psychology doctoral
students at Springfield until June 1982.
17. From June to August 1981 plaintiff requested
medical examination and treatment for two of her
patients who had serious physical problems. Hospital
physicians declined to do more than cursory diagnostic
work, or to pursue the matter further. They concluded
the patients_did not require further new treatment.
18. Plaintiff contacted the relatives of one patient
mentioned in 417 above, to secure outside medical
consultation. Plaintiffs efforts led to surgery in July
1981 which corrected the condition.
19. As for the second patient, plaintiff was unable
to persuade the relevant Hospital physician to do more
than superficial examination and testing. When the
patient’s symptoms worsened, plaintiff and the case social
worker informed the patient’s relatives. The plaintiff
herself met with the Hospital superintendent, defendant —
Krajewski, on August 31, 1981 and reported the matter
4la
of the deficient medical care of both patients, which
reporting was required of staff by law, under Maryland
Code Article 59, §52-A. Plaintiff requested defendant
Krajewski’s intervention on behalf of the second patient.
Defendant Krajewski summoned defendant Book, the
Hospital’s Clinical Director and second-in-charge. They
informed the patient’s relatives that the medical care of
the patient was adequate and that further testing could
be harmful. They indicated a private physician could be
consulted by the relatives, if they so desired. The
relatives chose to follow defendant Krajewski and Books’
advice and not seek further testing. On September 21,
1981, in view of the patient’s deteriorating condition,
plaintiff furnished her written recommendations to
defendant Krajewski, describing his symptoms and
recommending further examination and testing.
Finally, in response to plaintiffs requests, defendant
Krajewski ordered a University of Maryland Medical
School consultation. These physicians ordered immediate
surgery, which was performed at their facility. The
patient was near death when he received treatment at
the University of Maryland in early October 1981.
42a
20. Beginning in September 1981, the defendants
conspired to vilify and ‘iarass plaintiff for having
reported the medical negligence of hospital physicians,
and thus force her resignation.
21. Between September 1981 and the present
time, events in the ongcing campaign of harassment
include the following: 7
@. accusations by defendant Book in
September 1981 that plaintiff had "problems" in relating
to Hospital physicians; Dr. Book sent carbon copies of
these accusations, to defendants Esendal, Pompilo,
Krajewski, and Dr. Snyder, at the Psychology
Department Privileging Committee. (NOTE: upon this
basis plaintiff received an unsatisfactory performance
appraisal in February 1982, see below, j.1.)
b. vandalizing of plaintiff's car in the
Hospital parking lot on October 6, 1981.
c. denial by defendants Pompilo and
Esendal of 336 hours compensatory time on October 30,
1981.
d. repeated requests since November 2,
1981 by defendants Book, Pompilo and Bassiri for a
43a
written schedule of her activities whereas such requests
were not made of others.
e. lewd remarks and offensive touching by
defendant Bassiri during the time November 1981 to
January 1, 1982.
f. counseling for sick leave usage, on
December 9, 1981 by defendants Esendal and Pompilo.
g- restriction on December 10, 1981 by
defendant Esendal, then plaintiff's supervisor, of the
usual professional privileges. He forbade plaintiff to 1)
treat patients unless they were specifically referred to her
by a psychiatrist; 2) to read or make entries in patient
medical charts except for those patients referred to her
by psychiatrists; 3) to enter certain wards.
h. threats by defendant Esendal on
January 7, 1982 that "they would get rid of her," and that
members of another hospital staff who had tried to
“change the system’, like her, had been murdered. He
also gave her a press article, "Allen Finally Takes the
Hint," about the resignation of an "errant aide who was
expendable."
44a
Plaintiff feared for her life as a result of defendant
Esendal’s threats, which caused her to become ill. She
requested an immediate transfer away from him.
i. a lecture by defendant Bassiri, then
plaintiff's second-line supervisor, on February 4, 1982, on
the inadvisability of ‘whistle-blowing.’
j. _‘ reprisals against plaintiff for related
First Amendment activities in 1982, as follows:
1. On February 17, 1982 plaintiff
filed a written complaint under the Maryland Classified
Employees Disclosure Act (codified at Art. 64A,
§12G(a), Maryland Code). The complaint alleged
harassment by Hospital officials for her communications
regarding the two seriously ill patients, as described
above. Copies of the complaint were supplied to the
Hospital administration, including some of the defendant
officials. On or about February 25, 1982 defendants
‘Pompilo, Esendal and Book, meeting together, composed
an unsatisfactory performance appraisal of plaintiff,
which was issued to her.
2. in late May 1982 plaintiff testified
before a Finance Committee of the Maryland legislature,
on behalf of an amendment strengthening protection of
45a
state employees who made disclosures under the
Disclosure Act. On June 22, 1982 defendant Pompilo
recommended revocation of plaintiff's full privileges and
imposition ot special supervision for three months on all
aspects of plaintiff's professional practice and
re‘ationships. On that date, Pompilo also denied plaintiff
a promotion due in August 1982.
k. establishment on April 22, 1982 by
defendant Bassiri, then plaintiff's immediate supervisor,
of a special leave authorization procedure for her.
l. attempted suspension by Philip
Townsend, the Hospital personnel chief, on May 12,
1982, at defendant Bassiri’s instigation.
m. Bassiri and Book pressured psychiatrist
Mattengunta to constantly criticize plaintiff from May to
September 1982.
n. repeated attempts by defendants
Krajewski and Book from August 1982 to the present, to
impose special supervision of plaintiff prior to a decision
by the Hospital Privileging Committee, which had
jurisdiction of the matter.
0. revocation by defendant Regan in late
August or early September 1982 of funding for plaintiff's
46a
second grant to train externs, which had been approved
by Regan for funding, as of August 8, 1982. Revocation
occurred within one week after defendant Krajewski was
informed of the approval and funding.
p. threats by defendant Krajweksi in
August 1982 that he would punish plaintiff if she failed
to disclose information of patient negligence or abuse,
when plaintiff reported a patient death which had just
occurred, involving possible medical negligence.
g. removal in September 1982 of sliding
bolts in plaintiff's private office by C-2 ward staff, so that
the office could be entered by patients or staff at any
time. It is believed this action was instigated by some of
the defendants, to distress plaintiff and to foment trouble
between plaintiff and ward staff.
r. revocation of plaintiff's full privileges in
October 1982 by defendants Jolbitado, chair of the
Hospital Privileging Committee, in the absence ofa = -
rationale or evidence supporting defendant Pompilo’s
recommendation against full privileges, and despite
recommendation by the Psychology Department
Privileging Committee that plaintiff's full privileges be
continue.
47a
Ss. service cn plaintiff of administrative
notices, in May and September 1982 by two armed
hospital police officers, in the middle of group therapy
sessions conducted by plaintiff, at the direction of
defendant Townsend.
t. October 4, 1982 Defendant Krajewski
orderec plaintiff to attend a staff meeting convened
specially by him for plaintiff to answer charges against
her; defendant Krajewski told plaintiff she had better say
the charges were untrue, "or else." He denied plaintiff's
request for a representative of her choice or an attorney
at the meeting, and threatened her with suspension if she
did not attend. Plaintiff attended the meeting, held
October 6, 1982, and became ill and was absent from
work for more than two weeks as a result of the
emotional distress she suffered.
22. In taking their actions, each of the defendants
was aware of the plan to harass plaintiff for exercise of
her constitutional and state rights of speech, and agreed
to participate.
CLAIMS
23. In doing the things and acts above
complained of while clothed in the authority of state
48a
officials, defendants acted under color of state law. They
maliciously engaged in a scheme and conspiracy designed
and wrongfully intended to deny and deprive plaintiff of
rights guaranteed by the First Amendment (freedom of
speech), the Fifth Amendment (liberty clause --right to
pursue a profession) and/or the Fourteenth Amendment
(equal protection based on plaintiff's sex and national
origin). In so doing, they violated 42 U.S.C 1983 and
1985.
Plaintiff has suffered grievous emotional, physical,
professional and pecuniary damage as a direct result of
defendants’ actions. She is entitled to equitable relief
and monetary damages under 1983 and 1985.
24. In doing the things and acts above
complained of defendants breached their duty to plaintiff
to administer the Hospital without inflicting mental
distress upon her, negligently or intentionally. As a
result of these actions and statements, motivated by
wrongful intent, plaintiff has variously feared for her life,
her job and her professional reputation. She has
suffered severe mental distress and physical dysfunction
as a direct result of defendants’ course of conduct.
SR I a A RR IRE AT RE ITT A SRE tr ere
49a
Plaintiff is entitled to monetary damages under Maryland
tort law for this harm.
25. In pursuing the above course of conduct,
defendants have knowingly engaged in a conspiracy to
deprive plaintiff of rights guaranteed by the U. S.
Constitution and by the Maryland Classified Employee
Disclosure and Confidentiality Protection Act, Art. 64A
§12G of the Maryland Code. Defendants have thus
breached their duty to plaintiff to refrain from violating
her rights under federal and state law. Plaintiff has
suffered emotional, physical and pecuniary harm as a
direct result. Plaintiff is entitled to monetary damages
under Maryland tort law for the defendants’ conduct
based upon wrongful intentions.
26. By their foregoing actions, the defendants
have knowingly interfered with plaintiffs contractual
employment rights with the Hospital and State, causing
' plaintiff to lose her full privileging status, her promotion,
and causing an unsatisfactory performance appraisal to
be issued about her, jeopardizing her employment.
27. The words, gestures and touching by
defendant Bassiri which caused plaintiff great emotional
distress, constitute tortious assault and battery; defendant
50a
Bassiri is also included in the other claims, for these and
other cited actions by him.
RELIEF
WHEREFORE, plaintiff respectfully requests that
this Court:
1. Enter a judgment that the acts and practices
complained of herein are in violation of 42 U.S.C. 1983,
1985, and the U.S. Constitution, Maryland Code, ARt.
64A, and plaintiffs rights under Maryland tort law.
2. Permanently enjoin defendants and their
successors in office from harassing plaintiff, or taking
reprisals for exercises of her rights and duties.
3. Order defendants to retroactively promote
plaintiff to Psychologist III as of August 20, 1982, with
backpay and all benefits, and to restore her full
professional privileges.
4. Order defendant Regan to restore funding to
plaintiffs grant ($8,000 for grant "Psychology Training in
Chronic Wards") as of the next academic year.
5. Order the defendants to allow plaintiff 336
hours of compensatory time, or to pay her in lieu
thereof, if the time cannot be granted.
S5la
6. Order the defendants to purge all Hospital
records of mention of defendants’ illegal actions,
statements, and their negative results, including the
February 1982 performance appraisal.
7. Order defendant individuals jointly and/or
severally to pay plaintiff $5,000,000.00 in compensatory
and punitive damages.
8. Order individual defendants and/or defendant
Hospital to pay plaintiffs attorney fees and costs, under
42 U.S.C. 1988 and the Court’s equitable powers, in the
interest of justice.
9. Grant plaintiff such additional relief as the
Court may deem just and proper.
PLAINTIFF DEMANDS TRIAL BY JURY.
Respectfully submitted,
Charles P. Lamasa Bridget R. Mugane
Resident Counsel for Attorney for Plainti
Plaintiff 416 D. St. S.E.
Suite 301 ~~ Washington, D.C. 20003
1 E. Lexington St.
Baltimore, Stervland 21202 Telcgnee: vite
Telephone:(301) 727-4131 (301) 596-0175
52a
VERIFICATION
I have ol pales tar Mapes plaint and verify,
under penalty of
my knowledge, inforine
porary Is correct, to the best of
ination and belief.
SOUGHIK KAYZAKIAN
Plaintiff
53a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUGHIK (‘SONIA’) KAYZAKIAN,
Plaintux
v.
THOMAS F. KRAJE eng in
his individual as well as cial
capacity, etc. et al.,
_ Defendants
AMENDMENT TO COMPLAINT
Pursuant to F.R.C-P. Rule 15a, plaintiff hereby
amends her complaint as follows: Paragraph 23 is to be
replaced by the following:
23. In doing the things and acts complained of
while clothed in the authority of state officials,
defendants acted under color of state law. They
maliciously engaged in a scheme and conspiracy designed
and wrongfully intended to deny and deprive plaintiff of
rights guaranteed by the First Amendment (freedom of
speech) and the Fifth Amendment (due process liberty
clause--right to pursue a profession--and property clause)
of the U.S. Constitution, as incorporated in the 14th
Amendment due process clause, and/or the Fourteenth
Amendment (equal protection based on plaintiff's sex
54a
and/or national origin). In so doing, they violated 42
U.S.C. 1983 and 1985.
Plaintiff has suffered grievous emotional, physical,
professional and pecuniary damage as a direct result of
defendants’ actions. She is entitled to equitable relief
and monetary damages under 1983 and 1985.
Respectfully submitted,
rear - R. MUGANE
esident Counse Attorney Plaintiff
TE Lexington St. ‘Waingon, mrD.C. 20003
n
Baltimo 21202 T 202) 547-2121
Telephone: :(301)727-4131 £367) ‘08-0155
CERTIFICATE OF SERVICE
We hereby certify that a copy of the foregoing
Amendment to Complaint was served on counsel for
defendants, Judy Sykes and Daniei J. O’Brien, at 300 W.
Preston St., Baltimore, Md.d 21201 by certified mail,
this 24th day of November 1982.
CHARLES P. LAMASA —SCs; BRIDGET R. MUGANE
Resident Counsel for § Attorney for Plaintiff
Plaintiff
ae Py re eZ | B. .
it~ 3 a”
Pe Ss ee eee eet oe
55a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
7410 Village Road, Apt. 21
Sykesville “Maryland 784
Plaintiff
Vv.
CHARLES R. BUCK,
Sued in his individuai capacity
Former Secretary of Health
Ser Pea
P hia, Pennsylvania 19104
THEODORE THORNTON
Sued in his individual as well as
official capacity
Secretary
SANDRA LEICHTMAN,
Sued in her individual as well as
ones capacity _
Mental iy Administration
201 West nm Street
Baltimore, Maryland 21201
56a
BRUCE L. REGAN,
Sued in his individual as well as
official
ne Administration
of Health and Mental
el sors Mietvead
Baltimore, Maryland 31201
SPRINGFIELD HOSPITAL CENTER
Sykesville, Maryland 21784
Sued in his individual as we as
Sued in his individual as well as
official capac
on H Center
Sykesville, 21784
Sued in his individual capacity
ee Roland Springs Drive
Baltimore, Maryland 21210
Springfield Hospi Ney
r
Mangand 21784
REZA G. BASS
Sued in his i as well as
official ca
Director, Ci n
57a
Springfield Hospital Center
Spkewille, Mangland 21784
DUESDEDIT JOLBITADO
Sued in his individual as well as
Privileging
PHILIP P. TOWNSEND,
Sued in his individual as well as
Official
DANIEL R. MALONE, _
Sued in his individual as well
official
i Center
Sykesville, Mary 21784
p
Srheille Machand 21784
ETHEL MATTEGUNTA,
Sued in her individual as well as
official capacity
Physician
1. Plaintiff, a psychologist, seeks injunctive relief
and compensatory and punitive damages, attorneys’ fees
and costs for violations of her First, Fifth and Fourteenth
Amendment United States Constitutional rights by
defendant state officials and pursuant to 42 U.S.C.
Sections 1983, 1985, 1986, 1988 1997 (d) and Maryland
Common Law. Plaintiff also seeks relief for reprisals
taken against her by officials because she reported
medical neglect of patients as required by law.
JURISDICTION
2. The jursidiction of this court is invoked
pursuant to 28 U.S.C. Sections 1331, 1332 and 1343 for
redress of 42 U.S.C. Sections 1983, 1985, 1986, 1988
and 1997(d) claims.
sa. -
3. This court also has pendent jurisdiction over
plaintiff's common law tort claims which arise from the
same nucleus of operative facts as the federal claims.
PARTIES
4. The Plaintiff is a psychologist who was
employed at the Springfield Hospital Center, Sykesville,
Maryland, from August 20, 1980 until August 12, 1983.
She is an American citizen domiciled in Maryland, who
_is of Armenian national origin. She has a Ph.D. in
Psychology and six and one-half years experience as a
Clinical Psychologist.
5. Defendant Charles Buck is the former Secretary
of Health, State of Maryland, who is believed to have
retired from the Maryland State system in 1983. He is
sued in his individual capacity, and is believed to be a
domiciliary of Pennsylvania.
6. Defendant Theodore Thornton is the Secretary
of Personnel, State of Maryland. He is sued in his
individual and official capacities. He is domiciliary of
Maryland.
7. Defendant Alp Karahasan, a psychiatrist, is the
Acting Director, Department of Mental Hygiene
Administration, State of Maryland. He is sued in his
60a
individual as well as official capacities. He is a
domiciliary of Maryland.
8. Defendant Sandra Leichtman,is the Chief
Psychologist, Mental Hygiene Administration, State of
Maryland. She is sued in her individual as well as
official capacities. She is a domiciliary of Maryland.
9. Defendant Bruce Regan, a psychiatrist, is
Director of Psychiatric Education and Training Mental
Hygiene Administration, State of Maryiand. He is sued
in his individual as well as official capacities. He is a
domiciliary of Maryland.
10. Defendant Springfield Hospital Center
(hereinafter "the Hospital") located in Sykesville,
Maryland, is a mental institution. It is sued for purposes
of equitable relief and money damages not barred by the
Eleventh Amendment.
11. Defendant Krajewski, a psychiatrist, is the
Superintendent of the Springfield Hospital Center. He is
sued in his individual as well as official capacities. He is
a domiciliary of Maryland.
12. Defendant Jonathan Book, a psychiatrist, is the
Clinical Director of the Springfield Hospital Center. He
6la
is sued in his individual as well as official capacities. He
is a domiciliary of Maryland.
13. Defendant Peter Pompilo is a psychologist who
was Director of Psychological Services (Plaintiff's
department) at the Springfield Hospital Center until his
retirement in June of 1982. He is sued in his individual
capacity. He is a domiciliary of Maryland.
14. Defendant irfan Esendal, a psychiatrist, was
the Director of Martin Gross Unit, the Springfield
Hospital Center. He is sued in his individual as well as
official capacities. He is a domiciliary of Maryland.
15. Defendant Reza Bassiri, a psychiatrist, is the
Director of the Baltimore City Division, the Springfield
Hospital Center. He is sued in his individual as well as
Official capacities. He is a domiciliary of Maryland.
16. Defendant Deusdedit Jolbitado, a psychiatrist,
was the Chairman of the Hospita! Privileging Committee.
He is sued in his individual as well as official capacities.
He is a domiciliary of Maryland.
17. Defendant Philip Townsend is the Personnel
Administrator at the Springfield Hospital Center. He is
sued in his individual as well as official capacities. He is
a domiciliary of Maryland.
62a
18. Defendant Randy Roberts, a psychologist, is
the Director, Psychological Services at the Springfield
Hospital Center. He is sued in his individual as well as
official capacities. He is a domiciliary of Maryland.
19. Defendant Daniel Malone is a Staff
Psychologist at the Springfield Hospital Center. He is
sued in his individual as well as official capacities. He is
a domiciliary of Maryland.
20. Defendant Jae Park is a psychiatrist at the
Hospital. He is sued in his individual as well as official
capacities. He is a domiciliary of Maryland.
21. Defendant Ethel Mattegunta is a psychiatrist
at the Hospital. She is sued in her individual as well as
official capacities. She is a domiciliary of Maryland.
STATEMENT OF FACTS
22. The Plaintiff is a Clinical Psychologist by
education, training and experience. Her life and
professional endeavors have been devoted to quality
mental health care, particularly: (a) for the care of
“chronically mentally ill" within our society; (b) the
63a
prevention of "mental illness" and unnecessary
institutionalization of individuals; and (c) the
deinstitutionalization of individuals where appropriate.
23. The Plaintiff earned her Doctor of Philosophy
(Ph.D.) in Clinical Psychology at the George Peabody
College for Teachers, Nashville, Tennessee in May of
1978, in a Psychology program
approved by the American Psychological Association
(APA). Plaintiff also received her Master of Arts (M.A.)
degree from George Peabody College for Teachers
' majoring in Education (Guidance and Counseling) in
May of 1973. During her academic years at Peabody,
Plaintiff received a Peabody Tuition Grant, and served as
a Research Assistant at the Institute on Youth and
Social Development, the John F. Kennedy Center for
Research on Education and Human Development,
Nashville, Tennessee, during 1973 and 1974.
24. The Plaintiff was hired as Clinical Psychologist
at the Western State Psychiatric Hospital, a state mental
institution, in Bolivar, Tennessee, in September of 1975.
During her two-week orientation to the hospital, the
Plaintiff learned of widespread
Tae eee TeSys: ee eee Oe
64a
patient abuse and mglect at that hospital. Meanwhile,
she was offered the position of Director of Mental
Retardatien- Unit among other hospital-wide respon-
sibilities. However, the Plaintiff also Jearned that in
accepting the position and responsibilities, she would be
denied the rightful "authority" to stop the abuse and
neglect of the patients, and that she was in fact warned
in advance not to even attempt to get involved in this .
respect or she would be terminated and would be
blocked from obtaining a license to practice psychology.
The plaintiff, thus refusing to be a party to patient abuse
and neglect, immediately resigned from her position.
25. The Plaintiff was employed at the Meharry
Medical College, The Community Mental Health Center,
Nashville, Tennessee, as Clinical Psychologist/Instructor
from March of 1976 until June of 1978. She was
specifically hired to upgrade the quality of mental health
care for the Center clients and was also involved in the
education of medical students and psychiatric residents.
26. In the summer of 1980, Plaintiff applied to the
Springfield Hospital Center, Sykesville, Maryland, for the
position of Staff Psychologist. She was interviewed by
Defendant Peter Pompilo, Ph.D., Director, Psychological
65a |
Services; William Snyder, Ph.D,, Staff Psychologist and
Acting Director, Psychological Services in Defendant
Pompilo’s absence; Defendant Irfan Esendal, M.D.,
Director, Martin Gross Unit; Defendant Reza Bassiri,
M.D., Director, Baltimore City Division; William
Butterbaugh, M.D., Assistant Director, Martin Gross Unit
and Ward Psychiatrist; Rena Whittaker, LCSW,
Supervisor, Social Services, Martin Gross Unit;
Judith Nave, R.N., Nursing Supervisor; Lorraine Arnold,
R.N., Nursing Supervisor; and Arthur Campo, M.D.,
Ward Psychiatrist.
27. On August 20, 1980, Plaintiff commenced her
employment at the Springfield Hospital Center as a Staff
Psychologist I and two weeks later her classification was
adjusted to Staff Psychologist II in and for the Martin
Gross Unit and Cottage A of the Baltimore City
Division. She was specifically hired to upgrade the
quality of mental health care for the chronically mentaily
ill patients. Her assignment at the Martin Gross Unit
continued until February 22, 1982, when she was
transferred to the Baltimore City Division, Convalescent
Cottages C-] and C-2. Plaintiff's assignment at Cottage
A, Baltimore City Division was terminated in January of
66a
1981 by Defendant Pompilo because he wanted her to
assume additional supervisory duties, particularly in the
female continued care area. Thus, in January of 1981,
Defendant Pompilo assigned Plaintiff to assume
supervisory duties at the Warfield Continued Care Unit,
known as the female chronic wards. While assigned to
the Martin Gross Unit, Defendant Esendal was Plaintiff's
immediate supervisor. While assigned to the Baltimore
City Division, Defendant Bassiri was Plaintiff's immediate
supervisor. Meanwhile, Defendant Pompilo supervised
Plaintiff in his capacity as Director of Psychological
Services.
28. Plaintiff's duties and responsibilities from August
of the administrative team at the Martin Gross Unit
having been appointed to do so by Defendant Esendal.
As such, she provided direct input in decisions |
concerning program development, evaluation, and other
administrative issues concerning quality of patient care.
She also assisted the wards in developing guidelines for
patient admission and referral. She served as the
67a
resource-person/consultant to treatment teams to
enhance the quality of life for patients in the wards. She
was appointed as a member of the treatment teams
conducting individual, group, and family therapy sessions.
She also provided consultation services at the Mental
Retardation Administration (MRA) staffings, psychiatric
case conferences, and Individual Treatment Plan (ITP)
team meetings.
(1) Plaintiff supervised the following three (3)
Psychology intern/externs:
(a) From September of 1980, until June of
1981, Plaintiff was assigned by Defendant Pompilo to
supervise Andrew Claiborne, M.S. (now Ph.D.), a
Psychology Intern, in conducting individual, group, family
therapy, and consultation services at Cottage C-1 in the
Baltimore City Division, and the Martin Gross D and E
wards. Plaintiff received excellent mid-year and final
evaluations from her supervisee, dated February 25, 1981
and July 31, 1981.
(b) From January of 1981 through July of
1981, Plaintiff was assigned by Defendant Pompilo to
68a
supervise Silvia Petuchowski, M.A., a Psychology Extern
from the University of Maryland, in individual, group, -
family therapy, and consultation services at the Warfield
Continued Care Unit, D and H wards. Plaintiff
received an excellent evaluation from her supervisor on
August 5, 1981.
(c) From September of 1981 until July of
1982, Plaintiff supervised Beth Dzaman, M.A. (now
Ph.D.), a Psychology Extern from the University of
Maryland selected for the Plaintiff's grant, entitled
"Psychology Training in Chronic Wards." This supervision, —
which was both clinical and administrative, was
conducted in the Martin Gross Unit. Plaintiff's final
supervisory duty regarding Dr. Dzaman was to serve as a
member of her Dissertation Committee as appointed by
the University of Maryland for the purpose of evaluating
her dissertation, serving as the Springfield resident expert
on the topic of the dissertation. Plaintiff received an
excellent evaluation from her supervisee dated February
18, 1982. Dr. Dzaman also wrote a letter of
recommendaticn, dated April 15, 1982, to Dr. Leon
Rosenberg, a member of the Psychology Training
Advisory Board (TAB), Department of Health & Mental
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Hygiene, urging the Board to recommend Plaintiffs grant
for a second-year funding.
(2) In addition, Plaintiff was responsible for
psychological service to hundreds of patients
hospital-wide.
(3) Plaintiff wrote the Psychology grant and
administered it from September of 1981 until July of
1982. She also prepared, wrote, and administered a
workshop entitled “Psychology Training in Chronic
Wards" which was presented at the Springfieid Hospital
Center on June 28, 1982. The grant which was a unique
psychology training program had proven successful and
met the goals of the Department of Health and Mental
Hygiene Five Year Plan. Thus, it was recommended for
a second-year funding by TAB to the Department of
Health and Mental Hygiene. Shortly after this
recommendation the funding was approved in August of
1982.
(4) Plaintiff attended scheduled departmental staff
meetings.
(5) Plaintiff participated in seminars and
conferences for continuing education purposes,
c. Hospital wide R bilities: C eee
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Plaintiff was appointed to serve on eight (8)
hospital-wide committees as follows:
(1) Plaintiff was appointed by Defendant
Pompilo to the Patient Assessment Form Committee
chaired by Defendant Book, and served on this
committee from January of 1981 through October of
1981. The purpose of this committee was to ensure that
the Springfield Hospital Center had an appropriate
record keeping system in an effort to obtain accreditation
from the Joint Commission on Accreditation of Hospitals
(JCAH).
(2) Plaintiff was appointed by Defendant
Esendal to the Quality Assurance Medical Audit _
“Committee chaired by Defendant Jolbitado, in
September of 1980, and occupied this position until
February of 1982 when she was transferred from the
Martin Gross Unit. The purpose of this committee was
to establish goals for the Martin Gross Unit and to
ensure that steps were taken to meet the goals in a
relatively objective fashion, all in an effort to obtain
accreditation from the JCAH.
(3) In December of 1980, Defendant Esendal ap-
pointed Plaintiff to the Committee on Sharing Staff with
Tila
the Community which was chaired by Defendant Bassiri.
The purpose of this committee was to assist in the
development of community centers for the treatment of
mentally ill patients dy assuring that appropriate staff
would share time and duties at the various community
centers. This particular committee was also established
to assist the Springfield Hospital Center in obtaining its
much needed accreditation.
(4) In July of 1981, Plaintiff was elected by the
Psychology Department staff to membership on the
Psychology Department Credentialing/Privileging
Committee. Her membership lasied for a full term until
June of 1983. The purpose of the committee was to
ensure that the individuals who were hired by the State
Personnel Office to practice psychology at the Springfield
Hospital, did indeed have the appropriate credentials to
perform their staff duties. This was also another effort
to assist the hospital in obtaining accreditation.
(5) Plaintiff was selected to teach a hospital
orientation class to orient new employees to the Hospital
on July 31, 1989. Dr. Willam Snyder and Mr. Robert
Klohr wrote separate letters of appreciation to Plaintiff
on July 31, 1981, for her efforts and cooperation.
T2a
(6) Plaintiff was appointed by Defendant Krajewski
to serve on the Employee Third Step Grievance Panel
on August 31, 1981. i
(7) Plaintiff was appcinted by Defendant Pompilo
and Dr. Richard Halpin, Director of Psychology
Internship Program, to the Committee on Psychology
Intern Selection in January of 1981.
(8) Based on the recommendation of the American
Federation of State, County, and Municipal Employees
(AFSCMB), Plaintiff was appointed to the Affirmative
Action Committee by Defendant Krajewski on January 5,
Cueaeiaieaiiiea Plaintiff was transferred to the
Baltimore City Division, Cottages C-] and C-2 on
February 22, 1982, under the supervision of Defendant
Bassiri. Her duties and responsibilities were drastically
reduced from the responsibilities mentioned in a, b, and
c above, to direct clinical service to patients, attending
ITPs, departmental staff, and once a month Affirmative
Action Committee meetings. This drastic reduction of
duties and responsibilities was part of the retaliations by
the Defendants as more fully set forth in paragraph 54.
a ah premeery, ) Vee es ee oe eee
‘73a
29. In October of 1980, the Plaintiff as
well as almost the entire Psychology Department at that
time, voluntarily requested supervision in the area of
neuropsychological testing.
30. Plaintiff was approved for full professional
privileges (i.e. right to practice at the Hospital without
supervision) in December of 1980 by the Springfield
Hospital Privileging Committee, upon the positive
recommendation of Defendant Pompilo and the
Psychology Department Privileging Committee.
Defendant Krajewski also approved the privileging.
31. Defendant Pompilo certified at the time of
Plaintiff's privileging in December 19890 that she had the
knowledge and skills necessary to provide the full range
of psychological services.
32. Plaintiff performed all her duties and
responsibilities as described in paragraph 28 above, in
compliance with the Ethical Principles of Psychologists,
adopted by the American Psychological Association’s
Council of Representatives on January 24, 1981. She
likewise followed the requirements of the Federal and
Maryland Law to report to appropriate authorities
Tha
medical negligence and/or abuse of residents confined in
institutions.
33. Plaintiff satisfactorily compieted the State
requirement of a six (6) month probationary period for
new employees in February of 1981 and was appointed
to a permanent position as Staff Psychologist II.
34. In November of 1981, Plaintiff was
recommended by Defendant Pompilo and James
McTamney, Ph.D., Assistant Director, Department of
Edncation, Springfield Hospital Center, and was
approved for membership in the Maryland Psychological
Association (MPA).
35. The entire time that plaintiff was employed at
the Springfield Hospital Center, she noted many
instances of patient abuse, lack of proper medical care,
and even what was believed to be deaths of questionable
cause, throughout the hospital. Plaintiff also was
informed of such deaths that had occurred prior to her
employment at the Hospital, and of widespread patient
neglect and abuse at most of the Maryland state
institutions.
36. During her employment at Springfield Hospital
Center, the Plaintiff became aware of individuals who
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had been systematically harassed and subjected to
isolation and silencing techniques by different officials,
had been labeled as paranoid, had been eventually
destroyed, because those individuals had sanely and
dutifully reported abuse and violations of law. During
1980-81, Plaintiff was approached by one of the
Defendants to conspire with other officials in an effort to
terminate two Hospital Psychologists who were
potentially sources of “embarrassment” to the state.
Plaintiff unequivocally declined to participate in the
conspiracy. However, officials continued their efforts
toward the termination of those two psychologists, and
eventually succeeded in their unlawful acts. Plaintiff
herself became concerned that she too would suffer
various forms of reprisals after she was warned that she
would be harassed and harmed if she continued her
efforts to preveltt patient abuse and neglect.
37. In the course of her employment at the
Springfield
Hospital Center, the Plaintiff observed that certain
patients were being warehoused by the Hospital
76a
Administration (Defendants herein) without adequate
medical diagnosis and treatment. _
38. Plaintiff learned that patients arrived at the
Hospital either voluntarily or as a result of judicial
commitment. They were admitted to the Admission
Wards of the Hospital, and unless released from the
Hospital, were assigned to one of many "cottages" which
occupied the Hospital grounds. After living in a
"cottage", a patient was either released from the Hospital
or, if considered to be chronically ill, was assigned to the
Martin Gross Unit.
39. Plaintiff further observed that a large segment
of the population at the Martin Gross Unit were those
individuals who were mentally retarded. Plaintiff was
aware that the mentally retarded had no place in the
Martin Gross Unit or in any mental institution in the
State. However, through misdiagnosis and neglect, many
persons not mentally ill, were confined to many of the
wards at the Martin Gross Unit. They were improperly
administered psychotropic medication, "thorazine
cocktails," and otherwise mistreated as mentally ill.
40. During the Plaintiffs tenure, there was an effort
to release these individuals from the Martin Gross Unit
T7Ta
and the Hospital as mandated by law. Although some
progress was made in accomplishing this end, there were
still certain individuals who were retarded rather than
mentally ill and who were being confined to the wards at
the Martin Gross Unit.
41. The balance of patients at Martin Gross varied
greatly in their levels of physical, mental and
psychological functioning. Some of the patients were
physically incapacitated and psychologically deteriorated
with little, if any, family contact. There were also those
who could take care of themselves and had family
contact, but were wither resistant to leaving the hospital,
or could not be placed in community care centers
because there were an inadequate number of such
facilities.
42. During Plaintiffs tenure at Martin Gross Unit,
there were efforts made by certain of the staff to open
the locked wards in an effort to better prepare the
patients for release into the community. The Hospital
Administration took the position that the wards had to
remain locked because of what they perceived to be the
patients’ deteriorated state. Plaintiff continually directed
78a
her efforts toward removing the barriers to opening the
wards but was constantly rebuffed.
43. During Plaintiffs tenure the Martin Gross Unit
was administered by a team known as the Martin Gross
Unit Administrative Team, hereinafter "Team." This
Team was comprised of three psychiatrists, Defendant
Esendal, Drs. Butterbaugh and campo; one Staff
psychologist, the Plaintiff; one social service supervisor,
Rena Whittaker; and three nursing supervisors, Lorraine
Arnold, Judith Nave, and Patricia Rucker. The Team
was charged with the responsibility of discussing and
recommending administrative changes for the Martin
Gross Unit in relation to the rest of the Hospital.
44. As a member of the Team and also during the
course of Individual Treatment Plan meetings as
described supra, Plaintiff constantly pressed for upgrading
the quality of patient care and the environment within
which they were required to live. The environment in
the various wards at the Martin Gross Unit was lacking
in many respects. It was the Plaintiffs desire to improve
this environment in the interest of patient care.
Accordingly, she sought the assistance of the Team and
ward staff to improve ventilation, to remove pungent
79a
order of urine and feces, to meet the dietary needs of
the patients, to improve the sanitation and cold and hot
temperatures in the wards and made a conscious effort
at assisting the staff in changing its attitude toward the
chronically mentally ill. In that regard, she made
recommendations to raise staff consciousness for equal
rights anc respect for the human beings in the Martin
Gross Unit as well as other units of the Hospital. It was
always Plaintiff's desire to have the staff take an
integrated treatment approach toward the patient rather
than compartmentalize the individual.
45. Although the majority of the team members
would agree with the concepts that Plaintiff introduced
and advanced, there was always the message that the
Hospital Administration (the Defendants) would do what
suited their needs best, regardless of the needs of the
patients. Several times after those meetings, Plaintiff
was summoned to Defendant Esendal’s office for a
private "friendly" chat. Invariably, those "chats" wouid
become lectures where plaintiff was told by Defendant
Esendal that "You are an Armenian woman, your place
is in the kitchen and with your son rather than here at
the work place ... that if you want to keep your job at
80a
Springfield, you are supposed to learn not to see, hear
or even smell anything offensive... you are to forget the
cruelty toward the patients, draw your salary and just be
glad that you have a job." Plaintiff was also cautioned
that if her reports of medical neglect and continued
efforts toward change did not cease some harm would
come to her. "You will get knifed on the Unit
(Defendant Esendal would go through the gestures of
knifing the Plaintiff), that your car would be vandalized,
and
that your career and life would be destroyed by
Defendants Book and Krajewski, that other individuals
higher up in the state system would cover up the
administration’s actions and that the Maryland Attorney
General’s Office would afford them protection for doing
so."
46. Repeatedly Defendant Esendal advised the
Plaintiff not to rock the boat and that the best policy
was to shut her mouth, go deaf and blind, and then she
could last in the Maryland State System like he and
others had lasted.
47. Plaintiff continued to observe numerous abuses
and neglect of patients.
8la
48. Rather than take Defendant Esendal’s advice,
Plaintiff continued to report the neglect and abuse and
actively tried to obtain better medical care for the
patients.
49. Of the hundreds of patients for whom the
Plaintiff was responsible to provide psychological services,
the Plaintiff observed that many of those patients needed
the intervention of a
physician who could provide a complete medical work-up
to assist in the proper diagnosis of patients’ symptoms,
and determination of whether or not the patients’
so-called psychiatric labels were
properly arrived at. Plaintiff appropriately requested the
intervention and assistance of physicians to rule-in or out
presence or absence of certain conditions. However her
recommendations for such determinations were largely
ignored and the patients continued to regress because of
medical negligence.
50. Some of those patients and others who
suffered from medical negligence and psychological
abuse, were residents of the Martin Gross Unit, the
Baltimore City Division, the Warfield Unit, and the
Geriatric Unit as follows:
82a
Bernard Finkelstein Igor Frank (deceased)
a Mr. Chamish Charles Everhart (deceased)
Benjamin McGuire Amelia Webb (deceased)
Isiah Massey David Daniels (deceased)
Calvin Ashbaugh Alexander Mostovoy
Madessa Cruiz Jo Ann Adams (deceased)
Nancy Scharf Michael Wallace
Barbara Peterson Michael Todd
Willie Rose Dolores Smith
Anthony Adams Mark Robinson
George Pruitt Carolyn Schmitt
James Bean Hanna Jackson
Rubin Wiggins Mabel Dillard
Elsa Hess Mary Jane Scarf
Senora Baytop Ewel Graham
Gary Thomas Thomas Creegan
Maurice Epstein Andrew Swidrowski
Thomas Gibson
And a presently unidentified female patient from the
Geriatric unit (deceased), mentioned in paragraph 54u.
These are patients whose names the Plaintiff can
recall presently. Plaintiff is specifically aware of details
of two of those cases, Bernard Finkelstein and Igor
83a
Frank, because Plaintiff has had lawful access to these
patients’ medical records from the
Springfield Hospital and other relevant treatment centers
where these patients were treated.
51. Plaintiff is aware of many additional neglected
patients but cannot presently recall their names.
However, Plaintiff can identify those cases if permitted to
have full access to patients’ medical records.
52. Because the Plaintiff reported medical
negligence by Springfield Hospital physicians, and in an
effort to cover up their own acts of negligence, the
_ Defendants conspired to vilify, and systematically harass
the Plaintiff, ix order to eventually force her resignation,
and harm her professionally.
53. In order to cover up their own acts of
negligence, the Defendants also arranged to have certain
patients’ charts filled with false information to reflect
that the medical care given was adequate.
54. In addition to the serious warnings issued to
the Plaintiff by Defendant Esendal as mentioned in
paragraphs 45 and 46, the Defendants engaged in the -
following retaliatory acts against the Plaintiff:
84a
a. In an effort to build their case against
the Plaintiff and project an appearance of legitimacy for
terminating Plaintiffs employment, the Defendants began
to fill Plaintiffs personnel folder with false accusations
and charges. For example, in September of 1981,
Defendant Book falsely accused Plaintiff of having
"problems" in relating to Hospital physicians; he sent
carbon copies of these accusations to Defendants
Esendal, Pompilo, and Krajewski and Dr. Snyder of the
Psychology Department Privileging Committee. What
was labeled as "problems" were in fact Plaintiff's lawful
efforts to obtain quality medical care for her patients,
her reports of medical negligence, while the Hospital
physicians rebuffed Plaintiff's efforts to make adequate
diagnosis of patients’ conditions. Based upon this "unjust
labeling," Plaintiff received two unsatisfactory
performance ratings in February cf 1982 and 1983.
b. Defendant Esendal’s previous warnings about
Plaintiff's car became a fact. On October 5, 1981,
Plaintiff's car was vandalized while parked in front of the
Martin Gross Services Building, the location of
Defendant Esendal’s office. Of all the
85a
parked cars, the Plaintiff's car was the only one
vandalized. Plaintiff reported the incident to the
Hospital Police and put a sample of the unknown
substance, which she still has, in a white Kleenex tissue.
Officer Garehart, who investigated the incident, informed
the Plaintiff of other incidents of vandalism in other
areas of the Hospital in previous weeks. However, those
cars had been smeared with patients’ feces. October 5,
1981, corresponds with the date when Mr. Igor Frank
was transferred to the University of Maryland Hospital
for surgery, upon Plaintiff's insistence for a thorough
medical work-up. c. Beginning November 2, 1981,
Defendants Pompilo, Book and Bassiri issued repeated
oral and written orders to Plaintiff that she provide a
detailed written schedule of her activities, whereas there
were no legitimate reasons for such requests and no such
requests were made of others. These requests were later
given the appearance of legitimacy with false comments
in Plaintiffs Annual Efficiency Ratings of February 1982
and 1983.
d. Plaintiff complied with these orders, however
she fiied several grievances and rightfully challenged the
Defendants’ unfair treatment of her in this and other
86a
respects. Finally, on August 27, 1983, Defendant Book
requested that all psychologists provide their schedules to
him, all in an effort to appear as though he was treating
all psychologists "equally." Howevez, Defendant Book
even at that time made an additional request of schedule
from Plaintiff. © ¢. Defendants used insidious tactics in
an effort to coerce and silence the Plaintiff.
f. Defendant Bassiri offered to put Plaintiff
"under his wing and protect" her from harm by
Defendants Book, Krajewski and the Attorney General’s
Office, if she were to just give him sexual favors, drop all
her grievances and never again report physicians’
negligence. On February 4, 1982, Defendant Bassiri also
warned Plaintiff of subjecting her to “isolation treatment"
by other employees of the Hospital, thus causing
Plaintiffs psychological and professional death, if she
continued to report negligence. He, in fact, had
subjected Plaintiff to lewd remarks and offensive
touching from November of 1981 until January of 1982.
Plaintiff not only declined Defendant Bassiri’s
“protection” in return for sexual offers, she also reported
the sexual harassment and continued to strive for better
medical care of patients. Plaintiff is aware of at least
87a
one other former female employee of the Hospital, an
R. N. and a single parent like the Plaintiff, who was
subjected to sexual harassment by Defendant Bassiri and
actually lost her position as a result of having declined to
render sexual favors to him.
g- Defendant Esendal, on the other hand, offered
to give Plaintiff a large office in the Martin Gross
Services Building, ver” ‘ittle work to do, a promise of
continued glowing re.narks about Plaintiff's job
performance, and would protect her from harm by
Sefendants Book and Krajewski, only if she would
recognize him as her sole supervisor, disregard
Defendant Pompilo as her other supervisor, drop all her
grievances, approach Defendant Book and tell him that
all her reports of medical negligence were nothing but
the result of her "impaired judgment," and ask for
forgiveness from Defendant Book. Plaintiff declined to
accept this “protection” presented in the form of
racketeering tactic.
h. In December of 1981, Defendant Esendal, with
no legitimate reason, restricted Plaintiff's clinical
privileges. He forbade her to consult with patients
unless they were specifically referred to her by a
88a
psychiatrist, forbade her to read or make entries in the
patients’ medical chart except for those patients referred
by psychiatrists, and thus refused Plaintiff access to
certain wards. Meanwhile Plaintiff received no referrals
from psychiatrists. This was an effort to create the
appearance that Plaintiff was not doing her job and to
legitimize the unsatisfactory performance ratings of 1982
and 1983, executed by some of the Defendants. Two
consecutive unsatisfactory Annual Efficiency Ratings have
been used as the main basis for termination of
employees in the Maryland State System.)
i. On January 7, 1982, Defendant Esendal
threatened Plaintiff with expulsion from the Hospital.
He indicated to her that members of another hospital
staff who, like her, had tried to change the system, had
been murdered. He also gave her a press article entitled
“Allen Finally Takes the Hint." This was an article about
President Regan’s aid who, because of his errant ways,
was expendabie and who took the hint and finally
resigned. He also indicated to Plaintiff that the Hospital
Administration (Defendaxts Krajewski and Book) would
get rid of her and block her licensing. Plaintiff
immediately requested transfer from the Martin Gross
89a
Unit away from the supervision of Defendant Esendal,
and reported the death threat to the Maryland State
Police on January 8, 1982. Plaintiff was denied all
options for transfer and was left with either accepting
Defendant Bassiri’s supervision or resigning. Plaintiff
was ordered transferred to the Baltimore City Division
on February 22, 1982.
J. Defendant Esendal also approached Dr. Beth
Dzaman, then under Plaintiff's supervision, and tried to
negatively influence the supervisee against the Plaintiff.
k. De‘endant Pompilo frequently met with
Plaintiff and asked her to stop. reporting medical
negligence. He also informed Plaintiff that if she
continued her efforts to obtain better medical care for
patients, Defendants Krajewski and Book would destroy
her career, block her licensing, and that the Attorney
General’s Office would afford them "protection." In
addition, he tried to convince Plaintiff to resign for her
own protection.
1. Sometime in the Spring of 1982, Mr. Martin
Whitcomb, a concerned citizen who has been aware of
widespread patient neglect in the State Institutions of
Maryland, contacted Defendant Sandra Leichtman to
90a
request her intervention to relieve Plaintiff of
administrative harm. In response she implied. that
Plaintiff's credentials were phony and that she and the
rest of the Administration would assure that Plaintiff
never practiced psychology again.
m. Reprisals against Plaintiff for related First
Amendment activities in 1982 are as follows:
(1) On February 12, 1982, Plaintiff
filed a written complaint under the Maryland Classified
Employees Disclosure Act (codified at art. 64A, Section
12G(a), Maryland Code), The complaint alleged different
harassments by Hospital officials for Plaintiffs
communications regarding the medicai negligence as
described above. Copies of the complaint were supplied
to the Hospital administration, and the Attorney Gen-
eral’s Office for investigation. On or about February 25,
1982, defendants Pompilo, Esendal and Book, meeting
together, composed an unsatisfactory performance
appraisal of Plaintiff, which was issued to her. The
Maryland Attorney General’s Office did not contact the
Plaintiff to investigate either the harassment or the
medical negligence; instead it assumed the defense of the
9la
Defendants who had violated both the patients’ and
Plaintiff's rights.
(2) In late May 1982, Plaintiff testified before a
Finance Committee of the Maryland legislature, on
behalf of an amendment strengthening protection of state
employees who made disclosures under the Disclosure
Act. On June 22, 1982, Defendant Pompilo
recommended revocation of Plaintiff's full privileges and
imposition of special supervision for three months on all
aspects of Plaintiff's professional practice and
relationships although he had all along praised her for
her competence and high ethical conduct. On that date,
Pompilo also denied Plaintiff a promotion due in August
of 1982.
(3) During February and March of
1982, Plaintiff filed EEOC complaints with the Hospital
Affirmative Action Officer and the Federal EEOC
Office. The Hospital attempted to get Plaintiff's
signature waiving any right to sue it while the Federal
EEOC Office issued a Notice of Right to Sue on July
12, 1982.
92a
n. On April 22, 1982, Defendant Bassiri,
then Plaintiff's immediate supervisor, established a
special leave authorization procedure for her.
o. Defendant Philip Townsend, the Hospital
personnel chief, attempted to suspend Plaintiff on May
12, 1982, at Defendant Bassiri’s instigation based on a
false accusation.
P. Bassiri and Book pressured psychiatrist
Mattegunta of C-l, to constantly criticize Plaintiff from —
May to September 1981. On the day of her transfer to
another Unit, Mattegunta informed Plaintiff of this.
q. Beginning in August of 1982 Defendants
Krajewski, Book and Leichtman repeatedly attempted to
impose special supervision on Plaintiff prior to a decision
by the Hospital Privileging Committee, which had
jurisdiction of the matter. In fact, Plaintiff was assigned
12 supervisors while ali other psychologists were
responsible to only two.
r. In late August or early September of 1982
Defendant Regan revoked second-year funding of
Plaintiffs grant though he had approved it for funding as
of August 8, 1982. Revocation occurred within one week
93a
after Defendant Krajewski was informed of the approval
and funding.
s. In August 1982 Plaintiff, through counsel,
reported a female patient’s death from the Geriatric
Unit, which had just occurred and involved possible
medical negligence, while Defendant Krajewski ignoring
the report threatened Plaintiff that he would punish her
if she failed to disclose information of negligence or
abuse of patients.
t. Removal during Plaintiffs absence for
illness in September 1982, of sliding bolts in Plaintiff's
private office by Defendant Park assisted by other C-2
ward staff, so that her office could be entered by
patients or staff at any time. It is believed that this
action was instigated by other defendants in collaboration
with Defendant Park, to distress Plaintiff and to foment
trouble between her and ward staff. This incident led to
the ward meeting of October 6, 1982, which is discussed
in the next paragraph.
u. On October 4, 1982, Defendant Krajewski
ordered Plaintiff to attend a staff meeting convened
specially by him for Plaintiff to answer eleven (11)
trumped-up charges against her.
94a
Defendant Krajewski told Plaintiff she had better say the
charges were untrue, “or else." He denied Plaintiff's
request for a representative of her choice or an attorney
at the meeting, and threatened her with suspension if she
did not attend. Plaintiff attended the meeting, held
October 6, 1982, and became ill and was absent from
work for more than two weeks. Both Dr. Krajewski and
Plaintiff tape recorded the meeting.
v. Recovation of Plaintiff's full privileges in
October 1982, by Defendant Jolbitado, chair of the
Huspital Privileging Committee, in the absence of any
rationale or evidence supporting Defendant Pompilo’s
recommendation by the Psychology Department
Privileging Committee that Plaintiff's full privileges be
continued.
w. Service on Plaintiff of administrative
notices, in May and September of 1982, by two armed
hospital officers, in the middle of group therapy sessions
conducted by Plaintiff, at the direction of Defendant
Townsend.
x. From October 1982 on, Defendant Park
began to accuse Plaintiffboth in private and in team
95a
meetings, of being "unable to communicate," although
she communicated very clearly and precisely. This was
an effort to create the appearance of a pattern of
“communication problems" which Plaintiff was supposedly
having with staff.
y- On or about January 27, 1983, Defendant
Book was responsible for issuance of an Annual
Efficiency Rating for plaintiff, which had an overall
unsatisfactory rating, although work quality and quantity
were rated satisfactory. The only known explanation for
this rating was a pejorative untruthful evaluation draft by
Defendant Park, and Defendant Book’s own preferences.
All other written evaluations considered for the
final rating by Drs. Choi and Campo were either
satisfactory or superior. Subsequently the
psychiatrist who rated Plaintiff superior was harassed, as
were other employees who were supportive of Plaintiff.
z. In about early February 1983
Defendant Roberts summoned Plaintiff to his office and
inappropriately questioned her to elicit information
sought by the original defendants’ attorneys: the nature
of her background; whether she had relatives in Iran
about whom she might be concerned; whether such
96a
relatives were affected by the hostage crises; her
"philosophy" of treatment;" whom she lived with; her
legal claims in the instant lawsuit; etc. He also
questioned her regarding her schedule and whereabouts.
aa. Beginning late February 1983 Defendant
Randy Roberts, Director of Springfield’s Psychology
Department, subjected Plaintiff to unusual scrutiny.
bb. On or about March 14, 1983, Defendant
Roberts, in an effort to appear legitimate, instructed the
psychologists as follows:
(1) All unlicensed psychologists (Plaintiff
is unlicensed but is highly experienced and eligible for
licensing in Maryland) are to receive direct supervision
on a continuing permanent basis from licensed
psychologists. Defendant Roberts then sent Plaintiff a
series of memos concerning this requirement. The
requirement was in contradiction of Hospital Medical
Staff Bylaws privileging conditions.
(2) Defendant Roberts then directed the
Psychology Department Privileging Committee to write
the new supervision requirement into its guidelines for
privileging; Dr. Roberts thus violated the prerogatives of
that elected committee, and its written policy of
97a
self-governance, in order to give his policy the
appearance of legitimacy.
(3) Defendant Roberts stated that only
licensed psychologists could supervise interns in the
- future. This constituted an abrupt break with prior
Hospital practice whereby Plaintiff and other licensed
Ph.D. or M.A. psychologists with
experience did supervise interns.
(4) That he expected all unlicensed
psychologists to become licensed within one year. Such
a requirement was and is in violation of state statutes
concerning licensing, of state position requirements for
psychologists, and of the terms of Plaintiff's employment.
This requirement undermined Plaintiff's professional
Status since it was extremely unlikely Defendants would
permit her licensing to occur, as she had been previously
warned.
55. Thereafter, in the spring and summer of 1983
until Plaintiff's forced resignation, Defendants Randy
Roberts and Daniel Malone "trumped-up" phony
supervisory sessions in an effort to obtain information in
connection with her lawsuit, in an effort to further harass
her, and in an effort to document her personne! file with
98a
"justification" for suspensions without pay and termina-
tion. As a result, Plaintiff has been unemployed since
July 1983. | ¥
56. In taking their actions, each of the defendants
was aware of the plan to harass Plaintiff for exercise of
_her Constitutional and state rights of speech, and agreed
to participate.
CLAIMS
57. In doing the things and acts above complained
of while clothed in the authority of state officials,
Defendants acted under color of state law. They
maliciously engaged in a scheme and conspiracy designed
and wrongfully intended to deny and deprive Plaintiff of
rights guaranteed by the First, Fifth and Fourteenth
Amendments to the Constitution. In so doing they
violated 42 U.S.C. Sections 1983, 1985, 1986, 1988 and
1997(d). Plaintiff has suffered grievous professional and
pecuniary damage as a direct result of Defendants’
actions. She is entitled to equitable relief and monetary
damages under 42 U.S.C. Sections 1983 and 1985,
58. In doing the things and acts above complained
of Defendants breached their duty to Plaintiff to
99a
administer the Hospital without taking reprisals against
her and eventually forcing her to resign. As a result of
these actions and statements, motivated by wrongful
intent, Plaintiff has variously feared for her life, her job
and her professional reputation. She has suffered severe
damages as a direct result of Defendants’ course of
conduct. Plaintiff is entitled to monetary damages under
Maryland tort law for this harm.
59. In pursuing the above course of conduct,
Defendants have knowingly engaged in a conspiracy to
deprive Plaintiff of rights guaranteed by the U.S.
Constitution and by the Maryland Classified Employees
Disclosure and Confidentiality Protection Act, Art. 64A
Section 12G of the Maryland Code. Defendants have thus
breached their duty to Plaintiff to refrain from violating
her rights under federal and state law. Plaintiff has
suffered pecuniary and professional harm as a direct
result. Plaintiff is entitled to monetary damages under
Maryland tort law for the Defendants’ conduct based
upon wrongful intentions and for their malicious
interference with her duties and responsibilities as a
clinical psychologist.
100a
60. By their foregoing actions, the Defendants
have knowingly interfered with Plaintiff's contractual
employment rights with the Hospital and State, causing
Plaintiff to lose her full privileging status, her promotion,
and causing two unsatisfactory performance appraisals to
be issued about her, jeopardizing her employment.
Furthermore, as a result of these actions Plaintiff has
been and is unable to obtain suitable employment.
61. The words, gestures and touching by
Defendant Bassiri constitute tortious assault and battery;
Defendant Bassiri is also included in other claims, for
these and other cited actions by him.
62. Defendants Buck and Thornton are liable for
permitting all of these actions, and in not properly
supervising the conduct of the other defendants.
RELIEF
WHEREFORE, Plaintiff respectfully requests that
this Court:
1. Enter a judgment that the acts and practiced
complained of herein are in violation of 42 U.S.C.
Sections 1983, 1985, 1986, 1988 and 1997(d), U.S.
Constitution, Maryland Code Art. 64A, and Plaintiff's
rights under Maryland tort law.
10la
2. Order Defendants to grant Plaintiff back pay
with promotion to Psychologist III, steps and yearly
incremenis due, pay for eight days of suspension, and
benefits which were wrongfully removed.
3. Order the Defendants to purge all Hospital
records of mention of Defendants’ illegal actions,
statements, and their negative results, including the
February 1982 and 1983 performance appraisals and the
charges which resulted in suspensions without
pay.
4, Order defendant individuals jointly and/or
severally to pay Plaintiff $5,000,000 in compensatory
and punitive damages.
5. Order individual defendants and/or defendant
Hospital to pay Plaintiff's attorneys’ fees and costs,
pursuant to 42 U.S.C. Section 1988 and the Court’s
equitable powers, in the interests of justice.
6. Grant Plaintiff such additional relief as the
Court may deem just and proper.
PLAINTIFF DEMANDS TRIAL BY JURY.
, under of
103a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUGHIK (‘SONIA’) KAYZAKIAN
v. : CIVIL NO. K-82-3141
\ apapeaas F. KRAJEWSKI, ETC., ET
MEMORANDUM & ORDER
During a hearing in open court on the record held
on February 21, 1984 and a conference on the telephone
on the record held February 22, 1984, counsel for
plaintiff informed this Court that plaintiff was seeking to
dismiss the within case without prejudice, but that if this
Court would not grant plaintiff's said motion to dismiss
without prejudice, plaintiff in any event did not desire
the within case to go to trial without further amendment
of plaintiffs complaint to add additional defendants and
to add additional allegations. Plaintiffs desire so to
amend is repetitive of earlier similar or substantially
similar quests on behalf of plaintiff which have been
opposed by defendants and which this Court, after
hearing from counsel on both sides, has denied. Those
denials by this Court are hereby affirmed and confirmed
for reasons which have been stated by this Court either
in writing or orally on the record at one or more times.
104a
Trial of this case has been scheduled to commence
on Monday, February 27, 1984 since at least as early as ~
December 15, 1983. Statements of counsel for plaintiff,
on the record, with regard to Plaintiff's decision not to
proceed to trial on the basis of plaintiff's present
amended complaint have been made orally.
This Court instructed counsel for plaintiff, during
the aforementioned February 22, 1984 telephone
conference, to state that position by plaintiff, in writing,
in appropriate form, and to submit same to this Court,
not later than 5 p.m. today, February 23, 1984. This
Court also afforded to counsel for defendants the
opportunity to respond in writing to any such submission
by plaintiff on or before noon on February 24, 1984.
Counsel for defendants, in oral statements to this
Court on the record, and in a written submission, has
opposed the grant by this Court of plaintiff's quest for
dismissal without prejudice, regardless of any conditions
attached to the same and contends that the dismissal
should be fully with prejudice.
Counsel for plaintiff has stated that plaintiff intends
to file a new case in this Court, in which plaintiff will set
forth in her complaint all of the allegations she desires
105a
to state, including those which this Court has not
permitted plaintiff to state by amendment, and to name
in such complaint all of the defendants plaintiff desires
to name, including defendants who are not defendants in
the within case and who plaintiff has attempted
unsuccessfully to add prior to this date as defendants in
the within case. en.
Tentatively, as of this date, prior to receiving the
written submissions referred to hereinabove from counsel
on either or both sides later today, February 23, 1984 or
tomorrow, February 24, 1984, this Court expects, before
determining whether to dismiss the within case with or
without prejudice, to grant to plaintiff the opportunity to
file a new case on or before March 12, 1984 and to
inform this Court in writing, on or before that same
date, namely, March 12, 1984, whether plaintiff is able to
post a bond in the minimum amount of $10,000.00 to
reimburse defendants for such costs and expenses, if any,
as defendants may incur because of the need for
repetitive work and proceedings in the new case which
would not have occurred had plaintiff proceeded timely
in the within case. This Court notes that counsel for
defendants claims that such additional costs and expenses
106a
wili be far in excess of $10,000.00 and that plaintiff has
in no way conceded that there will be any such
additional costs and expenses, or that if there are any
such additional costs and expenses, plaintiff should be
required to bear the burden of the same. In those
connections, both sides will be afforded full opportunities
to be heard. However, as of this date, on a tentative
basis, this COurt believes that it is quite possible that
such additional costs and expenses would total $10,000 or
more.
If plaintiff files any such new case on or before
March 12, 1984 and desires to continue to pursue her
quest for the within case to be dismissed without
prejudice, counsel of record in this case for plaintiff will
be required to state in writing on or before 3/12/84 that
he has good reason to believe that plaintiff can post such
a bond in a minimum amount of $10,000 with the full
understanding that, in effect, such bond will be a
guarantee of payment by plaintiff of additional costs and
expenses of defendants which it is quite possible will be
incurred. If plaintiff does not file a new case on or
before March 12, 1984 and/or does not, through her
attorney, provide this Court with the type of assurance
107a
indicated above with regard to the posting of bond, this
Court, as of this date, on a tentative basis, expects to
dismiss the within case with prejudice as promptly after
March 12, 1984 as this Court’s calendar permits. If, on
the other hand, plaintiff does not file a new case on or
before March 12, 1984 and also provides the required
assurance as to bond, this Court will afford to both sides
further opportunity fully to be heard concerning whether
the within case will be dismissed with prejudice or
without prejudice, and if without prejudice, on what
conditions, if any. |
As of this date, this Court will not enter any final
Order in this case but does note, that on a binding basis,
plaintiff has committed herself not to proceed further in
the within case and has stated, on a binding basis, that
the within case should be dismissed. Of course, if the
within case is dismissed with prejudice, rather than
without prejudice as plaintiff desires, plaintiff will, after a
final Order to that effect is entered by this Court, have
the right to appeal. By way of contrast, if this Court
should enter a final Order dismissing the within case
without prejudice, defendants will have such rights, if
any, to appeal as may be provided by law.
108a
Attached hereto is a letter dated February 21, 1984
to this Court from J. Frederick Motz, Esq., along with
letters dated February 19, 1984 from Martin F.
Whitcomb and Romaine B. Whitcomb addressed to this
Court. The written comments of Ms. Meredith with
respect to the same are requested on or before March 1,
1984 and of Mr. Marr on or before March 8, 1984.
The Clerk is directed to send copies of this
Memorandum and Order to counsel of record and to
Mr. and Mrs. Whitcomb.
It is so ORDERED, this 23rd day of February,
1984.
OY ONT ED STATES DISTRICT JUDGE
109a
STATUTE AND RULE PROVISIONS
TITLE 42, UNITED STATES CODE
42 US.C. Section 1983. Civil action for deprivation of
Eve rson who, under color of statu
ordinance, regulation, custom, or usage, of any State or
Ti or District of Columbia, s or causes
to be subjec iy shioen Cf tn Unieed teats cr cher
pron a ¢ n thereof to the —
or immunities secured
Constitution ahd laws, shall be liable to the party injured
in 9 ae ee es eee ee
pr ing for redress. For purposes of this section,
any Act applicable exclusively to the District
of Columbia be considered to be a statute of the
District of Columbia.
i
Federal Rules of Civil Procedure
Rule 15. Amended and Supplemental Pleadings
ed
supplemental i forth transactions or
CCOMNERCES Gf GEOINT which have happened since the
ir delohee. If the court deems it advisable that the
adverse party plead to the 4 gee pleading, it shall
so order, s ing the time therefor.
=
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.