Opposition Brief — Harris v. American Medical International, Inc.

Bupreme Court, U.S.

om e.

MAY 2 1 1993

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DEEICE OF SHE Clink |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

EDNA HARRIS,

Petitioner,

V.

AMERICAN MEDICAL INTERNATIONAL, INC.; WALTER

WEISMAN; WALTER GEORGE; DAVID GORE; SHIRLEY

HOFFMAN; PRESBY TERIAN/SAINT LUKE’S MEDICAL

CENTER; JEANNE COAKLEY BEETHE,

Respondents.

BRIEF OF PRESBYTERIAN/SAINT LUKE’S MEDICAL CENTER

IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

JACK D. HENDERSON

1600 Broadway, Suite 2400

Denver, Colorado 80202

(303) 830-9111

ATTORNEY FOR RESPONDENT,

PRESBYTERIAN/SAINT LUKE’S

MEDICAL CENTER

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Page

CASES

Cf. Griffin v. Breckenridge, 403 U.S. 88,

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Clulow v. Oklahoma, 700 F.2d 1291, 1296, 1303

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Colon v. Grieco, 226 F.Supp. 414 (D.N.J. 1964) 0... eeeeeeeceeeeeeees 8

Daly v. Pedersen, 278 F.Supp. 88 (D.Minn. 1967) ..............::cecseeeeee 8

Drake v. City of Fort Collins, 927 F.2d 1156,

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Dunn v. Gazola, 216 F.2d 709, 711

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Durre v. Dempsey, 869 F.2d 543, 545

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Ellingburg v. King, 490 F.2d 1270 (8th Cir. 1974) .00.........ccecceeeeseeees 7

Fletcher v. Hook, 446 F.2d 14 (3rd Cir. 1971) ..........scesesceeseeeeeeseneees 7

Harrison v. Brooks, 519 F.2d 1358, 1360

POE Tans. ire ail i vehccninceace shlachanioteubagumesnbneuaeamneeniaamdasasnaaaiaaann 6

Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959) o.oo. eceeeeeeceteeee 8

Johnson v. Stone, 268 F.2d 803 (7th Cir. 1959) .0..........cccccceeeeeeeeeeeeee 7

Kadar Corp. v. Millbury, 549 F.2d 230

CRAG, BIE Oi skciinsivvesiicsurtineitciisnigaecicambaediacsuiatnigaidnedaaeaaamamedinmadaiaas 7

(ii)

Lessman v. McCormack, 591 F.2d 605, 611-12

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Powell v. Jarvis, 460 F.2d 551 (2d Cir. 1972) .............

Robinson v. McCorckle, 462 F.2d 111

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Selico v. Jackson, 201 F.Supp. 475 (S.D. Cal. 1962)

Slotnick v. Stavisky, 560 F.2d 31

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Snowden v. Hughes, 321 U.S. 1, 64 S. Ct. 397,

88 L.Ed. 497 (1944) o..c.ccecseccsecseccsecssesseessesssesssecsssesecen

Sooner Prods. Co. v. McBride,

Fe ae 200, 12 (10th Cir. 1983)............00.00.0cc00000020.

Weise v. Reisner, 318 F.Supp. 580, 583

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(ili)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

EDNA HARRIS,

Petitioner,

V.

AMERICAN MEDICAL INTERNATIONAL, INC.; WALTER

WEISMAN; WALTER GEORGE; DAVID GORE; SHIRLEY

HOFFMAN; PRESBYTERIAN/SAINT LUKE’S MEDICAL

CENTER; JEANNE COAKLEY BEETHE,

Respondents.

BRIEF OF PRESBYTERIAN/SAINT LUKE’S MEDICAL CENTER

IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

The Petitioner, Edna Harris, is a black citizen of the United

States who was employed by Presbyterian/Saint Luke’s Medical

Center (“P/SL”) from July 13, 1981 to September 24, 1985. The

assets of P/SL were sold to American Medical International, Inc.

(“AMI”) on September 24, 1985. Ms. Harris continued to be em-

ployed with AMI until June of 1988 when AMI terminated

Ms. Harris from her employment. Ms. Harris sought legal and

equitable relief under 42 U.S.C. §§1981, 1985(3) and 1986, and the

Thirteenth Amendment to the Constitution of the United States.

In the caption of the Amended Complaint, P/SL is identified

as a Co-Defendant. However, Ms. Harris fails to mention P/SL by

name in any allegation of the Amended Complaint. Ms. Harris

alleges that

“Between November 1, 1984 and July

1, 1988, the Defendants engaged in a

conspiracy with each other and with

unknown third persons for the purpose

of depriving, either directly or indi-

rectly, the Plaintiff, or a class of black

persons, of equal protection of the

laws, or of equal privileges and immu-

nities under the law.” (1a)

Although Ms. Harris directs certain allegations toward “the

Defendants” Ms. Harris specifically confines her factual allegations

to the alleged wrongs of “Defendants American Medical Interna-

tional, Inc., Walter Weisman, Walter George, David Gore and

Shirley Hoffman.”

P/SL filed its Motion to Dismiss the Amended Complaint

(4a) on the grounds (among others) that the Amended Complaint did

not contain any specific factual allegations of the existence of a

_ —

Se

conspiracy with the specificity required to survive a motion to

dismiss.

On September 19, 1990, the Honorable Zita L. Weinshienk,

Judge, of the United States District Court for the District of Colo-

rado, held a hearing on P/SL’s Motion to Dismiss. Judge

Weinshienk granted the Motion to Dismiss stating:

“And one of the exceptions to notice

pleading is when you allege a 1985

action. And the Tenth Circuit court, in

Lessman v. McCormack has said very

specifically .. and I believe there is

some other cases .. I’m not familiar

with the one that Mr. Smith is referring

to .. it says that the complaint must

allege facts showing a conspiracy; it’s

not enough that the conclusions are

alleged.” (8a)

On appeal, the United States Court of Appeals for the Tenth

Circuit agreed with Judge Weinshienk stating in part:

“We agree with the district court that

plaintiff's conclusionary allegations of

conspiracy lack the supporting factual

detail necessary to sustain a claim for

relief. See, e.g., Drake v. City of Fort

Collins, 927 F.2d 1156, 1159, 1162-63

(10th Cir. 1991) (conclusory allegation

of conspiracy in connection with

adverse employment action insuffi-

cient to state a claim under §1985(3));

see also Durre v. Dempsey, 869 F.2d

543, 545 (10th Cir. 1989) (plaintiff

must provide ‘specific facts showing

agreement with concerted action’ to

sustain civil rights conspiracy claim);

Clulow v. Oklahoma, 700 F.2d 1291,

1296, 1303 (10th Cir. 1983)

(conclusory allegation of conspiracy

without supporting factual events

insufficient to state claim).” (12a)

SUMMARY OF ARGUMENT

The United States Court of Appeals has not departed from the

accepted and usual course of judicial proceedings, or sanctioned such

a departure by a lower court, as to call for exercise of this Court’s

power of supervision.

ARGUMENT

While this Court has the judicial discretion to grant a Petition

for Writ of Certiorari when the United States Court of Appeals

departs from the accepted and usual course of judicial proceedings,

or sanctions such departure by a lower court, in this case Ms. Harris

makes no showing that such departure from the accepted and usual

course of judicial proceedings has occurred. To the contrary, the

United States Court of Appeals in deciding this case followed its

earlier decisions. As an example, in Durrte v. Dempsey, 869 F.2d

543, 545 (10th Cir. 1989), the Court held:

“Plaintiff alleged defendants conspired

to deprive plaintiff of his constitutional

rights. Because plaintiff failed to

allege specific facts showing agree-

ment and concerted action among

defendants, the district court properly

dismissed the conspiracy claim with

prejudice. See Sooner Prods. Co. v.

McBride, 708 F.2d 510, 512 (10th Cir.

1983). Conclusionary allegations of

conspiracy are insufficient to state a

valid §1983 claim.”

Similarly, in Drake v. The City of Fort Collins, 927 F.2d

1156, 1159, 1162-63 (10th Cir. 1991), the United States Court of

Appeals dismissed the plaintiff's §1985(3) claim stating:

“We have examined the complaint

carefully and hold that the allegations

of the complaint are not specific

enough to provide any independent

source to support a §1985(3) claim.

See Clulow v. Oklahoma, 700 F.2d

1291, 1303 (10th Cir. 1983).”

Ms. Harris, cites as authority for her position Lessman v.

McCormick, 591 F.2d 605, 611-12 (10th Cir. 1979) (Ms. Harris’

Brief, Pages 7 and 8). In Lessman, the complaint alleged a con-

spiracy among all defendants to deny plaintiff equal protection of the

5

law and to injure her property and person. Judge Weinshienk relied

upon Lessman when she dismissed the claim of Ms. Harris against

P/SL. Lessman specifically held:

“The complaint must allege facts

showing a conspiracy against plaintiff

‘because of’ her membership and class

and that the criteria defining a ‘class

were invidious’. Harrison v. Brooks,

519 F.2d 1358, 1360 (1st Cir. 1975).”

The language quoted from Lessman, supra, in the Brief of

Ms. Harris relates to the question of whether the plaintiff should be

allowed to attempt to develop through discovery specific facts which

would support her conspiracy allegation. In Lessman, supra, how-

ever, the court had found the allegations of the complaint were

sufficient to pass the specificity test. The court stated:

“All that is alleged against the defen-

dants other than White and Reynolds is

that they conspired together and caused

the arrest and detention. No specific

facts are set out connecting them to the

arrest. Even so we think there is

sufficient here to pass the applicable

liberal construction test. Specific facts

are stated with respect to the officer

forcing plaintiff to stay at police

headquarters until the bank employee

arrived.”

a

It is clear that Lessman, supra, is consistent with the other

authorities that are cited in this brief to the effect that Ms. Harris

must allege with specificity the facts to support her allegation of a

conspiracy.

Other circuits of the United States Court of Appeals have

reached a similar conclusion. In Slotnick v. Stavisky, 560 F.2d 31

(1st Cir. 1977), the court stated:

“In an effort to control frivolous

conspiracy suits under §1983, federal

courts have come to insist that the

complaint state with specificity the

facts that, in plaintiff's mind, show the

existence and scope of the alleged

conspiracy. It has long been the law in

this and other circuits that complaints

cannot survive a motion to dismiss if

they contain conclusory allegations of

conspiracy but do not support their

claims with references to material

facts. Dunn v. Gazola, 216 F.2d 709,

711 (ist Cir. 1954); Kadar Corp. v.

Millbury, 549 F.2d 230 (1st Cir. 1977);

Fletcher v. Hook, 446 F.2d 14 (3rd Cir.

1971); Johnson v. Stone, 268 F.2d 803

(7th Cir. 1959); Ellingburg v. King,

490 F.2d 1270 (8th Cir. 1974); Powell

v. Jarvis, 460 F.2d 551 (2d Cir. 1972).

This rule might have been applied with

profit to this case. The complaint

contains frequent references

to conspiracy, but it offers few insights

into the specific nature of the alleged

concerted action.”

See also, Robinson v. McCorkle, 462 F.2d 111 (3rd Cir.

1972), where the court stated:

“With near unity the courts have

rejected complaints containing mere

conclusory allegations of deprivations

of constitutional rights protected under

§1985(3). ‘A conspiracy claim based

upon §1985(3) requires a clear show-

ing of invidious, purposeful and

intentional discrimination between the

classes or individuals. Snowden v.

Hughes, 321 U.S. 1, 64 S.Ct. 397, 88

L.Ed. 497 (1944); Hoffman v. Halden,

268 F.2d 280 (9th Cir. 1959); Colon v.

Grieco, 226 F.Supp. 414 (D.N_J.

1964); Selico v. Jackson, 201 F.Supp.

475 (S.D. Cal. 1962).” Daly v.

Pedersen, 278 F.Supp. 88 (D.Minn.

1967); Weise v. Reisner, 318 F.Supp.

580, 583 (E.D. Wis. 1970). Cf. Griffin

v. Breckenridge, 403 U.S. 88, 91 S.Ct.

1790, 29 L.Ed.2d 338 (1970).”

CONCLUSION

The question presented for review by Ms. Harris that the

United States Court of Appeals has departed from the accepted and

usual course of judicial proceedings, or sanctioned such a departure

by a lower court is simply not the case. The United States Court of

Appeals has followed its earlier decisions and the decisions of other

circuits that claims of conspiracy must be alleged with specificity for

such claims to survive a motion to dismiss. Presbyterian/St. Luke’s

Medical Center respectfully requests this Court deny the Petition for

Writ of Certiorari.

CLANAHAN, TANNER, DOWNING AND

KNOWLTON, P.C.

Jack D. Henderson

Attorneys for Respondent

Presbyterian/Saint Luke's

Medical Center

1600 Broadway, Suite 2400

Denver, Colorado 80202

(303) 830-9111

<< LLL

ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

EDNA HARRIS,

Petitioner,

v.

AMERICAN MEDICAL INTERNATIONAL, INC.; WALTER

WEISMAN; WALTER GEORGE; DAVID GORE; SHIRLEY

HOFFMAN; PRESBYTERIAN/SAINT LUKE’S MEDICAL

CENTER; JEANNE COAKLEY BEETHE,

Respondents.

APPENDIX TO

BRIEF OF PRESBYTERIAN/SAINT LUKE’S MEDICAL CENTER

IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

JACK D. HENDERSON

1600 Broadway, Suite 2400

Denver, Colorado 80202

(303) 830-9111

ATTORNEY FOR RESPONDENT,

PRESBY TERIAN/SAINT LUKE’S

MEDICAL CENTER

ia

ES eS

TABLE OF CONTENTS

Page

Arne CORIO, «ve sicisesvcsseiveisinteinivcinsinaeiaiaegiaialbaigideadaanisaiies la

Motion to Dismiss ...............scsscsssssscssseessssssesesessesssnsssssenesessessesees 4a

Reporter's Transcript

(Hearing on Motions to Dismiss: Bench Ruling) ......................0008. 8a

COOGEE GE FOG Si iniseravinnsmammnn emanate 12a

lia

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 90-Z-758

EDNA HARRIS,

Plaintiff,

v.

AMERICAN MEDICAL INTERNATIONAL, INC.; WALTER

WEISMAN; WALTER GEORGE; DAVID GORE, SHIRLEY

HOFFMAN; PRESBYTERIAN/SAINT LUKE’S MEDICAL

CENTER; JEANNE COAKLEY BEETHE,

Defendants.

AMENDED COMPLAINT AND JURY DEMAND

COMES NOW the Plaintiff, Edna Harris, and files the

following Amended Complaint against the above-named Defen-

dants:

a This is a suit for legal and equitable relief under 42

U.S.C. §§1981, 1985(3), and 1986, and the Thirteenth Amendment

to the Constitution of the United States. Jurisdiction of the Court is

invoked pursuant to 28 U.S.C. §§1331 and 1343.

y & Between November 1, 1984 and July 1, 1988, the

Defendants engaged in a conspiracy with each other and with un-

known third persons for the purpose of depriving, either directly or

indirectly, the Plaintiff, or a class of Black persons, of equal protec-

tion of the laws, or of equal privileges and immunities under the

laws. One or more persons engaged in the conspiracy did, or caused

to be done, an act in furtherance of the object of such conspiracy,

whereby the Plaintiff was injured in her person or property, or

deprived of having and exercising a right or privilege of a citizen of

the United States. Specifically, Defendants American Medical

International, Inc., Walter Weisman, Walter George, David Gore

and Shirley Hoffman terminated the Plaintiff from her employment

as a licensed practical nurse on or about June 6, 1988 because of her

race

la

—— nl

(Black), as evidenced by racial comments, harassment, and retalia-

tion; subjective termination criteria; and other facts and circum-

stances indicating that the Plaintiff was denied the equal protection

of the laws.

3. Defendants American Medical International, Inc.,

Walter Weisman, Walter George, David Gore, and Shirley Hoffman,

having knowledge that the wrongs conspired to be done were about

to be committed, and having power to prevent or aid in preventing

the commission of the same, neglected or refused to do so.

4. Defendants American Medical International, Inc.,

Walter Weisman, Walter George, David Gore, and Shirley Hoffman

deprived the Plaintiff of the same right in the State of Colorado to

make and enforce contracts, to sue, be a party, give evidence, and to

the full and equal benefit of all laws and proceedings for the security

of persons and property as is enjoyed by white citizens, and sub-

jected the Plaintiff to punishment, pains, penalties, and exactions not

imposed on white citizens. Specifically, these Defendants termi-

nated the Plaintiff from her employment as a licensed practical nurse

on or about June 6, 1988 in retaliation for the Plaintiff having filed a

charge of racial discrimination against Presbyterian/Saint Luke’s

Medical Center with the Equal Employment Opportunity Commis-

sion and in retaliation for the Plaintiff having filed and pursued a

civil rights action for racial discrimination and retaliation against

Presbyterian/Saint Luke’s Medical Center and T. Jeanne Coakley in

the United States District Court for the District of Colorado.

~ At all times relevant to the claims alleged in para-

graph 1-4, supra, the Defendants were acting intentionally and in

reckless and callous indifference to the Plaintiff’s federally protected

rights.

WHEREFORE, the Plaintiff requests to be reinstated into the

position of licensed practical nurse with all lost salary, back pay,

front pay, and benefits; all actual and compensatory damages,

including damages for pain and suffering, emotional and mental

distress, and lost good name, reputation, honor, and integrity; puni-

tive damages against each of the Defendants; expungement of all

negative references to the Plaintiff contained in the records of

American Medical International, Inc., Presbyterian/Saint Luke’s

Medical Center, and the Colorado Board of Nursing; interest and

costs, including attorney’s fees under 42 U.S.C. §1988; and such

other and further relief as the Court and jury deem appropriate.

2a

PLAINTIFF HEREBY DEMANDS A TRIAL BY JURY OF

THE CLAIMS FOR RELIEF ALLEGED IN THE FOREGOING

AMENDED COMPLAINT.

Respectfully submitted,

David L. Smith

Attorney for Plaintiff

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

Plaintiff’s address:

3452 Josephine Street

Denver, Colorado 80205

CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of May, 1990, a true

and correct copy of the foregoing Amended Complaint and Jury

Demand was hand delivered to the following:

Prentice Hall Corporation Systems, Inc.

1400 Glenarm Place, Third Floor

Denver, Colorado

Walter George

1834 Gilpin Street

Denver, Colorado

Shirley Hoffman

801 East 19th Avenue

Denver, Colorado

3a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 90-Z-758

EDNA HARRIS,

Plaintiff,

Vv.

AMERICAN MEDICAL INTERNATIONAL, INC.; WALTER

WEISMAN; WALTER GEORGE; DAVID GORE; SHIRLEY

HOFFMAN; PRESBYTERIAN/SAINT LUKE’S MEDICAL

CENTER; JEANNE COAKLEY BEETHE,

Defendants.

MOTION TO DISMISS AMENDED COMPLAINT

AND JURY DEMAND

Defendant Presbyterian/Saint Luke’s Medical Center

(“PSL”), by and through its counsel, Kutak Rock & Campbell,

respectfully moves this Court, pursuant to Rule 12(b)(6),

Fed.R.Civ.P. to dismiss Plaintiff’s Amended Complaint and Jury

Demand in the above-captioned matter for failure to state a claim

upon which relief can be granted.

il. Defendant PSL was served with a copy of Plaintiff’s

Amended Complaint and Jury Demand (the “Amended Complaint”)

on or about May 14, 1990. Plaintiff’s Amended Complaint purports

to request legal and equitable relief under 42 U.S.C. §§ 1981,

1985(3) and 1986, and the Thirteenth Amendment to the Constitu-

tion of the United States (Amended Complaint, 4 1).

2. Plaintiff alleges as the basis for each of these claims

that between November 1, 1984, and July 1, 1988, Defendants

American Medical International, Inc. (“AMI”), Walter Weisman,

Walter George, David Gore and Shirley Hoffman engaged in a

conspiracy with each other to terminate Plaintiff from her employ-

ment at AMI as a licensed practical nurse, effective June 6, 1988,

because of her race (Amended Complaint, {7 2 through 5).

4a

3. Plaintiff’s Amended Complaint fails to allege facts

sufficient to allow the Court to conclude that Plaintiff has a legal

right to relief against PSL. Although Plaintiff makes a blanket

allegation against all defendants in paragraph 2 of the Amended

Complaint, not one specific factual allegation is directed against

PSL. Since conclusory allegations are not sufficient to survive a

motion to dismiss when no facts are alleged to support the conclu-

sion, Bryan v. Stillwater Bd. of Realtors, 578 F.2d 1319, 1321 (10th

Cir. 1977), the Amended Complaint fails to state a claim upon

which relief can be granted and must be dismissed under Rule

12(b)(6), Fed.R.Civ.P.

4. Plaintiff’s claim for relief under 42 U.S.C. § 1981

also fails to state a claim for relief and must be dismissed. Section

1981, which grants all persons the same right to make and enforce

contracts as is enjoyed by white citizens, prohibits racial discrimina-

tion in the making and enforcement of private contracts. Where, as

here, the alleged acts of discrimination do not involve the impair-

ment of the specific rights to “make” or to “enforce” contracts,

Section 1981 provides no relief. Patterson v. McLean Credit Union,

109 S. Ct. 2363 (1989). Because Plaintiff in this case alleges post-

contract formation discriminatory conduct, Section 1981 is not

applicable and that claim for relief must be dismissed.

5. Plaintiff’s claim for relief under 42 U.S.C. § 1985(3)

fails to state a claim for relief and must be dismissed. To state a

claim under 42 U.S.C. § 1985(3), a complaint must allege the

existence of five elements:

1) conspiracy; 2) motivated by “racial or perhaps

otherwise class-based invidious discriminatory

animus”; 3) “for the purpose of depriving either

directly , or indirectly, any person or class of persons

of equal protection of laws, or equal privileges and

immunities under the laws”; 4) that the conspirator

committed some act in furtherance of the conspiracy;

and 5) that the plaintiff was either “injured in his

person or property” or was “deprived of having and

exercising any right or privilege of a citizen of United

States.”

Sa

ee

Sager v. Woodland Park, 543 F. Supp. 282, 291 (D. Colo. 1982)

(quoting Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971)).

Because Plaintiff in this case fails to allege that PSL engaged ina

conspiracy, and because PSL, as a matter of law, could not possibly

have engaged in the alleged conspiracy, Section 1985(3) is not

applicable and that claim for relief must be dismissed.

6. Plaintiff’s claim for relief under 42 U.S.C. § 1986

fails to state a claim for relief and must be dismissed. It is axiomatic

that a cause of action under Section 1986 is premised on the viola-

tion of Section 1985. Accordingly, where the Plaintiff cannot

maintain a claim under Section 1985, a claim under Section 1986

must fail as well. Milton v. Wilson, 607 F. Supp. 510 (D. Colo.

1985). Because Plaintiff’s claim under Section 1985 fails to state a

claim upon which relief can be granted, Plaintiff’s claim under

Section 1986 must also be dismissed.

7. On September 29, 1988, PSL submitted, to the

District Court, City and County of Denver, State of Colorado, its

application for judicially supervised liquidation (the “Application”).

On October 17, 1988, the District Court issued an order (the “Or-

der”) commencing the dissolution proceedings. The Order, among

other things, fixed March 3, 1989 as the last day for the filing of

claims against PSL and held that “creditors and claimants who fail to

file a Proof of Claim on or before such date shall be barred from

participating in the distribution of the assets of the Corporations.”

Plaintiff’s claim, which has not been filed with the District Court,

and which, in any event, was not filed prior to the bar date, must be

dismissed as being untimely. C.R.S. § 7-8-120.

WHEREFORE, Defendant PSL respectfully requests that

Plaintiff’s Amended Complaint and Jury Demand be dismissed, with

prejudice, and that the Court grant to PSL its reasonable costs,

attorneys’ fees and such other and further relief as the Court deems

just and equitable, as set forth herein and as will be further detailed

in the Brief in Support of its Motion to Dismiss, which PSL, by

separate motion, has requested leave of this Court to file.

Respectfully submitted this 4th day of June, 1990.

KUTAK ROCK & CAMPBELL

B

y:

Elizabeth A. MacDonald

Tana K. Simard

2400 Arco Tower

707 Seventeenth Street

Denver, Colorado 80202

(303) 297-2400

Attorneys for Defendant

Presbyterian/Saint Luke’s

Medical Center

CERTIFICATE OF SERVICE

I hereby certify that on this 4th day of June, 1990, service of

the foregoing MOTION TO DISMISS AMENDED COMPLAINT

AND JURY DEMAND was effected by placing true and correct

copes thereof in the United States mail, postage prepaid, addressed

to the following:

David L. Smith, Esq.

1630 Welton Street

Suite 300

Denver, CO 80202

Richard L. Thorgren, Esq.

Harding and Ogborn

1200 Seventeenth Street

Denver, CO 80202

Ta

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 90-Z-758

EDNA HARRIS,

Plaintiff,

vs.

AMERICAN MEDICAL INTERNATIONAL, Inc., et al.,

Defendants.

REPORTER’S TRANSCRIPT

(Hearing on Motions to Dismiss: Bench Ruling)

Proceedings before the HONORABLE ZITA L.

WEINSHIENK, Judge, United States District Court for the District

of Colorado, commencing at 8:55 a.m., on the 19th day of Septem-

ber, 1990, in Courtroom C-502, United States Courthouse, Denver,

Colorado.

APPEARANCES

DAVID L. SMITH, Attorney at Law, 1630 Welton Street,

Suite 300, Denver, Colorado 80202, appearing for the plaintiff.

HARDING & OGBORN, by RICHARD L. THORGREN,

Attorney at Law, 1200 17th Street, Denver, Colorado 80202, appear-

ing for Defendants American Medical, Weisman, George, Gore,

Hoffman and Beethe.

KUTAK ROCK & CAMPBELL, by TANA K. SIMARD,

Attorney at Law, Suite 2400, 707 17th Street, Denver, Colorado

80202, appearing for Defendant Presbyterian/Saint Luke’s.

(The arguments of counsel are not herein transcribed, pursu-

ant to the direction of ordering counsel. The following proceedings

were then had and entered of record:)

8a

RULING

THE COURT: The motion to dismiss the 1981

action, allegations of discharge based on both retaliation and dis-

crimination, will be denied This court’s ruling is that the Tenth

Circuit--I’m sorry--the Eighth Circuit, which is the sister circuit to

the Tenth, really has the better reasoning on the question of

Patterson. And if one indeed just reads Patterson, Patterson just

simply does not cover the situation of a discriminatory discharge.

It’s an area that is not addressed.

So that motion will be denied. Except the Court will

further find that there are no specific allegations concerning defen-

dant Beethe; and the motion to dismiss Defendant Beethe will be

granted, and that defendant will be stricken and dismissed from the

complaint.

As to the 1982--as to the 1985 action, and 1986 also

goes along with it, we have notice pleading, and there are only

certain exceptions to notice pleading. And one of the exceptions to

notice pleading is when you allege a 1985 action. And the Tenth

Circuit court, in Lessman_ v. McCormick has said very specifically--

and I believe there is some other cases--I’m not familiar with the one

that Mr. Smith is referring to--it says that the complaint must allege

facts showing a conspiracy; it is not enough that conclusions are

alleged.

This has been the law in many other circuits; and I

would cite for the record Slotnick v. Stavinsky, which is 560 F.2d

31, a First Circuit, 1977 case, wherein the court on page 33 indicated

that complaints cannot survive a motion to dismiss if they contain

conclusory allegations of conspiracy but do not support their claims

with reference to material facts. That’s in the context of a con-

spiracy action.

And in Robinson v. McCorkle, 462 F.2d 111, a Third

Circuit case, the complaint must be dismissed when there are only

broad conclusory allegations.

It has long been the law in this circuit and in others--

and I intend to follow this law, and I have in the past followed it--

that when you’re pleading a 1985 complaint, you must allege facts,

not conclusions. Facts have not been alleged. There hasn't been

9a

anything in the complaint to say what the facts were concerning

Presbyterian/Saint Luke’s. In fact, they’re not even mentioned by

name in the complaint, nor is Defendant Beethe.

Accordingly, the Court will at this time grant the

motion of Presbyterian/Saint Luke’s to dismiss Presbyterian/Saint

Luke’s form the case. There is no 1981 claim agaiht Presbyterian/

Saint Luke’s, and the Court specifically finds that there are no facts

alleged in the complaint to support a claim under section 1985.

I quite frankly believe also that--and I don’t have to

face the issue--that were we to look at the state bar, when Presbyte-

rian/Saint Luke’s was liquidated, that probably would be a good bar

in this action against them. Certainly we do look to state law for

many factors involved in a--in 1985 or in Federal claims; and where

the entity was liquidated and another entity replaced them, I think

that probably would bar the initial entity, although that issue will not

be the basis for my determination because this is a motion to dismiss

and not a motion for summary judgment.

Now, let me just say one more thing: I am going to

allow AMI to file a motion for summary judgment if they want to

concerning the 1985 claim. I would say to Mr. Smith that maybe

you should look at the law carefully and decide whether you want to

concede this issue, because as you’re well aware, an attorney may

not pursue a claim that does not have a basis in the law after investi-

gation.

But in any case, let’s have a--whatever you think

appropriate, a motion for summary judgment as to the 1985 claim.

There also is very strong law, Mr. Smith, and I’m

sure you’re aware of it, that says that a corporation cannot conspire

with employees. That’s just clear law in the Tenth Circuit. Unless

the employees have some individual interest, some personal gain

that they might make, they cannot conspire with a corporation, with

their employer corporation. And again, there is many, many cases in

the Tenth Circuit on that point and in many other circuits. I think

that’s pretty much the law all over.

So if that’s a basis for a motion to dismiss the con-

spiracy claim also, this is something that should be considered,

because I think the law is clear in that regard. But we’ll take that up

when the time comes.

10a

For the time being, the Court will deny American

Medical International’s motion to dismiss the 1981 claims based on

both discriminatory and retaliatory discharge and will grant Presby-

terian/Saint Luke’s motion to dismiss Presbyterian/Saint Luke’s

from the case and will also dismiss all claims against Defendant

Beethe, for failure to state any claims specifically against her.

We'll proceed, then, on the remaining claims at least

at this point, till we review any further motions for summary judg-

ment.

Thank you.

MR. THORGREN: Thank you, your Honor.

MS. SIMARD: Thank you, your Honor.

(Thereupon, the hearing was concluded and the Court re-

cessed at 9:30 a.m.)

REPORTER'S CERTIFICATE

I certify that the foregoing is a correct transcript form

the record of proceedings in the above-entitled matter.

Dated at Denver, Colorado, this 27th day of Novem-

ber, 1991.

Paul A. Zuckerman

lla

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

EDNA RUTH HARRIS,

Plaintiff-Appellant,

No. 91-1354

(D.C. No. 90-Z758)

(D.Colo.)

V.

AMERICAN MEDICAL

INTERNATIONAL, INC.;

WALTER WEISMAN; WALTER

GEORGE; DAVID GORE;

SHIRLEY HOFFMAN;

PRESBY TERIAN/SAINT LUKE’S

MEDICAL CENTER; JEANNE

COAKLEY BEETHE,

lt ee ae a ae ae ee a ae

Defendants-Appellees.

ORDER AND JUDGMENT*

Before MOORE and TACHA, Circuit Judges, and SAFFELS**,

Senior District Judge.

**Honorable Dale E. Saffels, Senior District Judge, United States

District Court for the District of Kansas, sitting by designation.

After examining the briefs and appellate record, this panel

has determined unanimously that oral argument would not materi-

ally assist the determination of this appeal. See Fed. R. App. P.

34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.

° This order and judgment has no precedential value and shall

not be cited, or used by any court within the Tenth Circuit, except

for purposes of establishing the doctrines of the law of the case, res

judicata, or collateral estoppel. 10th Cir. R. 36.3

12a

Plaintiff Edna Harris was employed as a licensed practical

nurse by defendant Presbyterian/Saint Luke’s Medical Center (P/SL)

on July 13, 1981. In late 1984, she was suspended for three days

following an incident with a patient. As a result, plaintiff, who is

black, filed a discrimination charge with the Equal Employment

Opportunity Commission (EEOC). Shortly thereafter, P/SL filed

two complaints against her with the Colorado Board of Nursing.

Eventually, plaintiff filed a civil rights action under 42 U.S.C. §

1981 and the Thirteenth Amendment against P/SL and defendant

Jeanne Coakley Beethe, alleging both discriminatory suspension and

retaliation. See Aplt. App. Vol. X, tab 20 (Complaint in D.C. No.

85-K-1987). The district court granted summary judgment, and this

court affirmed on appeal. See Harris v. Presbyterian/Saint Luke’s

Medical Ctr, No. 91-1125 (10th Cir. Nov. 6, 1991).

In the meantime, P/SL was acquired by defendant American

Medical International (AMI), and plaintiff was terminated for

threatening to retaliate against complaining patients. She then

brought the present action under 42 U.S.C. § 1981, § 1985(3) and §

1986, alleging her termination was the result of a conspiracy moti-

vated by racial discrimination and retaliation. The case was dis-

of in three stages. On September 19, 1990, the district court

dismissed all claims against P/SL and Ms. Beethe for lack of any

allegations indicating their role in the conspiracy or the events

complained of. Aplt. App. Vol. I at 167, 168-70 (bench ruling on

motions to dismiss). On January 29, 1991, the district court granted

summary judgment for the remaining defendants on plaintiff's

claims under §§ 1985(3) and 1986, citing both (1) the absence of

facts or factual allegations supporting the conclusory assertion of

conspiracy, and (2) the intracorporate character of the alleged

conspiracy. Id. at 172, 173-74 (bench ruling on motion for partial

summary judgment). Finally, on September 9, 1991, the district

court entered an order dismissing plaintiff's §1981 claim for dis-

criminatory and retaliatory discharge in reliance on Patterson v.

McLean Credit Union, 491 U.S. 164 (1989). Aplt. App. Vol. | at

159, 163. On appeal, plaintiff challenges all of these rulings as well

as the denial of her motion under Fed. R. Civ. P. 11 seeking sanc-

tions for untimely compliance with a discovery request. See id.

September 19, 1990, Order

Plaintiff’s initial argument is procedural. She contends the

district court erred in dismissing the claims against P/SL and Ms.

Beethe “without [first] issuing a Rule 6(b) scheduling order limiting

the time to complete discovery.” Opening Br. at 7. Plaintiff does

t

_ 13a

explain how the absence of an order limiting discovery would have

any bearing on a motion to dismiss, much less does she cite pertinent

authority in support of her position. Furthermore, P/SL notes the

issue was not even raised in opposition to the motion to dismiss.

Answer Br. of P/SL at 3. Indeed, the district court’s docket reveals

that plaintiff filed a motion for scheduling order under Rule 16(b)--

which was promptly granted--only after the district court dismissed

the claims against P/SL and Ms. Beethe. This issue is meritless.

See generally Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir.

1992).

Next, plaintiff specifically challenges the district court’s

dismissal of her § 1985(3) conspiracy claim against P/SL and Ms.

Beethe.' In essence, she argues that under the principle of notice

pleading, recitation of statutory language coupled with a reference to

adverse employment actions suffices to state a § 1985(3) claim--

even against defendants not included in the operative allegations.

See Opening Br. at 8-10; Aplt. App. Vol. I at 1, 2 (paragraphs 2 and

4 of the complaint). We agree with the district court that plaintiff's

conclusory allegations of conspiracy lack the supporting factual

detail necessary to sustain a claim for relief. See, e.g., Drake v. City

of Fort Collins, 927 F.2d 1156, 1159, 1162-63 (10th Cir. 1991)

(conclusory allegation of conspiracy in connection with adverse

employment action insufficient to state a claim under § 1985(3)); see

also Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989) (plain-

tiff must provide “specific facts showing agreement and concerted

action” to sustain civil rights conspiracy claim); Clulow v. Okla-

homa, 700 F.2d 1291, 1296, 1303 (10th Cir. 1983) (conclusory

allegation of conspiracy without supporting factual events insuffi-

cient to state claim).

; Here and elsewhere plaintiff’s conspiracy claims shall be

referred to collectively. We note, however that unlike plaintiff’s

allegations of racially discriminatory discharge, which potentially

implicate preexisting substantive rights under the Thirteenth Amend-

ment, see Foster v. MCI Telecommunications Corp., 773 F.2d 1116,

1120 (10th Cir. 1985), the retaliatory discharge claim involves a

right created by Title VII of the Civil Rights Act, which cannot be

redressed under § 1985(3), see Great Am. Fed. Sav. & Loan Ass’n

v. Novotny, 442 U.S. 336, 372, 376-78 (1979); Long v. Laramie

County Community College Dist.., 840 F.2d 743, 752 (10th Cir.)

cert. denied, 488 U.S. 825 (1988).

l4a

As a last resort, plaintiff maintains that she was entitled, in

any event, to amend her (already amended) complaint to cure the

noted pleading deficiency and, therefore, the district court erred in

dismissing the conspiracy claims with prejudice. However, plaintiff

does not assert, nor does the record show, that she actually submitted

or sought leave to submit such a curative amendment. Accordingly,

the district court’s final disposition of the matter was proper under

the circumstances. See Glenn v. First Nat’] Bank, 868 F.2d 368,

369-71 (10th Cir. 1989).

January 30, 1991, Order

Plaintiff raises a number of procedural and substantive

objections to the district court’s ruling on the intracorporate

nature of the alleged conspiracy among the remaining defendants.

See Opening Br. at 10-18. As already noted, however, that ruling

was just one of two alternative rationales given for dismissing these

conspiracy claims. Before the district court turned to the “even

more important reason” for dismissal provided by the intracorporate

conspiracy principle, which is an unsettled matter in this circuit, see,

e.g., Wilhelm v. Continental Title Co., 720 F.2d 1173, 1175 (10th

Cir. 1983), cert. denied, 465 U.S. 1103 (1984), the district court

emphasized the conclusory character of the conspiracy allegations

generally, and concluded that plaintiff had failed to establish any

conspiracy (of whatever nature) with the requisite specificity. Aplt.

App. Vol. I at 173. Because we agree with this assessment, we leave

the intracorporate conspiracy question for another day and discuss

only those matters pertinent to the former, more fundamental and

less controversial, rationale for disposition of the case.

As we have already recognized, plaintiff’s allegations of

conspiracy fall far short of the level of specificity required to state a

claim under § 1985(3). Her evidentiary showing in response to the

summary judgment motion did not correct the deficiency. Plaintiff

objects that the district court did not properly consider the deposi-

tions and related exhibits she submitted in opposition to the motion,

but plaintiff did not even attempt to identify any particular testimony

or evidentiary item in support of her case. The district court ex-

plained to counsel:

I would be happy to have

something pointed to me in the deposi-

tions. When depositions are used in

motions for summary judgment, . . .

the deposition is not thrown at the

15a

judge. The pages and lines are given

so that we can see what is referred to.

That’s the only way that depositions

can be used in this type of motion.

Aplt. App. at 175. Plaintiff now supplies us with the record she

claims the district court disregarded, but again provides no particu-

larized citations to support her conspiracy claims.’ Like the district

court, we do not sift through materials submitted in bulk to deter-

mine whether there exists some dormant evidence supporting a

party’s assertion. See Thomas v. Wichita Coca-Cola Bottling Co.,

968 F.2d 1022, 1024-25 (10th Cir. 1992), petition for cert. filed, 61

U.S.L.W. 3303 (U.S. Sept. 29, 1992 (No. 92-581); S.E.C. v. Tho-

mas, 965 F.2d 825, 827 (10th Cir. 1992).

Plaintiff also contends that the district court erred by grant-

ing summary judgment over her objection, pursuant to Fed. R. Civ.

P. 56(f), that she had not yet compieted discovery. We review the

decision whether to grant additional time for discovery, under a

deferential, abuse of discretion standard. Patty Precision v. Brown

& Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th Cir. 1984). Plaintiff

asserts that much of the evidence necessary to establish her claims

was in defendants’ possession, and emphasizes that discovery was

not yet completed when the district court granted summary judg-

ment.’ Neither of these points is sufficient to mandate continuance

of the summary judgment proceedings. See Guthrie v. Sawyer, 970

F.2d 733, 738 (10th Cir. 1992); Jones v. City & County of Denver,

: The only citation to a relatively specific item submitted in

opposition to summary judgment refers to an interrogatory response

from AMI addressing only the legal relationship between P/SL and

AMI. See Opening Br. at 15-16 (citing Aplt. App. Vol. I at 152-54).

We note that plaintiff also cites to a set of answers she gave to

questions posed by the magistrate judge. Id. (citing Aplt. App. Vol.

I at 113-133). However, in addition to involving simply another

indiscriminate reference to some eighteen pages of testimony, this

material was prepared after summary judgment had been granted on

the § 1985(3) claims,

: However, tse pertinent formal cut-off date, i.e., for

nonexpert, factual discovery, was only one month away at the time.

See Opening Br. at 12 (citing discovery scheduling order).

16a

854 F.2d 1206, 1211 (10th Cir. 1988). We consider it significant

that when plaintiff commenced this case, she already possessed the

depositions of some of the defendants, which had been taken in her

first employment discrimination action against P/SL, and that an-

other fourteen months passed before summary judgment was granted

here. Cf. Culver v. Town of Torrington, 930 F.2d 1456, 1459 (10th

Cir. 1991) (four-month period following motion provided sufficient

time for discovery for purposes of Rule 56(f). Under the circum-

stances, we do not think the district court abused its discretion by

resolving the conspiracy claims on summary judgment, particularly

in light of plaintiff’s failure properly to utilize the substantial exist-

ing record to present to the district court specific facts in support of

her conspiracy allegations. See Contemporary Mission, Inc., v.

United States Postal Serv., 648 F.2d 97, 107 (2d Cir. 1981) (when

plaintiff fails to produce specific facts to support conspiracy allega-

tions, district court may, in its discretion, refuse to permit discovery

and grant summary judgment).

September 9, 1991, Order

Following the issuance of recent decisions by this court

regarding the effect of Patterson v. McLean Credit Union, 491 U.S.

164, on the limited availability of § 1981 in the employment

discrimination context, the district court ordered briefing on whether

plaintiff’s § 1981 claims for discriminatory and retaliatory discharge

remained actionable. We agree with its subsequent conclusion that,

under Patterson and this court’s post-Patterson decisions, they are

not.

Plaintiff’s claim for discriminatory discharge is precluded by

Trujillo v. Grand Junction Regional Center, 928 F.2d 973, 975-76

(10th Cir. 1991). As for the retaliatory discharge claim, we note that

“(t]he right to enforce contracts does not . . . extend beyond conduct

by an employer which impairs an employee’s ability to enforce

through legal process his or her established contract rights.” Carter

v. Sedgwick County, 929 P.2d 1501, 1504 (10th Cir. 1991) (quoting

Patterson, 491 U.S. at 177-78) (emphasis added). The “enforce-

ment” action by plaintiff allegedly prompting her discharge was the

filing of an EEOC charge and subsequent lawsuit for (1) discrimina-

tory suspension and (2) general racial harassment, see Aplt. App.

Vol. X, tabs 19, 20, neither of which involves contract rights impli-

cating § 1981 protections. See, e.g., Hill v. Goodyear Tire Rubber,

Inc., 918 F.2d 877, 880 (10th Cir. 1990) (claim for racial

17a

harassment not actionable under 1981); Mozee v. American Com-

mercial Marine Serv. Co., 940 F.2d 1036, 1052 (7th Cir. 1991) ;

(after Patterson, claims for wrongful suspension do not give rise to :

§ 1981 liability). Consequently, retaliation for such action likewise

does not fall within the ambit of § 1981. Hill, 918 F.2d at 880; Riel

v. Reed, 760 F. Supp. 852, 854 (D. Colo. 1991); accord Sherman v.

Burke Contracting, Inc., 891 F.2d 1527, 1535 (11th Cir.), cert.

denied, 111 S. Ct. 353 (1990). |

Plaintiff seeks to circumvent the cited authorities on the

retaliation claim by the following three-step argument: (1) the

discrimination she suffered was contrary to policies and procedures

of her employer, (2) under state law, such policies and procedures

may be accorded the status of contract rights, and (3) therefore, her

EEOC charge and suit constituted, in effect, the use of legal process

to enforce the kind of specific contract rights still recognized as

protected under § 1981. Opening Br. at 23. We express no opinion

on the merits of this line of argument, as it was not asserted before

the district court. See Neu v. Grant, 548 P.2d 281, 287 (10th Cir.

1977).

Plaintiff has, however, raised an even more radical argument

to disassociate her § 1981 retaliation claim from the adverse pre-

cedents discussed above. Noting that those cases delimit only the

right to make and enforce contracts and do not deal with the other

. protected interests established by the statute, particularly the right to

sue, be parties, and give evidence, and the entitlement to full and

equal benefit of the laws, see Phelps v. Wichita Eagle-Beacon, 886

F.2d 1262, 1267 (10th Cir. 1989), plaintiff contends she has a cause

of action to redress the burden (retaliatory termination) allegedly

placed on her use of legal process, which existing case law does not

undercut. However, plaintiff is not able to cite any case law directly

in her favor either. For the reasons that follow, we need not decide

whether such a claim exists in the present context, for plaintiff's

pleadings would be deficient in any event.

The problem with plaintiff’s claim here is that it ignores the

single, most fundamental concern of § 1981. Whatever else the

statute may or may not require, there can be no actionable violation

unless the conduct complained of was motivated by intentional

racial, or similar class-based, discrimination. See General Bldg.

Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 382-91

(1982). Thus, for example, where the Supreme Court recognized a

cause of action against unions for interfering with minority mem-

ee right to pursue grievances with their employer, the Court noted

that

18a

the unions had “categorized racial grievances as unworthy of pursuit

and, while pursuing thousands of other legitimate grievances, ig-

nored racial discrimination claims on behalf of blacks, knowing that

the employer was discriminating in violation of the contract.”

Goodman v. Lukens Steel Co., 482 U.S. 656, 669 (1987). In short,

the unions not only hampered pursuit of legal process against man-

agement, they specifically and deliberately did so only with respect

to minority grievances. Here, in contrast, while plaintiff claims she

was terminated in retaliation for pursuing legal process against her

employer, she did not allege that defendants’ motive in this connec-

tion was specifically racial, i.e., that it went beyond retaliation per

se. As it happens, the underlying grievances were for discrimina-

tion, but “[i]t is not true that ‘a retaliatory response by an employer

against [an employee] who genuinely believed in the merits of his or

her [discrimination] complaint would inherently be in the nature of a

racial situation. ... An employer could have a policy of firing any

employee who made legal trouble for it on any ground.’” Malhotra

v. Cotter & Co., 885 F.2d 1305, 1313 (7th Cir. 1989) (citation

omitted). The racial nature of an underlying grievance might well

provide circumstantial evidence that a subsequent retaliatory re-

sponse was also racially motivated. Nevertheless, the latter allega-

tion must first expressly and clearly be made before any claim under

§ 1981 is even stated. In our judgment, that was not done here.

Lest our insistence on the distinctive, definitive element of a

§ 1981 claim appear unduly harsh, we emphasize that there already

exists a remedy for the kind of retaliation that has been alleged here.

Termination in response for filing discrimination charges is specifi-

cally proscribed by § 704(a) of Title VII, 42 U.S.C. §§ 2000e-3(a).

Consequently, there is good reason not to adopt a tortuous or idio-

syncratic construction of § 1981 simply to provide some remedy for

the retaliatory conduct defendants allegedly engaged in. See

Trujillo, 928 F.2d at 976; Overby v. Chevron USA, Inc., 884 F.2d

470, 473 (9th Cir. 1989).

Finally, plaintiff challenges the district court's refusal to

impose sanctions under Rule 11 in connection with the belated

production of a document requested in discovery. We review this

decision only for an abuse of discretion. Coffey v. Healthtrust, Inc.,

955 F.2d 1388, 1393 (10th Cir. 1992). The district court’s order

provides a full and fair analysis of counsel’s reasonable conduct in

this matter. Aplt. App. at 159-62. Furthermore, while the document

in question refers to both completed and contemplated disciplinary

action against plaintiff, noting her history of employment dissatis-

faction, insubordination, and allegedly abusive behavior with pa-

tients, it

does not reflect or suggest a racially motivated conspiracy, which of

course is the cornerstone of the § 1985(3) claim plaintiff sought to

have reinstated. It was not an abuse of discretion to deny the re-

quested sanction.

The judgment of the United States District Court for the

District of Colorado is AFFIRMED.

Entered for the Court

John P. Moore

Circuit Judge