Appeal from a judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Chief Judge, granting defendant's motion to dismiss the complaint in this action seeking injunctive and monetary relief for plaintiff's allegedly wrongful termination as a respiratory therapist at a county hospital. Affirmed in part and reversed and remanded in part.
Plaintiff appeals from a judgment of the United States District Court for the Southern District of New York dismissing his complaint.*fn1 This retaliation case was brought to redress the alleged deprivation of rights secured to plaintiff by Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq. (1982)), 42 U.S.C. §§ 1981 and 1983 (1982), the Fair Labor Standards Act (29 U.S.C. § 215(a)(3)(1982)), and the fourteenth amendment.
Anthony DeCintio was one of several Westchester County Medical Center staff respiratory specialists who sued the medical center and the county under Title VII, alleging sex discrimination. That case was recently decided, adversely to DeCintio, by this court, DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986). Appellant alleges in this action that appellees retaliated against him, by suspending and firing him, because he was the "ringleader respiratory specialists.
Appellees counter that DeCintio was fired for violating hospital policy on two occasions. Specifically, the hospital charges DeCintio with failure to respond properly to an emergency situation on May 23, 1984 when he refused to deliver a ventilator to the emergency room as requested by nurse Stephen Marchwinski. The patient in question was in critical condition. The hospital also charges DeCintio with failure to respond properly, on February 6, 1985, to several respiratory therapy "stat" pages emanating from the emergency room where nurses and doctors were caring for a critically ill patient.*fn2
One day after the February 6 incident, DeCintio was suspended without pay for thirty days. A hearing was thereafter held pursuant to N.Y. Civ. Serv. Law § 75 (McKinney 1983 & Supp. 1987). The hearing officer found DeCintio guilty of misconduct and incompetence based on the May, 1984 and February 1985 incidents, and recommended that appellant be "terminated from employment." The hearing officer's recommendation was accepted by Westchester County Medical Center Commissioner Bernard M. Weinstein, who informed appellant of his immediate dismissal by letter dated June 26, 1985.
On November 9, 1984, and July 13, 1985, appellant filed complaints with the New York State Division of Human Rights ("SDHR") charging the medical center with retaliation SDHR dismissed both complaints for lack of probable cause on November 27, 1985. The instant action was commenced on December 6, 1985.
At the outset, we are faced with an attack on the procedural bona fides of certain written statements attached to appellant's sworn affidavit submitted in opposition to the motion to dismiss (which, as indicated in note 1 supra, was in effect treated as a motion for summary judgment). No objection was made to the form of such statements below. On appeal, however, appellees contend that Fed. R. Civ. P. 56(e) precludes their consideration, below and here, in opposition to appellees' motion.
The first statement is a typed declaration that:
The persons who have signed this paper are willing to appear before a Federal Judge and tell him that:
1) They are members of the Respiratory Therapy Department at the Westchester County Medical Center.
2) Each and everyone of them has responded to "stat calls" and personal notifications of an emergency situation in the same manner as Mr. DeCintio has so responded.
3) Mr. DeCintio has been suspended and terminated from employment at the Westchester County Medical Center for so responding.
4) None of the persons signing below has been disciplined by the hospital administration for acting likewise.
5) The hospital administration has been made aware of the ways we have responded since we have been employed by them.
The statement is signed by six individuals. A second identical typed statement signed by five individuals was also attached to appellant's sworn affidavit.
A third statement signed by one C. Follini states that Assistant Personnel Director Jeffrey Sweet told Follini, "I know Tony [appellant] is the ringleader ... but he won't be around much longer, we will get him out."
A fourth statement signed by respiratory therapist Peter Piazza charges that Mr. Sweet, in the course of a discussion about the legal action brought against the hospital, told Piazza that "in the past year I have personally fired three members of the Respiratory Therapy Department, and no amount of fighting back will enable them to come back, ever again." Whereupon Associate Hospital Director Edward Stolzenbert allegedly interjected, "everyone in the Respiratory Therapy Department can be fired and ...