*3 bеgan work Summers asked her to LUMBARD, Before VAN GRAAFEI- sign permits that would authorize unli- PIERCE, LAND and Judges. Circuit censed employed by nurses outside commer- LUMBARD, Judge: Circuit cial agencies to work at Hospital. Harlem Rookard believed that permits such could Margaret formerly the Director lawfully only be issued to nurses directly of Nursing at Harlem Hospital, appeals employed by hospital, and she from the refused June Judge decision of sign. Gagliardi Summers resented Roоkard’s deci- of the Southern District of New York, sion and thereafter ostracized her. Rook- dismissing her civil rights action ard a number irregularities the New York noted of other City Health and Hos- in the pitals Corporation (HHC), hospital’s nursing department. She municipal corporation operates many which found that nurses City’s hospi- New York abused the municipal hospitals. “sign-in” procedures, tal’s Rookard claims that and either failed HHC, in violation of hеr to sign register, signed First Amendment or for hours worked; speech, free demoted and eventual- had not that the hospital had fired her ly because she not illegal kept adequate disclosed and records of its use of wasteful practices nurses, at Hospital. Harlem licensed agency and could not accu- Judge Gagliardi dismissed Rookard’s claim rately evaluate bills submitted by agencies; after two-day trial, concluding bench that nursеs who worked overlapping, con- not, Rookard had required shifts, as by Monell secutive hospi- one shift each for the Department Servs., of Social agency, 436 U.S. tal and an frequently paid by presented only professional 1. Rookard qualifications. also two witnesses who testified to her employers overlap; both for the time of began position, but work in her at her new Hospital, apparent that Harlem for no rea- рrevious salary, August. Matsunaga late in son, agency through hired most of its nurses assigned Rookard a windowless cloak room single agency (Gotham Registry); for an office and informed her of her dis- agency nurses hired to work in specialized that Rookard’s pleasure salary higher credentials; areas proper often lacked than hers. Rookard “special worked on that some of the foreign working nurses projects” Matsunaga еarly into hospital had not adequately documented January On 1982 HHC’s immigration their report- status. Rookard reported investiga- General’s Office on the Summers, problems ed all of these who tion of Harlem Hospital it had conducted ignored steps her. took She to eliminate following Inspec- transfer. The problems, improve efficiency, report tor General’s stated that Gotham thereby earned the enmity of a number Registry overcharged Harlem *4 of began her nurses. anony- She receive $518,686.18 September, between 1977 and mous, threatening phone calls and letters. May, Hospital, report 1981. Harlem kept Illness Rookard out of her office found, repeatedly paid Gotham for full from' February May, 1981. During Rook- working shifts when Gotham’s nurses actu- subordinates, ard’s absence one of her at ally only part Although worked shifts. direction, signed Summers’ permits au- had, by 1981, Rookard January, reduced the thorizing unlicensed agency nurses to work by number of tours serviced Gotham nurses at the hospital. upon returning to 43%, hospital’s use of Gotham nurses work, permits. refused to use the She re- when, March, previous returned to levels in permits turned the to the State Education 1981, kept away illness Rookard from work. Department Department and advised the report also plan found Summers’ they invalidly had been issued. Sum- agency use unlicensed nurses “wаs clear- mers resigned post his as Harlem Hospital’s ly in violation of state rules regula- Acting 1981, Executive May, Director in and was tions.” succeeded Carl Carter as Execu- tive July, Director. 1981 Rookard told 9, Brantley, On March 1982 Carlotta planned Carter that she to inform HHC’s Corporate HHC’s Vice President Af- Inspector General’s Office of the threats fairs, informed Rookard that Matsunaga no against her problems and of some of the she longer would tolerate an earning assistant “fine,” had found. Carter said and did not earned, budget more than she cuts object. Later that month Rookard met necessitated changes within HHC General Conrad Johns HHC, she, Rookard, and that would have to threats, and told him of the the dispute position. Brantley find new offered to nurses, over unlicensed agency and the fact employ nurse, as an entry-level Rookard an that nurses sometimes left work before indignantly offer which Rookard refused. completing Johns, staff, their shifts. or his 19, By letter dated March 1982 Brantley promised investigation. an gave Rookard notice of discharge, effective In early August, Carter met Rookard at 30, April headquarters HHC and told Manhattan counsel, Rookard retained who requested Rookard of his decision to relieve her as stay HHC’s General Counsel to the sched- Nursing, Director of and to transfer her to discharge. April uled On 28th the General
headquarters as an assistant to Grace Mat- attorney Counsel informed Rookard’s that a sunaga, the Director of Nursing, Corporate stay granted. would 29th April not be On Office. Carter told Rookard that she had Rookard filed suit in the District Southern enough” been “battered Hospi- at Harlem injunction against for an tal, discharge. Judge and that she would be reinstated as Gagliardi injunction; denied the Rookard Nursing Director of when mattеrs “cooled down,” gave discharged; but no other reason for the Rookard’s claim transfer, objected transfer. Rookard HHC for reinstatement as Director
45 damages May authority was tried on An official has final if his deci- Nursing of made, sions, practi- at the time are 17th and 18th.2 legal cal or reasons constitute the munici- Department Monell v. Under So pality’s final decisions. See Familias Uni- 2018, Servs., 98 56 cial 436 U.S. S.Ct. Briscoe, (5th das v. 619 F.2d 404 Cir. a mu plaintiff suing L.Ed.2d 611 1980). allegatiоn policy-making An au- HHC, nicipal corporation, such as under 42 thority requires proof thus of the official’s prove 1983 must that the constitu U.S.C. § employment and his within the scope role wrong complained of resulted from tional corporate organization.4 or An municipal custom, corporation’s policy, official or title, though dispositive not of his official’s dinance, or decision. As a mu regulation, authority policy, to make see Schneider v. un nicipal corporation cannot be held liable Atlanta, (5th 628 F.2d respondeat superior theory, der 1983 on a § Cir.1980), for the inferences fair- is relevant 691-94, at U.S. S.Ct. ly to be drawn therefrom. 2036-37, em corporation alone, not, will ployed standing a tortfeasor Having evaluated Rookard’s evi liability. required establish Monell thus above, principles dence under the we con poli that an official Rookard to show suffiсiently clude established “whistle-blowers,” in viola cy punishing Brantley’s authority both Carter’s and to free tion of her First Amendment policy. proved make that Carter speech, discharge. caused her transfer and post held the of Executive Director of Har judge The district ruled Rookard’s evidence *5 herself, Hospital; lem that Rookard as Di any insufficient to establish the existence of Nursing, high position rector of held a and policy, relevant and so dismissed the 1,000 supervised approximately employees; disagree ruling case. .We with the judge’s transfer; her that Carter ordered and that find, law, as a matter of that Rookard’s the transfer occurred. This estab evidence proof was sufficient. a top position lishes that Carter held level if single discharge, authority A unlawful or HHC and had to order the by person may similarly proved dered a “whose edicts or acts transfer. Rookаrd fairly represent policy,” be said to official of Vice Brantley post held the President for Monell, 694, 2037, Corporate authority 436 U.S. at Affairs and had to or may support against important, an action the munici her discharge. Equally der course, pal corporation. The there and Brant difficulty, was evidence Carter’s identifying lies in those officials whose ac decisions was ley’s authority personnel over 7, tions, 1981, they may fairly August days because be treated as final. On several af actions, Rookard, municipality’s the own establish ter Carter transferred HHC Presi policy. Stanley anony Where an official has final authori dent Brezenoff received an significant involving warning the him the “Es ty telegram over matters mous discretion, exercise of the he wanted to “remove” Rookard choices makes tablishment” Bowen because frauds.” Brezenoff represent government рolicy.3 exposed See “she Watkins, 979, (5th Cir.1982). telegram April, 669 F.2d 989 referred this to Carter. v. complaint delegated authority 2. Rookard’s named both HHC and been final in limited areas. City generally, Schnapper, Rights Litiga- of New York as All defendants. See Civil 213, claims of New York were dis- tion After 79 Colum.L.Rev. parties missed consent of the at the close of trial. Mayors may policy-makers be treated as 3. The issue raised Monell is not whether specific pоwers without of their and re- particular generally may official be characteriz- Syracuse sponsibilities. See v. Model Quinn policy-maker, ed as a but whether official’s Corp., (2d Neighborhood 613 F.2d 448 Cir. particular policy fairly decision established a officials, however, 1980). cannot simi- Lesser municipality. attributable to the Thus munici- embody larly plenary municipal presumed be to liabiility pal may predicated upon be the uncon- power. stitutional acts of a subordinate official who has 46 duties, requested perform when Rookard’s counsel his employee’s ability to
stay of
discharge,
disrupted
relationships
the scheduled
HHC’s
working
requiring
General
or
grant
stay
confidence,
Counsel declined to
personal
loyalty and
or other-
to reverse the transfer. The reluctance of
impeded
regular operation
wise
HHC’s President and General
to
Counsel
agеncy.
Pickering, 391 U.S.
employing
See
intervene,
inquire
or even to
into Rookard’s
572-73,
&
whom are Council. GRAAFEILAND, Judge, Circuit VAN §
concurring: corporation action Appellant’s 29, 1982. An
Although, Judge April I was commenced on Gagliardi’s had been shoes, May was served on probably exactly complaint I would have done amended allegations controversy allеgations that Rookard’s General’s Office that Rookard’s 6. The may explain them in a false and that she would retract created at Harlem Car- Apparent- thus was to the “Black Voice.” Carter ter’s decision to order the transfer. letter August, presumably ly, many hospital employees community in late aware *7 transfer, community sup- supported members Rookard’s efforts at re- aware before noted, August anonymous port for Rookard. form. As on persons signed who themselves as “Concerned employees Hospital,” remand, of Harlem sent HHC upon will be entitled 7. Of HHC telegram stating President Brezenoff a that reopen present evidence. The to its case and to “expos[ing] frauds” had proceedings compels Rookard’s success re- course of at trial this rested, Six the “Establishment” her. turned to After Rookard HHC moved sult. 13, 1981, later, August anonymous days judge on The clear- dismiss under Monell district persons signed “The Har- ly proof who themselves as was his belief that Rookard’s stated Community lem and the Concerned Staff in words under and did so insufficient Center,” Mayor Hospital sent Koch a Harlem follow. that left no doubt that dismissal would stating Hospital telegram attorney was “in judge that Harlem if The district then asked HHC’s “unqualified” case, attorney replied crisis” because Carter was that he his and the rested alleged brave and hоnest wom- because “a that Rook- he did rest. HHC’s answer an,” job. regard had been removed from her The to been fired without ard would have Mayor’s telegram requires to speech, simple Office referred this second her fairness Inspector August, present In General Johns. late evidence on that HHC be allowed Inspector investigator points. Carter told an from the and on other relevant defense May and the case went to trial on Mr. C.I. asked Carter about the allegations of misconduct mentioned in 1982, one before day appellee’s answer was complaint. He stated that none of 17-day filed. Much of the interval between allegations true and that [sic] bringing of the suit and the start of supposed Ms. Rookard is to write a letter taking deposi- trial was devoted to the saying to the “Black Voice” are tions, transcripts of apparently which not true. completed not been when exchanged Mr. Carter was asked how Ms. Rookard the case went to trial. deposition No was Harlem He Hospital. was dismissed from offered in evidence by appellant’s attorney. stated Ms. and himself mu- plaintiff’s case, At the close of the district that she would- tually agreed be relieved court surprise: asked in obvious of her duties. He continued that Ms. You have no further Have witnesses? get Rookard was unablе to across to you had a chance to read and digest times she has Staff. Several been threat- Monell case? I suggest you go to the A actually slapped ened. nurse her ac- library either now or sometime this cording to Carter. afternoon and read it. He informed the C.I. a letter is in indicating I will her folder that she adjourn this case until tomorrow was reassigned. morning at 10:00. These, suggest, I do not reports read like red-flag This was a warning appel- policy-making of interviews with a corpo-
lant’s counsel that the district court was not rate official. satisfied with the he had offered. The report investigator’s of the conversa- Nonetheless, counsel rested. It is not at all tion with appellant part reads in as follows: surprising that the district court thereafter hardly are indicative vestigation followed, evidenced by 160 existence of the pages of reports. of the Inspector General” requesting “any mentioned disclosures.” A five-month in- General is indicative of a contrary intent. Brezenoff immediately gram informing him of lee’s frauds uncovered by appellant and her fear Committee Report” and all August granted appellee’s motion to dismiss. The reports from the Inspector General’s Appellant’s skimpy proof showed that on punish removal president, 7, 1981, information whistle-blowers. received an anonymous tele- the “establishment”. Mr. Stanley Office of the These regarding of a filed a “Confidential appellee’s Brezenoff, Harlem undisputed Indeed, corporate the afore- the very “Office appel- facts porate policy particular officials and administrators who made cor- do not pital. faction of individuals it adds fuel to their I find it fire administrator administrator is there accountable to there for a month. According to Ms. threatened ployed at Rookard the staff harm. The threats She further stated that each time an She also stated that while she was em- j}s and makes it agree faction of individuals” with the difficult [*] a lack with the majority that “Rook- for the association. Harlem many anyone removed :}: survive at Harlem Hos- to equate impossible times performance. began (nursing) Hospital, % for anything and with after she was :}s for a particulаr phrase she was was not physical sum, good “a I disclosed, office among presented other ard things, sufficient evidence that her *8 Carter, injuries Carl whom resulted from an my colleagues find to be chill the exercise of First official, Amendment policy-making was not even rights by punishing those who dare com- aware of the fact that he put appel- had to plain of corruption mismanagement.” lant’s relief duty writing from until a investigator cоnfidential told him to do so. clear, however, thing One is and that is Reporting further on his investigation of Hospital that conditions at Harlem Carter, the confidential investigator stated: been so since appellee chaotic and had as- jurisdiction sumed over it. the eleven period 1981,
year appellee between 1970 and
had five presidents, different and Harlem
Hospital had at least eleven Executive Di replaced
rectors. Dr. was it Summers after $2,000
was learned that he had used Hospital money provide
Harlem a sum job
mer for his son at another hospital.
This, however, was only tip of the ice
berg. Judge out, As pointed Lumbard has had been bilked of funds in
excess of one half million dollars. This was
wrongdoing which only could exist if public
disclosure suppressed. was If this condition caused a lack of supervision or
training so severe as to amount to deliber
ate indifference or gross negligence on the
part officials, of top corporate echelon re
sulting in a deprivation appellant's con speak
stitutional out for what was
right, section 1983 liability may be found to
exist. Doe v. New York City Dep’t of Soc.
Serv., 134, (2d Cir.1981); 649 F.2d Haas, 1242,
Owens v. (2d 601 F.2d
Cir.), denied, 980, cert. 444 U.S.
483,
I concur in because, the order to reverse
examining appellant’s evidence with the aid a powerful magnifying glass, I am able
to make out the glimmer barest prima of a
facie case on the grounds. above-described FALLIS, al.,
Jean et
Plaintiffs-Appellants, AMBACH, al.,
Gordon M. et
Defendants-Appellees.
No. Docket 82-7877.
United Court Appeals, States
Second Circuit.
Argued Jan. 1983.
Decided June