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March 7, 1980

PEDRO FELICIANO LAURIDO, individually and on behalf of all other persons similarly situated, Plaintiff, against ELLIOT J. SIMON, etc., et al, Defendants.

The opinion of the court was delivered by: HAIGHT


From October 12, 1971 until October 3, 1977, Pedro Laurido was employed as a porter at the Helen Hayes Hospital ("Hospital"), a New York State research and rehabilitation facility for the care and treatment of the physically disabled and deformed. See New York Public Health Law, Article 26 (McKinney 1977). Mr. Laurido, who resided at the Hospital during the period of his employment, enjoyed the status of a permanent New York State Civil Service employee.

On October 3, 1977 Laurido was placed on an involuntary leave of absence, pursuant to Section 72 of the New York State Civil Service Law, the text of which is set out in the margin. *fn1" The events precipitating Laurido's leave are not in dispute. At the behest of his Hospital employer, Laurido had been examined by Dr. Rubin Fleisher, a New York State Employee Health Service Physician, on September 13, 1977. The reason for the Hospital's concern is alleged to have been Laurido's employment history at the Hospital of chronic alcoholism and incidents of assaultive and dangerous behavior. *fn2" Dr. Fleisher apparently concluded that Laurido was not mentally fit to perform the duties of his position and recommended to the Hospital that Laurido be placed on leave under § 72. *fn3" Although Laurido did not receive a copy of Dr. Fleisher's medical findings, report or recommendation, on October 3, 1977 he was advised orally and by written memorandum from defendant Gardineer, the Hospital's Associate Personnel Administrator, as follows:

"The State doctor you saw in New York City on September 13, 1977 told us you cannot come back to work; (w)e are putting you on leave of absence; (y)our time accruals will allow you to be paid through October 28, 1977; (i)f you want half-pay, you must ask for it and must send a note from your doctor; (since) you will not be paid at full pay after October 28, 1977, you must leave your room on the grounds by that date. . . . ; (y)ou may not come to the hospital or try to report to work." *fn4"
On October 13, 1977, a memo from defendant Gardineer, hand delivered to Laurido, informed him of two available treatment programs for alcoholism and advised: "(you) cannot return to work until you have been treated, until your doctor sends a note saying you are better, and until the State Doctor agrees that you are able to return to work." *fn5"
An October 24, 1977 memo from defendant Gardineer addressed "To Whom It May Concern" reiterated that Laurido was unable to perform his duties at the Hospital and that he had been placed on § 72 leave based on Dr. Fleisher's recommendation. Laurido's subsequent demands for reinstatement were refused. The three memoranda referred to constituted the only "written statement(s) of the reasons" for the Hospital's action given to Laurido. See Civil Service Law § 72(1), quoted at note 1, supra.
Laurido thereafter brought suit under 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., with jurisdiction premised on 28 U.S.C. §§ 1343(3) & (4), and 1331, on behalf of himself and all others similarly situated, seeking a declaration that § 72 was unconstitutional as violative of the Due Process and Equal Protection Clauses of the 14th Amendment; and an injunction prohibiting the defendants from taking action under § 72, and requiring the reinstatement with retroactive benefits of all persons placed on involuntary leave pursuant to § 72. The Administrator and Associate Personnel Administrator of the Hospital, the Commissioner of the State Department of Health, the President of the State Civil Service Commission (all in their official capacities), and the Department of Health and Civil Service Commission were named as defendants.
At the outset of the litigation, plaintiff moved for a preliminary injunction to restrain the operation and enforcement of § 72, summary judgment, and class certification. The motions were, however, held in abeyance on consent as the parties had entered into negotiations directed toward a consensual resolution of the litigation. Those negotiations have not borne fruit; consequently plaintiff's motions are now before me.
Defendants' original opposition to class certification, and declaratory and injunctive relief, was premised on two suppositions: first, that Laurido would be voluntarily reinstated to his position at the Hospital, retroactive to and with full benefits from October 3, 1977, the date of his original suspension; and second, that New York would adopt, by regulation, uniform statewide procedures respecting the implementation of § 72, which would be designed to meet certain constitutional objections to the statute, *fn6" such as were raised in this case and in the prior Snead litigation in this district. *fn7"
Neither of these eventualities has come to pass. I am advised, by defense counsel's letter of February 8, 1980, that Laurido will not be retroactively reinstated to his position absent a court order. Defendants would consent to the entry of such an order, although (in the words of counsel's letter) "plaintiff cannot be permitted to return to the actual performance of his job until it is finally established that he is physically and mentally competent." Further, by letter of January 24, 1980, defense counsel advised that the contemplated regulation was not adopted, the State having decided to pursue instead an amendment to § 72 of the Civil Service Law. Proposed legislation is pending before the State Legislature, which apparently has not yet acted on the matter. Counsel has furnished the most recent proposals of the State Department of Law, respecting the pending legislation, and suggests that the Court might, in its decree, delineate minimum due process requirements with an eye to those proposals.
Under these circumstances, many of defendants' arguments against class certification no longer obtain. Since defendants have not seen fit to reformulate their opposition in light of the present situation, I will address such of defendants' contentions as appear to remain viable.
First, it is argued that under Galvan v. Levine, 490 F.2d 1255 (2d Cir. 1973), cert. denied, 417 U.S. 936, 94 S. Ct. 2652, 41 L. Ed. 2d 240 (1974), class action treatment is unnecessary since a declaration that § 72 is unconstitutional and an order enjoining its enforcement would inure to the benefit of the putative class. I am unpersuaded by this argument for several reasons.
In my view, Galvan turned on two considerations which are absent here: the State's concession that the identical issue was presented with respect to all potential class members, and its affirmative commitment to apply uniformly any resulting judgment. See Hurley v. Ward, 584 F.2d 609 (2d Cir. 1978). In this case no such commitment or concession has been made. Indeed, the defendants argue, as is discussed in text, post, that Laurido's claim does not present legal and/or factual issues identical to the putative class claims.
A second distinguishing factor arises from the type of relief sought here on behalf of the class. The complaint seeks, inter alia, an order directing the reinstatement with back pay of all those unconstitutionally placed on § 72 leave. Construing Galvan, supra, the Second Circuit has stated: "Where retroactive monetary relief is not at issue and the prospective benefits of declaratory and injunctive relief will benefit all members of a proposed class to such an extent that the certification of a class would not further the implementation of the judgment, a district court may decline certification." Davis v. Smith, 607 F.2d 535, 540 (2d Cir. 1978) (emphasis added) (vacated and remanded by the Court of Appeals on other grounds on February 23, 1979).
Finally, as is evident from the fact that Laurido was placed on § 72 leave under procedures previously condemned by a three-judge panel of this Court in the Snead litigation, see note 7, supra, there is reason to believe that principles of stare decisis will be unavailing to ensure class-wide relief absent certification. See also, e.g., Yaretsky v. Blum, 76 Civ. 3360 (S.D.N.Y.) (order dated Dec. 13, 1977) (granting class certification when government defendants persisted in illegal practices after condemnation by Judge Weinfeld in Feld v. Berger, 424 F. Supp. 1356 (S.D.N.Y.1976) (denying class certification on basis of lack of necessity)); Lewis v. Lavine, 72 Civ. 4249 (S.D.N.Y. March 6, 1973) (certifying class where defendant failed to comply with earlier order in Doe v. Lavine, 347 F. Supp. 357 (S.D.N.Y.1972) (denying class certification as "unnecessary")); Kilfoyle v. Heyison, 417 F. Supp. ...

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