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April 30, 1981

Agnes REICH, Plaintiff,

The opinion of the court was delivered by: SOFAER


The defendant, New York Hospital has moved for an order dismissing this action, or for summary judgment against the plaintiff, Agnes Reich, on the grounds that: 1) plaintiff failed to file a timely charge with the Secretary of Labor pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634; *fn1" 2) plaintiff failed to allege in her complaint the necessary requisites of a suit under the ADEA; 3) there is no genuine issue of material fact to be tried with respect to defendant's articulated, legitimate, non-discriminatory reason for terminating plaintiff's employment; and 4) plaintiff's pendant cause of action fails to state a claim upon which relief may be granted.

 The complaint charges the defendant with employment discrimination based on its dismissal of plaintiff from the position of X-ray technician in July 1978, and its refusal to reinstate her in January 1979. The first count alleges a violation of the ADEA in that the defendant's actions were based on plaintiff's age. The second count alleges a violation of the New York State Human Rights Law, N.Y.Exec.Law § 296(1) (McKinney). Plaintiff's deposition, affidavits by the plaintiff and defendant, and defendant's answers to plaintiff's interrogatories establish the following undisputed facts.

 Agnes Reich began working at the New York Hospital as a secretary in 1944, when she was sixteen years old. She completed a hospital training program in radiology in 1949, and subsequently worked for the hospital as an X-ray technician. From 1960 until she left in 1978, Ms. Reich received annual salary increases. She ran the hospital's Vincent Astor Diagnostic Service, X-ray Division, for ten years; worked for several years in two different general areas; and starting in 1970 staffed the Fracture Service Division, known as "K-7" or "Whitney 7". Her work there included mammography studies in addition to regular follow-up of clinic fracture patients, post-surgical hip outpatients, and fracture patients from the emergency room. (Reich Dep. 27-40, D.Ex. 9) *fn2"

 In 1974, a patient named Stella Marlow formally complained that Ms. Reich had verbally and physically abused her. Ms. Reich was notified of the complaint by her supervisor, Mr. Skuchko, and responded to it with a letter apparently stating that the hospital equipment required that the patient lie on her sutures in order to be X-rayed. *fn3" (Reich Aff. P 7, Reich Dep. 42-43, Skuchko Aff. § 9 & Ex. B) Mr. Skuchko states that, in the following years, he cautioned Ms. Reich "on several occasions" to be careful in her handling of patients. Ms. Reich denies these warnings, and responds that

"my work load was twice that of the other X-ray technicians in Whitney 7; I worked that service alone, without supervision, with post-operative patients who were always in great pain. I tried to be as gentle as possible while still doing my job...."

 (Reich Aff. § 11)

 She also states:

(t)he fracture division grew so much that they had to get ... mammography out of that area. The two couldn't be done and the fracture division ... got so congested that there was ... just double the amount of patients that was normally ... you could handle in fact tripled, I guess it was much more than could be handled the only help I had was always a student with me....

 (Reich Dep. 44-45)

 In May 1977, Ms. Reich's "Performance Appraisal" for the year rated her "above standard," and described her as a "good technician." In the category "quantity of work," she received the highest of five possible ratings "(consistently) turns out more than demands of the job" and her evaluator added that she "keeps up well with heavy work load in K-7 Fracture area." For "work management," her rating was "less than normal supervision required to keep pace with work flow ...," and the evaluator added "very little supervision in this area." For "extradepartmental relationships," however, she was rated as "overshy or overbearing in dealing with people. Manner and language imply lack of interest or sensitivity." Her evaluator added: "perhaps it is the demands of the area but Miss Reich must show more consideration for patients than she has been." (Skuchko Ex. A)

 Mr. Skuchko also claims that in October 1977, the physician in charge of the hospital's Fracture Service asked Mr. Skuchko to transfer Ms. Reich because of her abusive conduct toward patients. Mr. Skuchko claims that he could not transfer her because "all other departments refused to accept her because she treated patients badly." Ms. Reich denies this allegation. Indisputably, however, during October and November 1977, the hospital received three complaints from patients about Ms. Reich. A patient named Mulligan stated that Ms. Reich had been rude. Ms. Betty Shain complained that Ms. Reich verbally abused her, and treated her roughly, bruising her left elbow. Ms. Kathleen Cherry complained that Ms. Reich had treated her rudely and disrespectfully. The complaints are summarized in a report from the patient services administrator to Mr. Skuchko, the manager of radiology. *fn4" (Skuchko Aff. PP 12-13 & Ex. C, D)

 Consequently, at the request of the head of the Fracture Service, Ms. Reich was transferred out of that department to another floor. She worked there, as an X-ray technician, for one week, and then submitted her resignation. At that point, Mr. Skuchko decided to allow her one more opportunity to continue working in the Fracture Service. He issued her a formal written warning, pursuant to hospital personnel policies, *fn5" that stated: "(s)hould there ever be another complaint from a patient against Ms. Reich, it will result in her immediate dismissal." Ms. Reich signed the warning to acknowledge her understanding of it, and did not grieve or complain about it to anyone. (Reich Dep. 46-57, Skuchko Aff. P 14 & Ex. E)

 On June 26, 1978, Ms. Reich was the subject of a fifth complaint of abusive treatment. The mother of a child whom Ms. Reich had X-rayed reported that Ms. Reich dropped the child's broken arm on the X-ray table, and ignored his subsequent expressions of pain. The hospital immediately suspended Ms. Reich, pending an investigation of the complaint. Mr. Skuchko and a representative of the Personnel Department looked into the matter and concluded that the complaint was valid. On June 30, 1978, Ms. Reich was terminated, effective June 29, 1978. The hospital informed Ms. Reich of her termination on July 3, 1978. (Skuchko Aff. P 15-17)

 Ms. Reich had abdominal surgery in 1976, and, following her written warning in December 1977, she experienced abdominal pains and muscle spasms. Her doctor diagnosed these as a nervous condition and sent her to a psychiatrist associated with the hospital. He prescribed an anti-psychotic drug for Ms. Reich in May 1978. On July 27, 1978, Ms. Reich voluntarily admitted herself to the hospital's psychiatric clinic. She was suffering an adverse reaction to the drug and ...

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