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BANNERJEE v. PAPADAKIS

March 22, 1984

DR. JOSEPHINE FLORENCE BANNERJEE, M.D. Plaintiff, against LYCOURGOS PAPADAKIS, M.D., GREENPOINT HOSPITAL, SYDNEY GERSTLER, individually and as Administrator of Brooklyn Jewish Medical Center, ASSOCIATION OF SALARIED PHYSICIANS, COSIMO BASIRICO, M.D., individually and as President of Association of Salaried Physicians, NEW YORK CITY HEALTH AND HOSPITAL CORP., JAY KRIEGAL, Individual and as President of Brooklyn Jewish Medical Center, DAVID DIAMOND, Individually and as Attorney for Brooklyn Jewish Medical Center, Defendants.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Court

 Plaintiff seeks four million dollars in this action, in which she alleges violations of § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), as well as 42 U.S.C. §§ 1983, 1985, and, apparently, New York's common law of fraud. Defendants Kriegel and Diamond have moved to dismiss. Fed. R. Civ. P. 12(b)(6). For the reasons developed below, the motion is granted.

 The complaint alleges the following facts. Plaintiff was employed as a pathologist at defendant Greepoint Hospital ("Grenpoint"), a municipal hospital owned and operated by defendant New York City Health and Hospital Corporation ("NYCHHC"). Greenpoint is affiliated with Brooklyn Jewish Medical Center ("BJMC"). Complaint PP2-3.As a Greenpoint employee, plaintiff is represented by defendant Association of Salaried Physicians ("Union"), which has a duty to fairly represent plaintiff and to protect her rights under a collective bargaining agreement. Id. PP5-6.

 Defendant Dr. Papadakis was Director of Pathology and was plaintiff's supervisor at Greenpoint. In early 1978, technicians at Greenpoint reported to defendant Dr. Gerstler, Greenpoint's administrator, that Papadakis was violating NYCHHC rules by using Greenpoint facilities for private practice, and by paying his secretary a full salary though she only worked part time. Papadakis accused plaintiff of reporting the illegal conduct and began to harass her. Complaint PP8, 16-18.

 Papadakis reduced plaintiff's position from full-time to 20 hours per week. After complaining to the Union, plaintiff was reinstated to her full-time position. Six months later, in April, 1979, plaintiff was notified that her position would be reduced to 30 hours per week, commencing in July, 1979. Once again, plaintiff complained to the Union.This time, however, defendant Dr. Basirico, President of the Union and Acting Director of Greenpoint's Department of Medicine, refused to file for arbitration or otherwise act on plaintiff's behalf. Complaint PP19-25.

 With Papadakis continuing to harass her, plaintiff again demanded arbitration, and the Union again refused. After this refusal, the time period lapsed for demanding arbitration. Then, on February 1, 1980, Papadakis reduced plaintiff's position to 20 hours per week. Complaint PP28-33.

 Plaintiff responded by filing a complaint with the "Inspector General" (the Complaint does not further identify him), charging Papadakis with various violations of NYCHHC rules. Additionally, the Union filed a timely demand for arbitration to protest the latest reduction in plaintiff's position.

 At that arbitration Union president Basirico and defendant Diamond, an Administrator of BJMC, advised plaintiff to resign, because she would not be rehired for the following year. Additionally, Papadakis and Greenpoint told plaintiff that Papadakis would not work with her and that no job would exist for her at Greenpoint as of July, 1980. Plaintiff says these were false representations. Complaint PP37-40.

 To induce plaintiff to withdraw her charges against Papadakis, defendants Basirico and Gerstler entered into a settlement agreement with her. Plaintiff would, inter alis, resign her position and withdraw all charges against Papadakis. In return, plaintiff would receive $19,000, her file would be purged of all derogatory material, and she would receive letters of recommendations from Papadakis and Greenpoint. Plaintiff then resigned. Complaint PP40-42. *fn1"

 Discussion

 The statutes relevant to this action appear only as jurisdictional allegations. It is almost impossible to discern from plaintiff's complaint the constitutional, statutory or common-law ground for each of plaintiff's three claims. Nevertheless, construing the complaint in terms most favorable to the pleader, Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1976), I perceive those claims to be the following.

 First, plaintiff alleges Basirico and the Union breached their duty of fair representation during plaintiff's arbitration proceedings with Greenpoint. Complaint P44-45.This claim can fairly be construed to include defendants Kriegel and Diamond only by incorporation of paragraph 12 of the complaint, which alleges that Kriegel and Diamond "conspired with defendants . . . Basirico and Union in the destruction of plaintiff's career."

 Plaintiff's second claim is that Papadakis entered into the settlement agreement "falsely and fraudulently," and "without any intention of abiding by said agreement." Papadakis's post-settlement actions, according to plaintiff, have prevented her from obtaining another position within NYCHHC. Complaint PP46-50. Giving this claim the ...


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