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October 17, 1986

BERNARD WEINSTEIN, Commissioner of the Westchester County Medical Center, CHERYL GAINER, Acting Director of Nursing, ANN McKIERNAN, Acting Associate Director of Nursing, JEFFREY R. SWEET, Personnel Administrator, and the WESTCHESTER COUNTY MEDICAL CENTER, Defendants

The opinion of the court was delivered by: WARD


Plaintiff Alfreda Teague is a former employee of defendant Westchester County Medical Center (the "Medical Center"). *fn1" Teague contends that the Medical Center coerced her resignation, tendered on June 14, 1982, from the position she held as a psychiatric nursing care coordinator ("PNCC") and furthermore that the Medical Center terminated her on the basis of her age. Teague brought suit against the Medical Center and several of its officers and employees alleging two causes of action based on 42 U.S.C. § 1983 and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 21 et seq. The Court tried the action without a jury on August 23, 26 and 27, 1985. The following represent the Court's findings of fact and conclusions of law pursuant to Rule 52, Fed. R. Civ. P.


 Defendant Medical Center hired plaintiff, who was born on March 12, 1922, in the fall of 1970 as a supervising nurse on a per diem basis. She became an administrative head nurse in 1971 and a primary supervisor in 1973. Teague worked steadily until August 6, 1978 when she suffered a work-related back injury while subduing a patient. Plaintiff was absent from work recuperating from the injury until May 1979. Before her injury, Teague had worked the day shift except for those few occasions when she temporarily covered the night shift for other supervisors.

 During plaintiff's absence, the Medical Center hired defendant Cheryl Gainer as the Acting Director of Nursing. When Teague returned to work on May 20, 1979, Gainer told her that for the needs of the division she was being assigned to the 3:00 p.m. to 11:30 p.m. evening shift. Teague contends she was overworked on the evening shift since, with fewer employees on duty, the evening supervisor had to exercise greater skill and experience. She further asserts that her arbitrary reassignment" to the evening shift with its heavier workload was taken in retaliation for her long period of injury absence in that several other PNCCs who had less seniority than she should have been reassigned to evenings before she was. Plaintiff fled a grievance under the collective bargaining agreement procedure concerning her reassignment. After reviewing the grievance, First Deputy Commissioner George H. McCoy found the reassignment "appropriate in order to adequately meet the total need of the psychiatric nursing staff." Plaintiff's Ex. 4.

 Following Teague's return, a sporadic series of incidents culminating with a fight between two staff members on Teague's shift the night of June 4, 1982 led defendant Gainer to call a disciplinary meeting at which she sought Teague's resignation. Because defendants contend these incidents underlie and justify Teague's dismissal, the Court will briefly review them.

 On September 12, 1980 around 9:00 p.m. Teague noticed Dr. Wolfman attending a patient named "Timmy" who was being restrained with a straitjacket, euphemistically referred to throughout trial as a camisole. *fn2" Later that evening, Teague saw Timmy sitting next to Dr. Wolfman but no longer wearing the camisole. Teague testified that although she had not been involved with the decision to remove the camisole, she had nevertheless removed it from Timmy's room and placed it in a locked supply closet to which only nursing supervisors had access. After locking the camisole in the closet, Teague informed the duty nurse that restraining a child in a camisole without a valid doctor's order was both illegal and unethical and that doing so could subject her to a malpractice claim.

 On September 23, 1980, Gainer met with Teague to discuss her decision to place the camisole in the locked supply closet. Gainer told Teague that she had interfered with a treatment plan, which had included appropriate use of a camisole, formulated by the multidisciplinary team responsible for Timmy's treatment and suggested that her actions reflected personal convictions on child abuse. Gainer placed a rebuke in Teague's record. Although the parties contest whether Teague responded to or was allowed to respond to Gainer's assertions during the September 23 meeting, Teague later submitted a lengthy memorandum outlining New York's Mental Hygiene Law, see N.Y. Mental Hyg. Law § 33, and explaining why the treatment plan that had been adopted for Timmy did not comply with the law. Plaintiff's Ex. 9. Gainer commended Teague for her thorough research, but refused to expunge the rebuke from Teague's record because Teague had not reviewed Timmy's treatment plan before locking the camisole in the supply closet and therefore could not have known whether the plan complied with New York law.

 Several months later, on April 4, 1981, Teague posted on a lamp a brief note concerning Pat Joseph, a licensed practical nurse ("LPN") employed by the Medical Center.

 Please do not use Pat Joseph on

 2 So. or everyone will go home! !


 and that's no idle threat.

 Plaintiff's Ex. 5. Gainer rebuked Teague in writing for her "unprofessional and unacceptable" conduct and requested that she refrain from such casual communications even among her peers. Plaintiff's Ex. 6.

 Teague's methods of communication continued to trouble Gainer and her successor Ann McKiernan. McKiernan expressed her concern in a memorandum dated May 20, 1982, in which she pointed to three specific instances where Teague had included in certain reports comments that McKiernan felt were inappropriate value judgments. Plaintiff's Ex. 8. McKiernan apparently spoke with Teague in person several times about her method of expressing herself as well, but neither the number nor the timing of those conferences appears in the record.

 The incident that finally precipitated the formal disciplinary hearing of June 9, 1982 took place five days earlier on June 4, 1982 when a fight involving an orderly Ben Gamble and Karen Goldberg, one of the shift nurses occurred while Teague was on duty as a supervising nurse. Goldberg apparently had complained to Teague earlier that evening of the tension between her and Gamble, but Teague had deferred acting on Goldberg's request that she remove Gamble from the ward while she attended other matters which she deemed to be more urgent. The fight broke out in the interim.

 On June 9, 1982, plaintiff was told to report that afternoon to the main nursing office for a meeting with Gainer, which she learned would be a disciplinary meeting. After learning the purpose of the meeting, Teague paged Sharon Fuller and told her that because this would be a disciplinary meeting she wanted Fuller to attend the meeting as her union representative to insure that any disciplinary action that might be taken then complied with the collective bargaining agreement.

 Fuller accompanied Teague to the afternoon meeting as did her attorney Monroe Yale Mann. Gainer opened the meeting by stating that she wished to review carefully what she considered a pattern of substandard performance by Teague. Gainer went on to note that she had discussed previously with Teague her inability to identify and solve problems, actions Teague had taken that undermined Medical Center policies, trouble Teague had handling nursing aides on the evening staff, and finally support Teague had given the nursing aides against the nursing staff. See Plaintiff's Ex. 17. Plaintiff's counsel Mr. Mann interrupted Gainer's elaboration of her accusations several times with his own comments, but he asked her no questions. Gainer asked Teague directly whether Karen Goldberg had requested that Teague intervene before the fight erupted on June 4, 1982. Mr. Mann directed Teague not to answer this question. When Mann then asked Gainer to substantiate her charges with specific facts, Gainer simply replied that she had facts to support her charges. Upon finishing her review, Gainer asked Teague to resign.

 After Gainer had called for her resignation, Teague stepped out of the room to speak with Mann and Fuller. Fuller explained to Teague that if she was fired she would have access to the grievance procedure as set forth in the collective bargaining agreement but that if she resigned she would not. Fuller, Teague and Mann returned to the meeting. Gainer again asked Teague to resign and stated that if she did, no record of the June 4 incident would appear in her personnel folder. Fuller, Teague and Mann again left the room. Fuller reiterated her expectation of Teague's rights under the grievance procedure. Fuller returned to the meeting room alone and negotiated five days with pay for Teague to make her decision. Teague turned in her keys and identification card. She agreed not to call any employees on the evening shift while they were working.

 Teague asserted during trial that defendants presented her the choice of resigning with retirement benefits and accrued time or of being fired and losing the retirement benefits. Gainer testified that in conducting the meeting and in recommending disciplinary action against Teague she followed the procedures set out in the collective bargaining agreement between the county and the nurses association. She further testified that she believed that when she had asked for Teague's resignation she had had cause to do so. By the weight of the credible evidence, including the testimony of Gainer, McKiernan, Jeffrey Stewart, the Medical Center's Personnel Director, and Teague's own ...

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