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October 8, 1990


The opinion of the court was delivered by: Sifton, District Judge.


This is an action filed by plaintiff, Olga Lapir, against her former employer, defendant Maimonides Medical Center ("MMC"), and her union, defendant Local 1199, Drug, Hospital and Health Care Employees Union, RWDSU, AFL-CIO, pursuant to section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a). Plaintiff's "hybrid" section 301 complaint alleges that the MMC breached the collective bargaining agreement between the hospital and the union by terminating plaintiff's employment without good cause and that the union's failure to process plaintiff's grievance through arbitration constitutes a breach of its duty of fair representation. This matter is now before the Court on defendants' motions for summary judgment. For the following reasons, these motions are granted.

The following background information is essentially undisputed except as noted Plaintiff was employed by MMC as a blood bank technician from April 1984 until July 1987, when her employment was terminated as a result of an incident that occurred on July 10, 1987. On that day, Lapir was working an 11 a.m. to 7 p.m. shift in the main blood bank, where her job was to cross-match blood samples of patients with donated blood. At some point between 5 and 7 p.m., a Dr. Stanley Sprecher came to the blood bank requesting that special blood be set aside for his father, who was a patient at MMC and who had undergone surgery. Sprecher, who was not his father's doctor, identified himself as a member of a blood donor club, Bikur Cholim, who wished to locate some blood from this group for his father. Sprecher was told by the blood bank desk clerk or receptionist that she was unable to grant this request. At Sprecher's insistence, the clerk referred the matter to the lead technician on duty, a Mr. Bernard, who also advised Sprecher that his request could not be granted.

Although by her own admission, plaintiff at this point concluded that, granting Dr. Sprecher's request would violate hospital rules concerning the anonymity of donated blood and the confidentiality of blood donors, Lapir nevertheless sent Sprecher to the blood donor room, where lists of donors and kept. At the donor room, Sprecher told the clerk on duty. Ms. Lombardi, that a blood bank technician needed the Bikur Cholim donor list. Lombardi, after some deliberation with the nurse on duty, went to the blood bank to determine which technician needed this list. Lapir identified herself as the technician and took the list from the clerk. Lapir now claims that she concluded from the fact that the blood bank had produced the list that complying with Sprecher's request would not violate hospital rules.

Although in possession of the list, Lapir did not know how to access the computer to find an available unit of Bikur Cholim blood. According to Lapir's deposition, she and Sprecher went to the computer room and asked the technician, Brenda Jackman, for assistance. Jackman explained how to get a unit according to the desired blood type. Lapir then used the list and her own code to access the blood bank computer to get additional information about Bikur Cholim donors who had donated recently.

Lapir then went to the blood bank refrigerator to find the units from Bikur Cholim donors identified by the computer. Lapir located one available unit, took the unit from the shelf, and reserved it for the patient by placing a card on the unit and placing it on another shelf next to three units that had been specifically directed for the patient's use in the case of emergency. Sprecher was present while Lapir located the unit of blood.

According to Lapir, her assistant supervisor, Mr. Matellus, was present in the blood bank during this entire series of events and never told her to stop. At the same time, plaintiff acknowledged that she never spoke to him or asked for guidance or direction. Plaintiff's own papers give contradictory accounts as to the duration of the entire incident.*fn1

Plaintiff was fired shortly thereafter as a result of this incident. In an employee warning notice dated July 23, 1987, the MMC characterized Lapir's decision to allow Sprecher to accompany her to the computer room, to the computer, and to the blood bank refrigerator as:

  "[a] direct violation of all Blood Bank procedures as
  communicated to you and all other Blood Bank personnel at
  departmental meetings. Your action jeopardized the
  confidentiality of our Blood Bank procedures and therefore
  jeopardized our entire Blood Bank program."

The MMC's policies mandate that all blood donations be handled in a confidential manner. Thus, when blood is collected from donors, the donors are assigned a numerical code. This code and the blood type and pH factor are the only identifying marks put on the blood containers. To further enhance confidentiality, the MMC uses a different staff member to collect the blood than the staff member who matches and tests the blood. Blood is not identified by the donor's name either during storage or when given to the recipient. According to the MMC, assurances of confidentiality are essential to elicit candid responses from donors about their current health and past exposure to disease, such as AIDS or syphilis. Moreover, MMC believes that, if it could not assure the confidentiality of donor names and test results, many current donors would not donate.

Once donated, blood is generally stored in a common refrigerator until needed and is not identified by race, religion, ethnic origin or any other non-medical classification. The MMC asserts that the policy of generally accepting only homologous, anonymous blood and not allowing any segregation based on race, religion or other grouping is essential to ensure an adequate blood supply to all patients in need.

On June 16, 1986, MMC's blood bank adopted a written policy and procedure to permit designated blood donations as an exception to the general policies outlined above. The new policy dictated that blood can only be segregated if it is either a self-donation or a donation by a family member or friend to a designated patient who the donor knows is in need of blood. Called "a directed donation," such a donation exists only if at the time of donation the donor directs that his blood be used for that specific patient. This blood is then labeled, so as not to be confused with the generic, "homologous" blood pool. MMC's written procedure states that designated donors must donate their blood at least three days prior to use and are subject to all other routine practices of the blood bank.

According to David Bryan, the supervisor of the blood bank during plaintiff's employment there, all blood bank employees have been made aware of the policies with respect to blood donor confidentiality, which have been reemphasized with the advent of AIDS testing of all donated blood. At two meetings, July 31, 1985 and June 30, 1987, at which Lapir was present, these matters were called to the attention of blood bank employees. With respect to the prohibition against sequestering blood, Bryan also states that all blood bank employees were informed that only blood specifically designated for a particular patient may be set aside for that patient.

Two of Lapir's co-workers at the blood bank, Shirley Willoughby and Emmanuel Toussaint, state that they were made aware of the rules relating to confidentiality and designated blood either orally or in writing by either their supervisor or director. Toussaint confirms that Lapir was present at the July 1985 meeting at ...

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