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March 16, 1992

MARION JENNINGS, Individually and on behalf of all other persons similarly situated, Plaintiff, against NEW YORK STATE OFFICE OF MENTAL HEALTH and NEW YORK STATE OFFICE OF THE STATE COMPTROLLER, Defendant.


The opinion of the court was delivered by: GERARD L. GOETTEL


 This case, one of first impression in this circuit, explores the tension between the privacy interests of mental health patients housed in New York State facilities and the rights of Security Hospital Treatment Assistants to bid for assignments regardless of their gender as guaranteed by their collective bargaining agreement and secured by Title VII.


 Mid-Hudson Psychiatric Center "MHPC") is a facility run by the New York State Office of Mental Health ("OMH"). It is a secure facility which houses the criminally insane, individuals accused of crimes but found incompetent to stand trial, and individuals who were previously housed in other OMH facilities as a result of civil commitments and thereafter became too dangerous for that type of environment, necessitating confinement in a more secure facility. MHPC has approximately 240 male and 40 female patients who are housed in wards by gender. Patient care at MHPC is accomplished via a "treatment team" consisting of registered nurses, medical doctors, psychiatrists, social workers, occupational therapists, recreation therapists and Security Hospital Treatment Assistants.

 Class representative Marion Jennings is one of 250 Security Hospital Treatment Assistants ("SHTA") employed by MHPC. The job description for SHTAs indicates that these employees bear responsibility for both security and therapy. They must maintain order in groups and prevent injury to persons and property, apply restraints to patients on physician's orders, assist nurses and physicians in administering medication, feed, clothe and clean patients as required, assist patients in personal hygiene, participate in patient recreational, occupational and other therapy activities, escort and transport patients, and make and record observations about patients. In addition, when patients are sleeping, SHTAs are responsible for checking them in their beds every half hour except when a patient has been placed on special precautions requiring checking every fifteen minutes. Four shifts of SHTAs are scheduled every day.

 The SHTAs are members of Local 2655 which is affiliated with New York State Inspection, Security and Law Enforcement Employees District Council 82, AFSCME, AFL-CIO ("Council 82"). In 1985, OMH and Council 82 negotiated a memorandum of understanding which provided that SHTAs would have the right to bid by seniority for job assignments which included shift and building assignments. In December 1988, MHPC's Executive Director issued a policy which required that at least one SHTA of the same gender as the patients be present on the ward. *fn1" Available positions are now specifically designated as "male", "female", or "open" depending upon the staffing requirements at the time of the job opening. Thus, if a female SHTA desires a position which has been designated as "male", she is precluded from bidding for that position by virtue of her gender. In addition, this policy requires that, on occasion, SHTAs be temporarily placed in other ward assignments in order to ensure that an SHTA of the gender as the patients is present on the ward. *fn2" Overtime assignments are also affected by this new policy. Where, formerly, voluntary overtime was assigned on the basis of seniority, now, if staffing so requires, gender can be determinative of whether a volunteer receives overtime at any given time. *fn3"

 On December 15, 1988, the male ward in which Marion Jennings, lead plaintiff in this action, was working had only two female SHTAs assigned. Because it was a male ward, another SHTA, also male, was assigned from the float pool to work there. When the need for another SHTA arose in another building, Jennings was assigned because she had less seniority than the other female SHTA. The male SHTA had less seniority than Jennings but could not be reassigned because his presence was required on the male ward by the gender policy. Jennings returned to her usual position during that same shift.

 Jennings immediately filed a grievance with her union, which was denied the same day. She then escalated her grievance and, again, it was denied on the merits. After arbitration of the grievance, as required by the collective bargaining agreement, the arbitrator found no discrimination based on gender.

 Jennings then filed a Charge of Discrimination with the New York State Division of Human Rights ("SDHR"), asserting that she was improperly transferred from her bid position on December 15, 1988 because of her sex. At that time, she did not raise the issue of the gender-based staffing policy's effect on overtime for the SHTAs. The SDHR found no probable cause to believe that OMH had engaged in the complained of discrimination. On June 6, 1990, the Equal Employment Opportunity Commission determined that a Title VII violation had not been established. This lawsuit followed. In February 1991, we certified a class consisting of all SHTAs who are currently employed at Mid-Hudson. The class consists of roughly 250 members; the membership of the class changes as individuals enter and leave employment at Mid-Hudson.

 Since its filing, the complaint has been amended twice. The current version alleges that the class' rights under Title VII, 42 U.S.C. ยงยง 2000(e) et seq., have been violated by MHPC's institution of a gender-based assignment system. Specifically, plaintiffs allege that their contractual right to bid for certain positions in the hospital is limited by the hospital's gender-based assignment policy. They also allege that they have been and can be denied overtime work on the basis of their sex. The complaint states that the class representative, Marion Jennings, was reassigned from her bid position so that MHPC could satisfy its need for a female SHTA on another ward. It does not allege that Marion Jennings was denied overtime on the basis of her gender although it does assert that other class members have suffered this injury. *fn4" As relief, plaintiffs seek a judgment declaring that the staffing policy of MHPC is illegal.

 Both parties are now moving for summary judgment.


 Federal Rule of Civil Procedure 56(c) provides that the trial judge shall grant summary judgment if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. The threshold inquiry is whether there are genuine factual issues that must be resolved by a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Here, the parties both assert that the material facts in this case are undisputed and that the only issue to be resolved is their meaning. Where the summary judgment motions debate only the significance of undisputed facts, summary judgment is appropriate. Longo v. United States Postal Service, 953 F.2d 790 (2d Cir. 1991). In deciding whether the moving party is entitled to judgment as a matter of law, all inferences must be drawn against the moving party, United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962), and reasonable minds must not differ as to the import of the evidence before the court, Cable Science ...

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