Wernham v. Moore

• Decision Date: 06 November 1980
• Citation: 77 A.D.2d 262,432 N.Y.S.2d 711
• Parties: Michael A. WERNHAM, Plaintiff-Respondent, v. Right Reverend Paul MOORE, Jr., President of the Board of Managers; The Reverend James A. Gusweller, D.D., Executive Director; Richard F. Pease, Director of Child Care Division; Sidney Mack, C.S.W., Director of Group Homes; Episcopal Mission Society in the Diocese of New York/St. Barnabas Group Home, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 711

432 N.Y.S.2d 711

77 A.D.2d 262

Michael A. WERNHAM, Plaintiff-Respondent, v. Right Reverend Paul MOORE, Jr., President of the Board of Managers; The Reverend James A. Gusweller, D.D., Executive Director; Richard F. Pease, Director of Child Care Division Sidney Mack, C.S.W., Director of Group Homes; Episcopal Mission Society in the Diocese of New York/St. Barnabas Group Home, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Nov. 6, 1980.

Martin H. Zuckerman, New York City, of counsel (Ernest J. Collazo, New York City, with him on brief; Simpson, Thacher & Bartlett, New York City, attorneys), for defendants-appellants.

Sandra B. Durant and Jonathan A. Weiss, New York City, for plaintiff-respondent.

Before MURPHY, P. J., and KUPFERMAN, BIRNS, LUPIANO and YESAWICH, JJ.

MURPHY, Presiding Justice:

Upon this motion to dismiss for legal insufficiency, the complainant must be deemed to allege whatever can be implied from its statements by fair intendment. If the plaintiff is entitled to recover in any aspect upon the facts stated, the complaint is legally sufficient (Howard Stores Corp. v. Pope, 1 N.Y.2d 110, 114, 150 N.Y.S.2d 792, 134 N.E.2d 63). In deciding the motion, the copies of the Episcopal Mission Society (Society) Manuals appended to the complaint must be considered part thereof (CPLR § 3014).

Plaintiff alleges in the complaint that his employment with the Society began in 1967. In 1968, he purportedly became a "permanent employee" of the Society. In January of 1974, he was promoted to supervisor of the Society's first group home, Ebbets Field. On September 5, 1978, the plaintiff avers that he was terminated without just cause. On that date, the Society had terminated his employment because the group home had been left unattended at a time when plaintiff could not be contacted by telephone. Plaintiff asserts, inter alia, that he was then on authorized leave over the Labor Day weekend. Therefore, he maintains that his dismissal was without just cause.

Essentially, the plaintiff asserts that the Society and the directors did not follow the procedures set forth in the Society's Manuals in discharging him. In particular, Article XI, Section 2, of the Manual of Personnel Practices provides:

"Section 2-The Society reserves the right to dismiss any employee for incompetence, misconduct, failure to perform his duties, or other just cause."

Section 9 of the "Personnel Practices" in the Manual for Group Home Staff also provides:

"(9) Suspension and/or termination of employment shall occur when a worker is found incapable of working either because of misconduct, incompetence, or failure to perform duties adequately. In all cases except major violations, the worker will receive at least one written warning of his/her precarious situation. A meeting should be held to discuss the implications of this warning."

As the plaintiff mentions in his brief, the Society is required to publish the Manuals in compliance with the regulations of the Department of Social Services (18 N.Y.C.R. 441.4). Hence the plaintiff reasons that the criteria and procedure for discharging an employee of the Society must be enforced by this Court. It is his basic contention that the Society's action in this matter constituted "State action" rather than merely the private action found in earlier cases in this Department. (Chin v. A. T. T., 96 Misc.2d 1070, 410 N.Y.S.2d 737, aff'd 70 A.D.2d 791, 416 N.Y.S.2d 160, lv. to app. denied 48 N.Y.2d 603, 421 N.Y.S.2d 1028, 396 N.E.2d 207; Edwards v. Citibank, N. A., 100 Misc.2d 59, 418 N.Y.S.2d 269, aff'd 74 A.D.2d 553, 425 N.Y.S.2d 327.)

In discussing the area of "State action", the Court of Appeals has made the following relevant remarks (Sharrock v. Dell, 45 N.Y.2d 152, 158, 408 N.Y.S.2d 39, 379 N.E.2d 1169):

"Purely private conduct, however egregious or unreasonable, does not rise to the level of constitutional significance absent a significant nexus between the State and the actors or the conduct (see Civil Rights Cases, 109 U.S. 3, 11 (3 S.Ct. 18, 21, 27 L.Ed. 835)). This nexus has been denominated 'State action' and is an essential requisite to any action grounded on violation of equal protection of the laws or a deprivation of due process of law. Further, it is settled that where the impetus for the allegedly unconstitutional conduct is private, the State must have 'significantly involved itself' in order for that action to fall within the ambit of the Fourteenth Amendment (Reitman v. Mulkey, 387 U.S. 369, 380 (87 S.Ct. 1627, 1638, 18 L.Ed.2d 830))."

Consequently, even though a private institution is subject to state financial support and regulation, the institution's action in dismissing an employee is not...