502 F.2d 631 (2nd Cir. 1974), 208, Lombard v. Board of Ed. of City of New York

Docket Nº:208, Docket 73-2057.
Citation:502 F.2d 631
Party Name:John F. LOMBARD, Plaintiff-Appellant, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, and John A. Murphy,Defendants-Appellees.
Case Date:July 22, 1974
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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502 F.2d 631 (2nd Cir. 1974)

John F. LOMBARD, Plaintiff-Appellant,




No. 208, Docket 73-2057.

United States Court of Appeals, Second Circuit

July 22, 1974

Argued Dec 5, 1973.

Morris Weissberg, New York City, for appellant.

Leonard Koerner, New York City (Norman Redlich, Corp. Counsel, New

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York City, Stanley Buchsbaum, New York City, on the brief), for appellees.

Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge. [*]

GURFEIN, District Judge:

Plaintiff-appellant John F. Lombard appeals from an order of the United States District Court for the Eastern District of New York, Anthony J. Travia, J., dismissing his complaint against the New York City Board of Education and one John A. Murphy for failure to state a claim upon which relief can be granted and denying as moot his application that pending final disposition of his claims he be granted a preliminary injunction reinstating him as a teacher in the public schools. For permanent relief Lombard seeks from the Board of Education reinstatement as a teacher and an award of all back pay due him. In addition, Lombard seeks money damages from Murphy, the principal of the school where appellant taught, alleging that the principal, by filing false reports with the Board of Education and also by requesting and coercing parents and students to write false reports, had initiated the administrative process which led to and resulted in the discontinuance of Lombard's probationary appointment. This suit is brought under 42 U.S.C. 1983 1 with jurisdiction predicated on 28 U.S.C. 1343(3), (4). There was no opinion below.

Appellant Lombard raises several constitutional claims on this appeal. He contends that he was denied his first amendment rights, 2 and his fourteenth amendment rights to due process under the United States Constitution when his employment as a probationary teacher was terminated by the New York City Board of Education without his first having received written reasons supporting that termination and an evidentiary hearing thereon. He also argues that he was denied his fourteenth amendment rights when the Board of Education disqualified him from teaching with his substitute license without first providing him with written reasons for the disqualification and without granting him an evidentiary hearing.

Appellees Board of Education and Murphy here, as they did in the court below, maintain that res judicata bars all of Lombard's constitutional claims on the ground that he had a full opportunity to raise all the issues presented to the federal court in state proceedings he had brought to challenge the termination of the probationary appointment. The Board also argues that the appellant was not denied due process as he did not make out a claim that he had been deprived of any fourteenth amendment rights. 3

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The facts follow:

On November 1, 1966, the plaintiff-appellant was assigned as a regular substitute teacher in the New York City public school system to teach at Public School 151 in Queens, New York. He taught as a regular substitute teacher for one year and received a satisfactory rating from his principal, John A. Murphy. On August 11, 1967, the appellant was granted a regular license for a probationary period of three years, effective September 6, 1967. The appellant received credit for one-half year of substitute teaching and therefore his probationary period expired and his permanent appointment became due on March 8, 1970. For his first year of teaching as a regularly licensed teacher in Public School 151, Lombard received a satisfactory rating from his principal.

During his second year as a regular teacher, the 1968-1969 academic year, the principal at Public School 151, John A. Murphy, submitted a report to the Board of Education on March 28, 1969, recommending that the appellant's probationary appointment be discontinued and that he be directed to submit to a medical examination to determine his fitness to teach. In this report and in a subsequent letter of May 5, 1969, the principal enumerated the alleged factual bases for his recommendation that Lombard's probationary appointment be discontinued and that Lombard be required to undergo a medical examination.

Murphy indicated that the teacher had committed acts and had made statements showing prejudice against black pupils, that Lombard had engaged in bizarre acts such as kicking students, that he had used obscene language, that he had violated several rules of the school, including failure to punch the time clock properly, and that he had frequently complained that the heat in his classroom was insufficient.

Lombard's complaint, on the other hand, challenges the principal's motivation for recommending the medical examination and the discontinuance of the appellant's probationary appointment and further denies the substance of the charges made by Murphy. Lombard, describing the aforementioned charges made against him by Murphy as 'false,' alleges that those charges were made 'in bad faith and in retaliation and revenge for' certain acts performed by Lombard.

These acts which Lombard claims provoked Murphy to pursue a vendetta against him include complaints by Lombard to Murphy about insufficient heat in the classroom, Lombard's filing of grievances in response to the principal's refusal to allow appellant to examine his own personnel file and the principal's wrongful withholding of appellant's check from him for nine days, Murphy's refusal of the appellant's request that the Chapter Chairman of the United federation of teachers in his school be allowed to accompany the appellant to a conference with an assistant principal, and the appellant's submission of written reports which described incidents of disorderly conduct and obscene language used by black pupils.

In May of 1969, the appellant was examined by two staff physicians of the Board of Education and in June of 1969 by a psychologist. The appellant was found to be suffering from an 'emotional upset that is of recent origin and is of a paranoid nature.' Pursuant to these findings and without a hearing, the appellant was given an involuntary leave...

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